Note: The English version of the Terms and Conditions is provided for clarity only. Only the German version is legally binding.
General Terms and Conditions of Nitzbon AG for Business Customers
§ 1 Validity of the Terms and Conditions
(1) All offers, sales and deliveries of goods by Nitzbon AG (hereinafter referred to as ‘we’) are made exclusively on the basis of these General Terms and Conditions. These are an integral part of all purchase contracts that we conclude with our customers (hereinafter referred to as ‘customer’) for the goods we offer.
(2) We do not recognise any terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions, unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we carry out the delivery to the customer without reservation, despite being aware of terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions.
(3) These General Terms and Conditions apply only to business customers. For the purposes of these General Terms and Conditions, ‘business customers’ are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity (Section 14 (1) BGB).
Section 2 Offer – Conclusion of contract – Offer documents
(1) Our offers in brochures, catalogues, on the Internet, in advertisements, offer letters, etc. – including the prices stated therein – are subject to change and non-binding, i.e. they are to be understood only as an invitation to the customer to submit a purchase offer to us.
(2) By ordering the goods, the customer makes a binding offer to purchase the goods. The purchase contract is only concluded when we send the customer an order confirmation. The order confirmation constitutes acceptance of the customer's offer. We are entitled to accept the customer's offer within 7 days of receipt of the order by sending an order confirmation. If the customer does not receive an order confirmation from us within this period, their offer shall be deemed rejected and the contract shall not be concluded.
(3) The contract language is German.
(4) If the customer orders electronically, the text of the contract shall be stored by us after conclusion of the contract in a manner that is not accessible to the customer and shall be sent to the customer by email on request, together with these General Terms and Conditions.
(5) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents that are designated as ‘confidential’. The customer requires our express written consent before passing them on to third parties.
§ 3 Prices - Minimum order value
(1) Our prices are in euros.
(2) Statutory value added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the date of invoicing.
(3) Our prices are ‘ex works’. They do not include the costs of shipping and installation of the purchased item (§ 5 (2)) at the customer's location. These will be invoiced separately in accordance with § 7.
(4) The minimum order value is £100.00 net. For orders below this amount, we reserve the right to charge a minimum quantity surcharge of £10.00 net.
§ 4 Terms of payment
(1) We reserve the right to deliver only against advance payment.
(2) Our invoices are due for payment without deduction within fourteen days of the invoice date. The statutory provisions regarding the consequences of default in payment shall apply.
(3) The deduction of discounts requires a special written agreement.
(4) We do not accept payments by cheque or bill of exchange.
(5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. In addition, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 5 Delivery – Delivery time – Assembly
(1) Our deliveries are made ‘ex works’.
(2) We shall only assemble the purchased item at the customer's premises by separate agreement.
(3) Deadlines and dates for deliveries and services promised by us are always approximate, unless a fixed deadline or date has been expressly agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(4) We are only responsible for the timely and proper delivery of the goods to the transport company and are not responsible for delays caused by the transport company. However, if we have also undertaken assembly work at the customer's premises (§ 5 (2)), we are responsible for the timely completion of this work and handover to the customer on the contractually agreed date.
(5) Compliance with our delivery obligation presupposes the timely and proper fulfilment of the customer's obligation. We reserve the right to raise the defence of non-performance of the contract.
(6) 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 or rights.
(7) If the conditions of paragraph (6) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or payment.
(8) We shall be liable in accordance with the statutory provisions if the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased to exist.
(9) We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents is attributable to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(10) We shall also be liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is due to a culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(11) Further statutory claims and rights of the customer remain reserved.
§ 6 Place of performance – Shipping – Transfer of risk
(1) Unless otherwise specified, the place of performance for all obligations arising from the contractual relationship is our registered office. If we have also undertaken to carry out assembly at the customer's premises (§ 5 (2)), the place of performance shall be the place where the assembly is to take place.
(2) The mode of shipping and packaging are subject to our reasonable discretion.
(3) If we are only responsible for shipping, the risk shall pass to the customer upon delivery of the goods to the transport company. If we have undertaken assembly work at the customer's location (§ 5 (2)), the risk shall pass to the customer upon completion of the work and handover to the customer.
