B2B GTC

GENERAL CONDITIONS OF SALE

 

Article 1 General and scope

(1) These General Terms and Conditions of Sale ("GTCS") apply to all orders of goods placed with Hey Marly GmbH with its registered office in Cologne (AG Köln HRB 108829; hereinafter "Seller") by the customer (hereinafter "Buyer"; Seller and Buyer hereinafter jointly the "Parties"), if the Buyer is an entrepreneur (§ 14 BGB) or a legal entity under public law.

(2) References in the GCS to "us" or "we" shall always mean the Seller.

(3) These GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's GTC.

(4) Our GTC shall also apply to all future transactions between the parties.

(5) If, in individual cases, supplements and amendments to the agreements made, including these GTC, are required, the content of such agreements shall be governed by a written contract or our written confirmation. Telecommunicative transmission by e-mail shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.

(6) References to the applicability of statutory provisions shall only be of a clarifying nature. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

 

Article 2 Offer and conclusion of contract

(1) Upon completion of the order, the Buyer submits a binding offer to purchase. Insofar as the Seller subsequently sends an automated confirmation of receipt, this does not yet constitute acceptance of the Buyer's purchase offer.

(2) Acceptance may be declared either in text form (e.g. by order confirmation by letter or e-mail) or by delivery of the goods to the Buyer.

(3) If we have provided the Buyer with catalogs, technical documentation (e.g. drawings, illustrations, calculations, computations) and other product descriptions or documents - also in electronic form - we reserve all property rights and copyrights thereto. The provision of these documents shall not constitute an offer to the Buyer; their disclosure to third parties shall require our prior consent. Unless otherwise agreed, the documents shall be returned upon termination of the contractual relationship or upon our request.

(4) The Buyer is bound by the concluded purchase contract and obliged to accept the goods. In the event of a partial or complete change or cancellation of an order by the Purchaser, this must be notified in writing no later than 30 working days after the date of the order. If the Buyer cancels the order in whole or in part after the expiry of the cancellation period, the Buyer shall pay to the Seller as a contractual penalty an amount equal to 50% of the purchase price of the goods (excluding taxes) of the canceled products.

(5) The Seller reserves the right to refrain from a possible follow-up order after an initial order by the Buyer.

(6) The Seller reserves the right not to provide some Products to the Buyer if it is not in the interest of the Seller.

 

Article 3 Prices and terms of payment

(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply in accordance with the price list, ex warehouse, plus the respective statutory value added tax.

(2) In the case of a sale by delivery to a place other than the place of performance (Article 4 (1)), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. We do not take back transport packaging and all other packaging in accordance with the packaging regulations, they become the property of the buyer.

(3) Unless otherwise agreed, the purchase price shall be due immediately and payable within 30 calendar days of receipt of a proper invoice.

(4) We are not obliged to accept bills of exchange or checks as means of payment. In the event of acceptance, only the respective successful redemption shall be deemed to be the

 

Payment

(5) Payment of the purchase price shall be made exclusively to the account specified in the invoice. The credit entry on our account is decisive for the timeliness of the payment.

(6) Upon expiry of the payment period specified in Article 3 (3) above, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected. For a reminder after the occurrence of default, we shall charge a reminder fee in the amount of EUR 15.00. In addition, the Buyer shall be obliged to reimburse all other expenses caused by the default, in particular the costs of legal action, as compensation for damages caused by default.

(7) The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed.

(8) If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer's lack of ability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract.

(9) If the goods are delivered against advance payment and the Buyer does not pay even after a reminder, the Seller has the right to withdraw from the contract. This will be pointed out to the buyer in the reminder. In such a case, the Seller shall be entitled to claim a lump-sum minimum compensation amounting to 50% of the purchase price of the goods. Any further damages shall remain unaffected. This shall also apply in the event of withdrawal pursuant to § 3 (8) above.

 

Article 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be made ex warehouse, which is also the place of performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

(2) The Seller shall insure the shipment against theft, transport, fire and water damage or other insurable risks only at the Buyer's express request and at the Buyer's expense.

(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass to the Buyer upon delivery of the goods to the forwarding agent, carrier or other third party designated to carry out the shipment. The handover is equal if the buyer is in default of acceptance.

(4) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).

(5) The delivery of goods shall be made by shipping to the delivery address specified by the Buyer, unless otherwise agreed. In the processing of the transaction, the delivery address specified in the order processing of the seller is decisive.

 

Article 5 Delivery period and delay in delivery

(1) Delivery periods shall be agreed individually. Unless otherwise agreed and unless specific calendar days are involved, they shall commence upon conclusion of the contract.

(2) In the event of events of force majeure affecting the performance of the contract, the Vendor shall be entitled to postpone the delivery for the duration of the hindrance and, in the event of longer-term delays, to withdraw from the contract in whole or in part, without this giving rise to any claims against the Vendor. Force majeure shall be deemed to be all events unforeseeable by the Vendor or such events which - even if they were foreseeable - are beyond the Vendor's control and the effects of which on the performance of the contract cannot be prevented by reasonable efforts on the part of the Vendor. Any statutory claims of the Buyer shall remain unaffected.

(3) The rights of the Buyer pursuant to Article 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and / or subsequent performance) shall remain unaffected.

