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Terms and Conditions of the company sveru Sport & Vertrieb GmbH, Halle
§ 1 Scope
(1) These Terms and Conditions of Sale shall apply exclusively and only to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognise terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.
(2) These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as they are legal transactions of a related nature.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with §145 BGB, we can accept it within two weeks.
§ 3 Surrendered Documents.
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express written consent. These documents may not be made accessible to third parties unless we give our express written consent to do so. If we do not accept the orderer’s offer within the period of §2, these documents are to be returned to us immediately.
§ 4 Prices and payment
(1) All previous prices and conditions from our catalogues and brochures hereby lose their validity. Unless otherwise agreed in writing, our prices valid on the day of delivery shall apply plus value added tax at the applicable rate. Incidental costs of money and payment transactions shall be borne by the purchaser.
(2) Payment of the purchase price shall be made exclusively to one of the accounts stated on the invoice. The deduction of a cash discount is only permissible with a special written agreement.
(3) Unless otherwise agreed, the purchase price is to be paid within 14 days after delivery. In the event of late payment, interest on arrears shall be charged. The assertion of a higher damage caused by delay remains reserved. If an invoice is more than 10 days in arrears, all outstanding invoices shall become due immediately.
(4) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries which take place 3 months or more after conclusion of the contract.
§ 5 Set-off and rights of retention
The customer shall only have the right to offset if his counterclaims have been legally established or are undisputed. The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
(1) The start of the delivery period stated by us presupposes the timely and proper fulfilment of the customer’s obligations. We reserve the right to plead non-performance of the contract.
(2)If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the Buyer at the point in time at which he is in default of acceptance or debtor’s delay.
(3) In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
<(4) We shall be entitled to postpone and/or cancel our delivery obligation affected by this in the event of
– strike, lockout;
– other operational disruptions of any kind or subsequently occurring difficulties in the procurement of raw materials and supplies, in the dispatch or transport of the goods, unless we, our executive bodies or those vicarious agents to whom special management tasks have been assigned have caused this intentionally or through gross negligence;
– failure of correct or timely self-supply
– other circumstances for which we are not responsible.
If the hindrance to delivery in such cases lasts longer than 6 months without us having exercised the right to cancel our delivery obligation, then after expiry of a reasonable period of notice and to the exclusion of any further claims, the Customer shall have the right to refuse acceptance of the affected ordered quantity, unless we have offered a reasonable substitute solution.
(5) Further legal claims and rights of the customer due to a delay in delivery remain unaffected.
§ 7 Retention of title
(1) We reserve title to the delivered item until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract. The exercise of the reservation of title does not imply withdrawal from the contract. The goods and the claims replacing them may neither be pledged to third parties nor assigned or transferred by way of security before our claims have been paid in full.
(2) The customer is obliged to treat the purchased item with care as long as ownership has not yet passed to him. As long as ownership has not yet passed to him, the customer must inform us immediately by registered letter if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court costs and costs of a lawsuit in accordance with §771 ZPO (German Code of Civil Procedure), the purchaser shall be liable for the loss incurred by us.
(3) The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us the claims of the purchaser arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer shall remain entitled to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
(4) The processing or transformation of the object of sale by the customer is always carried out in our name and on our behalf. In this case, the customer’s expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of
processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against the purchaser, the purchaser also assigns to us such claims as accrue to him against a third party as a result of the combination of the reserved goods with a piece of real estate; we already accept this assignment now.
(5) We undertake to release the securities to which we are entitled at the request of the customer to a proportion which we consider to be large, insofar as their value exceeds the claims to be secured by more than 20%.
§ 8 Warranty and notice of defects as well as recourse/ manufacturer recourse
(1) Warranty rights of the purchaser presuppose that the purchaser has duly fulfilled his obligations to examine the goods and to give notice of defects in accordance with §377 HGB (German Commercial Code). Complaints must be made in writing within 8 days of receipt of the goods and do not release the customer from the obligation to pay. The decision to send subsequent deliveries is at our discretion.
