Terms and conditions of sales, delivery and payment
The following General Terms and Conditions of Sales, Delivery and Payment apply exclusively to all offers and contracts concluded with us, and also for future transactions. The applicability of the General Terms and Conditions of the buyer are hereby expressly rejected even if we fulfill the order of the buyer fully aware of the latter's General Terms and Conditions.
1. Offer and Conclusion
1.1 All the offers are unbinding, particularly with regard to price and supply possibilities. The customer may choose from a range of products and collect them in a so-called shopping cart using the button "add to shopping cart". With the button "send order" a binding offer to purchase the goods in the shopping cart is transmitted. Before sending the order, the customer may view and edit the data at any time. The order may only be released and transmitted after the customer accepts these terms and conditions by clicking on the button "Accept Terms and Conditions", thus registering the order. We then send the customer an automatic confirmation of receipt per email, in which the customer’s order is drawn up once again and which the customer may printout using the print function. The automatic confirmation of receipt solely documents that the customer’s order has been received; however, it does not incorporate the acceptance of the order. The contract is only realized upon our acceptance declaration, which is sent by separate mail.
1.2 We are entitled to rectify obvious errors or mistakes in the offers, order confirmations or invoices. Legal claims based on erroneously disseminated specifications that are obviously contradictory to our other sales specifications cannot be generated.
The prices drawn up on our website apply. The prices are inclusive of statutory VAT.
If items selected by the customer are not available when the order is placed, we inform the customer in a confirmation of receipt. Should the product not be available any longer, we shall refrain from an acceptance declaration. In such cases, a contract is not concluded. If the product defined in the order is only temporarily unavailable, we also inform the customer in the order confirmation. If delivery is delayed by more than two weeks, the customer is entitled to withdraw from the contract. Incidentally, we, for our part, are also entitled to cancel the agreement in such a case. Should the customer’s payment already have been received, the latter receives a refund without any delay whatsoever.
3.1.1 Delivery is effected at our own choice, for example supplier or off-premises warehouse, in customary packaging. Additional costs and risks, incurred by the demand of the buyer for an accelerated conveyance or other mode than chosen by the seller, are transmitted to the buyer.
3.1.2 Foreign shipments are effected FOB Tauberbischofsheim. Special packaging for sea and land transportation is at the expense of the buyer.
3.1.3 Delivery has been effected upon handing over the shipment to a carrier / forwarding agent, and also when made available for collection as agreed upon with the customer. The risk passes over to the buyer at this point, regardless of a possible insurance covering transportation risk by the seller. If shipping is delayed due to no fault of ours, the goods are stored and costs and risks are transmitted to the buyer. In the latter case our notification of readiness for shipment is equal to shipment.
3.4.1 The corresponding shipping costs are drawn up for the customer in the order form and are at the expense of said customer. The shipping of the goods is effected per parcel post. Should the customer want the consignment to be insured, the customer shall record this by selecting the respective mode of shipment in his/her order. The additional costs incurred are drawn up in the order form and are the responsibility of the customer.
4. Delivery periods and delivery delays
4.1.1 When all the technical questions have been clarified, the prerequisite for our delivery period to begin has been fulfilled. The extension of the delivery time does not entitle the buyer to cancel the contract or to claim damages. The buyer shall provide us with an appropriate extension of time, after our delay has already set in and after which the threat to reject acceptance may apply. After the expiration of the deadline, the buyer shall be entitled to withdraw from the contract. The buyer shall only be entitled to damages in lieu of performance amounting to the total of foreseeable damage subject to the provisions of Point 7, if the delay is due to intent or gross negligence. In all other cases the claim for damages is limited to 50% of the value of the goods that could not be delivered on time. Claims for damages or other claims of the buyer going beyond the limits drawn up above are excluded in all cases of delayed deliveries, even after the expiration of the extension time.
4.1.2 The delivery period has been complied with if the delivery item has left the plant upon completion of the delivery period or the readiness for shipment has been announced.
4.1.3 Operation or traffic hold-ups, fire damage, flooding, lack of labor power or raw materials, strikes, lock-outs, consignment disturbances, official orders as well as other unforeseeable impairments beyond the control of the supplier, entitle us to extend the delivery period for a reasonable time, at least for the duration of the disturbance or, should the disturbance last for over six weeks, to withdraw from the unsettled part of the contract respectively. In the latter case claims for damages of the buyer are excluded.
