General terms and conditions
General terms and conditions
AGB s for tradespeople
With the company: Porta Kosmetik GmbH, Sonnenbrink 46 - 48, 32584 Löhne
-The following conditions apply to all, also future, deliveries and services, offers and order confirmations of the company Porta Kosmetik GmbH (hereinafter referred to as supplier).
-Oral collateral agreements, possible guarantees, contract supplements or contract changes require the written confirmation of the supplier in order to be legally effective. The formal requirement according to this clause can only be dealt with in writing.
-The terms and conditions of business of the customer shall only apply if they have been expressly accepted in writing by the supplier and shall not become part of the contract even upon acceptance of the order. The formal requirement according to this clause can only be dealt with in writing.
-All offers shall always be subject to change without notice. In the absence of a special agreement, the Supplier's order confirmation shall be decisive for the scope of the deliveries or services (hereinafter referred to as "Deliveries").
2. prices and terms of payment
-In the absence of a separate agreement, the prices shall apply ex Seller's registered office excluding freight, packaging, insurance and other ancillary costs as well as plus the applicable statutory value added tax.
-Cheques or bills of exchange shall not be accepted.
-If the customer is more than 10 days in arrears with a payment, even if it concerns payment obligations from other legal transactions, or if he has stopped his payments, or if a significant deterioration of his financial circumstances has occurred, all claims of the supplier from all existing contracts against the customer are due for payment immediately. The Purchaser shall no longer be entitled to claim any discounts granted to him.
-The withholding of payments due to unacknowledged complaints or differences of opinion of any kind and/or offsetting against disputed counterclaims or counterclaims which have not been legally established shall be excluded.
3. delivery periods and default
-In the absence of a separate agreement, an agreed delivery period begins with the receipt of the supplier's order confirmation, but not before the receipt of all documents and information required for the execution of the order and after the fulfilment of all other obligations of the customer, including the performance of any payments, in particular down payments and advance payments. The delivery period shall be subject to correct and timely self-supply and the occurrence of unforeseen events such as force majeure, strike, lockout and other circumstances for which the Supplier is not responsible. In such cases, which must be notified to the customer, the delivery period shall be extended by a reasonable period of time.
-The delivery period shall be deemed to have been complied with if the delivery item has left the supplier's delivery warehouse or readiness for dispatch has been notified by the end of the delivery period. If dispatch or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, he shall be charged the costs incurred as a result of the delay, commencing one month after notification of readiness for dispatch or acceptance.
-The customer may withdraw from the contract without setting a deadline if the entire performance becomes finally impossible for the supplier before the transfer of risk. In addition, the Purchaser may withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and he has a justified interest in rejecting the partial delivery. If this is not the case, the Purchaser shall pay the contract price attributable to the partial delivery. The same shall apply in the event of the Supplier's inability to perform.
2. 7.b shall apply in all other respects.
-If the impossibility or inability to perform occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances, he shall remain obliged to render consideration.
If the Supplier is in default and the Purchaser suffers damage as a result, the Purchaser shall be entitled to demand lump-sum compensation for default. For each full week of delay, this shall amount to 0.5% in total but not more than 5% of the value of that part of the total delivery which cannot be fulfilled in time or in accordance with the contract as a result of the delay.
-If the Purchaser sets the Supplier a reasonable deadline for performance after the due date - taking into account the material exceptions - and if the deadline is not met, the Purchaser shall be entitled to withdraw from the contract within the framework of the statutory provisions.
-Further claims arising from delay in delivery shall be determined exclusively in accordance with Section 7.b of these Terms and Conditions.
-If dispatch or delivery is delayed by more than 1 month after notification of readiness for dispatch at the request of the customer, the customer may be charged storage costs of 1% of the price of the items of the deliveries for each month commenced, but no more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.
-In the absence of a separate agreement, shipment shall be at the expense and risk of the customer. The route and mode of transport shall be at the Supplier's discretion; the Supplier shall make the choice with the care of a prudent businessman, whereby the Supplier and its vicarious agents shall only be liable for insufficient care in the event of intent or gross negligence.
