1.1 These General Terms and Conditions govern the legal relationship between the firm, Elsa Coloured Shoes, owner B.P.J.M. Sassen, Tackenweide 50, 46446 Emmerich am Rhein, hereinafter referred to as Agent, and its customers.
1.2 These GTCs apply exclusively to companies, legal persons under public law, or separate assets under public law as defined in § 310, paragraph 1 of the Civil Code.
1.3 The Customer’s General Terms and Conditions in the contractual relationship between the Agent and the Customer are not valid unless expressly agreed in writing.
2. Offer and conclusion of contract
If a Customer's order is regarded as an offer pursuant to § 145 of the Civil Code, the Agent can accept this within two weeks.
3. Payment and delivery terms
3.1 The Agent will generally only deliver to addresses in Germany, unless otherwise expressly agreed in writing.
3.2 The Agent accepts no liability in the event of a delay in delivery not caused intentionally or by gross negligence on the part of the Agent.
3.3 Other statutory rights and consumer rights relating to delayed delivery are unaffected.
3.4 Partial deliveries are permitted.
3.5 The delivery note will be dispatched with the goods. Invoices will be issued separately in written or electronic form.
3.6 For deliveries of fewer than three items the Agent will determine fixed shipping costs.
3.7 The Agent will offer the Customer various payment methods. During the ordering process, the Customer can choose his / her preferred method of payment. The Agent’s approval of the Customer’s chosen method of payment is subject to a verification of the Customer’s creditworthiness. The Agent is entitled to check the Customer’s creditworthiness, or have it checked, prior to delivery. If the Agent has any doubt about the Customer’s creditworthiness following the credit check, the Agent is entitled to make the delivery to the Customer only on payment in advance.
3.8 If nothing else is agreed, payments are due in full immediately on issue of the invoice.
3.9 If the Customer defaults on payment of the amount invoiced, he / she must pay the Agent, in addition to the payments owed, default interest amounting to the statutory default interest rate, this being 8 per cent above the base rate, in accordance with § 247 of the Civil Code, but a minimum of 8 per cent p.a. The right to claim for any further damages caused by default is reserved.
3.10 If no fixed price agreement has been entered into, deliveries made three months or more after the conclusion of a contract may be subject to reasonable price changes due to changes in the costs of wages, materials and distribution.
3.11 The beginning of the delivery period specified by the Agent presupposes that the Customer’s obligations will be met accordingly and on time. The right to claim non-fulfilment of the contract is reserved.
3.12 If the Customer defaults after acceptance, or culpably fails to meet other obligations to cooperate, the Agent is entitled to claim the cost of damages incurred as a result, including any additional expenses. The right to make further claims is reserved. If the aforementioned conditions apply, the risk of the goods accidentally decaying or deteriorating is passed on to the Customer from the point in time when he / she defaults after acceptance or defaults on payment.
4. Compensation and lien
The Customer only has the right to compensation if his / her counterclaims have been upheld by law or are undisputed. The Customer is only entitled to exercise a lien if his / her counterclaim is based on the same contractual relationship.
5. Transfer of risk upon shipment
If the goods are sent to the Customer at his / her request, the risk of the goods accidentally decaying or deteriorating is passed on to the Customer on dispatch, at the latest on leaving the Agent’s warehouse. This applies regardless of whether the goods are shipped from the location where the order was fulfilled, or who pays the shipping costs.
6. Retention of title
6.1 The Agent retains ownership of the delivered goods until payment in full of all receivables under the supply contract. This also applies to all future deliveries, even if the Agent does not always refer specifically to this. The Agent is entitled to take back the goods purchased if the Customer does not comply with the terms of the contract.
6.2 The Customer is obliged to take care of the goods purchased until ownership has been transferred to him / her. Until ownership been transferred, the Customer must notify the Agent immediately in writing if the item delivered has been seized or is subject to any other interference by a third party. If the third party is not in a position to reimburse the Agent for the court costs and out-of-court costs of legal action pursuant to § 771 of the Code of Civil Procedure, the Customer is liable for the loss incurred by the Agent.
