General Terms and Conditions (GTC) l Online Shop

"Seller" within the meaning of the following text is "Fixture Tech Solutions GmbH, Auf Rodert 6, 66636 Tholey"

§ 1 Subject matter of the GTC - Scope of application - General information
§ 2 Offer, conclusion and subject of the contract
§ 3 Prices, terms of payment, offsetting
§ 4 Delivery and delivery time
§ 5 Place of fulfilment, shipping, packaging, transfer of risk, acceptance
§ 6 Liability for defects (warranty; in the meaning of German “Gewährleistung”)
§ 7 Intellectual property rights
§ 8 Liability for damages due to fault
§ 9 Retention of title (in the meaning of German “Eigentumsvorbehalt”)
§ 10 Applicable law and place of jurisdiction for disputes

§ 1 Subject matter of the GTC - Scope of application - General information

(1) These General Terms and Conditions (GTC) apply to all contracts concluded between the Seller and its Customer/s via the Seller's online shop.

(2) The Seller operates a pure B2B shop. This means that sales contracts are only concluded with business customers and therefore only those customers who confront the Seller as an entrepreneurs/businesspersons are invited to use the shop and to submit offers and/or to receive offers from the seller. Consumers are excluded from using the shop.

(3) An entrepreneur/businessperson within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, is acting in the exercise of his or her commercial or self-employed professional activity. A consumer is any natural person who enters into or intends to conclude a legal transaction for purposes that cannot be predominantly attributed to his or her commercial or self-employed professional activity.

(4) These GTCs shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed upon or expressly included again.

(5) The inclusion of any of the Customer's own terms and conditions is expressly rejected. Deviations may be agreed by the parties individually. The terms and conditions of the Customer or third parties do not apply even if the seller does not object to their validity in the individual case. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Customer or a third party, this does not constitute an agreement with the validity of those terms and conditions.

(6) The sale, resale and disposition of goods and services as well as any related technology or documentation may be subject to German, EU, US export control law and, where applicable, the export control law of other countries. Resale to embargoed countries, to restricted persons or to persons who use or may use the supplies and services for military purposes, for NBC weapons or for nuclear technology is subject to approval. By placing an order, the Customer declares that the goods and services are in conformity with such laws and regulations and that the deliveries and services are not delivered directly or indirectly to countries that prohibit or restrict the import of these goods and services (in particular the goods). The Customer declares to obtain all the necessary permits for export and import.

§ 2 Offer, conclusion and subject of the contract

(1) The descriptions of products, that can be viewed in the Seller's online shop, are not binding offers by the Seller to conclude purchase contracts, but rather serve initially only as an invitation for a Customer to submit a binding offer.

(2) The binding offer can then be submitted by the Customer via the online order form provided in the online shop. To do this, the Customer places the selected goods in the digital shopping cart and goes through the specified ordering process. He completes this by clicking on the button concluding the order process and, with this click, submits his legally binding purchase offer to the Seller, relating to the products contained in the digital shopping cart.

(3) The Seller has the opportunity to accept the offer within five working days. This can be done by:

a. sending a written order confirmation or an order confirmation in text form (fax or e-mail) to the Customer, whereby the receipt of the order confirmation by the Customer is decisive for its effectiveness, or
b. shipping/handing over the ordered goods to the Customer, whereby the receipt of the goods by or the acceptance of the goods by the Customer is decisive for the effectiveness, or
c. sending a request for payment to the Customer.

If several of the above alternatives apply, the contract is concluded at the time when the first alternative is fulfilled. The acceptance period for the Seller begins with the day after the Customer's submission of the offer; it ends at the end of the fifth working day following the dispatch of the Customer's offer. If there is no timely acceptance, the Customer is no longer bound by his offer and the belated acceptance is considered a new offer to the Customer, which the Customer can accept within five working days of receipt, by

a. sending a declaration of acceptance to the Seller at least in text form (receipt by the Seller is decisive), or
b. paying the purchase price.

If several of the above alternatives apply, the contract is concluded at the time when the first alternative is fulfilled.

(4) If the Customer selects one of the payment methods offered by PayPal as a payment method, the payment transaction is processed by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal").
In this case, the PayPal Terms of Use, which can be viewed under https://www.paypal.com/de/webapps/mpp/ua/useragreement-full, apply if the customer has a PayPal account himself. If the customer does not have his own PayPal account, the terms and conditions for payments without a PayPal account apply, which can be viewed under https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.