-Each consignment shall be insured for transport ex delivery warehouse; the costs arising therefrom shall be borne by the customer.
-Transport damage must be reported to the supplier no later than 24 hours after receipt of the delivery, enclosing the supporting documents.
5. retention of title
-All delivery items shall remain the property (reserved goods) of the Supplier until all claims, irrespective of their legal basis, have been satisfied, including future or conditional claims, including those arising from contracts concluded simultaneously or later. This shall also apply if payments are made for specifically designated claims.
-The processing of the delivery items shall take place for the supplier as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating him. The processed delivery items shall be regarded as reserved goods within the meaning of Section 5.a. If the Purchaser processes, combines or mixes the delivery items with other goods, the Supplier shall be entitled to co-ownership of the new item(s) in the ratio of the invoice value of the processed delivery items to the invoice value of the other goods used. If the Supplier's ownership expires due to combination or mixing, the Purchaser hereby assigns to the Supplier the ownership rights to which the Purchaser is entitled to the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for the Supplier free of charge. The co-ownership rights resulting therefrom shall be deemed to be reserved goods within the meaning of Section 5.a.
-The customer may only sell the delivery items in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale in accordance with Sections 5.d to 5.f are transferred to the supplier. The purchaser is not entitled to dispose of the reserved goods in any other way.
-The customer's claims arising from the resale of the reserved goods are hereby assigned to the supplier. They serve him as security to the same extent as the reserved goods. If the reserved goods are sold by the purchaser together with other goods not sold by the supplier, the assignment of the claim from the resale shall only apply to the amount of the resale value of the respective delivery items sold. In the event of the sale of delivery items in which the Supplier has co-ownership shares in accordance with Section 5.b, the assignment of the claim shall apply to the amount of these co-ownership shares.
-If the customer includes the claim from the resale of reserved goods in a current account relationship existing with his customer, the current account claim shall be assigned in full to the supplier. After balancing has been effected, it shall be replaced by the acknowledged balance, which shall be deemed assigned up to the amount of the original current account claim.
-The customer is entitled to collect claims from the resale until revoked by the supplier, which is permissible at any time. The purchaser is only entitled to assign the claims, including the sale of claims to factoring banks, with the prior written consent of the supplier. At the Supplier's request, the Purchaser shall be obliged to inform its customers immediately of the assignment - unless the Supplier itself does so - and to provide the Supplier with the information and documents required for collection.
-In the case of payment by cheque, ownership of the cheque shall pass to the Supplier as soon as the Purchaser acquires it. If payment is made by bill of exchange, the Purchaser hereby assigns to the Supplier in advance any rights arising therefrom. The handing over of these documents shall be replaced by the fact that the customer keeps them in safe custody for the supplier or, if he does not acquire direct possession of them, hereby assigns in advance to the supplier his claim to surrender against third parties. The customer shall immediately hand over these documents to the supplier with his endorsement.
-The Purchaser's right to possess the reserved goods shall lapse if he fails to fulfil his obligations under this or any other contract.
-The Purchaser's right to own the reserved goods shall lapse if he fails to fulfil his obligations under this or any other contract with the Supplier. In the event of such breach of contract by the Purchaser, in particular default in payment, the Supplier shall be entitled to take back the Retained Goods following a reminder and the Purchaser shall be obliged to surrender the Retained Goods.
-The Purchaser must immediately notify the Supplier of any attachment or impairment by third parties and provide it with the information and documents required to assert its rights. An application for the opening of insolvency proceedings against the assets of the Purchaser shall entitle the Supplier to withdraw from the contract and to demand the immediate return of the reserved goods.
-If the value of the existing securities exceeds the secured claims by more than 20 per cent in total, the Supplier shall be obliged to release securities of the Supplier's choice at the Purchaser's request.
-The Purchaser is obliged to insure the reserved goods against fire, water and theft.
-If special conditions or formal requirements exist in the country of the Purchaser for the transfer of ownership of the delivered items or the securities, the Purchaser shall ensure their fulfilment at its own expense.
