Terms and conditions of disana GmbH & Co.KG
1. Validity of the Terms and Conditions
1.1. Our General Terms and Conditions apply solely; we do not recognize any of your terms and conditions that conflict with or differ from our General Terms and Conditions unless we have expressly agreed to their application.
1.2. Our General Terms and Conditions also apply, if we carry out the performance unconditionally in the knowledge of conflicting terms or conditions of the customer deviating from our General Terms and Conditions.
1.3. Our General Terms and Conditions apply only to entrepreneurs as defined in § 14 German Civil Code (BGB).
2. Conclusion of contract
2.1. Our offers only address entrepreneurs as defined in § 14 German Civil Code (BGB). Upon request, the customer has to verify his entrepreneur status by providing suitable documents.
2.2. Our offers do not constitute any binding offer, but an invitation to submit an offer by the customer
2.3. The customer's order is a binding offer to conclude a contract. We are entitled to accept this offer within two weeks. Acceptance shall be sent either by express statement to the customer or by delivery of the goods.
2.4. Should we accept the offer on changed terms and conditions, e.g. a differing price, this acceptance shall be assessed as an offer to conclude a modified contract. In this case, the customer may accept our offer within fourteen days.
2.5. In the case of orders with delivery to third parties, the purchaser shall be deemed to be the customer, unless otherwise expressly agreed.
3. Delivery, shipment
3.1. Unless otherwise agreed, delivery is ex works.
3.2. If international delivery conditions (INCOTERMS) are used between us and the customer, these shall be interpreted according to the rules of the International Chamber of Commerce for INCOTERMS in the form valid at the time of the conclusion of the contract.
3.3. The delivery is made to the delivery address stated by the customer.
3.4. Unless otherwise agreed, delivery time is within 3 to 4 weeks after conclusion of contract.
3.5. If possible, delivery will be made in one shipment. However, we are entitled to partial deliveries insofar as these are reasonable for the customer. We bear any extra costs due to such partial deliveries.
3.6. Mentioned delivery dates are not fixed dates, unless we had expressly confirmed a delivery date as a fixed date.
3.7. Delivery dates or delivery times shall be subject to correct, punctual and sufficient supply to us according to Sect. 4.
3.8. Delay in delivery that occur with us or with one of our suppliers / subcontractors due to force majeure or due to circumstances which are equivalent to force majeure (such as currency, trade and other governmental measures, strikes, operational disruptions such as fire, defects in machinery, breakage, shortages of raw materials or energy) and are not to be represented by us, entitle us to postpone delivery by the duration of the hindrance. If the delays render the execution of the contract unreasonable for the customer, he shall be entitled to rescind the contract. In case of not only temporary impediments to performance we are also entitled to withdraw from the contract.
3.9. The occurrence of our delay in delivery is determined by law. In any case, a warning notice is required by the customer.
3.10. The rights of the customer pursuant to Sect. 10 and our statutory rights, in particular in the case of an exclusion of the duty of performance (for example due to impossibility or unreasonableness of performance and / or cure) shall remain unaffected.
4.1. Every offer is be subject to correct, punctual and sufficient supply to us by our supplier / subcontractor.
4.2. If the goods required for the execution of the order are not available because we are unpredictably and without any wrongdoing not supplied by our supplier at the time of conclusion of the contract, we are entitled to terminate the contract. In this case, we will inform the customer immediately that a delivery is not possible.
4.3. A liability for damages for non-performance is excluded, unless we have acted intentionally or grossly negligent regarding the lack of availability. Liability for pre-contractual negligence remains unaffected.
5. Prices, transportation costs
5.1. All prices quoted are exclusive of VAT.
5.2. The prices are ex works. Costs for packaging, freight, postage, insurance and other shipping costs are additionally to be borne by the customer. In the case of deliveries to countries outside the EU, the customer must bear any additional customs duties that may be charged.
5.3. The amount of the costs according to Sect. 5.2 are derived from the respective contractual agreement. If nothing has been agreed upon, the customer has to reimburse the actual costs incurred against. We will provide the proper receipts for such costs.
5.4. Granted rebates, cash discounts or other discounts to the customer, do not apply to costs for packaging, freight, postage, insurance and other shipping costs or customs duties.
