GENERAL TERMS AND CONDITIONS B2B
1. Scope of application
1.1 All offers, deliveries and other services (hereinafter referred to as "SERVICES") of Deuter Sport GmbH (hereinafter referred to as "Deuter"), including all future SERVICES, shall be carried out exclusively on the basis of these Terms and Conditions of Sale and Delivery (hereinafter referred to as "T&Cs"), and exclusively in B2B business transactions with Deuter's customers (hereinafter referred to as "CUSTOMERS"). Already existing and future individual contractual agreements with CUSTOMERS shall take precedence over these T&Cs insofar as they contain different provisions and agreements in comparison to these T&Cs.
1.2 These T&Cs shall also apply exclusively, even if Deuter does not expressly object to deviating terms and conditions of business. A performance of SERVICES by Deuter in knowledge of the deviating terms and conditions of business of the Customer shall not be deemed to be consent by Deuter.
2. Offers and conclusion of contract
2.1 Unless expressly stated otherwise in writing by Deuter, offers from Deuter are always subject to change and non-binding. The respective contract between Deuter and the CUSTOMER shall only be legally binding upon written confirmation issued by Deuter. This also applies to agreements and ancillary agreements.
2.2 Documents included in offers such as images, drawings, weight or size information, samples, etc., are regarded as approximate values customary in the industry. Deviations of the delivered branded items from the order are expressly reserved with regard to material and execution within the scope of technical progress.
3. Prices, terms of payment
3.1 Unless expressly agreed otherwise with the CUSTOMER in writing, all prices quoted by Deuter shall apply in accordance with the Deuter price list applicable at the time of order confirmation, plus value added tax.
3.2 Invoices from Deuter are due within 10 days from the date of invoice with a 3% discount, or within 30 days at net invoice amount and payable free of any charges, unless otherwise agreed in writing between the CUSTOMER and Deuter. Deuter reserves the right, in particular in the case of first-time customers and in the case of an existing payment default of a CUSTOMER, irrespective of any other existing rights, to make further deliveries to the CUSTOMER dependent on delivery against advance payment, or to demand other securities as deemed appropriate by Deuter.
3.3 If the due date is exceeded or payment deadlines agreed in writing between Deuter and the CUSTOMER are exceeded, and irrespective of any other existing rights, Deuter is entitled to charge default interest of 8% above the base interest rate of the European Central Bank until payment has been made in full. This also applies to deferrals.
3.4 Deuter reserves the right to adjust the price if Deuter has not yet issued a written order confirmation to the CUSTOMER.
3.5 The CUSTOMER is only entitled to offset counterclaims if these are undisputed or have been established in a court of law. The same applies to the assertion of rights of retention on the part of the CUSTOMER.
4.1 Deuter shall specify all delivery deadlines approximately, but in a non-binding form, unless Deuter expressly agrees a fixed delivery date with the CUSTOMER in writing in individual cases.
4.2 Unless expressly agreed otherwise in writing with the CUSTOMER, deliveries by Deuter are generally made on a carriage prepaid basis. In the case of deliveries with an order value of less than EUR 200, Deuter shall invoice the CUSTOMER for a lump-sum fee applicable at the time of delivery.
4.3 Deuter is entitled to make partial deliveries and to invoice these separately to the CUSTOMER.
4.4 If Deuter is unable to comply with binding delivery or performance dates due to force majeure, government measures, or other reasons for which Deuter is not responsible, Deuter shall inform the CUSTOMER accordingly without delay and at the same time inform the CUSTOMER of the expected new delivery or performance date.
Deliveries and performance which are not fulfilled, or delayed due to force majeure or government measures or other circumstances for which we are not responsible, including disruptions to operations, strikes, lockouts or traffic or other specifically unforeseeable obstacles, in particular as a result of force majeure or government measures that occur at our company or our suppliers, entitle us to deliver the goods later accordingly, or to withdraw from the contract in whole or in part, without the CUSTOMER being entitled to compensation for damages as a result. This shall also apply if the above events occur at a time when we are in default. In the event of a delivery delay that is unreasonable for the CUSTOMER, the CUSTOMER is also entitled to withdraw from the contract, to the exclusion of claims for damages. If there is a delay in delivery or performance, the CUSTOMER is entitled to withdraw from the contract after the expiry of a reasonable grace period granted to us, which is not less than 4 weeks and takes production requirements into account. In any case, the withdrawal must be made by means of a written declaration. If the delay is limited to a partial delivery or performance, the right of withdrawal is also limited to the affected part, if, upon objective assessment, the remaining contract is not affected by such a limitation of the right of withdrawal.
