General Terms and Conditions of Dohse Aquaristik GmbH & Co KG, Otto-Hahn-Straße 9, 53501 Grafschaft
§ 1 - Validity of the conditions
- The following contractual conditions are the basis for all existing and future business relations of Dohse Aquaristik GmbH & Co. KG (hereinafter referred to as "Dohse") with third parties, insofar as these are entrepreneurs within the meaning of the German Civil Code (hereinafter also referred to as "customer"). They shall become an integral part of the contract.
- Our terms and conditions of contract shall apply exclusively. Any conflicting or deviating terms and conditions of the customer shall be irrelevant, even after Dohse has taken note of them, unless Dohse has expressly agreed to them in writing.
§ 2 - Offer and conclusion of contract
- Our offers are non-binding and subject to change. If customers submit binding offers to Dohse, Dohse reserves the right to accept the offers within 2 weeks .
- As a matter of principle, the contract shall be concluded in text form, whereby an order confirmation shall be sufficient. Insofar as orders are placed by use of telecommunication means, acceptance of the offer by Dohse shall take place either by sending an order confirmation or by providing and dispatching the goods.
§ 3 - Prices
- The prices according to Dohse's current price list at the time of conclusion of the contract shall apply.
- Unless another currency is expressly stated, the prices quoted by Dohse are in EUR plus VAT at the statutory rate, customs duties and other levies. Packaging and shipping costs shall be charged separately.
- If the delivery of goods of the brands "Hobby" or "Dupla" by Dohse is agreed, the minimum order value for deliveries free of shipping costs within Germany shall be 200 EUR net. For corresponding orders below EUR 100 net, a minimum quantity surcharge of EUR 10 shall be charged. For all other deliveries, the agreements explicitly agreed between the parties shall apply.
§ 4 - Delivery and delay in delivery, scope of order
- In principle, Dohse does not owe delivery. Insofar as delivery of the goods has been agreed in individual cases, Dohse shall in principle be entitled to determine the type of shipment itself.
- Delivery dates shall only be deemed binding if they have been agreed with the customer in writing in advance. Unless designated as binding, they are only approximate and are understood to be for the time of availability at the place of performance.
- If Dohse is in default of delivery for reasons for which Dohse is not responsible (e.g. force majeure or strikes, as well as non-delivery, incorrect delivery or late delivery by suppliers), Dohse shall be entitled to postpone performance for the duration of the impediment plus a reasonable start-up period or to withdraw from the contract in whole or in part with respect to the part not yet performed. Dohse shall inform the customer of this immediately. Insofar as the impediment makes the delivery or service significantly more difficult/impossible and is not only of temporary duration (more than 3 months), the customer shall be entitled to withdraw from the contract. Dohse shall then not be liable.
- The scope of the order shall be determined in accordance with the order confirmation issued by Dohse. The information specified therein shall comprehensively and conclusively determine the nature of the subject matter of the contract. If there is no order confirmation, the delivery note shall be authoritative.
- Samples, specimens and illustrations are only approximately authoritative. All data concerning weight, dimensions and the like are to be regarded as average. Unless limits for the permissible deviations are expressly stipulated, deviations due to production and/or technical progress shall be deemed permitted within the scope of what is customary in the industry.
- Partial deliveries are permissible, as are rounding up or down of quantities within the scope of the packaging units. In all other respects, the customer shall accept excess or shortfall quantities of up to 10% as being in accordance with the contract. Payment shall be made for the quantity actually delivered.
§ 5 – Gefahrübergang und Abnahme
- Hinsichtlich der Gefahrtragung gelten die gesetzlichen Regelungen, es sei denn, Dohse ist zur Lieferung „frei Haus“ verpflichtet oder die Parteien haben eine anderweitige Regelung vereinbart.
- Der Kunde hat die von Dohse gelieferten Waren entsprechend den gesetzlichen Bestimmungen zu untersuchen und Dohse unverzüglich über etwaige Mängel zu unterrichten. Rügen wegen offensichtlicher Mängel oder Fehlmengen müssen innerhalb einer Ausschlussfrist von vier Arbeitstagen bei Dohse eingegangen sein. Die Ausschlussfrist beginnt mit der Übergabe der Ware an den Kunden oder mit Empfang der Leistung. Mängelanzeigen bedürfen stets der Textform. Bei Verstößen gegen vorstehende Regelungen, insbesondere bei unterlassener Mängelanzeige, gilt die Ware als vertragsgerecht.
- Nach erhobener Mängelrüge ist Dohse berechtigt, die Ware zu besichtigen, sie umgehend zu untersuchen und gegen Quittung eine repräsentative Menge zur weiteren Untersuchung auf eigene Kosten zurückzunehmen und für einen angemessenen Zeitraum zu behalten. Der Kunde hat jegliche Vermischung oder Verarbeitung oder einen schadenserhöhenden Gebrauch oder Verbrauch der Ware bis zur Feststellung des Mangels durch Dohse oder einen von Dohse beauftragten Sachverständigen zu unterlassen.
