General Terms and Conditions (GTAC)
1. Scope of applicability
a. The following General Terms and Conditions of the Seller (hereinafter referred to as "GTC") shall apply exclusively to all legal transactions between the Seller and the Buyer.
b. The Seller only concludes legal transactions with Buyers who are entrepreneurs (Section 14 German Civil Code), a legal entity under public law or a special fund under public law. The GTC shall also only apply in this respect.
c. The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), irrespective of whether the Seller manufactures the goods himself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer's order or, in any case, in the version last notified to the Buyer in text form shall also apply as a general agreement for similar future contracts without the Seller having to refer to them again in each individual case.
d. Conflicting or deviating terms and conditions of the Buyer are not applicable, even if the Seller unconditionally provides services with knowledge of such terms and conditions.
e. Individual agreements and details in the Seller's order confirmation take precedence over the GTC.
2. Contracting party
Contracts are concluded with Abrasive Imaging GmbH, Scharpenberg 40, D-45468 Mülheim an der Ruhr, Local court Duisburg HRB 35927.
3. Conclusion of contract
a. Our offers are subject to change and non-binding. This shall also apply if the Seller has provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which the Seller reserves property rights and copyrights. For the online shop, the presentation of the products in the online shop also does not represent a legally binding offer, but only a non-binding online catalogue.
b. The order of the goods by the Buyer is a binding offer to enter into a contract. Unless otherwise stated in the order, the Seller shall be entitled to accept this contractual offer within 7 days of its receipt by the Seller. In the case of an order in the online shop, the Buyer will receive a confirmation of receipt of the order, which, however, does not constitute acceptance of the order.
c. Acceptance can be declared either in text form (e.g. by order confirmation) or by delivery of the goods to the Buyer.
4. Prices and terms of payment
a. Unless otherwise agreed in individual cases, the Seller's current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT. The respective current prices are to be requested from the Seller in advance by the Buyer.
b. In the case of a sales shipment (Section 5 lit. a.), the Buyer pays the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges have to be paid by the Buyer.
c. The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, the Seller is entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. The Seller shall declare a corresponding reservation at the latest with the order confirmation.
d. The following payment methods are available for orders placed via the online shop:
(iii) Cash on delivery: The payment method is also offered via PayPal.
(iv) Payment by instalments: The payment method is also offered via PayPal.
(v) Credit card: The payment method is also offered via PayPal.
5. Shipment, passing of the risk
a. Delivery is ex warehouse, which is also the place of performance for the delivery and any cure. At the Buyer's request and expense, the goods shall be shipped to another destination (“Sales Shipment”). Unless otherwise agreed, the Seller is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) himself.
b. The risk of accidental destruction and accidental deterioration of the goods passes to the Buyer at the latest when the goods are handed over. However, in the case of sales shipment, the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay already passes to the Buyer upon handover of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. The handover shall be deemed to have taken place if the Buyer is in default of acceptance.
c. For parcels with a net value of EUR 250.00 or more, shipping within Germany is free of charge.
6. Delivery period and delay in delivery
a. The delivery period is agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approx. 2 weeks from the conclusion of the contract.
b. If the Seller is unable to meet binding delivery deadlines for reasons for which the Seller is not responsible (non-availability of the service), the Seller shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the Buyer shall be reimbursed by the Seller without delay. Non-availability of the service shall be deemed to exist, for example, in the event of late delivery by the Seller's own suppliers, if the Seller has concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if the Seller is not obliged to procure in the individual case.
7. Retention of title
a. The Seller retains ownership of all goods delivered by him until full payment of all claims against the Buyer arising from the business relationship. In the event of breach of contract by the Buyer, in particular in the event of delay in payment, the Seller is entitled to reclaim the goods. The taking back of the goods by the Seller shall be deemed to be a withdrawal from the contract. After taking back the goods, the Seller shall be entitled to realise them, whereby the realisation proceeds less reasonable realisation costs shall be credited against the Buyer's liabilities.
b. The Buyer is not permitted to transfer ownership by way of security, to pledge the goods or to make any other dispositions affecting the Seller's rights to the delivered goods.
c. The Seller must be notified immediately in writing of any seizures, confiscations or other interventions by third parties affecting the Seller's rights to the delivered goods.
d. Until revoked in accordance with (iii) below, the Buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(i) The retention of title shall extend to the products resulting from the processing, mixing or combining of the Seller's goods at their full value, the Seller being deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the latter's right of ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(ii) The Buyer hereby assigns to the Seller by way of security any claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of any co-ownership share of the Seller pursuant to the preceding paragraph. The Seller accepts the assignment. The Buyer's obligations set out in b. above shall also apply in respect of the assigned claims.
(iii) The Buyer shall remain authorised to collect the claim in addition to the Seller. The Seller undertakes not to collect the claim as long as the Buyer meets his payment obligations to the Seller, there is no deficiency in his ability to pay and the Seller does not assert the retention of title. If this is the case, however, the Seller may demand that the Buyer inform the Seller of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case, Seller shall be entitled to revoke Buyer's authority to further sell and process the goods subject to retention of title.
(iv) If the realisable value of the securities exceeds the Seller's claims by more than 10%, the Seller shall release securities of the Seller's choice at the Buyer's request.
