General terms and conditions for the online retail shop of Brauns-Heitmann GmbH & Co. KG
Version: 22 August 2017
1. General, terminology
1. Through the online shop on the website www.simplicol.de, the Seller offers dyes, laundry and household care products, hygiene products, and impregnation products. The following general terms and conditions (GTC), in the latest version at the time of the order, apply to the business relationship between the Seller and the Customer.
2. A consumer is any natural person who concludes a transaction for purposes that cannot be predominantly attributed to an activity of either a commercial or a freelance occupational nature. Contractors, in the sense of the terms and conditions, are natural or legal persons or legally empowered partnerships that act to perform an activity of a commercial or freelance occupational nature when concluding the transaction. Customers, in the sense of the terms and conditions, are both consumers and contractors.
3. Individual contractual agreements take precedence over these GTCs. Any GTCs that deviate from, contradict, or expand on these GTCs shall not be part of a contract unless their validity is expressly agreed to.
2. Conclusion of a contract
1. Presentation of the goods on the Seller’s website does not constitute an offer in the legal sense, but rather is merely a request to the Customer to make an offer in the legal sense. The ordered goods may deviate slightly, within reason, from the goods shown on the Internet due to the technical limitations on depiction capabilities. In particular, deviations in colour may occur wherever reasonable.
2. An order by the Customer can be placed via the Seller’s website, by e-mail, by fax, or in writing. The Customer’s order represents a binding offer to conclude a purchase contract for the ordered good(s).
3. The Seller shall confirm receipt of the Customer’s order immediately by fax or e-mail.
a) In the case of payment by credit card or invoice, the purchase contract is not concluded upon this order acceptance, but rather only after a separate e-mail containing an order confirmation or upon delivery of the goods. The Seller is entitled to accept the contractual offer in the order within five (5) working days. For goods ordered electronically, the Seller is entitled to accept the order within two (2) working days after receipt. Acceptance is also given if the Seller delivers the ordered goods within this period.
b) For payment via PayPal or direct debit, the contract is concluded upon advice of payment by the Customer.
4. The contract is concluded subject to the condition of partial performance or non-performance in case of incorrect or improper delivery to ourselves. This applies only in the case that the lack of delivery is not the fault of the Seller and that the Seller has concluded concrete covering transactions with the supplier with due care. The Seller shall make all reasonable effort to obtain the goods. Otherwise the compensation shall be refunded immediately. In case the goods are not available or only partially available, the Customer shall be informed immediately.
5. If the Customer orders the goods electronically, then the contract text shall be saved by the Seller and sent to the Customer, along with the legally binding incorporated GTCs, via e-mail upon conclusion of the contract.
3. Title retention
1. For consumers, the Seller shall retain title to the goods until payment of the purchase price has been made in full. For contractors, the Seller reserves title to the goods until all amounts payable under a current business relationship have been paid in full.
2. Should the Customer violate the contract, in particular by failing to pay, by providing false information about its creditworthiness, or if an application to open insolvency proceedings has been filed, then the Seller is entitled, upon appointing a deadline as needed, to withdraw from the contract and to demand return of the goods, as long as the Customer has not provided compensation in full.
3. The contractor is entitled to resell the goods in the course of ordinary business. The contractor shall then assign to the Seller all claims against third parties due to it from the resale, in the invoiced amount. The Seller accepts the assignment. After assignment, the contractor is empowered to collect the claim. The Seller reserves the right to collect the claim itself if the contractor does not properly fulfil its payment obligations and is in default of the payment.
4. The Seller agrees to release the securities owed to it upon request by the Customer, to the extent that the value of the securities to be realized exceeds the secured claim by more than 10 per cent. The Seller is entitled to select the securities to be released.
1. The stated purchase price is binding. The purchase price includes legally mandated sales tax. The additional shipping costs incurred upon shipment are included in the shipping cost overview or delivery restrictions shipping cost overview. Costs for packaging are already included in the shipping costs.
