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GTC for the online shop of W. Gessmann GmbH

1. General

1.1. The terms and conditions set out below (GTC) shall apply to all contracts concluded via the online shop of W. Gessmann GmbH, Eppinger Strasse 221, 74211 Leingarten, Germany (hereinafter referred to as “W. Gessmann GmbH) between W. Gessmann GmbH and the customer (hereinafter referred to as the “CUSTOMER”).

1.2. The online shops of W. Gessmann GmbH and these GTC are intended exclusively for customers, who are entrepreneurs within the meaning of s. 14 BGB (German Civil Code).

1.3. W. Gessmann GmbH will not accept any differing general terms and conditions of the CUSTOMER, unless W. Gessmann GmbH expressly agreed to them in writing.

2. Contract conclusion

2.1. The CUSTOMER may add the items to the shopping cart by clicking on the corresponding button and then initiate the ordering process by clicking on the shopping cart. The CUSTOMER must provide the necessary contact data for shipping and payment during the ordering process and conclude the order subject to a charge by clicking on the “Order” button.

2.2. The CUSTOMER is able to rectify any input errors, especially if goods have been placed in the shopping basket by mistake, by specifying the desired quantity in the shopping basket and using the available buttons. The CUSTOMER is able to correct any input errors during the different steps of the ordering process by navigating to the respective step using the buttons “forward” and “backwards” of the browser.

2.3. The presentation of the products in the online shop of W. Gessmann GmbH is a non-binding invitation to the CUSTOMER to make an order. The CUSTOMER makes a binding offer by placing an order to conclude a contract for the articles or products contained in the shopping basket. W. Gessmann GmbH will automatically confirm the receipt of the order by e-mail without delay. No contractual relationship is formed by the automated order confirmation of the shop system. W. Gessmann GmbH will accept the offer of the CUSTOMER after inspecting the stock by separate declaration of acceptance by e-mail or by sending the goods within a period of 5 days or 3 working days following the placing of the order. Only after this separate declaration of acceptance or the receipt of the goods during the above-mentioned period does the sales contract come into effect. Invoicing is equivalent to a declaration of acceptance.

2.4. The sales contract is concluded with W. Gessmann GmbH, Eppinger Strasse 221, 74211 Leingarten.

2.5. The contract language is German.

3. Contract text storage

W. Gessmann GmbH will save the text of the contract. The order data will be sent to the CUSTOMER separately in text form (e-mail). The GTC can also be accessed and printed via the online shop.

4. Prices and shipping costs

4.1. Applicable are the prices valid for the day of the order as stated in the online shop.

4.2. For all international orders/deliveries, a flat-rate shipping fee will be charged in accordance with the shipping table available in the online shop. The CUSTOMER will be informed separately of the flat rate for international shipping costs after placing the order, unless such costs are visible in the shopping basket before placing the order. The CUSTOMER is entitled to cancel his order within 2 working days following notification of the international shipping costs, if the international shipping costs were not specifically communicated prior to placing the order.

4.3. In specific cases, additional taxes (e.g. in the case of an intra-Community acquisition) and/or duties (e.g. customs duties) may be incurred by the CUSTOMER for international deliveries.

5. Terms of payment

5.1. W. Gessmann GmbH accepts only the payment methods offered in the online shop at the time of placing the order. The CUSTOMER selects his preferred payment method from the available payment methods.

5.2. If a delivery is made against advance payment by bank transfer, the CUSTOMER must transfer payment of the purchase price plus any delivery and shipping costs to W. Gessmann GmbH prior to delivery. Delivery is effected after receipt of the full invoice amount on the account of W. Gessmann GmbH.

5.3. If a delivery is made against invoice, the net purchase price (without deduction) is due for immediate payment, at the latest within 30 days of the invoice date or after receipt of the goods. The applicable statutory provisions apply with respect to the consequences of default in payment.