6. Payment, invoice, due date and default
6.1. Unless otherwise agreed, the following payment terms apply to customers in Germany with receipt of the invoice and the goods:
6.1.1. Within 3 days less 5 % cash discount (only for payment by direct debit)
6.1.2. Within 10 day less 4% cash discount
6.1.3. Within 30 days net without deductions
6.2. Unless otherwise agreed, customers outside Germany must make advance payments, which must be paid within 14 days after the conclusion of the contract and receipt of the invoice.
6.3. The customer shall be in default with the expiration of the preceding payment periods (Sect. 6.1.3 or 6.2), without a warning notice being required. In the event of default, the customer shall pay default interest on the amount in arrears at the applicable statutory interest rate (§ 288 para. 2 German Civil Code (BGB)). We reserve the right to assert further claims for damages due to the default.
6.4. Granted rebates, cash discounts or other discounts to the customer, do not apply to costs for packaging, freight, postage, insurance and other shipping costs or customs duties. The invoice will be issued under the day of delivery, partial delivery or indication of delivery.
6.5. We are entitled to send invoices only electronically, provided that these meet the statutory tax law requirements.
6.6. If the customer does not accept the duly delivered goods, he shall be responsible in particular for the thereby resulting extra charges in the event of the delay in acceptance. During the delay we are no longer responsible for negligent behavior. If the customer refuses the acceptance unjustified, seriously and definitively, we can withdraw from the contract and in particular claim the lost business profit as compensation.
6.7. If, after the conclusion of the contract, it becomes apparent that the payment by the customer is jeopardized by the customer's inability to perform such payment (for example, by requesting the opening of insolvency proceedings), we may demand advance payments from the customer and retain goods not yet delivered. These rights shall also apply to us if the customer is in default with the payment of deliveries based on the same legal relationship. § 321 para 2 of the German Civil Code (BGB) remains unaffected.
7. Right of retention
7.1. The customer is entitled to a right of retention only on the basis of indisputable or legally binding counterclaims.
8. Title retention
8.1. The delivered goods (reserved goods) shall remain our property until payment.
8.2. the customer Unless contrary to the contract - especially insofar as he has come with the payment of claims for payment in arrears - we have the right to take back the reserved goods after we stipulate a reasonable period for performance. The customer bears the transport costs incurred for the return. If we withdraw the reserved goods, this constitutes a withdrawal from the contract. Also a withdrawal from the contract is represented when we seize the reserved goods. We may commercialize reserved goods which we have withdrawn. The revenue of such commercialization is offset against the amounts owed by the customer after we have deducted a reasonable amount for the costs of the commercialization.
8.3. The customer must handle the reserved goods carefully. He must insure them adequately at the replacement value against damages due to fire, water and theft.
8.4. Customer may use and sell the reserved goods in the ordinary course of business, provided he is not in default. However, he may not pledge the reserved goods or transfer them to a third party as security. The customer already assigns us to us in full for the sake of security The payment claims of the customer against his customers from the resale of the goods as well as those claims of the customer regarding the reserved goods arising from another legal ground against its customers or third parties (in particular claims in tort and claims for insurance benefits) and that including all current accounts receivable the customer assigns to us by way of security in full from. We accept this assignment.
8.5. The customer may collect these claims assigned to us on his account in his own name for us as long as we do not revoke this authorization. Our right to collect such claims itself is not affected; however, we will not assert the claims ourselves and will not revoke the collection authorization as long as the customer duly meets his payment obligations.
8.6. If, however, the customer is in breach of contract - in particular if he is in default with the payment - we may require the customer to notify us of the assigned claims and the respective debtors, notify the respective debtors of the assignment and hand over all documents to us, we need to assert the claims.
8.7. In case of seizure of the reserved goods by a third party or other interventions of third parties, the customer must point out our ownership and must notify us immediately in writing so that we can enforce our ownership rights. If the third party is not able to reimburse our legal costs arising in this context, the customer is liable for such costs.
9. Notification of defects, warranty
9.1. The customer is obliged to examine goods delivered by us for obvious defects. Notification of defects due to obvious defects must be declared to us within two weeks from delivery of the goods to the customer. Hidden defects that are not detected even after the immediate careful examination shall be notified immediately after their discovery, no later than two weeks after discovery. The punctual sending of the complaint is sufficient to meet the deadline.