2. The Customer agrees to pay the full price within 14 days of receipt of the order confirmation via e-mail or of the invoice. Upon expiration of this period, the Customer shall be in default of payment. The consumer shall pay interest at the rate of five (5) percentage points above the base interest rate during default. The contractor shall pay interest at the rate of nine (9) percentage points above the base interest rate during default. The contractor shall further owe a flat fee in the amount of €40 in case of default on a payment claim. This shall also apply if the contractor is in default on an instalment payment or other payment over time. The Seller reserves the right to pursue higher damages for default against the contractor. The flat fee under sentence 5 shall be applied to a claim for compensation of damages owed if the damage is based on costs of legal enforcement.
3. The Customer shall have the right to offset claims only if the counterclaims are legally established, recognized, or not disputed by the Seller. The right of the Buyer to offset claims with contractual and other claims from the initiation or execution of this contractual relationship remains thereby unaffected. The Customer can exercise a right of retention only if its counterclaim is based on the same contractual relationship.
5. Payment options
1. Customers can pay the purchase price by invoice, credit card, direct debit, or PayPal. The Seller fundamentally offers its customers the ability to pay the purchase price by credit card, direct debit, or PayPal.
2. For payments by credit card, a (pre-authorised) hold for the amount is first applied upon conclusion of the order. The credit card account shall not be charged until the goods have shipped.
1. The Seller delivers exclusively to the countries listed in the shipping cost overview/delivery restrictions.
2. Information on any costs incurred for the selected means of payment can be found in our customer information and under the delivery period for deliveries within Germany, shown on the respective offer page. The beginning of the delivery period is determined (depending on the means of payment selected) according to paragraph 3 to 5 of the overview of means of payment on our website.
3. For payment in advance or via bank transfer, credit card, or PayPal, the delivery period begins one (1) day after advice of payment has been made. For all other means of payment, the delivery period begins one (1) day after the order.
4. Information about the delivery period for delivery outside of Germany can be found in our customer information and in the shipping overview.
5. If the beginning or end of the period falls on a Saturday, Sunday, or legal holiday, then the beginning or end of the period shall fall on the next working day.
6. With respect to the reservation of proper delivery to self, the Seller refers to section 2(4) of these GTCs.
7. The Seller is entitled to make partial delivery if partial delivery can be expected under consideration of the interests of the Customer. This has no influence on the contents of the contract, particularly on the performance owed by the Seller or the agreed period of performance. The Customer shall not incur any additional cost due to partial deliveries.
7. Transfer of risk
1. For consumers, the risk of accidental loss and accidental damage to the goods sold shall transfer to the consumer upon receipt of the goods by the consumer, including the case of sale by delivery.
2. For contractors, the risk of accidental loss or accidental damage to the goods shall transfer to the contractor upon receipt of the goods, or in the case of sale by delivery, upon delivery of the goods to the carrier, freight forwarder, or other person or entity assigned for making the shipment.
3. Receipt is considered to have occurred if the Customer is in default of acceptance.
1. The Customer has a legal right to warranty that is modified by sections 8 and 9 of these GTCs.
2. Ordered goods can vary slightly, within reason, from the goods depicted on the Internet. Reference is made to section 2(1) of these GTCs.
3. Consumers have the choice of whether to demand supplementary performance by repair or replacement of the defective goods. The Seller is entitled to refuse the type of supplementary performance selected if it is possible only at disproportionate cost, and if the other type of supplementary performance would not substantially disadvantage the consumer. For contractors, the Seller shall guarantee defects of the goods initially at its own option by repairing or replacing the defective goods.
4. If the supplementary performance is not completed, the Customer can fundamentally demand, at its option, a reduction in the purchase price (discount), cancellation of the contract (withdrawal), or compensation for damages in lieu of performance. For insignificant defects, the Customer has no right of withdrawal, under consideration of reciprocal interests. Instead of compensation for damages in lieu of performance, the Customer can demand refund of futile expenses under section 284 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) that it justifiably incurred in expectation of the receipt of the good. If the Customer selects compensation for damages in lieu of performance, then the limitations of liability per section 9(1) of these GTCs shall apply.