- Befindet sich der Kunde in Annahmeverzug, unterlässt er eine Mitwirkungshandlung oder verzögert sich die Abnahme aus anderen, vom Kunden zu vertretenen Gründen, ist Dohse berechtigt, Ersatz des hieraus entstehenden Schadens einschließlich Mehraufwendungen (z.B. Lagerkosten) zu verlangen. Hierfür berechnet Dohse eine pauschale Entschädigung in Höhe von 2 % des Nettorechnungswertes der Ware pro Kalendertag der Verspätung bis maximal 30 % des Nettorechnungswertes der Ware. Die Berechnung beginnt mit der Mitteilung der Versandbereitschaft der Ware, bei Vereinbarung einer Lieferung: Mit geplantem Liefertermin. Der Nachweis eines höheren oder geringeren Schadens bleibt den Vertragspartnern vorbehalten.
§ 6 – Sonderbestimmungen Europaletten
- Werden Waren auf Europaletten geliefert, so erfolgt deren Gestellung nur leihweise. Europaletten gleicher Art und Güte sind mit der nächsten Lieferung, spätestens einen Monat nach Lieferung wieder zurückzugeben oder bei dem Spediteur zu tauschen. Erfolgt eine Rückgabe im vorgenannten Sinne nicht, ist Dohse berechtigt, pro gelieferter und nicht zurückgegebener Palette einen Betrag von 15,00 EUR zzgl. der jeweils gültigen Umsatzsteuer in Rechnung zu stellen.
§ 5 - Transfer of risk and acceptance
- The statutory provisions shall apply with regard to the transfer of risk, unless Dohse is obliged to deliver "free domicile" or the parties have agreed otherwise.
- The customer shall inspect the goods delivered by Dohse in accordance with the statutory provisions and notify Dohse immediately of any defects. Notifications of obvious defects or shortages must be received by Dohse within a preclusive period of four working days. The preclusive period begins with the handover of the goods to the customer or with receipt of the service. Notifications of defects must always be made in text form. In the event of violations of the above provisions, in particular in the event of failure to notify defects, the goods shall be deemed to be in conformity with the contract.
- After a notice of defect has been raised, Dohse shall be entitled to inspect the goods, to examine them without delay and to take back a representative quantity against receipt for further examination at its own expense and to retain them for a reasonable period of time. The customer shall refrain from any mixing or processing or any damage-increasing use or consumption of the goods until the defect has been established by Dohse or an expert appointed by Dohse.
- If the customer is in default of acceptance, fails to cooperate or delays acceptance for other reasons for which the customer is responsible, Dohse shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, Dohse shall charge a lump sum compensation of 2% of the net invoice value of the goods per calendar day of delay up to a maximum of 30% of the net invoice value of the goods. The calculation begins with the notification that the goods are ready for dispatch, in the case of an agreement on delivery: with the planned delivery date. The contracting parties reserve the right to prove a higher or lower damage.
§ 6 - Special provisions Euro pallets
- If goods are delivered on Euro pallets, they shall only be provided on loan. Euro pallets of the same type and quality are to be returned with the next delivery, at the latest one month after delivery, or exchanged with the forwarder. If the pallets are not returned in the aforementioned sense, Dohse shall be entitled to invoice an amount of EUR 15.00 plus the applicable value added tax for each pallet delivered and not returned.
§ 7 - Retention of title
- The goods shall remain the property of Dohse until full payment of all claims arising from the business relationship with the customer.
- In the event of mixing or processing of the goods, the customer's ownership of a uniform item shall pass to Dohse in proportion to the value (invoice value). In such cases, Dohse shall already now transfer (co-)ownership back to the customer, however, subject to the condition precedent of full satisfaction of all claims directed against the customer.
- The customer shall be entitled to resell the goods in the ordinary course of business as long as it is not in default of payment to Dohse for the claim relating to these goods. The goods may not be pledged or assigned as security. The customer hereby assigns to Dohse, by way of security, all claims arising from the resale or any other legal reason with respect to the goods subject to retention of title, including all current account balance claims. The customer shall be entitled to collect the claims assigned to Dohse for Dohse's account in its own name. This authorisation may be revoked if the customer does not duly fulfil its payment obligations to Dohse or if a significant deterioration or a considerable endangerment of its financial situation occurs or is to be feared in concrete terms. In such cases, the assignment of claims shall be conditional upon the complete satisfaction of all claims of Dohse against the customer.
- As soon as the customer has ceased payments, and without undue delay after notification of the cessation of payments, the customer shall be obliged to send Dohse a list of the goods subject to retention of title that are still in existence, even if they have been processed, and a list of the claims against third-party debtors, together with copies of the invoices.
- In the event of access by third parties to the reserved goods, the customer shall point out Dohse's ownership and notify Dohse without delay.