5.4. Rights of set-off only accrue to the CUSTOMER, if the counterclaims are legally established, undisputed or acknowledged by W. Gessmann GmbH or if the respective claims are based on the same legal basis.

6. Delivery and shipping conditions - Information for calculating the delivery date

6.1. CUSTOMER assumes the risk of accidental loss and accidental deterioration of the goods when the goods are handed over at the latest. In the case of a sales shipment, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes upon delivery of the goods to the freight forwarder, the carrier or any other person or institution designated to effect the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions governing service contracts will also apply mutatis mutandis to an agreed acceptance. Delivery or acceptance will be considered equal, if the CUSTOMER is in default of acceptance.

6.2. If the CUSTOMER is in default of acceptance, if the CUSTOMER fails to cooperate or if our delivery is delayed for other reasons for which the CUSTOMER is responsible, W. Gessmann GmbH is entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, W. Gessmann GmbH charges a flat-rate compensation in the amount of EUR 35 per calendar day, as of the delivery day or - in the absence of a delivery date - as of the notification of delivery of the goods to the CUSTOMER.

6.3. The proof of a greater loss and the statutory claims of W. Gessmann GmbH (in particular compensation for additional expenses, reasonable indemnification, termination) remains unaffected; however, the lump sum will be set off against further pecuniary claims. The CUSTOMER may prove that W. Gessmann GmbH has incurred no damage at all or only substantially less damage than the above-mentioned flat rate.

6.4. The delivery time is specified separately for the respective article or in the product description on the article page.

6.5. The delivery period specified on the article page commences on the working day following the payment order of the CUSTOMER to the transferring bank in the case of payment in advance, or on the working day following the day on which the contract was concluded in the case of all other payment methods.

6.6. Orders and deliveries are only offered in and to Germany as well as to those countries stated in the online shop and/or in the shipping costs table. In the event of delivery delays, W. Gessmann GmbH will inform the CUSTOMER immediately.

6.7. If W. Gessmann GmbH cannot meet binding delivery deadlines, which were separately confirmed, for reasons beyond the control of W. Gessmann GmbH (non-availability of the service), W. Gessmann GmbH will inform the CUSTOMER immediately and at the same time inform the CUSTOMER of the expected new delivery deadline. If the service is not available even within the new delivery period, W. Gessmann GmbH will be entitled to withdraw from the contract in whole or in part. W. Gessmann GmbH will immediately reimburse any payment already made by the CUSTOMER. In particular, the non-availability of services within this meaning will be deemed to be the failure of W. Gessmann GmbH's suppliers to deliver to W. Gessmann GmbH in a timely manner, if W. Gessmann GmbH has entered into a congruent cover transaction and neither W. Gessmann GmbH nor its suppliers are at fault and if there is not only a temporary impediment to performance on the part of the supplier of W. Gessmann GmbH.

6.8. The commencement of any delay in delivery is subject to the statutory provisions. However, a reminder from the CUSTOMER is required in any case. If W. Gessmann GmbH is delayed in delivery, the CUSTOMER may demand a flat-rate compensation for the damage caused by the delay. The flat-rate compensation for each completed calendar week of delay amounts to 0.5% of the net price (delivery value), but not more than a total of 5% of the delivery value of the goods delivered with delay. W. Gessmann GmbH retains the right to prove that the CUSTOMER has suffered no damage at all or only a significantly lower damage than the above flat-rate amount.

6.9. The rights of the CUSTOMER according to Clause 6.8 of these GTC and the statutory rights of W. Gessmann GmbH in the event of any exclusion of the obligation to perform (e.g. due to impossibility or unreasonability of performance and/or subsequent performance) are unaffected. If the carrier returns the purchased goods to W. Gessmann GmbH because delivery to the CUSTOMER was not possible, the CUSTOMER will bear the costs for a renewed shipment if delivery to the CUSTOMER was made on a working day between 08:00 and 18:00 CET, unless the CUSTOMER had explicitly informed W. Gessmann GmbH in advance that he was not available at the time of delivery.