(2) Claims for defects shall become time-barred 2 years after delivery of the goods supplied by us to our customer. The above provisions shall not apply insofar as longer periods are prescribed by law in accordance with § 438 Para. 1 No. 2 BGB (buildings and items for buildings), § 479 Para. 1 BGB (right of recourse) and § 634a Para. 1 BGB (construction defects). Our consent must be obtained prior to any return of the goods.
(3) If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
(4) If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
(5) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of the usability, in the case of natural wear and tear as well as in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
(6) Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s branch office, unless the transfer is in accordance with their intended use.
(7) The Purchaser’s right of recourse against us shall only exist to the extent that the Purchaser has not entered into any agreements with its customer which go beyond the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply accordingly to the scope of the Purchaser’s right of recourse against the Supplier.
(8) In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods at the time of the transfer of risk within the meaning of §444 of the German Civil Code (declaration by the seller that the object of purchase has a certain quality at the time of the transfer of risk and that the seller intends to be responsible for all consequences of its absence irrespective of fault), the rights of the purchaser shall be governed exclusively by the statutory provisions.
(9) A guarantee of quality or durability shall only be deemed to have been assumed by us if we have expressly declared its assumption in writing.
§9 Other Claims, Liability.
(1) Unless otherwise stated below, other and further claims of the customer against us are excluded. This applies in particular to claims for damages due to breach of obligations arising from the contractual obligation and from unlawful acts; any consequential damages are also hereby excluded. We shall therefore not be liable for damage that has not occurred to the delivered goods themselves. In particular, we are not liable for loss of profit or other financial losses of the customer.
(2) The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or executive employees, or culpable breach of material contractual obligations. In the event of culpable breach of material contractual obligations, we shall be liable – except in cases of intent or gross negligence on the part of our legal representatives or executive employees – only for reasonably foreseeable damage typical of the contract.
(3) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
§ 10 Infringement of third party rights.
If deliveries are made according to plans, drawings, models, analytical specifications or other information of the customer and if rights of third parties, in particular industrial property rights, are infringed thereby, the customer shall indemnify us against these claims upon first request.§ 11 Advice and information
Our suggestions for the use of our products and advice are given in accordance with our experience and the information provided by the purchaser. The examination and decision as to whether the goods are suitable for the intended use is the sole responsibility of the customer and lies within the customer’s exclusive sphere of responsibility. We do not guarantee the results to be achieved, nor do we guarantee that the property rights of third parties will not be infringed.
§ 12 Miscellaneous
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.
(3) Amendments and supplements to this contract must be made in writing. This also applies to amendments to this written form clause. Verbal subsidiary agreements have not been made.
(4) Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain valid.
§13 Right of withdrawal:
Right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving reasons.
The withdrawal period is fourteen days from the date of delivery.
To exercise your right of withdrawal, you must send us (sveru Sport & Vertrieb GmbH, Engelbergerstr. 19, 79106 Freiburg im Breisgau, Tel. +49 (0)761-76990837, Fax +49 (0)761-76990836) by means of an unequivocal statement (e.g. a letter
sent by post, fax or e-mail) about your decision to revoke this contract.
sveru Sport & Vertrieb GmbH
Engelbergerstr. 19 | 79106 Freiburg im Breisgau
Phone: +49 (0)7 61 – 76 99 08 36
Telefax: +49 (0)7 61 – 76 99 08 37
Management: Sven Rüprich
To comply with the cancellation period, it is sufficient that you send the notice of exercise of the
right of cancellation before the end of the cancellation period.
Consequences of the revocation
If you revoke this contract, we must reimburse you all payments that we have received from you,
including the delivery costs (with the exception of the additional costs resulting from the fact that
you have chosen a type of delivery other than the cheapest standard delivery offered by us
without undue delay and at the latest within fourteen days from the day on which the
notification of your revocation of this contract has been received by us. For this repayment
we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for