Conditions
General terms and conditions of business
of Tom Fox GmbH
Griesbadgasse 16,
D-89073 Ulm
Status: 01.07.2017
1) conclusion of contract
(1) Our following General Terms and Conditions of Business/Sales and Delivery Conditions apply to all business relationships between us and the customer, regardless of the sales channel selected. The version valid at the time the contract is concluded shall apply.
(2) Apart from prior written individual agreements, our sales and delivery conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer, even if known, are not part of the contract unless we have expressly agreed to their validity in writing. Verbal ancillary agreements, information or promises must be in writing to be effective.
(3) Our offers are subject to change and non-binding until the contract is concluded. They represent an invitation to the customer to submit a binding contract offer. Illustrations are approximate. Technical changes as well as changes in shape, color and/or weight are reserved within reasonable limits.
(4) By ordering a product, the customer makes a binding declaration that they want to purchase the ordered product. We will immediately confirm receipt of the order to the customer. This confirmation in itself does not represent a binding acceptance of the order. The confirmation of receipt can be combined with the declaration of acceptance
(5) We will check the contract offer made by the customer with the order and inform the customer within 3 working days whether we accept the order. Acceptance can be declared either by notification (order confirmation) - also by e-mail - or by delivery of the goods to the customer.
(6) The customer will be informed immediately if the service cannot be provided or is not available. Claims for damages by our customers are excluded in this case.
(7) In the event of non-delivery by the supplier and in the event of other delivery difficulties for which we are not responsible, in particular due to force majeure or unforeseeable obstacles to performance that cannot be overcome with reasonable expenses, we reserve the right to withdraw from the contract. The same applies to behavior by the customer that is contrary to the contract, in particular in the event of default in payment.
2) Prices and terms of payment
(1) The list prices at the time of the order apply to the delivery.
(2) Our prices include the statutory value-added tax and do not include shipping costs and cash on delivery fees, if applicable. In the case of special offers, the price offered is limited to the special offer. Depending on the shipping method, the shipping costs are calculated depending on the size, weight and number of packages.
(3) Our invoices are due immediately and payable net without deductions. A payment is only deemed to have been made when we can dispose of the amount. In the event of a delay in payment, we are entitled to charge default interest of 5% for consumers and 8% for entrepreneurs above the respective base interest rate of the ECB according to the Discount Transition Act. Bills of exchange or checks are only accepted by agreement and on account of performance and only count as payment after they have been honoured. Discount and collection charges are at the expense of the customer. For the timely submission, we assume no liability.
(4) Entrepreneurs are only entitled to rights of retention if their counterclaim is based on the same contractual relationship and this has been legally established or recognized by us.
(5) The customer undertakes to pay the purchase price within 14 days of the invoice date after receipt of the goods. After this period the customer is in default of payment.
3) delivery time
(1) In principle, we deliver as quickly as possible and within the scope of our capacities and subject to timely delivery to ourselves.
(2) An agreed delivery period begins with the uncontradicted or confirmed order.
(3) The delivery period may be extended by the time until you have given us all the information and documents that are necessary for the execution of the order.
(4) Delays in delivery caused by legal or official orders (e.g. import and export restrictions) and for which we are not responsible extend the delivery period according to the duration of such obstacles. In important cases, we will inform you immediately of the beginning and end of these events.
(5) If we are in default with the delivery, our liability for damages in the case of slight negligence is limited to the foreseeable damage. Further claims for damages only exist if the delay is due to intent or gross negligence.
4) Delivery, shipping, transfer of risk
(1) Partial deliveries by us are permitted as far as this is reasonable for you.
(2) We can determine the shipping method, the shipping route and the company commissioned with the shipping at our discretion, unless you give express instructions.
(3) In the case of a purchase of consumer goods, the risk passes to you as soon as the consignment with the delivery items is handed over to you by the carrier. If the transport packaging when the goods are handed over and the items contained therein show obvious damage, you must report this to us within five working days. Otherwise, claims for damage may be rejected in good faith.
5) Goodwill return / refusal of acceptance
(1) After the two-week cancellation period has expired, or in the case of buyers who are not consumers within the meaning of Section 13 of the German Civil Code, goods will only be taken back if it can be proven that the wrong delivery was made. In the case of exchange, return or credit requests for which we are not responsible, processing will only take place after we have confirmed it in writing. This also applies in the case of collection arranged by us to check the return request. The basic prerequisite for this is the quality of the goods and their resaleable condition. The expected reimbursement amount results from the resale price to be achieved at the time of receipt, less a cancellation/processing fee of 10% of the invoice amount.
(2) If a buyer who is not a consumer within the meaning of § 13 BGB does not accept the sold goods, we are entitled to either insist on acceptance or to demand 10% of the purchase price as a flat-rate compensation for damages and expenses, unless the buyer points out that no damage or a lesser amount of damage has occurred. In the event of exceptionally high damage, we reserve the right to assert this. For the duration of the buyer's default of acceptance, we are entitled to store the delivery items at the buyer's risk, with a forwarding agent or a warehouse keeper. For the duration of the delay in acceptance, the buyer must pay us a flat rate of EUR 15 per month for the storage costs incurred without further proof. The flat-rate compensation is reduced to the extent that the buyer proves that no expenses or damage have been incurred. In the case of exceptionally high storage costs, we reserve the right to assert these.