6. warranty and liability
The Supplier shall provide the following warranty for material defects and defects of title of the delivery to the exclusion of further claims - subject to Section 7.b:
Defects as to quality
-All parts which prove to be defective as a result of a circumstance prior to the transfer of risk shall be repaired or replaced free of charge at the Supplier's discretion. The Supplier must be notified immediately in writing of the discovery of such defects. Replaced parts shall become the property of the Supplier.
-After consultation with the Supplier, the Purchaser shall grant the Supplier the necessary time and opportunity to carry out all repairs and replacement deliveries which the Supplier deems necessary, otherwise the Supplier shall be released from liability for the resulting consequences.
-Of the direct costs arising from the repair or replacement delivery, the Supplier shall bear - insofar as the complaint proves to be justified - the costs of the replacement part including dispatch.
-Within the framework of the statutory provisions, the Purchaser shall have the right to withdraw from the contract if the Supplier - taking into account the statutory exceptions - allows a reasonable period of time set for him for the repair or replacement delivery due to a material defect to elapse fruitlessly. If there is only an insignificant defect, the Purchaser shall only be entitled to a reduction of the contract price. The right to a reduction of the contract price shall otherwise be excluded.
-Further claims shall be determined in accordance with Section 7.b of these Terms and Conditions.
Defects of title
-If the use of the delivery item leads to an infringement of industrial property rights or copyrights in the Purchaser's country, the Supplier shall, at its own expense, procure for the Purchaser the right to continue using the delivery item or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract. Under the aforementioned conditions, the Supplier shall also be entitled to withdraw from the contract.
-Subject to Section 7.b, the Supplier's obligations set forth in Section 6.f shall be final in the event of an infringement of industrial property rights or copyrights. They shall only exist if: - the Purchaser notifies the Supplier without undue delay of the claimed infringements of industrial property rights or copyrights; - the Purchaser supports the Supplier to a reasonable extent in the defence against the asserted claims or enables the Supplier to carry out the modification measures in accordance with Section 6.f;
The Supplier reserves the right to take all defensive measures, including out-of-court settlements;
-the defect of title is not based on an instruction given by the Purchaser, and
-the infringement of rights was not caused by the fact that the customer has arbitrarily modified the delivery item or used it in a manner not in accordance with the contract.
-If the delivery item cannot be used by the purchaser in accordance with the contract due to the fault of the supplier as a result of omitted or faulty execution of suggestions and advice given before or after conclusion of the contract or due to the violation of other contractual ancillary obligations - in particular instructions for operation and maintenance of the delivery item - the provisions of Sections 6 and 7.b shall apply accordingly to the exclusion of further agreement by the purchaser.
-For damages which have not occurred to the delivery item itself, the Supplier shall only be liable - for whatever legal reasons - in the case of intent,
-in the event of gross negligence on the part of the supplier's executive bodies or executive employees,
-by culpable injury to life, body, health,
-in the case of defects which he maliciously concealed or whose absence he guaranteed,
-in the event of defects in the delivery item, insofar as liability is assumed under the Product Liability Act for personal injury or property damage to privately used items.
In the event of culpable breach of material contractual obligations, the Supplier shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, in the latter case however limited to reasonably foreseeable damage typical of the contract.
8. statute of limitations
All claims of the customer - on whatever legal grounds - shall become statute-barred after 12 months. For claims for damages according to Section 7.b, the respective statutory periods shall apply. The statutory periods shall also apply to recourse claims in accordance with § 478 BGB (German Civil Code) and delivery items which have been used for a building in accordance with their usual use and which have caused its defectiveness.
Insofar as software is included in the scope of delivery, the customer shall be granted a non-exclusive right within the framework of the specifications of the software supplier to use the delivered software including its documentation. It shall only be made available for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
-The customer may only copy, revise, translate or convert the software from direct code to source code to the extent permitted by law. The Purchaser undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without the Supplier's prior express consent.
