GTC
General Terms and Conditions (Fanshop)
1 Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as „GTC“) apply to all sales and deliveries of goods from the product range of the webshop („goods“) of Hubert Schmitz GmbH („seller“) to its customers.
1.2 Customers within the meaning of these GTC can be both consumers (§ 13 BGB) and entrepreneurs (§ 14 BGB), a legal entity under public law or a special fund under public law. Underlined provisions of these GTC do not apply to customers who are consumers.
1.3 Any terms and conditions of purchase referred to by the customer before/at the conclusion of the contract shall not apply if and insofar as they contradict these GTC. In any case, the customer’s terms and conditions of purchase shall only apply if the seller has expressly agreed to them; unconditional execution of the transaction shall not be deemed equivalent to the seller’s consent to the validity of the customer’s terms and conditions of purchase.
1.4 These GTC shall also apply to all future transactions with the customer, insofar as they are legal transactions of a related nature.
2 Offers and conclusion of contracts
2.1 Information on the seller’s website or other advertising representations by the seller do not constitute legally binding offers by the seller.
2.2 Ordering the goods by clicking on the „Buy now“ button in the seller’s web shop constitutes the customer’s binding contractual offer to the seller. The seller will confirm receipt of the customer’s order. The order confirmation does not constitute a binding acceptance of the customer’s contractual offer by the seller, unless the seller expressly declares this. A contract is concluded between the customer and the seller with the order confirmation by the seller.
2.3 The Seller is entitled to limit the order to a customary household quantity.
3 Prices and payments
3.1 Unless otherwise agreed between the parties, the current prices as listed in the webshop at the time of the customer’s order shall apply to the seller’s goods. The prices are to be understood as final prices and inclusive of statutory VAT.
3.2 Unless otherwise agreed, the prices of the goods are EXW (INCOTERMS 2020).
3.3 The customer will be charged a flat-rate shipping fee for the dispatch of the goods. The shipping costs are stated in the prices in the seller’s webshop.
3.4 The price of the goods and the additional shipping costs incurred are also indicated in the order form before the order is bindingly sent by the customer.
3.5 In the case of payment in advance or purchase on account, the invoice amount is due seven days after receipt of the invoice.
3.6 Upon expiry of the payment period in accordance with section 3.5 of these GTC, the customer shall be in default. During the period of default, interest shall be charged on the invoice price at the statutory default interest rate. We reserve the right to assert further claims for damages caused by default.
3.7 The Seller does not grant any discount on its invoices.
3.8 If the customer does not fulfil his payment obligations after conclusion of the contract, if payment delays occur, if he has suspended his payments, if he requests a deferment of payment or if concrete circumstances become known which justifiably call his creditworthiness into question, the seller shall be entitled to make his services still to be rendered dependent on the provision of a security or, at the customer’s discretion, on an advance payment in full.
3.9 The Seller shall only accept bills of exchange and cheques after prior agreement and only on account of performance. Bills of exchange and cheques shall be credited subject to receipt on the value date on which the seller can finally dispose of the equivalent value. All costs and expenses arising from this shall be borne by the customer.
3.10 The customer may only offset recognised, undisputed or legally established claims and assert any statutory rights of retention solely on the basis of such claims. Furthermore, the customer may only exercise a right of retention in respect of counterclaims based on the same service agreement.
4 Delivery and transfer of risk
4.1 Unless otherwise agreed, the Seller shall deliver the goods EXW (INCOTERMS 2020) if the place of delivery is not specified. The place of delivery is the Seller’s distribution centre Düsseldorfer Str. 4, 52525 Heinsberg.
4.2 If the Seller is responsible for the dispatch of the goods, the risk shall pass to the Customer as soon as the Seller has delivered the goods to the forwarding agent, the carrier or the person or organisation otherwise designated to carry out the dispatch.
4.3 Delivery periods specified by the Seller shall commence at the time of conclusion of the contract, as described in Section 2 of these GTC. If payment in advance has been agreed in an individual contract, the delivery period shall not commence before receipt of the advance payment due. If goods are indicated as being in stock in the seller’s web shop, the seller undertakes to dispatch these within 1 week of the conclusion of the contract. In the case of goods that are not in stock but can be ordered, the delivery time of the respective goods is determined by the information provided in the seller’s web shop. The delivery periods shall be extended in all cases by the period by which the customer fails to fulfil its obligation to the seller, the seller is entitled to a right of retention against the customer and exercises this right accordingly. The occurrence of a delay in delivery on the part of the Seller shall be determined in accordance with the statutory provisions. In the event of a delay in delivery, the Seller shall not be obliged to pay a contractual penalty and/or liquidated damages. The Seller’s liability for damages caused by delay shall be governed by the conditions set out in Section 8 of these GTC.
