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General Terms and Conditions for Businesses
Section 1 Scope
Any deliveries of goods and services ordered by consumers via Torqeedo Online Shop (hereinafter referred to as "Online Shop") at www.torqeedo.com/b2b shall be governed exclusively by these General Terms and Conditions (hereinafter referred to as "T&Cs") of the party entering into a contract with you, Torqeedo GmbH, Friedrichshafener Str. 4a 82205 Gilching Tel. No. +49- (0) 8153-9215100+49- (0) 8153-9215100 E-mail: email@example.com, represented by its managing directors Fabian Bez & Dr Alf-Joachim Harkort (hereinafter referred to as ”Vendor“).
Section 2 General
The purchaser’s deviating terms and conditions shall only apply to the extent they have been explicitly confirmed in writing by the Vendor on a case-by-case basis.
Section 3 Formation of Contract
(1) Presentation of the range of goods in the Online Shop shall not constitute a legally binding offer to sell; rather, it constitutes an invitation extended vis-à-vis the purchaser asking the purchaser to submit its own offer for the conclusion of a contract of sale (invitation to treat). The Vendor wishes to point out that the colour of the products may vary from the representation in the Online Shop.
(2) The Online Shop purchase order constitutes an offer to the Vendor to conclude a contract of sale.
(3) Any offers submitted by the purchaser shall only be deemed to have been accepted and the contract shall only be formed when the Vendor sent the purchaser a separate letter of acceptance by e-mail (hereinafter referred to as “Order Confirmation”), when the Vendor sent the purchaser a notice of shipment of the goods ordered by the purchaser, when the Vendor explicitly confirmed the purchase order in writing in any other way or when the Vendor supplied the products ordered.
(4) No contract shall be deemed to have been formed with respect to products ordered that have not been listed in the Order Confirmation and/or the shipping notice or that were not sent. This may also relate to products that although offered in the Online Shop are not available for instance at the time the purchase order is received.
(5) Any offers submitted by the Vendor shall always be considered to be subject to prior sale.
Section 4 Delivery
(1) The version of Incoterms applicable at the time of formation of contract shall apply. Unless otherwise agreed upon, Incoterms 2010 Delivered At Place (DAP) (delivery address) with freightage charged by Vendor shall apply.
(2) It shall be permitted for the Vendor to make delivery by instalments for as long as this may be considered to be reasonably acceptable to the purchaser.
(3) Periods of delivery shall start upon formation of contract. In the event that subsequent changes in the contract were to be agreed upon, periods of delivery shall be extended by the period between the formation of contract and the change of contract unless agreed otherwise between the parties.
(4) The Vendor shall only be considered to be in default with its delivery obligation when the Vendor, after the period agreed has expired, received from the purchaser a reminder setting a reasonable period of grace. This rule shall not apply if the period of delivery was defined in a binding way.
(5) In case of force majeure or disruptions of the Vendor’s or its suppliers’ businesses, for instance as a result of riots, strikes, lock-outs temporarily preventing the Vendor, without fault or negligence attributable to the Vendor, from supplying the purchased object by the agreed date or within the agreed period, the agreed dates and periods shall be changed and extended by the duration of the delay caused by these events. In the event that such an impairment were to result in a delay in performance by more than four (4) months, the purchaser shall have the right to rescind the contract. This right shall be without prejudice to any other rescission rights that may apply.
(6) In the event that subsequent changes in the contract were to be agreed, the dates of delivery already agreed shall be extended if and to the extent necessary.
(7) The Vendor's registered office shall be deemed to have been agreed upon as place of performance. A deviating place of performance shall only apply if explicitly agreed upon. In the event that the goods, subject to the purchaser’s request, were to be shipped to a place other than the agreed place of performance, higher transport costs shall be at the purchaser’s expense.
