Terms and Conditions (Online Shop)

1 Scope

1.1 These General Terms and Conditions (hereinafter “GTC”) apply to all sales and deliveries of goods from the range offered by the online shop (“Goods”) of Hubert Schmitz GmbH (“Seller”) to its customers.

1.2 For the purposes of these GTC, a ‘customer’ may be a consumer (Section 13 of the German Civil Code (BGB)), a business (Section 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 prior to or at the time of conclusion of the contract shall not apply insofar as they conflict with these T&Cs. In any event, the Customer’s terms and conditions of purchase shall only apply if the Seller has expressly agreed to them; the unconditional performance of the transaction does not constitute the Seller’s consent to the validity of the Customer’s terms and conditions of purchase.

1.4 These General Terms and Conditions also apply to all future transactions with the Customer, insofar as they concern legal transactions of a similar nature.

2 Offers and Conclusion of Contracts

2.1 Information on the Seller’s website or other promotional material provided by the Seller does not constitute a legally binding offer on the part of the Seller.

2.2 Placing an order for the goods by clicking the ‘Buy Now’ button in the Seller’s online shop constitutes a binding offer by the Customer to the Seller. Upon receipt of the Customer’s order, the Seller shall issue an order confirmation. The order confirmation does not constitute a binding acceptance by the Seller of the Customer’s offer to enter into a contract, unless the Seller expressly states otherwise. A contract is concluded between the Customer and the Seller upon the Seller’s confirmation of the order.

2.3 The seller is entitled to limit the order to a quantity customary for household use.

3 Prices and Payments

3.1 Unless otherwise agreed between the parties, the current prices for the Seller’s goods, as listed in the online shop, shall apply at the time the Customer places the order. The prices are final and include statutory value added tax.

3.2 Unless otherwise agreed, the prices of the goods are EXW (INCOTERMS 2020).

3.3 The customer will be charged a flat-rate delivery fee for the dispatch of the goods. The shipping costs are specified alongside the prices in the Seller’s online shop.

3.4 The price of the goods and the additional shipping costs are also shown in the order form before the customer submits a binding order.

3.5 For payments made in advance or when purchasing 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 clause 3.5 of these General Terms and Conditions, the customer shall be in default. Interest at the statutory rate shall be charged on the invoice amount during the period of default. We reserve the right to claim further damages arising from the default.

3.7 The seller does not grant any discount on its invoices.

3.8 If, after conclusion of the contract, the customer fails to meet their payment obligations, payment is delayed, they have suspended payments, they request a deferral of payment, or specific circumstances come to light which reasonably call their creditworthiness into question, the Seller shall be entitled to make any outstanding performance conditional upon the provision of security or, at the Customer’s option, upon full payment in advance.

3.9 The Seller shall accept bills of exchange and cheques only by prior agreement and only on account of performance. Bills of exchange and cheques shall be credited subject to receipt, with the value date being the day on which the seller can finally dispose of the equivalent value. All costs and expenses arising therefrom shall be borne by the customer.

3.10 The customer may only set off recognised, undisputed or legally established claims and may only assert any statutory rights of retention on the basis of such claims. Furthermore, the customer may only exercise a right of retention in respect of counter-claims arising from the same contract for services.

4 Delivery and Transfer of Risk

4.1 Unless otherwise agreed, the Seller shall deliver the goods on an EXW (INCOTERMS 2020) basis if no place of delivery is specified. The place of delivery is the Seller’s distribution centre at Düsseldorfer Str. 4, 52525 Heinsberg.

4.2 Where the Seller is responsible for dispatching the goods, the risk shall pass to the Customer as soon as the Seller has handed the goods over to the forwarding agent, the carrier or any other person or organisation designated to carry out the dispatch.

4.3 Delivery periods specified by the Seller commence at the time the contract is concluded, as described in clause 2 of these General Terms and Conditions. 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 listed as in stock on the Seller’s online shop, the Seller undertakes to dispatch them within one week of the conclusion of the contract. In the case of goods that are not in stock but can be ordered, the delivery time for the respective goods shall be as specified in the Seller’s online shop. In all cases, delivery periods shall be extended by the period during which the customer fails to fulfil their obligation to the seller, provided that the seller is entitled to a right of retention against the customer as a result and exercises this right accordingly. The occurrence of a delay in delivery on the part of the seller is determined in accordance with the statutory provisions. In the event of a delay in delivery, the seller is not obliged to pay a contractual penalty and/or lump-sum compensation. The terms set out in Clause 8 of these General Terms and Conditions shall apply to the Seller’s liability for damages arising from delay.

