General Terms and Conditions of T.H.W. Sport Equipment GmbH (T.H.W.)
1. General provisions
1.1 Unless otherwise agreed in writing, the following terms and conditions shall apply to all contracts, deliveries and other services in business transactions between T.H.W. and entrepreneurs.
1.2 These terms and conditions shall be made known to business partners of T.H.W. without being requested to do so and shall also become an integral part of the contract for all future business relations, even if they are not expressly agreed in individual cases.
1.3 Deviating terms and conditions, in particular purchasing terms and conditions of the business partner, are hereby expressly rejected; these shall not become an integral part of the contract unless their inclusion is confirmed by T.H.W. in writing.
2 Offers and conclusion of contract
2.1 The offers contained in catalogues and sales documents of T.H.W. as well as on the Internet - unless expressly designated as binding - are always subject to change, i.e. only to be understood as an invitation to submit an offer. Orders shall only be deemed to have been accepted if T.H.W. confirms them in writing or if they are executed accordingly by T.H.W. immediately after receipt of the order, in which case the delivery note/goods invoice shall be deemed to be the order confirmation.
2.2 Drawings, illustrations, dimensions, weights or other performance data in brochures, circulars, price lists, other publications or in offers and/or the associated documents are only approximate. These shall only be deemed to be agreed quality if they have been expressly confirmed as such in writing by T.H.W. in the individual case.
2.3 If, after conclusion of the contract, T.H.W. becomes aware of facts, in particular default of payment with regard to earlier deliveries, which, according to due commercial judgement, indicate that the purchase price claim is at risk due to the business partner's lack of ability to pay, T.H.W. shall be entitled, after setting a reasonable deadline, to demand from the business partner, at the latter's option, payment concurrently or corresponding securities and, in the event of refusal, to withdraw from the contract, in which case the invoices for partial deliveries already made shall become due immediately.
2.4 Services of T.H.W. which go beyond the obligations as a seller, such as the assumption of consulting and planning services incumbent on the business partner vis-à-vis third parties, shall require a special agreement and shall only be assumed against remuneration.
2.5 Requests of the business partner for a subsequent reduction or cancellation of a legally effective order can only be taken into account on the basis of special agreements and - insofar as the goods are not in stock - only insofar as the pre-supplier is prepared to take back the goods. In any case, T.H.W. shall be entitled to deduct from the credit note an appropriate percentage of the net invoice amount for handling costs, inspection and repackaging for goods duly returned with its consent. Damaged, soiled or not originally packed goods will not be credited. In cases of contestation of errors, T.H.W. shall be entitled to compensation for the damage it has incurred.
3 Prices and minimum order values
3.1 Unless otherwise agreed, the prices are always in EURO plus the respective statutory value added tax. The list prices valid on the day of delivery shall apply. T.H.W. reserves the right to change the list prices appropriately if, after the conclusion of the contract, cost reductions or increases, in particular price changes on the part of T.H.W.'s suppliers occur; T.H.W. will prove these to its business partner in such a case on request.
4 Delivery, transfer of risk and default
4.1 Deliveries shall be made ex warehouse/works T.H.W. for the account and at the risk of the business partner.
4.2 T.H.W. shall deliver the goods within the agreed period, otherwise as quickly as possible. The commitment to an agreed delivery period presupposes that the business partner, for its part, fulfils any existing obligations towards T.H.W. in due time - in particular provides any documents, approvals, releases, etc. to be supplied by it in due time. Otherwise T.H.W. shall have the right to reasonably extend the agreed delivery period.
4.3 In the event of force majeure as well as all unforeseen obstacles occurring after conclusion of the contract for which T.H.W. is not responsible (in particular also operational disruptions, strike, lockout or disruption of traffic routes), the delivery period shall be extended appropriately - also within a delay - insofar as such obstacles have a considerable influence on the delivery of the goods. This shall also apply if these circumstances occur at T.H.W.'s suppliers/sub-suppliers. T.H.W. shall inform the business partner immediately of the beginning and end of such obstacles. Claims for damages are excluded in this case. Insofar as the contract is nevertheless carried out, this shall remain unaffected. Should such an obstacle exist for longer than three months, both T.H.W. and the business partner shall be entitled to withdraw from the contract.
4.4 T.H.W. shall be liable with regard to untimely delivery only for its own fault and that of its vicarious agents. T.H.W. shall not be liable for the fault of its suppliers, as they are not its vicarious agents. However, T.H.W. shall be obliged to assign any claims it may have against its suppliers to the business partner upon request.
4.5 If T.H.W. is in default with the delivery, the business partner may set T.H.W. a reasonable deadline of six weeks, after the fruitless expiry of which the business partner is entitled to withdraw from the contract. Insofar as T.H.W. is not responsible for the delay due to intent or gross negligence, claims for damages due to delay or non-performance including interest on arrears/due dates are excluded. In the event of a delay in delivery, the business partner shall be obliged, at the request of T.H.W., to declare within a reasonable period of time whether it still insists on delivery or withdraws from the contract due to the delay and/or demands compensation for damages instead of performance.
