General Business Terms and Conditions, Business with Entrepreneurs
SEC. General - Scope of Application
- 1. These Business Terms and Conditions shall apply to deliveries of Birkenstock GmbH & Co. KG Services ("Birkenstock") to entrepreneurs as defined in § 14 of the German Civil Code (BGB), to legal persons under public law or to special public law assets (hereinafter also "Customer" or "Customers"). Entrepreneurs as defined in the Business Terms and Conditions are natural or legal persons or partnerships with legal capacity who, upon conclusion of the contract with us, act in exercise of their commercial or self-employed professional activities.
- 2. Our Business Terms and Conditions shall apply exclusively. Deviating, conflicting or additional general busine-ss terms and conditions shall not become integral parts of the contract even if acknowledged by us.
SEC. 2 Conclusion of Contract
- 1. Upon placing an order for goods, Customer bindingly declares its willingness to purchase the ordered goods. Subsequent amendments of the order shall require our express consent in text form (e.g. by post, fax or e-mail). The order shall be deemed accepted if it is acknowledged by us in text form (e.g. by letter, fax or e-mail) or its performance has taken place. Our offers are unbinding and shall be subject to confirmation by us.
- 2. We are entitled to transfer handling of the contract to a third party with whom we have concluded relevant agree-ments. In such case, the billing of the contractual relationship vis-à-vis Customer shall be effected through the third party contracted by us for its account. Customer's rights towards us under the contract shall not be affected thereby.
SEC. 3 Terms of Payment / Shipment
- 1. Price quotations shall not include VAT unless expressly stated otherwise.
- 2. In the case of shipping of goods, we will charge the currently valid postage, which we will communicate upon request, in case of an order volume under EUR250. If the order value is more than EUR250, we will not charge any postage within Germany.
- 3. Unless otherwise agreed, our deliveries are subject to payment in advance by Customer. In the case of deliveries destined for shipment abroad, our prices shall apply franco German border or port including packaging. Payment shall be made by way of letter of credit or advance payment.
- 4. If payment is to be made against invoice, it shall be due 30 days after receipt of the goods and the invoice by Customer or after commencement of mora accipiendi pursuant to § 4(3). After expiry of this period, Customer shall be in default of payment.
- 5. If Customer pays in advance, payment shall be due directly after conclusion of the contract and shall be paid within a maximum period of 14 days. After expiry of this period, Customer shall be in default of payment. If Customer does not pay within a further 14 days, we reserve the right to withdraw from the contract and to sell the ordered goods to third parties.
- 6. In the case of default, the money debt shall be interest-bearing. The interest rate in this connection shall be set at 9 (nine) percentage points above the basic interest rate of the European Central Bank. We reserve the right to claim greater damage caused by default.
- 7. Customer shall have a right to set-off only if its counterclaim is final and absolute or uncontested or acknow-ledged by us. Customer may only exercise a right of retention if its counterclaim is based on the same contractual relationship.
- 8. The price shall be paid into the following bank account: Commerzbank AG Bonn, Account No. 270 069 800, Bank Sort Code 380 400 07, IBAN DE05380400070270069800, BIC COBADEFFXXX.
SEC. 4 Delivery Date / Partial Delivery / Mora Accipiendi
- 1. Any statement of a shipment date shall generally be approximate and non-binding unless otherwise expressly agreed. The delivery period will be prolonged upon occurrence of unforeseen obstacles that are beyond our sphere of influence, e.g. operational disruptions, strikes, delays in the delivery of essential materials if such obstacles verifiably exert considerable influence on the delivery of the merchandise. This shall also apply if such circumstances occur at our sub-suppliers. The delivery period shall be extended accordingly by the duration of site measures and impediments.
- 2. We shall be entitled to partial deliveries and to invoice partial deliveries unless unreasonable for Customer.
- 3. In the event of non-acceptance of the goods, Customer shall be in mora accipiendi without repeated offer of delivery or collection if a fixed delivery or collection date was set. This shall also apply if Customer communicated non-acceptance in advance without our consent. From the eighth calendar day of default in acceptance we will charge additional expenditure compensation for the storage of the goods in the amount of €0.02 per ordered and ready-for-dispatch pair and day.
SEC. 5 Reservation of Title
- 1. We reserve title in the goods until settlement in full of all of our claims arising from the business relationship with Customer.
- 2. Customer is obligated to handle the goods with care. If maintenance or inspection work is necessary, Customer shall carry this out regularly at its own expense.
- 3. Customer is obligated to immediately communicate to us any access to the goods of a third party, for example in the case of seizure as well as any damage or destruction of the goods.
- 4. We shall be entitled – if the statutory requirements are shown to exist – to withdraw from the contract and to demand surrender of the goods in the event that Customer's conduct is in breach of the agreement, in particular in the event of default of payment or breach of its duty pursuant to 2 and 3 of this provision.