5. Notice of defects, rectification, documentation
5.1 Obvious defects shall be reported immediately upon receipt of the goods. After a period of two weeks following delivery of the goods, the latter are considered accepted and approved. Prevailing or slight technically unavoidable variances of quality, color or fittings may not be claimed. Should the customer be an entrepreneur, the latter shall notify an obvious or hidden defect within a period for two weeks following receipt of the goods, or detecting the defect respectively. The warranty period for goods granted by us to an entrepreneur is one year.
5.2 Should claims be qualified, we are committed to subsequent delivery of defect-free replacement goods within a reasonable time. Should no subsequent delivery ensue within a reasonable period, the buyer is entitled to demand a reduction of the purchase price or, only in the case of considerable defects, to claim damages in lieu of performance and/ or to withdraw from the contract. The setting of a subsequent delivery period by the buyer is unnecessary should we reject subsequent delivery or if a subsequent delivery is unreasonable.
5.3 Subject to the provisions of Point 7, the buyer is only entitled to damages in lieu of performance or a refund of expenses if the defect is due to our intent or gross negligence. Further claims are excluded.
5.4 The supplementary performance claims and subsequent claims of the buyer fall under the statute of limitations governed by §§ 478, 479 German Civil Code 12 months after transfer of risks.
5.5 The buyer is committed to document defects and goods which commit said buyer to accept the return of goods resold. The buyer is committed to surrender his/her documentation and the documents surrendered by his/her purchasers should such buyer claim against us by means of recourse according to §§ 478, 479 German Civil Code. The buyer is committed to pass on this documentation obligation to his/her purchasers provided said buyer is not a consumer.
6. Reservation of title
6.1 We reserve the title to the delivery item until all our receivables due from the business relation with the buyer, including the future receivables from contracts concluded at the same time or later, have been settled. This also applies when all receivables of the seller have been drawn up in a current invoice and the credit balance has been stricken and approved. The buyer is entitled to process and to sell the goods taking the following provisions into account.
6.1.1 The authorization of the buyer to sell goods subject to the reservation of title is terminated upon non-payment or when insolvency proceedings are instituted against the assets of said buyer. The further sale is only permissible if such sale contains the liens coupled to these conditions - particularly the receivables from third parties assigned in advance. The assignment of accounts receivable or the pledge of a security covering the goods subject to the reservation of title, and the assigned receivables respectively, is impermissible.
6.1.2 The buyer does not acquire the ownership to the new item by processing such item according to § 950 German Civil Code. Processing is carried out by the buyer for our account. When the goods subject to reservation of title are processed with other items belonging to the buyer or purchased under the so-called simple reservation of title according to § 455 German Civil Code, we acquire sole ownership of the processed product. If the goods subject to reservation of title are processed together with other goods that are also subject to extended reservation of ownership, we acquire joint ownership of the new items in relation to the invoice value of the other goods processed and which are subject to reservation.
6.1.3 The buyer hereby assigns the receivables from the resale of the goods, subject to reservation of title to us, even in the case of processed goods. Should the goods processed, subject to reservation, contain such items that either belonged to the buyer or had been supplied to the latter or had only been supplied in accordance with the simple reservation of title according to § 455 German Civil Code, the buyer assigns the entire purchase price to the seller. Otherwise, i.e. when pre-assignment to several suppliers coincides, we are entitled to the corresponding fraction of the respective purchase price claimed as ruled according to Point 6.1, ex. 2.
6.1.4 We shall not collect the assigned receivables as long as the buyer fulfills his/her payment obligations. However, the buyer is committed to inform us of third party assigned debtors, upon demand , and to provide them with the notification of the assignment. The buyer is entitled to collect the receivables as long as we do not instruct otherwise. The reservation of title also remains in force when individual receivables are drawn up in a current invoice and the balance has been stricken and approved.
6.1.5 If the securities existing due to the reservation of title exceed the receivables to be secured by 20 %, we shall release fully settled supplies as we deem fit.
6.1.6 We shall be informed immediately about the pledging of goods with the name of the pledgee. The buyer is committed to provide us with information on the inventory of unprocessed and processed goods we have supplied, about the resulting further receivables from the resale, proceeds and surrogate information and is to permit our authorised representatives an insight into his/her storehouse and business records. When filing insolvency or when instituting insolvency proceedings the buyer immediately provides us with the inspection possibilities drawn up in the above clause. The buyer's commitment to provide us with information is principally affected. As soon as the buyer has discontinued payment the latter shall, without any delay whatsoever, upon notification send us a list of the receivables due to assigned debtors together with the invoices. If the buyer does not comply with his/her commitments, we are entitled to demand damages amounting to the value of the securities and to demand that the goods under reservation of title be surrendered without granting any period of grace, to demand the assignment of the surrender of third party claims of the buyer respectively.