5. Contractors must declare obvious defects in the supplied goods to the Seller within a period of two (2) weeks after receipt of the goods. Otherwise the warranty claim cannot be pursued. Timely sending or information is sufficient to meet this deadline. For merchants, section 377 of the German Commercial Code (Handelsgesetzbuch, HGB) applies.
6. If the Customer is a contractor, then the quality of the goods is fundamentally defined by the Seller’s product description. Public statements, advertisements, or marketing statements by the manufacturer do not establish contractual quality of the goods.
7. The warranty period for consumers is two (2) years after delivery of the goods. The warranty period for contractors deviates from this and is one (1) year after delivery. For used items, the warranty period is also one (1) year after delivery of the goods. The one-year warranty period does not apply if the Seller can be accused of gross culpability, nor in case of bodily or health-related injury attributable to the Seller, nor in case of loss of life of the Customer, in the case of a guarantee and in case of delivery recourse under sections 478 and 479 of the BGB. The Seller’s liability under the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) remains unaffected.
8. In deviation from paragraph 7, the regular expiration period applies if the Seller has fraudulently concealed a defect.
9. The Seller provides no guarantee to the Customer in the legal sense, unless otherwise expressly agreed. Manufacturers’ guarantees remain unaffected.
9. Limitation of liability
1. In case of ordinary negligent breach of duty, liability is limited to the foreseeable, contractually typical, direct average damages based on the type of goods. This also applies to ordinary negligent breaches of duty by the legal representatives or fulfilment agents of the Seller. The Seller shall not be liable for ordinary negligent breach of insignificant contractual obligations. It shall be liable, however, for breaches of contractually substantial legal positions of the Customer. Contractually substantial legal positions are those that the contract guarantees to the Customer according to the contents and purpose of the contract. The Seller shall further be liable for breach of duties whose fulfilment makes the proper execution of the contract possible in the first place, and on which the Customer can rely.
2. The above limitation of liability does not affect claims by the Customer arising from guarantees and/or product liability. The limitation of liability also does not apply in case of malicious intent, breach of contractually substantial duties, or bodily or health-related injury or loss of life of the Customer attributable to the Seller.
3. The Seller shall be liable only for its own contents on the website of its online shop. If links are used to provide access to other websites, then the Seller is not responsible for outside content found there. The Seller does not appropriate the outside content. If the Seller becomes aware of illegal content on outside websites, then it shall immediately block access to these sites.
10. Final provisions, arbitration
1. The law of the Federal Republic of Germany shall apply. For consumers who conclude the contract for other than commercial or occupational purposes, this selection of jurisprudence applies only to the extent that the protection provided by mandatory provisions under the laws of the country in which the consumer normally resides is not detracted. The provisions of UN procurement law do not apply. Section 12(14), pages 7 and 8 of the German Teleservices Data Protection Act (Teledienstedatenschutzgesetz, TDSG) remains unaffected.
2. If the Customer is a merchant, legal person under civil law, or a separate estate under civil law, then the place of jurisdiction for all disputes arising from this contract shall be the court of jurisdiction for the Seller’s place of business, unless exclusive jurisdiction is established. The Seller is also entitled, however, to bring claims against the merchant in the jurisdiction of the merchant’s place of business or residence. Responsibility due to an exclusive jurisdiction remains unaffected.
3. We are neither prepared nor obligated to participate in arbitration proceedings before a consumer arbitration body (under the German Consumer Dispute Resolution Act, VSGB).
We are obligated to inform you that with respect to so-called online arbitration, an appropriate online platform is maintained by the European Commission. You can access this platform at the following link: http://ec.europa.eu/consumers/odr. In this context, we are also obligated to provide you with our e-mail address. It is: email@example.com.