-All other rights to the software and the documentation including copies shall remain with the supplier or the software supplier. Sublicensing is not permitted.
10. applicable law, place of performance and place of jurisdiction
-All legal relationships between the Supplier and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
-The place of jurisdiction shall be the registered office of the Supplier. The Supplier shall also be entitled to sue at the Purchaser's place of business or at any other statutory place of jurisdiction. This provision shall also apply to bill of exchange and cheque procedures. If the customer is a merchant, a legal entity under public law or a special fund under public law, the above jurisdiction shall also apply in the event of cancellation, rescission, rescission and the like.
-The place of performance for deliveries and services as well as for payments by the customer, also for claims arising from cheques and bills of exchange, shall be the registered office of the supplier.
11. final provisions
The customer/orderer in this online shop of Porta Kosmetik GmbH confirms that he has ordered all articles ordered here in the shop only for his commercial activity.
-The headings serve only the better clarity and have no material meaning, in particular not those of a final regulation. Should individual provisions of these General Terms and Conditions of Sale and Delivery be or become invalid, this shall not affect the legal validity of the remaining provisions.
-The ineffective provisions must be reinterpreted in such a way that their purpose can be fulfilled effectively.
Right of revocation for consumer contracts § 355 BGB
You have the right to revoke this contract within fourteen days without giving reasons.
The revocation period shall be fourteen days from the day on which you or a third party named by you who is not the carrier have taken or have taken possession of the last goods.
In order to exercise your right of withdrawal, you must inform us, Porta Kosmetik GmbH, Sonnenbrink 46-48,32584 Löhne, fax number: +49(0)5732-6882266, E-Mail-Adresse:email@example.com, of your decision to withdraw from this contract by means of a clear declaration (e.g. a letter, fax or e-mail sent by post). You can use the attached sample revocation form, which is not mandatory.
You may also electronically complete and submit the sample withdrawal form or other unambiguous statement on our website - www.porta-kosmetik.de). If you make use of this option, we will immediately (e.g. by e-mail) send you confirmation of receipt of such a revocation.
In order to comply with the revocation period, it is sufficient for you to send notice of the exercise of the right of revocation before the expiry of the revocation period.
Consequences of the revocation
If you revoke this Agreement, we shall reimburse you immediately and no later than fourteen days from the date on which we received notice of your revocation of this Agreement for all payments we have received from you, including delivery charges (other than additional charges arising from your choice of a method of delivery other than the cheapest standard delivery offered by us). We will use the same means of payment used by you in the original transaction for such refund, unless expressly agreed otherwise with you and in no event will you be charged for such refund. We may refuse to refund until we have received the Goods back or until you have provided evidence that you have returned the Goods, whichever is earlier.
You shall return or deliver the Goods to us immediately and in any event no later than fourteen days from the date on which you notify us of the revocation of this Contract. This period shall be deemed to have been observed if you dispatch the goods before the expiry of the period of fourteen days. You shall bear the direct costs of returning the goods.
The costs are estimated at 15.00 € plus VAT for parcels and 195.00 € plus VAT for forwarding goods, depending on the size and weight of the goods.
You only have to pay for a possible loss in value of the goods if this loss in value is due to a handling of the goods that is not necessary for checking their condition, properties and function.
Exclusion of the right of revocation - The right of revocation does not apply to distance selling contracts.
(1) for the supply of goods which are not prefabricated and the manufacture of which is determined by an individual choice or destination made by the consumer or which are clearly attributable to the
are tailored to the personal needs of the consumer,
(2) for the delivery of goods which are liable to perish quickly or whose expiry date would quickly be exceeded,
(3) for the delivery of sealed goods which, for health or hygiene reasons, are not suitable for return if their seal has been removed after delivery,
(4) for the delivery of goods if these have been inseparably mixed with other goods after delivery due to their nature.
(5) between traders (B2B)
(A consumer is any natural person who concludes a legal transaction for a purpose that cannot be attributed to his commercial or self-employed professional activity.)
- For the rest, the statutory AGB'S apply exclusively to the consumer.