6.3. The Customer is entitled to resell the goods that are subject to retention of title in the course of normal business. Following the resale of the goods that are subject to retention of title, the Customer transfers the sum due from the buyer to the Agent, corresponding to the final invoiced amount (including value added tax). This assignment of the debt applies regardless of whether the goods purchased are resold with or without having been handled. The Customer is still entitled to collect the amount due, even after assignment of the debt. The Agent’s entitlement to collect the amount due himself / herself remains unaffected by this. The Agent will, however, not collect the amount due, provided that the Customer meets his / her payment obligations from the proceeds, that he / she does not default on payment and, in particular, that he / she has not submitted an application to initiate insolvency proceedings, or is not insolvent.
6.4 The Agent undertakes to release the securities at his / her disposal at the request of the Customer, if their value exceeds the receivables to be secured by more than 20%.
7. Warranty and notice of defects, and recourse against the manufacturer
7.1 The Customer’s warranty rights require that obligations to investigate and lodge a complaint be duly met in accordance with § 377 of the Commercial Code.
7.2 Claims for defects lapse 12 months after delivery of the goods supplied by the Agent to the Customer. The aforementioned provisions do not apply if the law prescribes longer terms. Before any goods are returned, the Agent’s consent must be sought.
7.3 If, despite every care being taken, a defect is apparent in the goods supplied and was present at the time of the transfer of risk, the Agent will, subject to the notice of defects being submitted in time, and at his / her discretion, rectify the fault or provide a replacement. The Agent must always be given the opportunity to rectify the matter within a reasonable time. The right of recourse remains unaffected, without restriction, by the aforementioned regulation.
7.4 If redress fails, the Customer – notwithstanding any claims for damages – can withdraw from the contract or reduce the payment.
7.5 Claims for defects may not be made in cases of only a slight deviation from the specifications and quality agreed upon, or of only a slight reduction in usability, or normal wear and tear, or wear such as that resulting from damage caused after the transfer of risk by incorrect or careless use, excessive use, or due to particular external influences that are not presupposed in the terms of the contract. Likewise, if repairs or modifications are carried out inappropriately by the Customer or a third party, claims cannot be made for defects or for the consequences of the work carried out.
7.6 The Customer cannot claim costs incurred for the purposes of redress, in particular the costs of transport, road use, labour and materials, if those costs are higher because the goods supplied by the Agent are subsequently taken to a location other than Customer’s place of business, unless taking them to that location is consistent with their intended use.
7.7 The Customer’s rights of recourse against the Agent only apply insofar as the Customer has not made any agreements with a buyer that go beyond claims for defects as mandated by law.
8.1 For the use of the Agent’s vouchers which the Customer has received from the Agent without a valuable consideration, the following terms apply.
8.2 Only one voucher can be redeemed per customer per order. Vouchers are, however, not redeemable in sales contracts during mediation.
8.3 The voucher's value includes statutory value added tax.
8.4 If the value of the order is less than the value of the voucher, the customer cannot claim a refund or credit for the difference. Instead, this will be forfeited.
9. Final provisions
9.1. There are no supplementary verbal agreements. Amendments and additions to these General Terms and Conditions must be made in writing.
9.2 If any individual provisions of these General Terms and Conditions should be invalid, the validity of the remaining provisions will be unaffected. The parties undertake to replace the invalid provision with a valid provision that will come as close as possible to serving the commercial purposes of the invalid provision.
9.3 The courts of jurisdiction for disputes arising from and relating to the contractual relationship and its execution, as well as these General Terms and Conditions, are exclusively Emmerich am Rhein and Kleve.
9.4 The law of the Federal Republic of Germany applies exclusively to this contractual relationship, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.