§ 7 Shipping costs – assembly costs
(1) Shipping costs shall be invoiced to the customer according to the expenses incurred by us for the transport company, plus statutory value added tax.
(2) In the case of export deliveries, the customer shall also bear customs duties, fees and other public charges.
(3) If we have also carried out assembly work at the customer's premises (§ 5 (2)), we shall charge a flat-rate fee for the assembly and a flat-rate fee for travel to and from the site, plus statutory value added tax.
(4) The customer shall bear the costs of returning transport packaging.
§ 8 Liability for defects – inspection – notification of defects
(1) The delivered items (goods) must be carefully inspected immediately after delivery to the customer or to a third party designated by the customer or, if we have also undertaken assembly work at the customer's premises (§ 5 (2)), immediately after completion and handover. With regard to obvious defects or other defects that would have been apparent during an immediate, careful inspection, they shall be deemed to have been approved by the customer if we do not receive a written notice of defects within 7 working days of delivery or, if we have also undertaken assembly work at the customer's premises (Section 5 (2)), we do not receive a written notice of defects within seven working days of their completion and handover. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if we do not receive the notice of defect within 7 working days of the time at which the defect became apparent; if the defect was already apparent to the customer at an earlier point in time during normal use, however, this earlier point in time shall be decisive for the start of the complaint period.
(2) If there is a defect in the purchased item, the customer is entitled, at their discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect or replacement delivery, we are obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs.
(3) If the subsequent performance fails, the customer shall be entitled, at their discretion, to demand withdrawal or a reduction in price.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents.
Unless we are accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Insofar as the customer is otherwise entitled to compensation for damage instead of performance due to a negligent breach of duty, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(7) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(8) Unless otherwise specified above, liability is excluded.
(9) The limitation period for claims for defects is 12 months from delivery of the item to the customer, provided that we have also carried out installation work at the customer's premises (Section 5 (2)), calculated from the completion of the work and handover of the item to the customer.
(10) The limitation period in the case of a delivery recourse pursuant to Sections 478, 479 of the British Civil Code remains unaffected; it is five years from delivery of the defective item.
§ 9 Total liability
(1) Any further liability for damages beyond that provided for in § 8 is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB.
(2) The limitation according to paragraph (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for compensation for damage in lieu of performance.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 10 Return delivery in the event of defects
(1) The return of goods within the scope of existing warranty claims for defects in accordance with § 8 shall be at our expense.
(2) The defective goods shall be collected by us from the customer. The customer shall agree a collection date with us in this regard.
(3) If the customer returns the goods to us contrary to our willingness to collect them in accordance with paragraph (2), we shall only bear the shipping costs in the amount of the transport costs that we would have incurred if we had collected the goods ourselves.
Section 11 Return delivery in other cases
(1) Unless it is a return under the warranty in accordance with Section 10 (1), delivery items will only be taken back if we expressly agree to this. The date of purchase, invoice number and reason for the return delivery must be stated on the return delivery request.
(2) Returns in accordance with paragraph (1) shall be made free of charge for us. The return of delivery items that have been altered or damaged by the customer or are no longer in their original packaging is excluded.
(3) If we accept the return of goods and the return delivery is provided to us free of defects, the customer will be issued with a credit note, less a processing fee of up to 25% of the invoice amount.
§ 12 Retention of title
(1) We retain title to the goods delivered by us until the purchase price for the goods in question has been paid in full (reserved goods).
(2) If we withdraw from the contract due to the customer's breach of contract – in particular default in payment – (case of realisation), we are entitled to demand the return of the reserved goods.
(3) In the event of seizures or other interventions by third parties on the reserved goods, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer is entitled to resell the goods subject to retention of title in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets their payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
§ 13 Applicable law - place of jurisdiction - partial invalidity
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, our place of business shall be the place of jurisdiction for all disputes arising from the contractual relationship; however, we shall also be entitled to sue the customer at their place of residence.
(2) The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Should any provision in these terms and conditions be or become invalid, this shall not affect the validity of all other provisions and agreements between us and the customer.
Hamburg, 05.07.2019
Nitzbon AG
Osterrade 14
D-21031 Hamburg