 

 

Article 6 Retention of title

(1) We retain title to the delivered goods until all claims arising from the business relationship with the Buyer have been satisfied in full. In the event of breaches of contract by the purchaser, including default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment. In the event of access by third parties to the goods subject to retention of title, in particular seizures, the purchaser shall point out our ownership and notify us immediately in text form so that we can enforce our ownership rights.

(3) The Buyer shall be entitled to sell the goods subject to retention of title in the ordinary course of business, provided that he is not in default of payment. The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods. The obligations of the purchaser stated in para. 2 shall also apply in respect of the assigned claims.

(4) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.

 

 

Article 7 Warranty, material defects

(1) In the event of a breach of a contractual obligation, the Buyer shall be entitled to the statutory rights against us in accordance with the following provisions.

(2) The prerequisite for any warranty rights of the Buyer is the Buyer's proper fulfillment of all inspection and complaint obligations owed under § 377 HGB.

(3) Representations in catalogs (lookbooks) or other sales brochures only approximate the actual condition of the goods. This applies in particular with regard to the color reproduction. A quality of the goods is owed that comes as close as possible to the product depicted according to the state of the art, whereby greases and natural staining or leather abrasion correspond to the natural quality of the material. This applies in particular to leather goods. The production from the material leather leads factually to wear and tear, which in turn do not represent defects.

Only the information provided by the Seller and the manufacturer's product descriptions included in the contract shall be deemed to be an agreement with the Buyer regarding the quality of the goods; the Seller shall not be liable for public statements made by the manufacturer or other advertising statements.

(4) When reproducing our exhibits, minor deviations that cannot be avoided technically may occur, which do not justify any claim of the purchaser for rectification or subsequent delivery.

(5) If the delivered item is defective, the purchaser may initially demand, at its discretion, rectification of the defect (subsequent improvement) or delivery of a defect-free item (replacement delivery) as subsequent performance. If the buyer does not declare which of the two rights he chooses, we may set him a reasonable deadline for this. If the purchaser does not make the choice within the period, the right of choice shall pass to us upon expiry of the period.

(6) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due.

(7) If the supplementary performance has failed or a reasonable deadline to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.

(8) Claims of the Purchaser for damages or reimbursement of futile expenses shall only exist in accordance with Article 8 and shall otherwise be excluded.

(9) Warranty claims for the delivery of newly manufactured delivery items shall expire one year after delivery to the Buyer. The provisions of §§ 478, 479 BGB shall remain unaffected. For replacement deliveries, we shall provide warranty to the same extent as for the original delivery item; for replacement deliveries, the warranty period shall start anew.

(10) Claims of the Buyer against the Seller shall become statute-barred - with the exception of the claims regulated under item 9 - one year after knowledge of the facts giving rise to the claim, at the latest, however, five years after performance of the service, unless liability is unlimited in accordance with the above item.

 

 

Article 8 Other liability

(1) Claims for damages due to loss of profit, other financial losses or due to damage that has not occurred to the delivery items themselves are excluded. This exclusion of liability shall not apply if we, our legal representatives or vicarious agents have acted intentionally or with gross negligence and in the absence of a guaranteed quality of the item, if and to the extent that the purpose of the guarantee was precisely to protect the purchaser against damage that did not occur to the respective delivery item itself. Liability for damages resulting from injury to life, body or health caused by negligent breach of duty by the Seller, its legal representatives or vicarious agents shall neither be excluded nor limited. Furthermore, this exclusion of liability shall not apply in cases of liability under the Product Liability Act.

(2) Notwithstanding the previous paragraph, we shall be liable in the event of culpable breach of material contractual obligations, but only for the foreseeable damage typical for the contract. An essential obligation is an obligation the fulfillment of which makes the proper execution of the contract possible in the first place and the violation of which endangers the achievement of the purpose of the contract and the compliance with which the Buyer may regularly rely on.

(3) Insofar as our liability is excluded or limited in accordance with the above paragraphs, this shall also apply to the personal liability of organs, employees, representatives and vicarious agents.

 

Article 9 Internet sales

(1) When selling on the Internet, the Buyer shall use a website that meets the quality standards of the purchased goods (see www.heymarly.com). In particular:

(a) The Buyer will identify itself as the supplier with its own name and a summonable address as well as comply with all legal requirements for distance selling.

(b) Furthermore, the Buyer shall offer the services via its website in a way that can usually be expected for high-quality products such as the goods purchased here, i.e. offer appropriate advice and ensure a fast and flawless purchase processing (including complaints).

(c) The domain name of the Buyer's website may not contain the name or the company or any other sign of the Seller that is protected as a trademark or other business designation.

(d) The Buyer's Website must not create the impression in a customer's mind that the Buyer has a special legal relationship with the Seller, for example, as a specially authorized distributor.

(e) Buyer shall not, without prior consent, make any entry or publish on the Internet any material relating to Seller and/or its business that indicates or suggests any special legal relationship of Buyer with Seller.

(2) Violations of the above provisions shall entitle the Seller to assert claims for injunctive relief and damages.

 

 

Article 10 Choice of Law and Venue

(1) The law of the Federal Republic of Germany shall apply to these GCS and all legal relationships between us and the Buyer to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.

(2) If the Buyer is acting as a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the Seller's place of business. If the Buyer has its registered office 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. In the aforementioned cases, however, the Seller shall in any case be entitled to invoke the court at the Buyer's place of business.