4.5 In the event of a delay in acceptance by the CUSTOMER, or a failure to cooperate, or a delay in delivery due to other reasons for which the CUSTOMER is responsible, Deuter is entitled, without prejudice to any other rights, to demand compensation for the resulting damages incurred by Deuter, including all additional expenses associated therewith. Furthermore, in this case, the risk of accidental deterioration and loss of the corresponding goods shall pass to the CUSTOMER.
5. Warranty and returns, limitation period
5.1 The goods shall be deemed to have been delivered in accordance with the contract if they correspond to the product descriptions specified for the customers. This also applies in the case of minor deviations or deviations customary in the trade with respect to quality, dimensions, colour, weight and the like, provided these deviations do not significantly impair the intended use of the goods.
5.2 Warranty claims of the CUSTOMER require that the CUSTOMER has notified Deuter of the respective defect in writing in good time and has fulfilled its statutory inspection obligations. In the case of obvious defects, this inspection must be carried out immediately, at the latest 7 days after receipt of the goods concerned, in the case of defects recognised during a due and proper inspection within 14 days after receipt of the goods concerned, in other cases within 14 days after discovery of the specific defect. This also applies accordingly in the case of short deliveries.
5.3 Upon the request of Deuter, the CUSTOMER shall provide the goods it designates as defective without delay, together with a copy of the respective delivery note, to enable an inspection of the defect in question. If there is indeed a defect in the goods concerned, Deuter is entitled at its discretion to provide subsequent performance by correcting the defect and bearing the expenses up to a maximum amount of the respective purchase price, or by providing a replacement delivery of new goods free from defects. If the subsequent performance fails, becomes impossible, or does not take place within a reasonable deadline set by the CUSTOMER, the CUSTOMER is entitled, at its discretion and within the scope of the relevant legal requirements, to withdraw from the contract or alternatively, to a reduction of the purchase price, or to assert claims for damages taking into account the limitations of liability contained in these T&Cs. In the event of partial SERVICES, the right of withdrawal is limited to the specific defective part.
5.4 The CUSTOMER is not entitled to confirm to its own customers the defects in the products delivered by Deuter, or to make other acknowledgements or commitments with regard to the warranty for defects, without prior written consent from Deuter. Deuter is not liable for warranties and other guarantee commitments that the CUSTOMER gives to its customers and which exceed the scope defined in these T&Cs. This does not apply in cases where a corresponding, more extensive warranty liability of Deuter towards end consumers is given on the basis of applicable mandatory statutory provisions.
5.5 The warranty or limitation period is 12 months from the transfer of risk or from acceptance. Any modification or repair to the goods delivered by Deuter without its express prior written consent shall cause Deuter's warranty obligations to lapse. The same applies in the event of improper storage or other deviations from the intended use of the goods. The assertion of warranty claims does not affect existing payment claims of Deuter. In the event of payment default by the CUSTOMER, the warranty obligations of Deuter shall be suspended until the payment obligation has been fulfilled.
5.6 The return of non-defective goods stating the Deuter customer number and the Deuter invoice number is only permitted with the express prior consent of Deuter. The prerequisite for a credit note based on returns of non-defective goods is that the goods are received by Deuter in a fully saleable condition. Deuter reserves the right to reduce the credit note amount appropriately.
6. Liability and limitation of liability
6.1 Unless otherwise stipulated in these T&Cs, including the following provisions, Deuter shall be liable (including liability for its employees, legal or contractually-appointed representatives, and for its other vicarious agents) in the event of a breach of contractual and non-contractual obligations in accordance with the relevant mandatory statutory provisions.
6.2 Deuter shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, Deuter shall only be liable
a) for damages arising from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation, the fulfilment of which makes the proper implementation of the contract possible in the first place and the compliance with which the contractual partner regularly relies on and may rely on. In this case, however, Deuter's liability is limited to the compensation of the foreseeable, typically occurring damage and to the amount of the final invoice total (net) of the respective delivery of goods which has triggered or is associated with the Customer's claim for damages.
6.3 The limitations of liability resulting from the above Clause 6.2 shall not apply if Deuter has fraudulently concealed a defect or expressly assumed a guarantee in writing for the quality of the goods. Any further liability on the part of Deuter that goes beyond these T&Cs due to applicable statutory mandatory provisions, for example within the scope of the German Product Liability Act, remains unaffected by the above limitations of liability.
7. Retention of title
7.1 Delivered goods shall remain the property of Deuter (hereinafter referred to as "GOODS UNDER RETENTION OF TITLE") until the settlement of all outstanding claims from the business relationship (including all balance claims from current accounts) by the respective customer. For open accounts, Deuter's collateral is deemed to be collateral for the respective balance claim.