9.2. Claims for warranty shall expire within one year from delivery of the goods, unless we have acted fraudulently in relation to the defect.
9.3. After expiry of the above deadlines, the assertion of warranty claims shall be excluded.
9.4. In the case of a defect, the warranty is initially only limited to cure by us. We will either remedy the defect or replace the defect goods at our discretion. If we fail to comply with this obligation within a reasonable period of time or if the cure fails despite repeated attempts, the customer is entitled to either reduce the price or withdraw from the contract.
9.5. Defects of a part of the delivered goods do not entitle to the complaint of the entire delivery, unless the customer has no interest in the not affected part of the delivery.
9.6. The colors in pictures of our goods in catalogs and other pictures can differ slightly from the actual color of the goods. Such a slight deviation, which is only due to the different presentation, is not a defect of the good.
10. Limitation of liability
10.1. We are fully liable for intent and gross negligence. In the case of non-intentional actions, the liability is limited to the damage typically foreseeable at the time the contract is concluded. In the event of slight negligence, we shall be liable only in the event of a breach of essential contractual obligations and limited to the foreseeable damage at the time the contract is concluded. This restriction does not apply to injury to life, body and health.
10.2. Any liabilities due to pre contractual breach of duty (culpa in contrahendo) or according to the Product Liability Law shall remain unaffected.
10.3. Also unaffected by this limitation of liability, is - regardless of any fault of us - a potential liability for fraudulent concealment of a defect or for the assumption of a guarantee or warranty. Given third-party guarantees, do not constitute a guarantee by us.
10.4. We are also responsible for an impossibility to deliver occurring accidentally during our default unless this damage would have also occurred in the event of timely delivery.
10.5. Insofar as liability for damages against us is excluded or restricted, this also applies to the personal liability for damages of employees, employees, employees, representatives and vicarious agents.
10.6. Except in the aforementioned cases, no liability is accepted by us.
11. Intellectual property, copyright
11.1. Customers are not granted rights to use our trademarks or other intellectual property rights. The customer is only insofar entitled to use our trademarks and intellectual property rights, as he is allowed by the applicable statutory provisions by law even without our consent.
11.2. In particular, the customer is not entitled to export the goods delivered by us without our approval to other countries where the trademarks and intellectual property rights relevant to the good in question are also protected. This territorial restriction does not apply to exports within the European Union or the European Economic Area.
11.3. The use of our picture material on which we have the right to use is, in principle, not permitted without our consent.
11.4. On request, we can license our picture material to the customer for advertising purposes and for product presentation purposes. Such license will be subject to a royalty. The license is limited to a simple, non-sublicensable, non-transferable right of use to use the images in unmodified form in his printed advertising materials and his own website for advertising purposes for our products. Format changes do not represent any modification and are permitted to the customer. The use on third party websites is not permitted without our explicit permission. Where indicated, the naming of the creator must be observed in the use of the image.
11.5. If picture material is used by the customer beyond the permitted use, we are entitled to terminate all granted rights to use our picture material without notice and to assert the statutory claims for unauthorized use.
12.1. All personal data communicated by the customer will be collected, processed and stored in accordance with the provisions of the German Data Protection Act.
13. Credit check
13.1. We are entitled to obtain relevant information from commercial credit reporting agencies about the customer to check the customer's creditworthiness and to provide the commercial credit reporting agencies with any personal data necessary for this purpose.
13.2. Any information received under Sect. 13.1 will be only used and processed for the purpose to check the customer’s creditworthiness.
14. Applicable law; Jurisdiction; Final provisions
14.1. The law of the Federal Republic of Germany applies to the exclusion of the UN purchase law.
14.2. If the customer is a merchant, a legal person of public law or a public special fund, the place of performance is our place of business in 72805 Lichtenstein, Germany.
14.3. If the customer is a merchant, a legal person of public law or a public special fund, the exclusive jurisdiction for all disputes is Reutlingen, Germany. We are also entitled to sue the customer at his general place of jurisdiction.
14.4. Should any of the aforementioned provisions be invalid in whole or in part, the validity of the remainder of the clauses or parts of the clauses shall not be affected thereby.