4.4 If the Seller is unable to meet bindingly agreed delivery deadlines for reasons for which it is not responsible (non-availability of the service), the Seller shall inform the Customer of this and at the same time inform the Customer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; the Seller shall immediately reimburse any consideration already paid by the Customer. A case of non-availability of the service in this sense is in particular the non-timely self-delivery by suppliers of the seller, if the seller has concluded a congruent hedging transaction, neither he nor his supplier is at fault or he is not obliged to procure in individual cases.
4.5 If the customer is in default of acceptance or violates other obligations to co-operate, the seller is entitled to demand compensation for the damage incurred by him in this respect. In the event of default of acceptance, the Seller shall be entitled to demand liquidated damages in the amount of 0.1% of the gross invoice value of the goods per day of default of acceptance, up to a maximum of 5% of the gross invoice value of the goods. The seller shall remain entitled to demand compensation from the customer for any further damages. In the event of default of acceptance, the material and price risk, in particular the risk of accidental loss or accidental deterioration of the goods, shall pass to the customer. Further contractual or statutory claims remain reserved.
5 Force majeure
5.1 In cases of force majeure, the Seller is entitled to extend its delivery dates and deadlines depending on the scope and duration of the force majeure event and its consequences for the period of the impediment to performance, without granting the Buyer a right of cancellation of the contract or a claim for damages. The Seller shall not be in default for the period of the justified extension of the delivery date and deadlines. Events of force majeure are unforeseeable events as well as events which – insofar as they could have been foreseen – lie outside the sphere of influence of the seller. These include, in particular, natural disasters, monetary, trade policy or other sovereign measures, epidemics and pandemics, strikes, lockouts, significant operational disruptions (e.g. fire, machine breakdown, raw material or energy shortages or shortages, regardless of the cause). -The Supplier shall not be liable for any disruptions to operations (e.g. fire, machine breakdown, shortage or shortage of raw materials or energy for whatever reason, including, in particular, supply bottlenecks, performance disruptions or other supply difficulties of raw material suppliers, disruptions in the packaging and handling process or transport bottlenecks) and obstruction of transport routes that are not only of a short-term duration and make delivery significantly more difficult or impossible.
5.2 Delays in delivery and the reasons on which they are based must be notified to the customer.
5.3 If the impairment due to an event of force majeure lasts longer than 2 months, each contracting party shall be entitled to withdraw from the contract. If the customer has already paid the entire invoice price in advance, he shall be entitled to reclaim the invoice price from the seller. The customer is only entitled to withdraw from the contract under the aforementioned conditions with regard to the unfulfilled part of the delivery if a partial delivery has already been made, unless the customer has no interest in the partial delivery already made. Payment for a partial delivery that has already been made may not be refused due to the unfulfilled part of the delivery. If, however, the customer has already paid the entire invoice price in advance, he shall be entitled to demand a pro rata refund of the invoice price from the seller for the unfulfilled part of the delivery. Further claims of the customer are excluded.
6 Retention of title
6.1 In the case of consumers, the seller retains title to the goods until the purchase price has been paid in full.
6.2 Otherwise, the Seller retains title to the goods until all claims arising from an ongoing business relationship have been settled in full. If the value of the reserved goods exceeds the claims to be secured from the current business relationship by 25%, the seller is obliged to release the reserved goods at the customer’s request.
6.3 The customer is obliged to treat the goods with care for the duration of the retention of title. The customer must inform the seller immediately in writing of all access by third parties to the goods, in particular of enforcement measures, as well as of any damage to or destruction of the goods.
6.4 The customer is authorised to resell the goods in the ordinary course of business. He hereby assigns to the Seller all claims in the amount of the invoice amount that accrue to him from the resale to a third party. The seller accepts the assignment. After the assignment, the customer is authorised to collect the claim. The seller reserves the right to collect the claims himself as soon as the customer does not properly fulfil his payment obligations and is in default of payment. The handling and processing of the goods by the customer is always carried out in the name and on behalf of the seller. If the goods are processed, the seller shall acquire co-ownership of the new item in proportion to the value of the goods delivered by the seller. The same applies if the goods are processed or mixed with other items not belonging to the seller.
7 Warranty
7.1 The customer must inspect the delivered goods immediately after delivery in accordance with the provisions of § 377 HGB (German Commercial Code). Obvious defects must be reported immediately. The date of receipt of this complaint by the seller shall be decisive. Defects that cannot be discovered within this period, even with the most careful inspection, must be reported immediately after discovery. If a complaint is not made in good time, the customer is excluded from asserting warranty claims unless the defect in question was fraudulently concealed by the seller. The customer shall bear the burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notification of defects.
7.2 The Seller shall have the right to inspect and test the goods complained about in the event of any notification of defects. The customer shall grant the seller the necessary time and opportunity to do so. The Seller may also demand that the Customer returns the rejected goods to the Seller at the Seller’s expense.