4.6 Partial deliveries and corresponding partial invoices are permissible to a reasonable extent, unless otherwise agreed in writing.
4.7 The risk shall pass to the business partner when the goods are handed over to him or his vicarious agents or when the goods are handed over to the commissioned forwarder/carrier/courier, but at the latest when the goods leave the premises of T.H.W., even if the delivery is made by vehicles of T.H.W.. This shall also apply if delivery is made from the business premises of a third party at home or abroad (so-called drop shipment). If dispatch is delayed at the request or through the fault of the business partner, the goods shall be stored at the expense and risk of the business partner. In this case, notification of readiness for dispatch is equivalent to dispatch. Otherwise, the risk shall pass to the business partner at the time at which the business partner is in default of acceptance or debtor's delay.
4.8 At the special request and expense of the business partner, the goods shall be insured by T.H.W..
5. terms of payment
5.1 Unless otherwise agreed, payments of the purchase price shall be due immediately upon receipt of the goods and invoice and shall be made directly to T.H.W. without deduction within 30 days of the invoice being sent. If the recipient does not pay within 30 days after receipt of the invoice, the recipient shall be
recipient shall be in default without reminder or setting of a deadline.
5.2 T.H.W. reserves the right to carry out a credit check via Schufa, Creditreform or another credit agency and, if necessary, to insist on advance payment or other payment conditions to be agreed with the business partner instead of the usual payment conditions.
5.3 If the business partner is in default of payment, he shall be charged the statutory default interest of eight percentage points above the base interest rate, subject to the assertion of further rights.
5.4 The business partner may only offset claims of T.H.W. or assert a right of retention if his counterclaim is undisputed or he has a legally enforceable title.
6 Shipping/transport and packaging costs
6.1 The goods shall be dispatched by a forwarding agent/courier to be determined by T.H.W.. The shipping/transport and packaging costs incurred shall be borne by the business partner; these shall be invoiced to the business partner as a flat-rate shipping charge.
6.2 A return of packaging material is excluded, except for the use of reusable packaging, which is only made available to the business partner on loan.
Any reusable packaging units used shall be returned to T.H.W. by the business partner within 14 days of transmission. Should the return not take place within the time limit, T.H.W. shall be entitled to charge rental costs customary in the market for the reusable packaging units concerned or, if applicable, to charge these to the business partner at the price customary in the market.
7. retention of title
7.1 T.H.W. shall retain title to the goods until the purchase price has been paid in full. In the case of goods purchased from the business partner within the framework of an ongoing business relationship, T.H.W. shall retain title until all its claims against the business partner arising from the business relationship, including claims arising in the future, including claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of T.H.W. have been included in a current account and the business partner is entitled to take back the goods and is obliged to surrender them to T.H.W..
7.2 The business partner is only permitted to resell the goods subject to retention of title in the ordinary course of business and under his terms and conditions. A further prerequisite for the right to resell the goods subject to retention of title is that the business partner, for its part, also reserves title to the goods subject to retention of title vis-à-vis its customers until payment is due and, insofar as legally permissible, effectively assigns by agreement the claims of its customers vis-à-vis their customers arising from the sale of the goods subject to retention of title.
7.3 The business partner is not entitled to dispose of the reserved goods in any other way, in particular not to pledge them or assign them as security.
7.4 If the goods subject to retention of title are sold alone or together with goods not belonging to T.H.W., the business partner already now, i.e. at the time of conclusion of the contract, assigns to T.H.W. the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest; T.H.W. accepts the assignment. This shall apply equally to claims of the business partner on other legal grounds (e.g. tort etc.) with regard to the reserved goods. The value of the reserved goods shall be the invoice amount of T.H.W., which, however, shall remain out of account insofar as third party rights oppose it. If the resold goods subject to retention of title are co-owned by T.H.W., the assignment of claims shall extend to the amount corresponding to T.H.W.'s share in the co-ownership.
7.5 T.H.W. authorises the business partner to collect the assigned claims subject to revocation. T.H.W. shall not make use of its own collection authority as long as the business partner meets its payment obligations, also towards third parties. At the request of T.H.W., the business partner shall name the debtors of the assigned claims and provide T.H.W. with the necessary information and documents for the purpose of collecting the rights and claims to which T.H.W. is entitled. In addition, the business partner shall notify its customers of the assignment to T.H.W.; T.H.W. is authorised to notify the debtors of the assignment itself and, if necessary, to request payment.
7.6 If T.H.W. should assert its retention of title, in particular if T.H.W. takes back the goods subject to retention of title, T.H.W. shall be entitled to sell the goods on the open market or have them auctioned. The business partner shall be liable for any default claim that may arise. The assertion of the retention of title shall not be deemed to be a withdrawal from the contract.
7.7 Insofar as the realised value of the securities to which T.H.W. is entitled exceeds the claims to be secured by more than 10 %, T.H.W. undertakes to release a corresponding part of the security interests at the request of the business partner. T.H.W. shall be entitled to select the securities to be released.