7. General liability clause
If not otherwise provided for in these terms and conditions, claims for damages and reimbursement of expenses of the buyer, no matter what legal reason, particularly according to §§ 280, 282, 283, 284, 286 and 311 German Civil Code are excluded. The limitation of liability and other limitations of our liability for intent and gross negligence do not apply to the extent to which they may be applicable, for instance, according to the product liability act or in cases of injury to life, body or health or for the acceptance of a guarantee or the violation of essential contractual provisions. However, damages are limited to the typical contractual, foreseeable damages provided intent or gross negligence can be excluded. Except in cases according to these GT&C a withdrawal from the contract by the buyer is only possible should we be at default.
8.1 The customer may pay by cash in advance.
8.2 The payment of the purchase price is due immediately upon concluding the contract. All payments shall be settled free of charge and, in the case of foreign currency, receivables at the official exchange rate on due date. Payments are considered settled on the day on which we can avail ourselves of the invoiced amount in cash and without a loss.
9. Place of performance and court of jurisdiction
9.1 The place of performance for our services is the headquarters of our company or the distributing warehouse as determined by us. The headquarters of the company are the place of performance for payments.
9.2 Tauberbischofsheim is the court of jurisdiction for all claims arising from contracts with registered traders, legal entities under public law, separate assets and persons governed by public law with no general court of jurisdiction. The court of jurisdiction, Tauberbischofsheim, is also then decisive if the domicile of the buyer is not known or if his/her residence or usual domicile has been moved abroad. If necessary, we are entitled to take action at the foreign court of jurisdiction of the buyer.
9.3 All disputes are dealt with and decided according to the law of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods.
10. Notes on data processing
10.1 In the scope of concluding contracts, we collect customer data. We thereby heed the rules and regulations of the German Data Protection Act and of the Tele Services Data Protection Act. Without the approval of the customer, the inventory and user data of the customer are only collected, processed and utilized, in as far as necessary, for the conclusion of the contractual relation and the availment of the invoicing of teleservices.
10.2 We shall not utilize the data of the customer for advertising, market research or for opinion research without prior receipt of approval from the said customer.
10.3 The customer is entitled, whenever he/she deems fit, to call-up, change or delete his/her data stored in hi/her profile under the button "my data". Otherwise, reference is made to the approval received from the customer and to the additional information on data collection, processing and utilization of the data protection declaration that can be called up via the button "Data protection" and can be printed.
11. The consumer’s right of revocation
11.1 Right of revocation
You can revoke your declaration of agreement to the contract within 14 days without stating reasons. This must be done in writing (e.g. by letter, fax, email). This set period begins after receipt of this instruction in writing but not before receipt of the goods by the recipient (or, if there are to be recurring deliveries of similar goods, not before receipt of the first partial delivery) nor before we have met our obligations to provide information pursuant to Art. 246 Section 2 in conjunction with Section 1 paras. 1 and 2 of the Introductory Act to the German Civil Code [EGBGB] and our obligations pursuant to Section 312 g para. 1 sentence 1 of the German Civil Code [BGB] in conjunction with Art. 246 Section 3 EGBGB. The set period for revocation is deemed observed if revocation has been dispatched in due time. Revocation is to be addressed to:
Di-Modell GmbH & Co. KG
11.2 Consequences of revocation
In the event of effective revocation, the services received by both sides must be returned and any usage surrendered (e.g. interest). If you are not able to return or surrender to us the service you have received or the usage you have made (e.g. benefits of utilisation), either in whole or in part, you must pay us compensation for loss of value to this extent. You only have an obligation to pay compensation for deterioration of the item insofar as such deterioration is the result of use of the item going beyond the examination of its features and functioning. “The examination of its features and functioning” is understood to mean the testing and trial of the item concerned in the same way as possible and customary in a retail outlet. Items which can be sent in a parcel are to be returned at our risk. You must pay the standard costs of return dispatch if the supplied goods complied with those ordered and if the price of the item to be returned does not exceed a figure of EUR 40.00 or if the price of the item is higher but you have not yet rendered counter-performance or made a contractually agreed partial payment at the time of revocation. In other cases, return dispatch is free of charge for you. Items which cannot be sent in a parcel will be collected from your premises. Obligations to return payments must be met within 30 days. For you, this set period begins when you send your statement of revocation; for us, it begins when we receive the same.
11.3 Goods which can be sent in a parcel are to be addressed as follows:
Di-Modell GmbH & Co. KG
Should a provision of the Terms and Conditions of Sales, Delivery and Payment be inoperable, the legal effectiveness of the other provisions is not affected.