(5) If the Customer selects one of the payment methods offered by PayPal as a payment method, the Seller declares – by way of derogation from the above regulations – that the Customer’s purchase offer will be accepted at the time when the Customer clicks on the button concluding the order process.

(6) If the contract is concluded via the online order form, the text of the contract will be stored after the conclusion of the contract and will be sent to the Customer once after the order has been sent in text form (e.g. e-mail, fax or letter). The Seller does not make the text of the contract available beyond this. Only if the Customer also sets up a customer account in the online shop when ordering, he can still view his purchases via the account afterwards, at least until the contracts are settled. To do this, the Customer needs their access data to the password-protected account.

(7) Prior to the binding submission of the order, the Customer can identify any input errors by clicking on the final button in the online order form by carefully reading the information displayed on the screen. As a technical means of finding any input errors, the Customer can use the magnification function of the browser. Input errors can be eliminated or entries can be adjusted until the Customer has clicked the button to complete the order process; this can be done via the usual keyboard and mouse functions.

(8) Order processing and contact are usually made by e-mail or through automated functions of the online shop. The Customer must therefore carefully check his entries and ensure that they are all true, as well as ensure that the e-mail address provided by him for order processing has been entered without errors and that he can actually receive e-mails sent by the Seller at this address. The Customer must also configure any SPAM filters used in such a way that all e-mails sent by the Seller or by third parties commissioned by the Seller – relating to the processing of the order – can also be delivered.

(9) Information provided by the Seller on the purchased item (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as the representations of the same (e.g. drawings and illustrations, in particular in the article description in the online shop) are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided that they do not impair the usability for the contractually intended purpose.

§ 3 Prices, terms of payment, offsetting

(1) Unless it is expressly stated otherwise by the information in the online shop, esp. in the description of the products, the prices are always exclusive of the statutory VAT. (net prices); delivery and shipping costs are to be added, these are indicated separately in the respective description of the products.

(2) If it is agreed that the goods will be shipped to a country outside the European Union, additional costs may be incurred in individual cases. These are the responsibility of the Customer alone and not borne by the Seller. Such costs can be, for example: costs for the transmission of money by credit institutions (e.g. transfer fees, exchange rate fees), import duties or taxes (e.g. customs duties). Costs of transmitting money may also be incurred if the goods are not delivered to a country outside the EU, but the Customer makes the payment from a country outside the European Union.

(3) The payment option(s) will be communicated to the Customer in the online shop.

(4) If the Customer selects a payment method offered via the payment service "PayPal", the payment processing takes place via PayPal. PayPal is allowed to use third-party payment service providers.

(5) The set-off against counterclaims of the Customer or the withholding of payments on account of such claims is only permissible if the counterclaims are undisputed or legally established or arise from the same order under which the delivery in question was made.

(6) The Seller shall be entitled to execute or provide outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Customer and through which the payment of the Seller's outstanding receivables from the respective contractual relationship (including from other individual orders, subject to the same framework contract, where applicable).

§ 4 Delivery and delivery time

(1) Deliveries are made ex works or from the Seller's warehouse.

(2) Deadlines and dates for deliveries and services promised by the Seller shall always be approximate unless a fixed deadline or date has been expressly promised or agreed. If dispatch has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.

(3) Without prejudice to its rights arising from default on the part of the Customer, the Seller may demand from the Customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period for which the Customer fails to meet its contractual obligations to the Seller.

(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in obtaining materials or energy, transport delays, strikes, lawful lockouts, lack of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures, caused by non-delivery, incorrect or untimely delivery by suppliers or by disruptions to the company's own operations, production and/or supply chain as a result of a pandemic) for which the Seller is not responsible. If such events make the delivery or service significantly more difficult or impossible for the Seller and the hindrance is not only temporary, the Seller is entitled to withdraw from the contract. In the event of obstacles of temporary duration, the delivery or performance deadlines shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately making a written declaration to the seller.

(5) The Seller shall only be entitled to make partial deliveries if:

a. the partial delivery can be used by the Customer within the scope of the contractual purpose,
b. the delivery of the remaining ordered goods is ensured, and
c. the Customer does not incur any significant additional effort or costs as a result (unless the seller agrees to bear these costs).

