I. Basic Provisions
§ 1 Application
The contract is concluded with O. M. Schmidt GbR, Erfurter Ring 9, 38444 Wolfsburg (further, the “seller”).
The following contractual terms and conditions apply to all contracts concluded between the seller and the relevant purchaser and are expressly accepted upon the placement of an order. Where the purchaser is an individual who enters into a legal transaction for a purpose that cannot be attributed to his/her trade, business or profession (a consumer, Section 13 of the German Civil Code) Articles 1 to 11 apply. Otherwise, Articles 1 to 7 and 12 to 15 shall apply.
§ 2 Entry of Contract into Effect
The seller’s offer of goods via the internet does not represent a binding offer to enter into a contract of purchase but an invitation to submit an offer. The purchaser may make his/her/its offer to purchase by telephone, in writing, by fax, by e-mail or via the ordering system that is part of the seller’s online shop. During a purchase via the online shop the goods to be purchased are placed in a virtual “shopping basket”. By clicking on the appropriate button on each page the customer may access the “shopping basket” and amend it. The purchaser then enters his/her/its personal data and selects the payment and delivery options. Prior to final submission of the offer to purchase the customer has the opportunity to review his/her/its information once more and to amend or cancel the purchase. When the customer sends the order by clicking on the button “Order subject to a charge”, “Order subject to payment” or “Purchase”, he/she/it makes a binding offer. The customer then receives an automated e-mail regarding receipt of his/her/its order. This confirmation of receipt does not, however, amount to the conclusion of a contract.
Acceptance of the offer (and thereby entry into the contract) always occurs separately, either through confirmation in writing confirming to the purchaser that the order is being processed or the goods delivered or through dispatch of the goods.
In those cases where, within seven working days, the purchaser receives no confirmation of the order or communication relating to delivery or does not receive the goods, he/she/it is no longer bound to the order. Where relevant, any payments already made will, in this case, immediately be returned.
§ 3 Prices, Delivery Charges
Prices in the relevant offers are quoted inclusive of value added tax (where relevant). The prices listed are the final prices. They include all price components including all applicable taxes.
Only in the case of deliveries abroad may further taxes (e.g. in case of a purchase within the European Community) and/or duties (e.g. customs duties) be payable in certain cases by the purchaser; however, these shall not be paid to the seller but to the responsible customs or tax authorities.
The purchaser must also bear the delivery charges. These are not included in the purchase price. The costs can be accessed via the “Delivery charges” page and are shown separately in the course of the order process.
§ 4 Retention of Title
The goods remain the property of the seller until the purchase price has been paid in full.
§ 5 Language of Contract, Storage of the Text of the Contract
The sole language of the contract is English. The text of the contract (order information and general commercial terms and conditions) is kept by the seller. Stored items are, however, only accessible to the purchaser short-term if at all. The purchaser is responsible for obtaining his/her/its own print-out of the contract and for keeping a record of the contract.
§ 6 Choice of Law
German law shall apply subject to the exclusion of the UN Convention on Contracts for the International Sale of Goods but only insofar as this does not remove the protection provided by the mandatory provisions of the law of the country in which the customer is habitually resident.
§ 7 Limitation of Liability
(1) The offerer shall bear unlimited liability for damages resulting from loss of life, physical injury or impairment of health to the extent he/she/it maliciously conceals a defect or has guaranteed the quality of the purchased item, for damage caused deliberately or as a result of gross negligence, for damage under the Product Liability Act and otherwise as far as provided under mandatory legislation.
(2) To the extent this affects material obligations under the contract, breach of which threatens the achievement of the purpose of the contract, the seller’s liability is restricted, in the case of simple negligence, to foreseeable damage typical of this type of contract.
(3) In case of breach of contractual obligations which are not material, liability is excluded for breaches of obligation resulting from simple negligence.
II. Supplemental Terms for Consumers
§ 8 Terms of Payment and Dispatch
Consumers are asked to inspect goods thoroughly upon delivery to check that they are complete and to check for manifest defects and damage that may have occurred during transportation, and to notify the seller and the freight forwarder of any complaints as soon as possible. This is without prejudice to your claims under warranty.
The risk of accidental destruction and accidental impairment of the sold item during dispatch only passes to the purchaser when the goods are handed over to the purchaser.
§ 9 Costs of Return in Case of Withdrawal
It is agreed that where the consumer exercises the right of withdrawal applicable in the case of long-distance contracts, the consumer shall bear the ordinary costs of returning the goods under Section 357(2) of the German Civil Code, provided the goods delivered match those ordered and the price of the item to be returned does not exceed the amount of EUR 40 or where the consumer, at the time of withdrawal, had not yet provided consideration or a part-payment contractually agreed for those cases where the item is more expensive.
