Terms and Conditions
General Terms and Conditions of Business for the Xell Webshop (Version of 5 July 2018)
1.1. These General Terms and Conditions of Business (hereinafter, the “Terms and Conditions”) shall apply to all the contracts concluded online/on the Internet/in the webshop (hereinafter, the “Webshop”) between us, Xell AG, Alte Verler Str. 1, 33689 Bielefeld (hereinafter, “Xell”) and our customers.
1.2. Our deliveries, performances and offers shall be made exclusively on the basis of these Terms and Conditions. Decisive shall be the version of our Terms and Conditions generally applicable on the respective date of the customer’s order. No terms and conditions of business of the customer shall apply, even if we do not separately oppose them in any specific case.
1.3. The offerings in our Webshop are directed exclusively at buyers who are to be regarded as entrepreneurs in the terms of § 14(1) of the German Civil Code and have their registered office either in Germany, the EU or Switzerland. The customer represents that the customer is an enterpriser, is concluding the contract with us in the exercise of the customer’s commercial or self-employed professional activity and that the customer has is domiciled in the EU or Switzerland.
1.4. Contracts with the customer shall be concluded exclusively in German or English, depending on whether the customer places the order via the German- or English-language page of our Webshop. If the customer's order is placed via our German-language website, exclusively the German version of these Terms and Conditions shall be authoritative. If the order is placed via our English-language website, only the English version of these Terms and Conditions shall be decisive.
2. Conclusion of Contract
2.1. The presentation and advertising of articles in our Webshop shall not constitute a binding offer to conclude a purchase contract. Our offers in our Webshop are therefore without exception subject to change without notice and merely constitute a non-binding invitation to the customer to place orders for the customer’s part.
2.2. The customer's order shall constitute a binding offer to us to conclude a purchase contract for the product in question. The customer shall be bound to the customer’s offer for 21 days after receipt of the customer’s order.
2.3. After receipt of the offer, the customer shall receive an automatically generated e-mail with which we confirm receipt of the order and provide details of the order. This confirmation of receipt shall not constitute an acceptance of the purchase offer. It merely informs the customer about the receipt of the order and shall not lead to the conclusion of the contract.
2.4. A contract between the customer and us shall first come about when we expressly accept the order either through another e-mail, by fax or by post or when we comply with the order by delivering the goods.
2.5. We reserve the right to accept the customer's offer only with respect to a part of the ordered goods.
3. Delivery Period and Default
3.1. The delivery period shall be agreed individually or specified by us upon acceptance of the order (Section 2.4). If this is not the case, the delivery period shall be up to 24 weeks due to the special features of our assortment.
3.2. If we are unable to deliver the ordered goods within 24 weeks in individual cases, we shall inform the customer of this fact, unless we have already indicated specific delivery periods in our offer in the Webshop, after receipt of his order though before the conclusion of the contract, together with further details on the delivery period. In such case, the customer shall no longer be bound to the customer’s order, but must confirm it separately if the customer agrees to the specified details of the delivery periods.
3.3. All delivery periods specified or otherwise agreed by us upon acceptance of the order shall commence (a), if delivery is agreed in return for cash in advance, on the day of receipt of the full purchase price (including value added tax) or (b), otherwise, on the day on which the purchase contract comes about.
3.4. If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we shall inform the customer immediately and at the same time inform the customer of the tentative new delivery period. If the performance is also not available within the new delivery period, we shall be entitled to rescind the contract in whole or in part; we shall reimburse the customer without delay for any consideration already rendered. In the terms hereof, a case of “non-availability of performance” shall in particular mean if our supplier fails to deliver to us in a timely manner, if we have concluded a congruent hedging transaction, if neither we nor our supplier are at fault or if we are not obliged to procure the performance in the specific case.
3.5. The occurrence of a delay in our delivery shall be determined in accordance with the provisions of law. In all cases, however, a reminder by the customer shall be required.
4. Prices and Payment
4.1. Our prices are quoted ex our company registered office or warehouse plus freight/shipping/transport costs and the currently applicable value added tax. Customs duties and similar charges must be borne by the customer. Unless otherwise agreed with the customer, we shall charge the packaging customary for transport/shipping at cost price.
4.2. Unless expressly agreed otherwise, we shall only deliver in return for cash in advance. We reserve the right to exclude certain payment methods. For registered customers, we reserve the right to accept payment with or after delivery.
4.3. All our claims shall be due upon receipt of our invoice and shall be payable without any deductions. The costs of payment transactions shall be borne by the customer.
4.4. The customer shall be in default without any further declaration by us if customer has not made payment within 14 days after the due date and receipt of the invoice.
4.5. The customer shall not be entitled to any right of set-off or retention unless the counterclaim is undisputed or has been declared by non-appealable judgment.
5. Shipping of Goods
5.1. Unless agreed otherwise, we shall deliver the goods at the customer's request from our works/warehouse to the address indicated by the customer.
5.2. We shall be entitled to make partial deliveries and partial performances if they are of interest to the customer in accordance with the purpose of contract and the customer does not incur any significant additional expenses as a result. We shall bear any additional shipping costs instigated by this.
5.3. If the goods are sent to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the works/warehouse. This shall apply irrespective of who is bearing the freight charges.
5.4. The day on which the goods are handed over by us to the shipping company shall be decisive for observance of the delivery date. Unless expressly agreed otherwise, we shall determine the appropriate mode of shipping and the transport company at our reasonable discretion.
