General Terms and Conditions of Fauck GmbH
1. Scope of application
1.1 These General Terms and Conditions (hereinafter "GTC") of Fauck GmbH (hereinafter also referred to as "Seller") shall apply to all contracts for the delivery of goods which a consumer or entrepreneur (hereinafter referred to as "Customer") concludes with the Seller. The inclusion of the Customer's own terms and conditions is hereby objected to, unless otherwise agreed. The GTC of Fauck GmbH shall also apply if Fauck GmbH unconditionally carries out the delivery in the knowledge of conflicting terms and conditions of the Customer.
1.2 A consumer within the meaning of these GTC is any natural person who concludes a legal transaction for purposes the majority of which can be attributed neither to his commercial nor his independent professional activity. An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity that acts in the exercise of his/its commercial or independent professional activity when concluding a legal transaction.
2. Conclusion of the contract
2.1 The goods presentations (also in the online shop) of the Seller do not represent binding offers on the part of the Seller, but serve for the submission of a binding offer by the Customer.
2.2 The Customer may submit the offer by telephone, fax, e-mail, regular mail, online contact form or via the online order form integrated into the Seller's online shop. The Customer submits a binding purchase offer by clicking on the button “Send Order” (section 145 German Civil Code).
2.3 The confirmation of receipt sent automatically after the Customer sent the order via the online shop does not yet constitute acceptance of the offer. The Seller can accept the Customer's offer within one week by either sending an order confirmation or invoice by regular mail, fax or e-mail to the Customer or by delivering the ordered goods to the Customer.
2.5 When submitting an offer via the Seller's online order form, the text of the contract will be saved by the Seller and sent to the Customer in text form (e.g. by e-mail) together with the present GTC after the Customer sent his order. In addition, the text of the contract will be stored on the Seller's website and can be accessed by the Customer free of charge via his password-protected Customer account by entering the corresponding login data, provided that the Customer has created a Customer account in the Seller's online shop before sending his order.
2.6 The order processing and establishment of contact usually take place via e-mail and automated order processing. The Customer must ensure that the e-mail address provided by him for the order processing is correct so that e-mails sent by the Seller can be received at this address.
3. Right of revocation
3.1 Further information on the right of revocation for consumers can be found in the Seller's revocation policy.
3.2 The right of revocation shall not apply to consumers who are not resident in a member state of the European Union at the time the contract is concluded and whose sole place of residence and delivery address are outside the European Union at the time the contract is concluded.
4. Prices, terms of payment and default
4.1 Unless otherwise stated in the Seller's product description, the prices quoted are total prices which include the statutory value added tax. Any additional delivery and shipping costs are stated separately in the respective product description.
4.2 The methods of payment are communicated to the Customer in the online shop of the Seller or in advance by e-mail or telephone. The decision on the payment methods available lies with the Seller. In particular, the Seller reserves the right to offer only selected payment methods, for example advance payment for hedging against credit risks.
4.3 If advance payment by bank transfer has been agreed, payment will be due immediately after conclusion of the contract, unless the parties have agreed on a later due date.
4.5 If the payment method “purchase on account” is selected, the purchase price will be due after the goods have been delivered and invoiced. In this case, the purchase price shall be paid without deduction within 7 (seven) days of receipt of the invoice, unless otherwise agreed.
4.6 If the Customer is in default of payment, he is obliged to pay the statutory default interest at the rate of 5 percentage points above the base rate. The Seller reserves the right to charge a reasonable handling fee for any reminders.
5. Off-setting / Right of retention
The Customer is only permitted to set off the purchase price claim of the Seller against counterclaims if they have been legally established or recognised by the Seller. Offsetting is otherwise excluded. If the Customer is an entrepreneur, he is only entitled to exercise a right of retention against claims of the Seller if his counterclaim is based on the same contractual relationship and is legally established or recognised. In this connection, the individual purchase contract, rather than a summary, if any, in his invoice shall be the point of reference.
6. Terms of delivery and shipping
6.1 Unless otherwise agreed, the goods will be delivered from the Seller's warehouse to the address indicated by the Customer.
6.2 In cases of strike or force majeure, the contractually agreed delivery periods will be extended by the duration of the respective delay caused by them. The same applies to circumstances for which Fauck GmbH is not responsible, in particular if the Customer has breached a duty to cooperate.
6.3 The goods will remain the property of the Seller until the purchase price has been paid in full.
6.4 As an exception, the Seller will not be obliged to deliver the ordered goods if he has duly ordered the goods from his own supplier, but was not supplied properly or on time (congruent hedging transaction). The prerequisite is that the Seller is not responsible for the unavailability of the goods and has informed the Customer of this circumstance without undue delay. In addition, the Seller is required not to have assumed the risk of procuring the ordered goods. If the goods are unavailable, the Seller will reimburse any payments already made without undue delay. The Seller will not assume the risk of having to procure the ordered goods (procurement risk). This also applies to orders for goods which are only described in terms of their type and properties (generic goods). The Seller is only obliged to deliver from his stock of goods and from the goods ordered by him from his suppliers.