§ 10 Warranty
(1) The legal regulations shall apply.
(2) In case of used items the warranty term for consumers is one year from delivery of the goods. The one-year warranty period does not apply to damages arising from loss of life, physical injury or impairment of health for which the seller is to blame. It also does not apply to damages caused as the result of gross negligence or deliberately or where the seller acts maliciously or to recourse claims under Sections 478 and 479 of the German Civil Code.
§ 11 Jurisdiction
Where the consumer has no general place of jurisdiction in Germany or the EU or where his/her/its domicile or habitual place of residence is unknown when the claim is asserted, the courts at the seller’s registered address shall have jurisdiction. This is without prejudice to the power to have recourse to the courts of a different legal jurisdiction.
III. Supplemental Terms where the Purchase is not a Consumer
§ 12 Transfer of Risk
The risk of accidental destruction and accidental impairment of the purchase item passes to the purchaser, who is not a consumer, as soon as the seller delivers the item to the freight forwarder, the carrier or to another person appointed to carry out dispatch. This is without prejudice to Section 447(2) of the German Civil Code.
§ 13 Warranty
(1) The warranty period is one year from delivery of the goods. This does not apply to damages arising from loss of life, physical injury or impairment of health for which the seller is to blame and not to damages caused as the result of gross negligence or deliberately or where the seller acts maliciously or to recourse claims under Sections 478 and 479 of the German Civil Code.
(2) In terms of the quality of the goods, only the seller’s own information and the manufacturer’s product description are deemed agreed, not, however, any other advertising, public promotional material or statements by the manufacturer.
(3) The purchaser, who is not a consumer, is obliged to inspect the goods for quality deficiencies and any shortfall in quantity immediately and with due care, and to give written notice of any manifest defects within seven days of receiving the goods. For compliance with the time limit it is sufficient to send such notice within seven days. The same shall subsequently apply to hidden defects identified, i.e. seven days from the day of their discovery.
No claims may be asserted under warranty where the duty to inspect and give notice of a defect is not complied with.
(4) The seller shall, in the case of a defective item, comply with the warranty claim by making good the item or delivering a replacement, the choice being at its discretion. Where the defect persists following two attempts to remove it, the purchaser may, at his/her/its discretion, demand a reduction in the purchase price or rescind the contract.
Where the item is made good, the purchaser bears the increased costs arising from the fact that the goods have been transferred to a different place from the place of performance, as far as the transfer is not consistent with the use of the goods for their intended purpose.
§ 14 Extended Retention of Title
(1) The seller retains title to the goods for purchasers, who are not consumers, until all demands arising from the ongoing commercial relationship have been met in full. The seller shall not be entitled to pledge the item or transfer it by way of security prior to transfer of title to the retained goods.
(2) The purchaser is entitled to sell the goods on in the ordinary course of his/her/its business.
In such case the purchaser shall assign to the seller all claims arising from the onward sale in the amount of the sum of the invoice. The seller accepts the assignment.
The purchaser is further entitled to recovery under the claim. The seller reserves the right to recovery under the claim itself where the purchaser does not properly meet its payment obligations.
(3) Where the retained goods become bound or mixed together with other goods, the seller acquires joint ownership of the new item pro rata to the invoice value of the retained goods as compared with the processed items at the time of processing.
(4) The seller undertakes to release the security granted to it at the request of the purchaser to the extent the value of the securities exceeds the claim to be secured by more than 10%. The choice of the securities to be released is the responsibility of the seller.
§ 15 Place of Performance, Jurisdiction
The place of performance for all services under the existing commercial relationship with the customer, as well as the place of jurisdiction, shall be the registered office of the seller. This is without prejudice to the power to have recourse to the courts of a different legal jurisdiction.
Advice on the Disposal of Batteries
With regard to the sale of batteries related to the delivery of appliances containing batteries, the seller is obliged to advise the purchaser as follows:
As the end-user the purchaser is legally obliged to return used batteries. He/she/it may return used batteries that the seller includes or has included in the range of goods as new batteries to the seller’s delivery centre free-of-charge. The symbols marked on the batteries mean the following:
The crossed-out litter bin means that the batteries may not be disposed of with household rubbish.
The chemical description of the pollutant is located next to the litter bin symbol.
“Cd” denotes that the battery does not contain more than 0.002 percent of cadmium.
“Pb” denotes that the battery does not contain more than 0.004 percent of lead.
“Hg” denotes that the battery does not contain more than 0.0005 percent of mercury.