6) retention of title
(1) In the case of contracts with consumers, we reserve ownership of the goods until full payment.
(2) In the case of contracts with entrepreneurs, we reserve title to the goods until all claims from an ongoing business relationship have been settled in full.
(3) As long as ownership has not yet passed, the customer is obliged to treat the goods with care. If maintenance and inspection work is required, the customer must carry this out regularly at his own expense.
(4) The customer is obliged to notify us immediately of any access by third parties to the goods, for example in the event of a seizure (enclosing the record of seizure), as well as any damage or destruction of the goods. The customer must notify us immediately of a change in ownership of the goods or a change of residence.
(5) The entrepreneur is entitled to resell the goods in the ordinary course of business. However, he already assigns to us all claims in the amount of the invoice that accrue to him through the resale to a third party. We accept the assignment. After the assignment, the entrepreneur is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the entrepreneur does not properly meet his payment obligations and defaults on payment.
(6) The treatment and processing of the goods by the entrepreneur always takes place in our name and on our behalf. If processing takes place with items that do not belong to us, we shall acquire co-ownership of the new item in relation to the value of the goods delivered by us to the other processed items. The same applies if the goods are mixed with other items that do not belong to us.
(7) We undertake to release the securities to which we are entitled at the request of the buyer if their value exceeds the claim to be secured by more than 20%.
7) Warranty / Disclaimer
(1) We guarantee for a period of 24 months from the date of delivery that the delivery items are free of defects according to the current state of the art. The statutory provisions apply, in particular with regard to the question of the burden of proof that the goods were defective when they were handed over. Liability for normal wear and tear is excluded. For used goods, the warranty period is 12 months from the date of delivery.
(2) We assume no liability for defects and damage resulting from unsuitable or improper use, non-observance of application instructions or incorrect or negligent handling, unless the buyer proves that these circumstances are not the cause of the defect reported.
(3) The warranty expires if you tamper with and/or repair devices or have them carried out by persons who have not been authorized by us, provided that the defect that has occurred is based on this.
(4) Obvious defects must be reported in writing within two weeks of receipt of the delivery at the latest, with timely dispatch being sufficient to meet the deadline; otherwise all claims for defects are excluded. In commercial transactions, § 377 HGB applies with priority.
(5) In the event of a warranty, the consumer is entitled to choose between asserting a right to rectification of defects or delivery of goods free of defects (subsequent performance). If the selected type of supplementary performance is associated with disproportionately high costs, the claim is limited to the remaining type of supplementary performance. In the context of the delivery of defect-free goods, the exchange for higher-quality products with comparable properties is already accepted, provided this is reasonable for the consumer Further rights, in particular the rescission of the purchase contract, can only be asserted after a reasonable period for supplementary performance has expired or the supplementary performance has failed twice.
(6) If the buyer is an entrepreneur, we are entitled, at our discretion, to remedy the defect or to deliver goods free of defects within the meaning of Section 439 BGB within one year of the delivery date. After one year from the date of delivery, his warranty claims are limited to the elimination of defects or a current value credit, at our option. Should the entrepreneur demand reimbursement of expenses within the meaning of § 478 II BGB, this is limited to a maximum of 2% of the original value of the goods. Claims that go back to Section 478 BGB are waived by the 24-month warranty for entrepreneurs in the sense of equivalent compensation according to Section 478 IV Sentence 1 BGB.
(7) No new warranty/guarantee periods come into effect as a result of an exchange under warranty/guarantee; § 203 BGB remains unaffected.
(8) With the exception of liability for injury to life, limb and health, further claims by the buyer - for whatever legal reason - are excluded unless expressly agreed otherwise. We are therefore not liable for damage that does not occur directly on the delivery item; in particular, we are not liable for lost profits or other financial losses of the buyer. The above exemption from liability does not apply if the damage is due to intent, gross negligence or the lack of a guaranteed property, breach of essential contractual obligations, default in performance, impossibility, and claims under Sections 1 and 4 of the Product Liability Act.
(9) The information in our current return and service information enclosed with every delivery also applies to the processing of warranty claims.
8) Resignation in the event of deterioration in assets
(1) We can withdraw from the contract if we become aware of a cessation of payments, the opening of insolvency or court composition proceedings, the rejection of insolvency due to lack of assets, bill or check protests or other specific indications of a deterioration in the buyer's financial situation.
9) Use of Customer Data
(1) We are entitled to process all data relating to business relationships with you in accordance with the Federal Data Protection Act.
10) Place of jurisdiction, partial invalidity, applicable law
(1) The law of the Federal Republic of Germany. For consumers who do not conclude the contract for professional or commercial purposes, this choice of law only applies insofar as the protection granted by mandatory provisions of the law of the state in which the consumer has his habitual residence is not withdrawn.
(2) If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract and the place of performance are our place of business. The same applies if the customer does not have a general place of jurisdiction in Germany or if his domicile or habitual abode is not known at the time the action is filed.
(3) The provisions of the UN sales law do not apply.
(4) Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially ineffective regulation should be replaced by a regulation whose economic success comes as close as possible to that of the ineffective one.