8. Rights of Buyer in the case of defects
a. The statutory provisions shall apply to the rights of the Buyer in the event of material defects and legal defects (including wrong delivery and short delivery as well as improper assembly/installation or defective assembly instructions), unless otherwise stipulated below. In all cases, the statutory provisions on the sale of consumer goods (Section 474 et seq. German Civil Code) and the rights of the Buyer arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
b. The basis of the Seller's liability for defects is above all the agreement reached on the quality and the intended use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by the Seller (in particular in catalogues or on the Seller's website) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (Section 434 para. 3 German Civil Code). Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the goods, take precedence over statements made by other third parties.
c. In the case of goods with digital elements or other digital content, the Seller only owes the provision and, if applicable, the updating of the digital content insofar as this expressly results from a quality agreement pursuant to lit. b. In this respect, the Seller assumes no liability for public statements made by the manufacturer and other third parties.
d. The Seller shall in principle not be liable for defects of which the Buyer has knowledge or is grossly negligent in not knowing at the time of entering into the contract (Section 442 German Civil Code). Furthermore, the Buyer's claims for defects presuppose that he has fulfilled his statutory duties of inspection and notification (Sections 377, 381 Commercial Code). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, the Seller shall be notified thereof in writing without delay. In any case, obvious defects shall be notified in writing within 8 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If the Buyer fails to carry out the proper inspection and/or to give notice of defects, the Seller's liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation, mounting or fitting, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, the Buyer shall in particular have no claims for reimbursement of corresponding costs ("removal and installation costs").
e. If the delivered good is defective, the Seller may initially choose whether to provide cure by remedying the defect (rectification) or by supplying a good free of defects (replacement). If the type of cure chosen by the Seller is unreasonable for the Buyer in the individual case, the Seller may reject it. The Seller's right to refuse cure under the statutory conditions shall remain unaffected.
f. The Seller shall be entitled to make the cure owed conditional upon the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.
g. The Buyer shall give the Seller the time and opportunity required for the cure owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to the Seller at the Seller's request in accordance with the statutory provisions; however, the Buyer shall not have a claim for return. The Cure shall not include the dismantling, removal or disassembly of the defective item or the installation, fitting or assembly of a defect-free item if the Seller was not originally obliged to perform these services; claims by the Buyer for reimbursement of corresponding costs ("removal and installation costs") shall remain unaffected.
h. The Seller shall bear or reimburse the expenses necessary for the purpose of inspection and cure, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTC, if a defect is actually present. Otherwise, the Seller may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect if the Buyer knew or could have known that there was actually no defect.
i. In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer has the right to remedy the defect himself and to demand reimbursement from the Seller of the expenses objectively necessary for this purpose. The Seller must be notified immediately of any such self-execution, if possible, in advance. The right of self-execution shall not apply if the Seller would be entitled to refuse a corresponding cure in accordance with the statutory provisions.
j. If a reasonable period of time to be set by the Buyer for cure has expired unsuccessfully or is dispensable under the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
k. Claims of the Buyer for reimbursement of expenses according to Section 445a para. 1 German Civil Code are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 German Civil Code) or a consumer contract for the provision of digital products (Sections 445c p. 2, 327 para. 5, 327u German Civil Code). Claims of the Buyer for damages or reimbursement of futile expenses (Section 284 German Civil Code) shall also exist in the event of defects of the goods only in accordance with the following sections 9 and 10.
9. Other liability
a. Insofar as nothing to the contrary arises from these GTC including the following provisions, the Seller shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
b. The Seller shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, the Seller shall be liable, with the reservation of statutory limitations of liability (e.g. due care in ones own affairs; insignificant breach of duty), only
(i) for damages arising from injury to life, body or health,
(ii) for damages arising from the breach of a fundamental contractual obligation (obligation, the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, the Seller's liability shall be limited to compensation for the foreseeable, typically occurring damage.
c. The limitations of liability resulting from lit. b. shall also apply to third parties as well as in the case of breaches of duty by persons (also in their favour) whose fault the Seller is responsible for according to statutory provisions. They shall not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the Buyer under the Act on Liability for Defective Products.
d. The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if the Seller is responsible for the breach of duty. A free right of termination of the Buyer (in particular according to Sections 650, 648 German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
a. Contrary to Section 438 para. 1 no. 3 German Civil Code, the general limitation period for claims arising from material defects and defects of title is one year from delivery.
b. If the goods are a building or an object which has been used for a building in accordance with its normal way it is used and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Section 438 para. 1 no. 2 German Civil Code). Other special statutory provisions on the limitation period (in particular Section 438 para. 1 no. 1, para. 3, Sections 444, 445b German Civil Code) shall also remain unaffected.
c. The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages by the Buyer pursuant to section 9. lit. b. S. 1 and S. 2 (i) as well as under the Act on Liability for Defective Products shall become statute-barred exclusively in accordance with the statutory limitation periods.
11. Choice of law and place of jurisdiction
a. These GTC and the contractual relationship between the Seller and the Buyer shall be governed by the law 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. The German version of these GTC shall prevail. The English version is for information purposes only.
b. 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 - also international - venue for all disputes arising directly or indirectly from the contractual relationship shall be the Seller's place of business in Mülheim an der Ruhr, Germany. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, the Seller shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation pursuant to these GTC or a prior individual agreement or at the Buyer's general venue. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.