- In the event of breach of contract by the customer, in particular in the event of default in payment and the unsuccessful setting of a deadline by Dohse, Dohse shall be entitled to take back the object of sale. Dohse's taking back of the purchased goods shall not constitute a withdrawal from the contract unless Dohse has expressly declared such withdrawal in text form. After taking back the object of sale, Dohse shall be entitled to realise it. The realisation proceeds shall be credited against the customer's liabilities - less reasonable realisation costs.
- Dohse undertakes to release the securities to which Dohse is entitled at the customer's request to the extent that the realisable value of the securities exceeds the claims to be secured by more than 20% or the nominal value of the securities exceeds the claims to be secured by more than 50%; Dohse shall be responsible for selecting the securities to be released.
§ 8 - Warranty
- The customer shall bear the burden of proof for the identity of the goods complained about with the goods delivered by Dohse, and furthermore for the fact that the defect existed at the time of transfer of risk.
- In the event of complaints acknowledged by Dohse, Dohse shall be entitled, at its own discretion, to remedy the defect or to make a subsequent delivery. Additional costs for the rectification of defects or subsequent delivery which arise due to the fact that the subject matter of the contract or any processed product has been transported to a place other than the place of performance shall be borne by the customer, notwithstanding the provision of Section 478 (2) of the German Civil Code (BGB), unless otherwise agreed between the parties. The customer's rights shall be limited to reduction after failed subsequent performance if the goods are only afflicted with an insignificant defect.
- Declarations by Dohse in connection with this contract from preliminary discussions, brochures, advertising quotations, performance descriptions and references to DIN standards etc. do not contain any assumption of a guarantee. Declarations shall only be deemed to be a guarantee if they have been expressly designated by Dohse in writing as a guarantee declaration.
- The customer shall not be entitled to assert claims and rights due to defects if the customer itself has resold the item afflicted with the defect or has provided it to a third party within the scope of a work performance and it is established that it, for its part, can no longer be claimed against under warranty by a contractual partner due to this defect. At Dohse's request, the customer shall, in all cases in which the defective item is no longer in its possession, provide information on when the defective item was sold to the third party or used within the scope of a work performance and which warranty provisions have been agreed between the contractual partner and the third party, together with supporting documents.
- In the case of contracts of sale of used goods, the warranty is excluded.
§ 9 - Liability, damages
- Dohse shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of representatives of Dohse or vicarious agents. The same shall apply to liability if Dohse culpably breaches a material contractual obligation. Material contractual obligations are obligations the fulfilment of which characterises the contract and on which the customer may rely. In the aforementioned cases - with the exception of an intentional breach of contract - liability for damages shall be limited to the foreseeable, typically occurring damage.
- Further claims of the contractual partner, in particular due to consequential damages, are excluded, unless otherwise regulated herein.
- The limitation period for claims for defects due to simple negligent breach of essential contractual obligations (cf. paragraph 1) is 1 year, calculated from the transfer of risk. Excluded from the shortening of the limitation period are claims due to a defect in a building or a building material which has caused the defectiveness of a building, due to a defect which has been fraudulently concealed, as well as in the event of the customer being held liable by his contractual partner due to supplier recourse in accordance with §§ 478 f. BGB.
- The exclusion of liability pursuant to paragraph 2 and also the limitations of liability pursuant to paragraph 1 and paragraph 3 shall not apply in the event of injury to life, limb and health and also not if a guarantee promised by Dohse for the quality of the goods is not complied with. Liability under the Product Liability Act shall also remain unaffected.
§ 10 - Payment
- The purchase price is due immediately and without deduction, unless otherwise agreed in text form between the parties.
- General payment difficulties of the customer which have become known to Dohse shall entitle Dohse to withdraw from the contract.
- In the event of default on the part of the customer, Dohse shall charge the statutory default interest plus the flat rate pursuant to Section 288 (5) of the German Civil Code (BGB); the assertion of further damages shall not be excluded.
- The customer shall only be entitled to offset non-synallagmatic claims against Dohse if its counterclaims have been legally established, are undisputed or have been recognised by Dohse. In the event of the existence of defects, the customer shall not be entitled to a right of retention insofar as this is not in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular a remedy of defects).
§ 11 - Sales stands and displays
- Sales stands and displays provided by Dohse shall be made available on loan. At Dohse's request, but without request from Dohse at the latest upon dissolution of the business relationship, the items provided to Dohse shall be returned to Dohse's registered office at the customer's expense.
§ 12 - Final provisions, data protection
- The place of performance for all services arising from the contract, including supplementary performance, shall be the registered office of Dohse, Otto-Hahn-Straße 9, 53501 Grafschaft.
- The place of jurisdiction for all legal disputes arising from the contractual relationship shall also be Grafschaft. Dohse shall be entitled to bring an action before the court having jurisdiction over the customer's principal place of business. The term "legal disputes arising from the contractual relationship" shall be understood in the broadest sense. It also includes, for example, claims for damages and/or from tort.
- The conclusion of the contract as well as the contractual relationship between Dohse and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of German private international law. The application of UN sales law is excluded.
- The possible invalidity of individual provisions shall not affect the binding nature of the remaining provisions.
As of 08/2018