6.10. The delivery is made ex works.

6.11. Delivery to packing stations is not possible.

7. Retention of title

7.1. W. Gessmann GmbH reserves title to the sold goods until complete payment of all present and future claims of W. Gessmann GmbH against the CUSTOMER resulting from the sales contract and an ongoing business relationship (secured claims).

7.2. The goods subject to retention of title may neither be pledged to third parties nor transferred as security until full payment of the secured claims has been made. The CUSTOMER must immediately notify W. Gessmann GmbH in writing, if and to the extent that third parties gain access to goods belonging to W. Gessmann GmbH.

7.3. In the event of a breach of contract by the CUSTOMER, in particular non-payment of the due purchase price, W. Gessmann GmbH is entitled to withdraw from the contract in accordance with the statutory provisions and to demand return of the goods on the basis of retention of title and withdrawal from the contract. If the CUSTOMER fails to pay the due purchase price, W. Gessmann GmbH may exercise these rights only if W. Gessmann GmbH has previously granted the CUSTOMER a reasonable deadline for payment to no avail or such deadline is unnecessary according to the statutory provisions.

7.4. The CUSTOMER may dispose of and/or process the goods subject to retention of title within the ordinary course of business. In this case, the following provisions apply in addition.

7.4.1. The retention of title applies to the full value of the products resulting from the processing, mixing or combination of the goods of W. Gessmann GmbH, whereby W. Gessmann GmbH is considered to be the manufacturer. If property rights of third parties remain in force following processing, mixing or combination with goods of third parties, W. Gessmann GmbH acquires co-ownership proportional to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.

7.4.2. The CUSTOMER assigns to W. Gessmann GmbH the claims against third parties arising as a result of the resale of the goods or the product in their entirety or to the amount of any co-ownership share of W. Gessmann GmbH in accordance with the preceding paragraph as security to W. Gessmann GmbH. W. Gessmann GmbH accepts the assignment. The obligations of the CUSTOMER stated above also apply with regard to the assigned claims.

7.4.3. The CUSTOMER retains the right to collect the claim jointly with W. Gessmann GmbH. W. Gessmann GmbH undertakes not to enforce the claim, if the CUSTOMER complies with his payment obligations towards W. Gessmann GmbH, is not in default of payment, no petition for insolvency proceedings has been filed and there is no other defect in his performance. However, if this is the case, W. Gessmann GmbH may demand that the CUSTOMER discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.

7.4.4. If the recoverable value of the securities exceeds the claims of W. Gessmann GmbH by more than 10%, W. Gessmann GmbH will release securities at its discretion upon request of the CUSTOMER.

8. Warranty/liability for defects/obligation for notification of defects

8.1. The CUSTOMER's rights with regard to material defects and defects of title (including incorrect and underdelivery as well as improper assembly or defective assembly instructions) are subject to the statutory provisions unless otherwise provided below. The statutory special provisions remain unaffected in all cases in the event of final delivery of the goods to a consumer (supplier recourse pursuant to ss. 478, 479 BGB).

8.2. The limitation period for the CUSTOMER's warranty claims is 12 months, calculated as of the transfer of risk to the CUSTOMER.

8.3. The basis of W. Gessmann GmbH's liability for defects is primarily the agreement reached regarding the quality of the goods. The agreement concerning the quality of the goods comprises the product descriptions designated as such (including those of the manufacturer), which the CUSTOMER was able to access in the product description prior to his order or which were included in the contract like these GTC.

8.4. If the quality has not been agreed, the statutory provisions will be applied to assess whether a defect exists or not (s. 434 (1) Sentence 2 and 3 BGB).