6. Title Reservation
6.1. The delivered goods shall remain our property (reserved goods) until the final payment of all claims that have arisen or will arise based on the business relation with the customer. In the case of several claims or current accounts, the title retention shall be considered as collateral for the balance receivable, even if individual deliveries of goods have already been paid.
6.2. In the event of conduct by the customer in breach of contract, e.g. default in payment, we shall be entitled to take back the reserved goods after setting a reasonable grace period. If we take back the reserved goods, this shall constitute a rescission of the contract. We shall be entitled to realize the reserved goods after taking them back. After deducting an appropriate amount for the realization costs, the realization proceeds must be netted out with the amounts owed to us by the customer.
6.3. In the event of interference with the reserved goods by third parties, in particular attachments, the customer shall indicate our title and inform us immediately so that we can enforce our ownership rights.
6.4. The customer shall be entitled to process and sell the reserved goods in the ordinary course of business as long as the customer is not in default. Pledges or transfers by way of security shall not be permitted. The claims arising from resale or based on any other legal ground (insurance, torts) with regard to the reserved goods shall hereby be assigned to us in advance by the customer in full by way of security. Subject to revocation, we hereby authorize the customer to collect the claims assigned to us for the customer’s account in the customer’s own name. The collection authorization shall expire if the customer fails to properly meet the customer’s payment obligations, the customer is in financial difficulty, is subject to enforcement measures or if judicial insolvency proceedings are instituted against the customer or the customer’s assets are initiated or the initiation of insolvency proceedings is denied due to lack of assets.
6.5. The processing or transformation of the goods shall always be carried out for us as the manufacturer, but without any obligation on our part. If the delivered items are processed with other items not belonging to us, we shall acquire co-title to the new item in the proportion of the value of the delivered items to the other processed items at the time of processing. If the delivered items are combined or inseparably mixed with other items not belonging to us, we shall acquire co-title to the new item in the proportion of the value of the delivered items to the other combined or mixed items. If the customer's item is to be regarded as the main item in connection with the combination or mixing, the Parties agree that the customer shall transfer co-title to the new item to us on a prorated basis. The customer shall keep custody of the co-title thus created for us.
6.6. We shall be obliged to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.
7.1. In the event of a breach of a contractual duty, the customer shall be entitled to the rights prescribed by law vis-à-vis ourselves in accordance with the following provisions.
7.2. The customer shall be obliged to inspect the goods with due care for deviations in quality and quantity and to notify us of obvious defects immediately after receiving the goods. This shall also apply to hidden defects discovered at a later date as of the discovery. The assertion of warranty claims shall be excluded in the event of a breach of the duty to inspect goods and protest defects.
7.3. In the event of justified and timely notification of defects, the customer shall have a claim to subsequent performance during the warranty period; we shall be entitled to choose the type of subsequent performance, whether remedy of the defect or delivery of a defect-free item. If the subsequent performance fails or if further attempts at subsequent performance are unreasonable for the customer, the customer shall be entitled to a reduction in price or to rescind the contract. In the event of subsequent improvement, we shall not have to bear the increased costs incurred by the shipment of the goods to a place other than the place of performance, if the shipment does not correspond to the intended use of the goods.
7.4. The customer may only assert claims for damages in accordance with the terms and conditions stipulated in Section 8 due to a defect if the subsequent performance has failed or if we refuse subsequent performance. The customer's right to assert further damage compensation claims under the terms and conditions stipulated in Section 8 shall not be prejudiced thereby.
7.5. Only the customer shall be entitled to claims against us due to defects, which shall not be transferable.
7.6. The limitation period for defect claims shall be one year from the transfer of risk. This shall not apply if the law prescribes longer periods pursuant to §§ 478 and 479 of the German Civil Code, in the case of a guarantee as well as in cases of injury to life, limb or health, in the case of an intentional or grossly negligent breach of duty by us and in the case of fraudulent concealment of a defect.
8.1. We shall only be liable for any damages that arise insofar as such are based on a breach of a material contractual duty or on intentional or grossly negligent conduct on our part, our legal representatives or vicarious agents. If a material contractual duty has been breached due to slight negligence, our liability shall be limited to the foreseeable damage typical to contracts. A material contractual duty shall exist in the case of obligations the fulfilment of which first makes the proper execution of the contract at all possible or in the fulfilment of which the customer could trust.
8.2. Any liability for damage compensation beyond Section 8.1 shall be excluded. Liability for negligent injury to life, limb or health in accordance with the provisions of law shall not be prejudiced hereby. This shall also apply to mandatory liability in accordance with the Product Liability Act
8.3. A limitation period of one year shall apply to all claims against us for damage compensation and reimbursement of futile expenses in the case of contractual and extra-contractual liability. This shall not apply to our liability in the event of intentional action, gross negligence, personal injury or liability under the Product Liability Act. The limitation period for claims based on defects in Section 7.6 shall not be prejudiced hereby.
8.4. We shall bear the burden of proof for the facts establishing a limitation or an exclusion of liability.
9. General Provisions
9.1. We shall only assume a warranty for the features of the offer (warranted features) in express written form, i.e. by using the heading "Warranty."
9.2. The place of performance for all delivery obligations on our part and for all other contractual obligations of both Parties shall be our registered office.
9.3. This Agreement and these Terms and Conditions as well as all legal relations between the customer and us are subject to the law of the Federal Republic of Germany, to the exclusion all references to other legal systems and international agreements. The validity of the UN Convention on Contracts for the International Sale of Goods is hereby excluded.
9.4. Bielefeld shall be the place of jurisdiction for all disputes arising from this contractual relation. However, we are also entitled to sue the customer at the customer’s place of business.