- 5. Customer shall be entitled to resell the goods in the ordinary course of business. Customer herewith assigns to us all receivables in the invoice amount against a third party arising for Customer through resale. We hereby accept such assignment. Subsequent to assignment, Customer remains entitled to collect the claim. We reserve the right to collect the claim ourselves as soon as Customer fails to properly comply with its payment obligations and falls into default of payment.
- 6. The handling and processing of the goods by Customer shall always take place in our name and for us. If the goods are processed with any goods we do not have any title in, we shall acquire joint ownership in the new goods in the ratio of the value of the goods delivered by us to the other processed goods. The same shall apply if the goods are mixed with other goods we do not have any title in.
SEC. 6 Liability for Defects
- 1. We are liable for defects of the goods at our choice by way of rectification of defects or substitute delivery. Underdeliveries up to 5% of the ordered amounts shall not constitute a defect unless such underdelivery is unreasonable for Customer. Customer is not obligated to pay for any goods which are not delivered.
- 2. If subsequent remedy is unsuccessful after the second attempt, Customer, at its choice, may demand either reduction of the price or rescission of the contract. If a breach of contract is only minor, in particular, if the defects are only minor, Customer will not be entitled to any right of rescission.
- 3. Customer shall make written notification of obvious defects without undue delay after delivery of the goods and of hidden defects without undue delay after their discovery; otherwise assertion of claims due to defects shall be excluded.
- 4. The limitation period for claims arising from defects shall be one year from delivery of the goods. In case of the sale of any used goods, any claims with regards to defects shall be excluded. Such reduction of the limitation period to one year or the exclusion of any claims with regards to defects shall not apply if a defect was intentionally caused or caused through gross negligence, was intentionally concealed or if a culpably caused defect results in a violation of life, body or health.
SEC. 7 Labelling of Goods
Customer is obligated to neither garble the labelling (e.g. control numbers, marker tags, stickers) on the goods or the selling packaging (e.g. shoe box) nor to remove same so that identification of the goods in the case of product recalls or liability claims for material defects against us is possible. In the case of return consignment of the goods, Customer must remove its own labelling of the goods and other labels and awards affixed by it.
SEC. 8 Limitation of Liability
- 1. In the event of slight negligent breach of material contractual duties, thus those duties that Customer regularly relies on and may rely on in terms of compliance with such duties or proper performance of the contract, our liability shall be limited – in accordance with the type of goods – to the losses that are foreseeable and typical of the contract. This shall also apply in favour of our legal representative or vicarious agents. Otherwise liability for slight negligent breaches shall be excluded.
- 2. The aforementioned limitations of liability shall not apply to Customer's claims under product liability law, in case of any guarantees or the acceptance of any procurement risks by us. In addition, the limitations of liability shall not be applicable in the case of culpable violations of life, body or health.
SEC. 9 Provisions for Goods Produced According to Customer Specifications
Customer shall hereby assign to us all manner of industrial intellectual property rights that could accrue in its favour in the goods produced in accordance with customer specifications (in particular, rights to in or in a design patent, trade marks); we hereby accept such assignment. It is clarified that Customer shall be accorded neither exclusive rights in the goods fabricated to customer specification nor in the concrete compilation of the design elements. This means, in particular, that we are entitled to sell products in identical execution or similar execution also to third parties.
SEC. 10 Final Provisions
- 1. The laws of the Federal Republic of Germany shall apply. The provisions of United Nations Convention on Contracts for the International Sale of Goods shall not be applicable.
- 2. The exclusive place of jurisdiction for any disputes arising from this Agreement shall be our registered place of business. The same shall also apply if Customer does not have any general place of jurisdiction in the Federal Republic of Germany or a residence or habitual place of abode is not known at the time the claim is filed.
SEC. 11 Further Information
The Seller is:
- Birkenstock GmbH & Co. KG Services
- BIRKENSTOCK Campus
- 53577 Neustadt/Wied (Germany)
- T: +49 2683 9359- 0
- F: +49 2683 9359- 1297
- E: email@example.com
- Commercial Register: Montabaur Local Court, HRA 21317
- Managing Directors: Oliver Reichert, Markus Bensberg
Birkenstock GmbH & Co. KG Services is a branch of Birkenstock GmbH & Co. KG, Burg Ockenfels, D-53545 Linz, registry court: Montabaur Local Court HRA 21317, individually liable partner: BS Verwaltungsgesellschaft mbH, Kitzbühel, Austria, registration court, Innsbruck Regional Court, FN 384781f, represented by its managing directors Oliver Reichert, Markus Bensberg; and BS International Verwaltungsgesellschaft mbH (excluded from representation), Kitzbühel, Austria, registration court, Innsbruck Regional Court, FN 391233v, represented by its managing director Franz Essletzbichler