Section 5 Shipment / Acceptance
(1) In the event that the purchaser were to notice any damage by transport on receipt of the goods, the purchaser shall have the duty to notify the carrier and Vendor thereof within one (1) week. In the event of transport insurance having been taken out, the insurance company must be notified without undue delay of the loss or damage caused.
(2) Unless the specific transport route, mode of shipment or type of packaging have explicitly been defined by the purchaser, the Vendor shall have the right to take such measures as are necessary duly taking into consideration what the alleged interests of the purchaser may be, the Vendor, however, shall not be liable for delays caused in terms of transportation time.
(3) Should the purchaser fail to comply with the purchaser’s obligation to accept, the Vendor shall have the right to avail itself of its statutory rights. In the event of the Vendor claiming damages, damages shall total 15% of the agreed purchase price excluding value-added tax. The amount of damages claimed shall be increased or lowered in the event that the Vendor were to prove that, as a matter of fact, a higher amount of loss was caused or in the event that the purchaser were to furnish proof for the fact that, as a matter of fact, a lower amount of loss or that no loss was incurred.
Section 6 Warranty, Representations
(1) The purchaser shall have the duty to check the functionality of goods. If the purchaser is a business person, the purchaser may only assert claims based on defects on condition that the purchaser has duly adhered to the purchaser’s duties in accordance with section 377 German Commercial Code (HGB) to inspect the goods and to make a complaint in respect of a defect upon receipt of the goods. The purchaser shall have the duty to notify the Vendor in writing of defects in the purchased object without undue delay, however, within one (1) week of receipt of the delivered object at the latest. The Vendor must be notified in writing without undue delay upon discovery of defects that were not discovered within this period despite a thorough inspection having been performed.
(2) The delivered object shall be considered to be free of material defects if the delivered object conforms to product specifications or - if no product specifications are available - if it embodies the respective state of the art. The Vendor reserves to implement changes in the design and/or finish that neither affect the functionality nor the value of the delivered object and the purchaser shall not have the right to make a complaint in respect of a defect in case of such a change in design and/or finish having been implemented. No right to make a complaint in respect of a defect shall exist with respect to defects that do not impair the value and/or merchantability of the delivered object or that only have an immaterial effect on the value and/or merchantability of the delivered object.
(3) If the delivered object is defective or does not conform to the guaranteed quality, the Vendor shall, at its option, remedy the defect within a reasonable period either by subsequent improvement or by delivering an object free of defects (subsequent performance). The Vendor must be given by the purchaser both enough time and an opportunity to do so. In case of failure to do so or if changes or repairs have been performed on the object subject of the complaint, the Vendor shall be released from the Vendor’s warranty obligations.
(4) It shall be agreed between the parties that the purchaser shall hand over the object sold to the Vendor at the place of performance for the purpose of performance of subsequent performance. Should the purchaser be unable to hand over the object at the place of performance, the purchaser shall have the right to hand over the object at another place to be defined by the Vendor on consultation with the Vendor.
(5) Additional warranty obligations shall only apply with respect to goods supplied by the Vendor if such warranty has been made explicitly in the Order Confirmation with respect to the item concerned.
(6) It shall be agreed by and between the parties that if a third party such as one of the Vendor’s suppliers has issued a manufacturer’s warranty, the purchaser shall initially assert its claims under the manufacturer’s warranty. Such agreement, however, shall not be deemed to restrict or limit the purchaser’s statutory claims against the Vendor in any way. The purchaser, without having to state any reasons for it, shall have the right to contact the Vendor directly at any time to demand subsequent performance.
(7) The purchaser’s claims for defects shall become statute-barred one (1) year after the passing of risks. To the extent the Vendor has warranted the quality or fraudulently concealed a defect or whenever it is a case of loss of life or limb, health damage or intent or gross negligence, the statutory periods of limitation shall apply.
Section 7 Vendor’s Liability
(1) The vendor shall be held liable without limitations if and to the extent that the loss or damage was caused by intent or gross negligence.