4.4 If the Seller is unable to meet bindingly agreed delivery deadlines for reasons beyond its control (unavailability of the service), the Seller shall inform the Customer of this and, at the same time, notify them of the expected new delivery deadline. If the service is still unavailable within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; the Seller shall immediately refund any consideration already paid by the Customer. In this context, a case of unavailability of the service shall be deemed to include, in particular, the failure of the Seller’s suppliers to deliver to the Seller on time, provided that the Seller has entered into a corresponding covering transaction, neither the Seller nor its supplier is at fault, or the Seller is not obliged to procure the goods in the specific case.

4.5 If the customer is in default of acceptance or breaches other obligations to cooperate, the seller is entitled to claim compensation for the loss incurred as a result. In the event of default in acceptance, the seller is entitled to claim lump-sum damages amounting to 0.1% of the gross invoice value of the goods per day of default, up to a maximum of 5% of the gross invoice value of the goods. The seller remains entitled to claim compensation from the customer for any further loss incurred. In the event of default in acceptance, the risk of loss or damage to the goods and the risk of price fluctuation, in particular the risk of accidental loss or accidental deterioration of the goods, shall pass to the customer. We reserve the right to assert any further contractual or statutory claims.

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 event of force majeure and its consequences, for the period during which performance is prevented, without the buyer being entitled to withdraw from the contract or to claim damages. The seller shall not be in default for the duration of the justified extension of the delivery dates and deadlines. Events of force majeure are unforeseeable events as well as events which – even if they had been foreseeable – lie beyond the Seller’s control. These include, in particular, natural disasters, currency-related, trade policy-related or other sovereign measures, epidemics and pandemics, strikes, lockouts, significant operational disruptions (e.g. fire, machinery breakdown, shortages or scarcity of raw materials or energy for whatever reason, including in particular supply bottlenecks, performance disruptions or other supply difficulties on the part of raw material suppliers, disruptions in the packaging and dispatch process or transport bottlenecks) and obstructions to transport routes which are not merely of short-term duration and which make delivery significantly more difficult or impossible.

5.2 The Customer must be notified of any delays in delivery and the reasons for them.

5.3 If the disruption caused by an event of force majeure persists for longer than 2 months, either party is entitled to withdraw from the contract. If the customer has already paid the full invoice price in advance, they are entitled to reclaim the invoice price from the seller. Where a partial delivery has already been made, the customer is entitled to withdraw from the contract under the aforementioned conditions only in respect of the unfulfilled part of the delivery, unless the customer has no interest in the partial performance already provided. Payment for a partial delivery that has already taken place may not be withheld on account of the unfulfilled part of the delivery. If, on the other hand, the customer has already paid the full invoice price in advance, they are entitled to reclaim from the seller a proportionate share of the invoice price corresponding to the unfulfilled part of the delivery. Any further claims by 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 In all other cases, 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 goods subject to retention of title exceeds the claims to be secured arising from the ongoing business relationship by 25 per cent, the Seller shall be obliged to release the goods subject to retention of title at the Customer’s request.

6.3 The customer is obliged to treat the goods with due care whilst the retention of title remains in force. The customer must inform the seller immediately in writing of any 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 entitled to resell the goods in the ordinary course of business. The customer hereby assigns to the seller all claims arising from such resale against a third party, in an amount equal to the invoice amount. The seller accepts this assignment. Following the assignment, the Customer is authorised to collect the claim. The Seller reserves the right to collect the claims itself as soon as the Customer fails to meet its payment obligations properly and falls into arrears. Any treatment or processing of the goods by the customer shall always be 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 supplied 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 upon delivery in accordance with the provisions of Section 377 of the German Commercial Code (HGB). Obvious defects must be reported without delay. The date on which the Seller receives such a report shall be decisive. Defects which cannot be detected within this period even upon the most careful inspection must be reported without delay upon discovery. If a notice of defect is not given in good time, the customer shall be precluded from asserting warranty claims, unless the defect in question was fraudulently concealed by the seller. The burden of proof for all conditions necessary for a claim lies with the customer, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notice of defect.

7.2 In the event of any notice of defect, the seller shall be entitled to inspect and examine the goods in question. To this end, the customer shall grant the seller the necessary time and opportunity. The seller may also require the customer to return the goods in question 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 provided for in Clause 8 of these General Terms and Conditions.

7.4 The goods delivered by the Seller are free from defects if, at the time of the passing of risk, they meet the subjective requirements (Section 434(2) of the German Civil Code (BGB)) and the installation requirements (Section 434(4) of the German Civil Code (BGB)). However, it is not a prerequisite for the goods to be free from defects that they meet the objective requirements of Section 434(3), provided that the customer and the seller have reached an agreement regarding the subjective requirements of the goods.