7.8 In the event of enforcement measures by third parties against the goods subject to retention of title or against assigned claims, the business partner shall draw attention to T.H.W.'s ownership. Furthermore, the business partner must inform T.H.W. immediately and hand over the documents necessary for the objection. In case of imminent danger, the business partner shall take the necessary legal steps to secure T.H.W.'s rights. Any intervention costs incurred shall in any case be borne by the business partner.
7.9 In the event of suspension of payments and/or application for the opening of insolvency proceedings, the right to resell, to use or the authorisation to collect the assigned claims shall expire; in the event of a protest of a cheque or bill of exchange, the authorisation to collect shall also expire. This does not apply to the rights of the insolvency administrator.
7.10 The business partner undertakes to store the goods safely at its own expense and to keep them in proper condition for the duration of the existing retention of title. Furthermore, the business partner shall insure the goods sufficiently against loss or damage by theft, fire or water and for similar cases during this period and provide T.H.W. with evidence of such insurances upon request.
8. notice of defects, warranty and liability
8.1 T.H.W. shall only be liable for material defects as follows: The business partner shall immediately inspect the received goods for quantity and quality. Obvious defects must be notified to T.H.W. in writing without delay, at the latest within 7 days. Otherwise any warranty claims against T.H.W. shall be excluded.
8.2 If the business partner discovers defects in the goods, he may not dispose of them, i.e. they may not be divided, resold or further processed, until an agreement has been reached on the settlement of the complaint or a procedure for the preservation of evidence has been carried out by an expert commissioned by the Chamber of Industry and Commerce at the registered office of the buyer.
8.3 If the business partner claims material defects, T.H.W. shall only be obliged to provide a warranty if the business partner makes the defective goods available to T.H.W. for inspection at its own expense and risk. The goods must be sent to T.H.W. in proper packaging. In the event of culpable refusal, the warranty shall lapse. The transport costs shall then be reimbursed in full, provided that a warranty claim exists and T.H.W. has had the opportunity to inspect the goods. If the complaint proves to be unfounded, the business partner shall bear the costs incurred by T.H.W.'s recourse.
8.4 In the event of a justified complaint, T.H.W. shall be entitled to determine the type of subsequent performance (replacement delivery or subsequent performance), taking into account the type of defect and the justified interests of the business partner. In the case of replacement delivery, replaced parts shall become the property of T.H.W.. T.H.W. shall be entitled to render subsequent performance several times, if necessary. In the event of subsequent performance, the repair conditions of the respective goods manufacturer shall apply. If the supplementary performance fails, the business partner may - irrespective of any claims for damages according to clause 9 - demand withdrawal or reduction at his discretion.
8.5 Claims by the business partner for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded insofar as these expenses increase because the object of the delivery was subsequently taken to a place other than the business partner's branch office or than was contractually agreed. T.H.W. shall not assume any warranty and liability for the assurances given by the business partner to its customers or any direct or indirect damage caused by the business partner to the end customer.
8.6 The business partner shall inform T.H.W. immediately of any warranty case occurring with a consumer. Claims for recourse against T.H.W. shall only exist if the claim by the end consumer was justified and only to the extent provided by law, but not for goodwill provisions not agreed with T.H.W.. They also presuppose that the party entitled to recourse has complied with its own obligations, in particular the obligations to give notice of defects.
8.7 T.H.W. warrants to the business partner that the products, at the time when the risk passes to the business partner, are not defective in a way that nullifies or diminishes their value or suitability for normal use or the use assumed under the contract. This warranty does not apply to second choice goods or specially discounted remaining/sale goods. The warranty is excluded for these goods. The limitation period for warranty claims is 6 months.
8.8 T.H.W. shall be liable for damages or reimbursement of futile expenses for material defects exclusively in accordance with Clause 9 (General Limitation of Liability).
9 General limitation of liability
9.1 T.H.W. shall be liable in accordance with the statutory provisions if the business partner asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of its representatives or vicarious agents.
9.2 Any further claims for damages, irrespective of their legal basis, such as claims arising from ancillary contractual obligations, in particular obligations to provide advice or information, including culpa in contrahendo, are excluded. This shall also apply insofar as the buyer demands compensation for futile expenses instead of a claim for damages in lieu of performance.
9.3 In all other respects, the limitation periods pursuant to Clause 8.7 shall apply to claims for damages.
10 Final Provisions
10.1 The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes arising between the parties shall be Hamburg.
10.2 These General Terms and Conditions and the contractual relationship between T.H.W. and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under
If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hamburg, Germany. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, T.H.W. shall be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
10.3 Should any provision of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining terms and conditions. In place of the invalid provision, a provision shall be deemed to have been agreed which, as far as legally permissible, comes as close as possible to the economic meaning of this provision.
T.H.W. Sport Equipment GmbH, Barmbeker Straße 10, 22303 Hamburg, Germany
Managing Director: Christian Cohrs
Companies register: District Court Hamburg HRB 47199
VAT identification no.: DE118525395