(2) The Vendor shall also be held liable for breach of material obligations by slight negligence to the extent such breach involves the risk of impossibility of achievement of the purpose of the contract or for breach of obligations the performance of which constitutes the very basis of due performance of the contract and the observance of which the purchaser may duly rely on. In this case the Vendor, however, shall only be held liable for loss or damage that is foreseeable and typical for the contract. The Vendor shall not be liable for breach of duties other than those mentioned in the sentences above caused by slight negligence.
(3) The limitation of liability above shall not apply in case of loss of life or limb, health damage, with respect to a defect following the assumption of a guarantee of quality of the goods and in case of defects concealed fraudulently.
(4) This shall be without prejudice to liability under the Product Liability Act.
(5) To the extent the Vendor’s liability has been limited or excluded, such limitation or exclusion shall also be deemed to apply with respect to personal liability to be assumed by employees, representatives or agents (Vertreter) or vicarious agents (Erfüllungsgehilfen) of the Vendor.
Section 8 Design Changes
The Vendor reserves the right to change the design at any time; however, the Vendor shall not have the obligation to also implement such changes in products that have already been delivered.
Section 9 Reservation of Title
(1) All goods remain the property of the Vendor until full payment of the purchase price.
(2) Reservation of title pursuant to paragraph (1) shall also continue with respect to the Vendor’s claims against the purchaser under the ongoing business relationship until any and all receivables associated therewith have been settled. At the purchaser’s request, the Vendor shall have the duty to waive its reservation of title if the purchaser has settled all of the receivables associated with the purchased object in a way that may not be voided and other reasonable collateral has been provided for the remainder of the receivables under the ongoing business relationship.
(3) The goods may not be resold until full payment of the purchased price, either individually or after installation together with a boat.
(4) If the purchaser defaults on payment of the purchase price, the Vendor shall have the right to withdraw from the purchase contract and to demand the return of the reserved goods from the purchaser.
(5) If the purchaser does not comply with a request for return pursuant to paragraph (3) within a reasonable period set by the Vendor for this purpose, the Vendor shall be entitled to have the reserved goods repossessed by its own employees or by third parties commissioned by the Vendor and, if necessary, to have them removed from the purchaser's boats. For this purpose, the purchaser is obliged to grant the respective employees or third parties access to the respective properties, boats, etc. to the extent required during normal business hours. The purchaser shall bear the costs of the measures taken by the Vendor to take repossession of or remove the reserved goods.
Section 10 Data Protection
(1) The Vendor shall collect data relating to the purchaser in connection with the management of contracts. The Vendor shall also use information on the purchaser to keep and maintain the purchaser’s customer accounts as well as to present contents like a wish list and make product recommendations. In doing so, the Vendor shall, in particular, comply with the provisions of the German Data Protection and Privacy Act (Bundesdatenschutzgesetz, BDSG) and the German Telemedia Act (Telemediengesetz, TMG). Unless the purchaser has given its consent, the Vendor shall only collect, process and use inventory and usage data relating to the purchaser if and to the extent this is required for managing the contractual relationship.
(2) The purchaser shall only disclose data relating to the purchaser in the context of contract management by third parties acting on behalf of the Vendor.
(3) The purchaser shall at any time have the opportunity to retrieve, change or delete data stored with respect to the purchaser in the purchaser’s user profile when clicking on the “Login“ button torqeedo.com/b2b/en/account. Otherwise, in connection with the purchaser’s consent and additional information such as the purpose, scope, nature and place of data collection, processing and usage, reference is made to the Vendor’s Data Privacy Statement which may be downloaded and printed out at any time when clicking at “Data Protection“ torqeedo.com/b2b/en/customerservice/privacy-policy.html.
Section 11 Prices
(1) Prices have been indicated by the Vendor separately as gross prices including value-added tax or as net prices excluding value-added tax, depending on what is required by law with respect to the country of dispatch. The applicable prices shall be the prices indicated at the time the purchaser offers to buy.