8.5. The CUSTOMER's warranty claims presuppose that the CUSTOMER has complied with the statutory obligations to inspect and give notice of defects pursuant to ss. 377, 381 German Commercial Code (HGB). If a defect is discovered during the inspection or later, W. Gessmann GmbH must be notified immediately in writing (letter or fax). The notification is considered immediate, if it is made within two weeks, whereby the timely submission of the notification is sufficient to meet the deadline. If the CUSTOMER fails to duly inspect the goods and/or to notify W. Gessmann GmbH of any defects, W. Gessmann GmbH assumes no liability for the defect which has not been notified.

8.6. If the delivered item is defective, the CUSTOMER may initially choose whether rectification of the defect (repair) or delivery of a defect-free item (replacement) is to be effected. The right of W. Gessmann GmbH to refuse subsequent performance under the statutory conditions remains unaffected. W. Gessmann GmbH is authorised to make the subsequent performance owed dependent on the CUSTOMER paying the due purchase price. However, the CUSTOMER is entitled to retain a reasonable part of the purchase price proportionate to the defect.

8.7. The CUSTOMER must give W. Gessmann GmbH the necessary time and opportunity for the subsequent performance owed, in particular the CUSTOMER must surrender the rejected goods for inspection purposes. In the event of a substitute delivery, the CUSTOMER must return the defective item to W. Gessmann GmbH in accordance with the statutory provisions. Subsequent performance does not comprise the removal of the defective item or its reinstallation, if W. Gessmann GmbH was initially not obliged to install the goods.

8.8. If subsequent performance has failed or a reasonable period of grace for subsequent performance to be set by the CUSTOMER has expired without performance or is dispensable under the statutory provisions, the CUSTOMER may withdraw from the purchase contract or reduce the purchase price. In the event of an insignificant defect, however, there is no right of withdrawal.

8.9. Claims of the CUSTOMER for damages or reimbursement of useless expenditures exist only in accordance with Clause 9 of these GTC and are otherwise excluded.

9. Liability

9.1. The claims of the CUSTOMER for damages or compensation for useless expenses against W. Gessmann GmbH are governed by these provisions, without regard to the legal nature of the claim, irrespective of the law of warranty.

9.2. The liability of W. Gessmann GmbH is excluded - irrespective of the legal grounds - unless the cause of the damage is based on intent and/or gross negligence by W. Gessmann GmbH, its employees, representatives or vicarious agents. If the liability of W. Gessmann GmbH is excluded or limited, this also applies to the personal liability of its employees, representatives or vicarious agents. The liability of W. Gessmann GmbH under the Product Liability Act remains unaffected (s. 14 ProdHG).

9.3. W. Gessmann GmbH or a legal representative or vicarious agent of W. Gessmann GmbH is subject to liability in accordance with the statutory provisions for damages resulting from injury to life, body or health caused by wilful, grossly negligent or negligent breach of duty by W. Gessmann GmbH or its legal representatives or vicarious agents.

9.4. If W. Gessmann GmbH breaches at least negligently an essential contractual obligation, i.e. an obligation the observance of which is of material importance for the achievement of the purpose of the contract (material contractual obligation or cardinal obligation), the liability is limited to the typically occurring damage, i.e. to such damage the occurrence of which must be typically expected within the framework of the contract. A material contractual or cardinal obligation within the meaning of the above is one whose fulfilment is essential for the proper performance of this contract and on whose observance the CUSTOMER regularly relies and may rely.

10. Data storage and data protection

The data protection provisions of the data protection declaration on the my.gessmann.com website apply exclusively.

11. Final provisions

11.1. The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

11.2. If the CUSTOMER is a merchant, legal entity under public law or special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract and the place of performance is the registered office of W. Gessmann GmbH in 74211 Leingarten, Germany.

11.3. The same applies, if the CUSTOMER is an entrepreneur and has no general place of jurisdiction in Germany or if his place of residence or habitual abode is not known at the time the legal action is filed. The right of W. Gessmann GmbH to also bring an action before a court of another jurisdiction remains unaffected.

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