6.5 If the Customer is an entrepreneur, the following will apply in addition:
The Seller retains title to the goods until all claims arising from the current business relationship have been settled in full. Before transfer of title to the reserved goods, pledging or transfer of title by way of security is not permitted.
The Customer may resell the goods in the ordinary course of business. In this case, the Customer already now assigns to the Seller all claims in the amount of the invoice amount arising from the resale. The Seller accepts the assignment, but the Customer is authorised to collect the claims. To the extent the Customer does not properly meet his payment obligations, the Seller reserves the right to collect the claims himself. If the reserved goods are combined and mixed, the Seller will acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing. The Seller undertakes to release the securities to which he is entitled upon request to the extent that the realisable value of his securities exceeds the claims to be secured by more than 10%. The choice of the securities to be released lies with the Seller.
7. Liability for defects (warranty) / Liability for damage
7.1 If the Customer is a consumer, the Seller will provide a warranty in accordance with the statutory provisions for defects.
7.2 If the Customer is an entrepreneur, the following applies: In the event of a defect, the Seller reserves the right to choose the type of subsequent performance and in addition, the warranty period will be shortened to one year. The limitation period in case of a delivery recourse according to sections 478, 479 German Civil Code remains unaffected. In addition, the Customer will be obliged to give notice of defects in accordance with section 377 German Commercial Code (Handelsgesetzbuch – HGB). The relevant trade customs apply accordingly. Unless a shorter inspection and complaint period results therefrom, the Customer must notify the Seller of an obvious defect within a period of 7 days of receipt of the goods at the latest. Otherwise the legal consequences of sections 377 German Commercial Code will apply. The relevant point in time for the start of the inspection and complaint period, also for the delivery of goods on pallets, will be the time of receipt of the goods.
7.3 The liability of the Seller, its managing directors and vicarious agents is limited to intent or gross negligence. The above limitation of liability will not apply in the event of injury to life, body or health or claims for breach of essential contractual obligations and compensation for damage caused by delay (section 286 German Civil Code).
8. Campaign vouchers
8.1 Vouchers which are issued free of charge by the Seller as part of advertising campaigns with a certain validity period and which cannot be purchased by the Customer (hereinafter referred to as "Campaign Vouchers") can only be redeemed in the Seller's online shop and only within the specified period, unless otherwise stated.
8.2 Individual products may be excluded from the voucher campaign, if a corresponding restriction results from the content of the Campaign Voucher.
8.3 Campaign Vouchers can only be redeemed before completion of the ordering process. Any subsequent offsetting is not possible.
8.4 Only one Campaign Voucher can be redeemed per order.
8.5 The value of the goods must at least be equal to the amount of the Campaign Voucher. Any remaining credit will not be refunded by the Seller. The credit balance of a Campaign Voucher will neither be paid out in cash nor bear interest.
8.6 If the value of the Campaign Voucher is not sufficient to cover the order, any other of the payment methods offered by the Seller may be selected to settle the difference.
8.7 The Campaign Voucher will not be refunded if the Customer, in exercise of his statutory right of revocation, returns the goods paid in full or in part with the Campaign Voucher.
8.8 The Campaign Voucher is transferable. The Seller may perform with discharging effect to the respective owner who redeems the Campaign Voucher in the online shop of the Seller. This shall not apply if the Seller is aware, or grossly negligently not aware of the non-authorisation, the legal incapacity or the lack of power of representation of the respective owner.
9. Alternative dispute resolution
9.1 The EU Commission provides a platform for online dispute resolution on the internet under the following link: https://ec.europa.eu/consumers/odr
9.2 This platform serves as a contact point for the out-of-court settlement of disputes arising from online sales or service contracts in which a consumer is involved.
9.3 The Seller is neither obliged nor willing to participate in a dispute resolution procedure before a consumer arbitration board.
10. Final provisions
10.1 All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the laws on the international sale of movable goods (so-called “UN Sales Law”).
In the case of consumers, this choice of law shall only apply to the extent the protection granted is not withdrawn by mandatory provisions of the law of the country in which the consumer has his usual place of residence.
10.2 If the Customer acts as a merchant, legal entity under public law or special fund under public law domiciled in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of the Seller. If the Customer is domiciled outside the territory of the Federal Republic of Germany, the Seller's registered office shall be the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims under the contract can be attributed to the Customer's professional or commercial activity. In each of the aforementioned cases, the Seller shall be entitled, however, to appeal to the court at the Customer's place of domicile.
10.3 Should one or more provisions of these GTC be or become invalid, the validity of the remaining provisions will remain unaffected thereof.
Date: June 2018