(2) In the event that unforeseeable changes in the cost of raw materials, wages, energy or any other costs were to occur as a result of which the Vendor may no longer reasonably be expected to perform the contract, the Vendor shall, subject to the conditions specified in section 313 German Civil Code (BGB), have the right to request that a price adjustment be negotiated and, in case of failure of the parties to find an agreement, the Vendor shall have the right to rescind the contract if it has reasonably become unacceptable for the Vendor to perform the contract.
Section 12 Methods of Payment / Right to Offset
(1) The purchaser has the right to effect payment by cash before delivery. Payment by cash on delivery or buying on account shall, as a matter of principle, only be allowed on prior agreement.
(2) Only customers whom we and [DKB] respectively have granted a line of credit may order on account up to the ceiling of the line of credit.
(3) Payment of the purchase price shall, as a matter of principle, fall due immediately on formation of contract. In case of the purchaser buying on account as governed by paragraph 2 above, payments shall fall due within thirty (30) days of the date of invoice unless explicitly agreed otherwise. As a matter of principle, invoices shall be sent out by digital means. Should a certain date of maturity of the payment already have been fixed or should it be possible to define a certain date of maturity based on contractual agreements, the purchaser shall already be considered to be in default after such date has passed without payment having been made without a reminder or dunning notice having to be sent. In this case the purchaser shall pay to the Vendor interest on arrears totalling eight percentage points above the base rate for default.
(4) The obligation of the purchaser to pay interest on arrears shall apply without prejudice to the Vendor’s right of assertion of additional loss or damage incurred as a result of default.
(5) The purchaser may only offset its claims against the Vendor’s claims if and to the extent that the purchaser’s counter-claim is not a contested claim or if a final and absolute legal title exists; the purchaser may only assert a retaining lien to the extent such retaining lien relates to claims arising from the contract.
Section 13 Patents
(1) The Vendor agrees to indemnify the purchaser and its customers against claims arising from the infringement of copyrights, trademarks or patents in connection with the delivered object unless the design of the delivered object originates from the purchaser. The Vendor’s obligation to indemnify the purchaser shall be capped at the amount of loss or damage foreseeable. An additional condition for indemnification shall be that the purchaser leaves litigation up to the Vendor and that the alleged breach of law is attributable exclusively to the design of the Vendor’s delivered objects without them being combined or used with other products.
(2) The Vendor shall, at its option, have the right to release itself from the obligation assumed in paragraph (1) (a) by procuring the necessary licences for the allegedly infringed patents or (b) by making available to the purchaser a modified delivered object or parts thereof which in case of substitution by the infringing delivered object and/or the infringing part thereof remedies the accusation of infringement by the delivered object.
Section 14 Applicable Law / Place of Jurisdiction
(1) In the event that individual provisions of these T&Cs were to be or become invalid, this shall be without prejudice to the validity of the remainder of the provisions. Instead of the invalid provisions, the pertinent provisions of the law as applicable shall apply. This shall apply mutatis mutandis with respect to the filling of any omissions, loopholes or gaps that may exist in these T&Cs.
(2) This contract shall be governed by the laws of the Federal Republic of Germany; application of the UN Sales Convention (CISG) shall be excluded.
(3) To the extent the purchaser is a business person, legal entity under public law or special fund under public law, the Vendor’s place of business shall be the place of jurisdiction in case of any disputes that may arise directly or indirectly from or in connection with the contract. The Vendor, however, shall also have the right to sue the purchaser at the registered office of the purchaser’s company.
(4) The same place of jurisdiction shall apply if the purchaser does not have a place of general jurisdiction in Germany, has relocated its domicile or habitual place of abode away from Germany to a foreign country after contract formation or if the domicile or habitual place of abode of the purchaser is not known at the time of commencement of the action.
Most recently updated on: May 2019