7.2 The CUSTOMER is obligated to treat the delivered GOODS UNDER RETENTION OF TITLE with care and to store them separately and shall insure them at its own expense against customary risks. The CUSTOMER is entitled to resell the GOODS UNDER RETENTION OF TITLE in the ordinary course of business. However, the CUSTOMER herewith already assigns all receivables resulting from this resale in the amount of the respective final invoice amount including VAT to Deuter as security, and Deuter accepts the assignment.
7.3 The CUSTOMER shall remain entitled to collect this receivable in addition to Deuter, even after this assignment. Deuter shall not collect this receivable as long as the CUSTOMER is not in default of payment, and in particular, as long as no application is filed for the opening of settlement or insolvency proceedings or in the event of suspension of payments. In such cases, the CUSTOMER shall immediately notify Deuter of the assigned receivables and the respective third-party debtors, including all other information required for collection of the receivables, and shall also hand over documents and inform the third-party debtors of the assignment.
The CUSTOMER herewith also permits Deuter and/or third parties with written authorisation from Deuter to collect GOODS UNDER RETENTION OF TITLE which are stored at its own premises or at third parties and which the CUSTOMER has not yet paid for. The CUSTOMER shall grant Deuter and/or its authorised representatives access to the respective premises. Taking back the GOODS UNDER RETENTION OF TITLE shall not be regarded as a withdrawal from the contract. The latter shall only apply if Deuter expressly declares its withdrawal in writing. Deuter is not obligated to set a deadline for taking back the goods. Deuter is entitled to sell the GOODS UNDER RETENTION OF TITLE at its discretion, by auction or private sale, and to offset the proceeds against the purchase price or to withdraw from the contract.
7.4 In the event of seizures or other interventions by third parties, the CUSTOMER shall point out existing rights of Deuter and notify it immediately in writing so that Deuter can exercise its rights accordingly. Insofar as the third party is not able to reimburse Deuter for the judicial or extra-judicial costs incurred in this context, the CUSTOMER is liable for such costs.
8. Storage of data, confidentiality
8.1 The data necessary to process business transactions will be stored within the permissible framework of the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG) and transferred, within the scope of order processing, to affiliated companies pursuant to Sections 15 et seq. of the Stock Corporation Act (AktG), in particular to other companies of the Schwan-STABILO Group. Personal data will be treated confidentially. The CUSTOMER agrees to the collection, processing and use of customer-related data to the extent specified.
8.2 Insofar as Deuter grants the CUSTOMER electronic intranet access, the CUSTOMER undertakes not to disclose the data and password that arise in the ongoing business relationship to unauthorised third parties, and to protect and store all such data from any access and misuse by third parties in accordance with the currently available technology. Any storage of these data using third-party cloud storage systems requires prior express written consent from Deuter.
8.3 All materials and information provided to the CUSTOMER by Deuter are to be treated confidentially by the CUSTOMER - insofar as they are not publicly accessible, generally known or obviously intended for disclosure - and may not be reproduced, published or made accessible to third parties in any other way without express written consent from Deuter. Upon termination of the business relationship, all documents and information must be returned to Deuter and/or destroyed at its discretion.
9. Place of performance, place of jurisdiction, applicable law
9.1 The place of performance for all SERVICES is the registered office of Deuter and, for payments made by the CUSTOMER, the registered office of Deuter in Gersthofen.
9.2. The exclusive place of jurisdiction is Augsburg. However, Deuter is also entitled to bring a legal action against the Customer at the respective court with jurisdiction over its registered office or place of residence.
9.3 The contractual relationship shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
10. Final provisions
10.1 Rights of the CUSTOMER arising from transactions carried out with Deuter may only be assigned with express prior written consent from Deuter.
10.2 Deuter reserves the right to amend and/or supplement these T&Cs - insofar as deemed necessary in its view - and shall immediately provide the CUSTOMER with a correspondingly modified written version, which shall then replace the present version of the T&Cs in full. This also applies accordingly to the previous version of these T&Cs. All orders already placed by the CUSTOMER at the time of transmission of the modified T&Cs and confirmed by Deuter shall be executed on the basis of the validity of the previous version of the respective T&Cs.
10.3 All verbal arrangements and agreements made between Deuter and the CUSTOMER must be made in writing and confirmed by the management of Deuter in order to be legally binding. Written notifications can also be transmitted by fax, email or any other method of electronic transmission.
10.4 If one of the above provisions should be invalid in whole or in part, this shall not affect the validity of the provision(s) or the contract as a whole. In such cases, Deuter and the CUSTOMER expressly undertake to agree on a provision that comes closest to the intended economic purpose. The same applies in the event of any loopholes in these T&Cs.
Deuter Sales T&Cs October 2020 version