7.3 If the Customer is a consumer, the Customer’s warranty claims against the Seller shall be governed by the statutory provisions, unless otherwise stipulated in Section 8 of these GTC.
7.4 The goods delivered by the Seller are free of defects if they fulfil the subjective requirements (§ 434 para. 2 BGB) and the assembly requirements (§ 434 para. 4 BGB) at the time of the transfer of risk. On the other hand, it is not a prerequisite for the goods to be free of defects that they fulfil the objective requirements of Section 434 (3) if and insofar as the customer and the seller have reached an agreement on the subjective requirements of the goods.
7.5 Information in information material provided to the Customer or on the Seller’s website as well as product-describing information shall under no circumstances constitute guarantees for a particular quality or durability of the goods; such quality or durability guarantees must be expressly agreed in writing.
7.6 Natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling or due to special influences not assumed under the contract shall also not constitute a defect. If improper modifications or repair work are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.
7.7 Subsequent fulfilment shall be at the discretion of the seller, either by repair or replacement. If the customer is a consumer, he has the right to choose subsequent fulfilment.
7.8 The customer must make the goods available for the purpose of subsequent fulfilment and grant the seller the reasonable time and opportunity necessary for subsequent fulfilment. The Seller undertakes to carry out the subsequent fulfilment within a reasonable period of time from the date on which the Customer informed him of the defect and without significant inconvenience to the Customer.
7.9 If the Customer asserts a defect although there is no defect, the Seller shall be entitled to reimbursement of the internal and external expenses incurred. These expenses shall amount to EUR 50.00, unless the customer can prove that the expenses were lower.
7.10 If the supplementary performance fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or cancellation of the contract (withdrawal). However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the customer shall not be entitled to withdraw from the contract.
7.11 Unless otherwise agreed, the customer’s warranty claims for defects against the seller expire one year after delivery of the goods. This shall not apply in the event of fraudulent intent on the part of the seller or if the seller has assumed a guarantee for the quality of the goods. The provisions of Section 8.1 of these GTC shall apply to the limitation of the limitation period for claims for damages due to defects. The above also does not apply to claims for reimbursement of expenses (§ 445a BGB) and other warranty claims of the customer in accordance with § 437 BGB in the case of so-called supplier recourse (§ 478 BGB), where § 445b BGB applies.
7.12 If the Seller has fulfilled its obligation to provide subsequent fulfilment by means of a replacement delivery or rectification of defects, the limitation period shall only begin to run again insofar as it relates to the same defect or the rectified part of the rejected goods. However, the limitation period shall not recommence if the seller expressly reserves the right to provide subsequent fulfilment only as a gesture of goodwill, to avoid disputes or in the interest of the continuation of the business relationship.
8 Liability
8.1 Unless otherwise stipulated in Section 7 of these GTC, the Seller shall only be liable for damages due to the breach of contractual or non-contractual obligations in the event of intent and gross negligence. Liability for slight negligence is excluded, unless
- the damage is due to injury to life, limb or health, defects in the goods,
- to the extent that liability exists for personal injury and property damage in accordance with the provisions of the Product Liability Act,
- defects that have been fraudulently concealed or if the seller has assumed a guarantee for the quality of the goods, or
- the breach of material contractual obligations. An essential contractual obligation is an obligation whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely. In these cases, the seller’s liability for property damage and financial loss is limited to the amount of reasonably foreseeable damage typical for the contract.
8.2 The limitations of liability pursuant to Section 8.1 of these GTC shall also apply in favour of the Seller’s legal representatives, employees, subcontractors and vicarious agents in the event of direct claims by the Customer against them.
9 Application of law, place of fulfilment, place of jurisdiction
9.1 The legal relationship between the Seller and the Customer shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. If the customer is a consumer and has his habitual residence in another country at the time of his order, the application of mandatory legal provisions of this country shall remain unaffected by the choice of law made in sentence 1.
9.2 The exclusive place of jurisdiction for all disputes arising from and in connection with the contract concluded between the parties shall be the place of the seller’s registered office.
10 Dispute resolution and consumer dispute resolution procedure
10.1 The EU Commission provides an online platform for online dispute resolution (ODR platform). The customer can access this platform via the following link https://ec.europa.eu/consumers/odr Consumers have the option of using this platform to resolve their disputes. The seller is not prepared to participate in an out-of-court dispute resolution procedure.
10.2 The seller is not obliged and not willing to participate in a consumer dispute resolution procedure in accordance with the Consumer Dispute Resolution Act (VSBG).
11 Final provisions
11.1 Should one of the provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed to be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to an unintended loophole in the contract concluded with the buyer.
11.2 Amendments and supplements to these GTC must be made in writing. Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
Status: October 2024