Elem Candle Andrzej Madrzyk and Filip Madrzyk GbR Mühlendamm 70 D-22087 Hamburg

General Terms and Conditions for Commercial Customers

 

 

I. Scope of Application

These General Terms and Conditions only apply to our contractual relations with commercial end customers or entrepreneurs within the meaning of § 14 (1) of the German Civil Code (BGB). For private customers, our General Terms and Conditions for private end customers apply, which can be downloaded at www.erlebniskerzen.de.

For commercial customers, the following General Terms and Conditions in the version applicable at the time of the order apply exclusively to your goods orders in our online shop.

We hereby appose any contractual offers or general terms and conditions of our customers that differ from these General Terms and Conditions. Collateral agreements and any agreements that differ from these General Terms and Conditions shall only apply if they have been confirmed by us in writing.

 

 

II. Conclusion of a contract

1. With your order you submit a binding order. We shall accept your offer if and as soon as we have confirmed the order by sending an email or a fax or by letter and you have received this confirmation.

Our offers are subject to confirmation and do not constitute an obligation to accept the order. Price details or the depiction of goods in our catalogues, brochures, at trade fairs or in our online shop do not constitute contents of binding contractual offers until we have confirmed the order.

Guarantees are only binding if and insofar as they are referred to as such in an offer or an order confirmation and the obligations arising from the guarantee are also recorded in detail therein.

2. The conclusion of a contract shall be effected subject to the correct and punctual self-delivery by our suppliers. This proviso shall only apply if we are not responsible for an unpunctual or impossible delivery and, in particular, we have punctually agreed with our supplier our own delivery to meet the contractual obligations.

3. Unless they have been expressly referred to as part of the performance in the respective offer, our prices relate to the illustrated article, but not to any accessories or decorations included in the illustration.

 

 

IV. Delivery and forwarding charges

1. The delivery shall be effected exclusively ex works subject to a separate agreement (in writing or by email). You shall organise the transport yourself and for your own account.

On request our in-house forwarding service (or in the case of small volumes the package service DHL) shall also deliver against an invoice. We are happy to inform you of our prices that apply to the transport on your request.

2. We do not accept any liability for transport damage unless we have caused transport damage due to gross negligence or intent.

3. Deliveries shall be effected by the date confirmed by us in writing. Our customers shall only be entitled to claims due to exceeded deadlines if default exists for which we are responsible through intent or gross negligence. The size of the claims shall – for whatever legal reason – be limited to 0.5% of the invoice value of the deliveries affected by the default for every completed calendar week of the default, but in total to a maximum of 5% of the invoice amount of the delayed delivery. Other claims are excluded. We only fall into arrears after a written warning by the buyer.

 

 

V. Prices and due date

1. All the specified prices are listed in euros, including packaging costs and exclusive of insurance, shipping and statutory value added tax.

2. The invoice amount is always due in advance and payable without discount within five bank transaction days after invoicing. We offset payments against the oldest debt.

 

 

VI. Retention of title

1. The goods shall remain our property (reserved goods) until all the existing claims (including claims not yet due arising from goods deliveries which have already taken place) have been paid in full.

In the event of behaviour by the customer contrary to the terms of the contract, particularly with respect to default of payment, we shall be entitled to demand the surrender of the goods after fixing an appropriate time limit. The customer shall be obliged to surrender the goods. The customer shall bear the necessary and appropriate costs for the retrieval of the goods. We reserve the right to assert any claims or rights going beyond this, particularly due to deterioration in the goods, warehousing costs, seasonally related unsaleability or deterioration in the saleability of the goods. If we take back or seize the delivered item, this will always lead to a withdrawal from the contract.

Upon handover of the goods the customer shall bear the risk of loss, accidental destruction or accidental impairment for the delivered goods and those in our possession up to full acquisition of title.

The customer shall be obliged to insure the goods against the customary risks for the replacement value. The customer shall hereby assign to us the claims resulting from a case of damage, especially against insurers or parties who have caused damage, up to the amount of our claims.

2. The customer shall inform us in writing without delay of any seizures or other impairment of our property or the claims and rights assigned to us by third parties. The customer shall be liable for all damage arising from omitted or delayed notification. The customer shall take its own provisional measures to secure our claims and our rights which do not permit a delay. If the third party is unable to reimburse us the costs of in-court and out-of-court legal proceedings in accordance with § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the costs we have incurred.

3. The customer may only sell the delivered goods and the items resulting from their processing in the course of ordinary business dealings. The customer is prohibited from carrying out pledging or collateral assignment. The customer shall hereby assign to us all its claims or rights against its customers or third parties resulting from the sale of the goods or for another reason in respect of the goods, including any claims for damages. We hereby accept the assignment. Upon request the customer shall notify us of the assignment of third party debtors and surrender to us the necessary or useful documents and supply information to assert the assigned claims.

We shall authorise the customer to collect for us the claim assigned to us as long as long as we do not revoke this authorisation. The customer shall forward collected amounts to us immediately if our claim is already due or otherwise hold the amounts in safe keeping for us in a fiduciary capacity until they are due. Our right to collect such claims ourselves shall remain unaffected hereby. However, we shall undertake not to collect such claims as long as the customer duly meets its payment obligations and does not default on any payment.

For the purpose of inspecting the reserved goods, the customer shall grant us the right to enter its business and warehouse premises and remove our goods from there provided the requirements therefor have been met.

4. We undertake to release the security that we hold at the Buyer’s request insofar as the value thereof exceeds the claims to be secured by more than 20%. The choice of security to be released is our responsibility.

 

 

VII. Defects

1. Handmade products, especially candles, are one-off items. It is not possible to produce completely identical copies other than through mechanical manufacture. Likewise, smaller irregularities or deviations in colour cannot be excluded in the case of handmade products. You are in agreement that such distortions do not constitute defects.

2. Minor deviations from the product description do not constitute defects.

3. We would like to supply you only with selected goods of the highest quality.

However, should your goods have a defect when delivered, you must send an immediate notification of defects in writing by fax or by email to our above-mentioned address. As a rule, we shall request that you return the goods to us at our expense.

We shall render subsequent performance within a reasonable time (but at least ten calendar days from the notification of defects and return of the defective goods). This may take place at our discretion by supplying a replacement or by remedying the defect.

If the subsequent performance fails, you shall be entitled at your discretion to cancel the purchase or to reduce the purchase price appropriately.

 

 

VIII. Liability

1. We shall be liable in the event of a breach of essential contractual obligations (“cardinal obligations”), for impossibility for which we are responsible, for the lack of an assured property, for guarantees given and for the loss of life, personal injury or damage to health, even in the case of slight negligence.

In addition, we shall only be liable if damage has been caused by us through gross negligence or intent.

2. In the case of damage based on the lack of a guaranteed quality, we shall only be liable for such damage which should be covered by the guarantee.

3. The liability shall in each case be limited to typical damage within the scope of that which is foreseeable and the maximum amount shall, as a rule, be € 250.00. You onus is on you to prove greater damage.

4. Liability according to the Product Liability Law shall not be affected.

 

 

IX. Data protection/credit check

We shall store the data required to process the transaction. All personal data will only be used for the purpose of the contractual relationship and will not be forwarded to third parties unless a legal obligation exists or other authorisation has been obtained.

We shall reserve the right to forward data to a debt-collecting firm cooperating we us in the event of non-payment.

We shall reserve the right to exclude users from placing orders in our online shop for justified reasons (especially attempts at fraud or other legal infringements) and to store and utilise the data disclosed in this connection by these users.

 

 

X. Further provisions