7.5 Information contained in the material provided to the customer or on the seller’s website, as well as product descriptions, do not under any circumstances constitute guarantees of any particular quality or durability of the goods; such guarantees of quality or durability must be expressly agreed in writing.

7.6 Natural wear and tear or damage occurring after the transfer of risk as a result of improper or negligent handling, or arising from special influences not provided for in the contract, shall likewise not constitute a defect. If the customer or third parties carry out improper modifications or repair work, no claims for defects shall arise in respect of such work or the resulting consequences.

7.7 Subsequent performance shall be at the seller’s discretion, either by rectification or replacement. If the customer is a consumer, they shall have the right to choose the method of subsequent performance.

7.8 The customer must make the goods available for the purpose of subsequent performance and grant the seller the reasonable time and opportunity necessary for such performance. The seller undertakes to carry out the subsequent performance within a reasonable period from the time the customer notifies the seller of the defect, and without causing significant inconvenience to the customer.

7.9 If the customer claims a defect when none exists, the seller is entitled to reimbursement of the internal and external costs incurred. These costs amount to EUR 50.00, unless the customer can prove that the costs were lower.

7.10 If the remedial action fails, the customer may, in principle, at their discretion, demand a reduction in the price (abatement) or rescission of the contract (withdrawal). However, in the case of only a minor breach of contract, in particular where the defects are only minor, the customer shall not be entitled to rescind the contract.

7.11 Unless otherwise agreed, the customer’s claims under the warranty for defects against the seller shall become time-barred one year after the date of delivery of the goods. This shall not apply in the event of fraudulent misrepresentation on the part of the seller or where the seller has given a guarantee as to the quality of the goods. The provisions set out in clause 8.1 of these General Terms and Conditions apply to the limitation period for claims for damages arising from defects. The foregoing also does not apply to claims for reimbursement of expenses (Section 445a of the German Civil Code (BGB)) and other warranty claims by the customer pursuant to Section 437 of the German Civil Code (BGB) in the event of so-called supplier recourse (Section 478 of the German Civil Code (BGB)), to which Section 445b of the German Civil Code (BGB) applies.

7.12 If the Seller has fulfilled its obligation to provide subsequent performance by means of a replacement delivery or rectification, the limitation period shall only recommence in so far as it relates to the same defect or to the rectified part of the goods subject to complaint. However, the limitation period shall not recommence if the seller expressly reserves the right to carry out subsequent performance solely as a gesture of goodwill, to avoid disputes or in the interests of maintaining the business relationship.

8 Liability

8.1 Unless otherwise specified in Clause 7 of these General Terms and Conditions, the seller shall be liable for damages arising from a breach of contractual or non-contractual obligations only in cases of wilful misconduct and gross negligence. Liability for slight negligence is excluded, unless

• the damage results from injury to life, limb or health, defects in the goods,
• insofar as liability for personal injury or property damage arises under the provisions of the Product Liability Act,
• defects that have been fraudulently concealed, or where the Seller has given a guarantee as to the quality of the goods, or
• a breach of fundamental contractual obligations. A fundamental contractual obligation is defined as an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the customer regularly relies and is entitled to rely. In these cases, the Seller’s liability for damage to property and financial loss is limited in amount to the reasonably foreseeable damage typical for this type of contract.

8.2 The limitations of liability set out in clause 8.1 of these General Terms and Conditions shall also apply in favour of the Seller’s legal representatives, employees, subcontractors and vicarious agents in the event of direct claims being made against them by the Customer.

9 Applicable Law, Place of Performance, 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, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the Customer is a consumer and has their habitual residence in another country at the time of placing their order, the application of mandatory legal provisions of that country shall remain unaffected by the choice of law set out in the first sentence.

9.2 The exclusive place of jurisdiction for all disputes arising from or in connection with the contract concluded between the parties shall be the location of the Seller’s registered office.

10 Dispute Resolution and Consumer Dispute Resolution Procedures

10.1 The European Commission provides an online platform for online dispute resolution (ODR platform). The customer can access this 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 any out-of-court conciliation proceedings.

10.2 The seller is neither obliged nor willing to participate in a consumer dispute resolution procedure under the Consumer Dispute Resolution Act (VSBG).

11 Final Provisions

11.1 Should any provision of these General Terms and Conditions 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 any unintended omission in the contract concluded with the buyer.

11.2 Any amendments or additions to these General Terms and Conditions must be made in writing. Individual agreements made with the customer on a case-by-case basis (including ancillary agreements, additions and amendments) shall in all cases take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive as to the content of such agreements.

Date: October 2024