(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for any reason, the Seller's liability shall be limited to damages in accordance with § 8 of these GTC.

§ 5 Place of fulfilment, shipping, packaging, transfer of risk, acceptance

(1) The place of fulfilment for all obligations arising from the contractual relationship shall be at the registered office of the Seller, unless otherwise specified.

(2) The shipping method and packaging are subject to the Seller's dutiful discretion.

(3) Unless otherwise agreed, the goods shall be delivered by dispatch to the delivery address specified by the Customer as part of his order.

(4) The risk shall be transferred to the Customer at the latest upon handover of the delivery item (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third parties designated to carry out the shipment. This also applies if partial deliveries are made or if the Seller has taken over other services (e.g. shipping or installation). If the shipment or handover is delayed as a result of a circumstance caused by the Customer, the risk is transferred to the Customer from the day on which the delivery item is ready for dispatch and the Seller has notified the Customer of this.

(5) Storage costs after the transfer of risk shall be borne by the Customer. In the case of storage by the Seller, the storage costs amount to 0.25% of the invoice amount of the deliverables to be stored per past week. The parties reserve the right to assert and prove higher/further or lower storage costs.

(6) The shipment shall only at the express request of the Customer and at the customer's expense be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks.

(7) If, by way of exception, an acceptance has to take place, the purchased item shall be deemed to have been accepted if:

a. the delivery and, if the Seller is also responsible for the installation, the installation has been completed,
b. the Seller has informed the Customer of this with reference to the deemed acceptance pursuant to this § 5 (7) and has requested him to accept it,
c. 14 days have elapsed since delivery or the customer has started using the purchased item (e.g. has put the item into use/operation) and in this case seven (7) days have passed since delivery or installation, and
d. the Customer has refrained from acceptance within this period for a reason other than a defect reported to the seller that makes the use of the purchased item impossible or significantly impairs it.

§ 6 Liability for defects (warranty; in the meaning of German “Gewährleistung”)

(1) The warranty period shall be one year from the transfer of risk. This period does not apply to claims for damages by the Customer resulting from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents (in the meaning of German “Erfüllungsgehilfe”), each of which becomes statute-barred in accordance with the statutory provisions.

(2) The delivered items must be carefully inspected immediately after delivery to the Customer or the third party designated by him. They shall be deemed to have been approved by the Customer with regard to obvious defects or other defects that would have been recognizable by an immediate, careful investigation, if the Seller does not receive a written notice of defects within five (5) working days (working days are all days from Monday to Friday, with the exception of public holidays at the Seller's registered office) after delivery. With regard to other defects, the Deliverables shall be deemed to have been approved by the Customer if the Seller does not receive the notice of defect within five (5) working days after the date on which the defect became apparent; If, in normal use, the defect was already evident at an earlier point in time, that earlier date is decisive for the start of the period for lodging a complaint. At the request of the Seller, a disputed item must be returned to the Seller carriage paid. In the event of a justified notice of defects, the Seller will reimburse the costs of the most convenient shipping method for the return; this does not apply to the extent that the costs increase because the delivery item is located at a different place than the place of intended use.

(3) In the event of material defects in the delivered items, the Seller shall first be obliged and entitled to repair or replace the goods after making its choice within a reasonable period of time. In the event of failure, i.e. impossibility, unacceptability, refusal or unreasonable delay of rectification or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of the seller, the Customer may also claim damages under the conditions specified in § 8.

(5) In the event of defects in components from other manufacturers which the Seller is unable to remedy for licensing or factual reasons, the Seller shall, at its option, assert its warranty claims against the manufacturers and suppliers on behalf of the Customer or assign them to the Customer. Warranty claims against the Seller in the event of such defects shall only exist under the other conditions and in accordance with these GTCs if the judicial enforcement of the above-mentioned claims against the manufacturer and supplier has been unsuccessful or, e.g. due to insolvency. During the duration of the legal dispute, the limitation period for the relevant warranty claims of the Customer against the Seller is suspended.

(6) The warranty is void if the Customer changes the delivery item without the consent of the Seller or has it changed by third parties and the elimination of defects is made impossible or unreasonably difficult as a result. In any case, the Customer must bear the additional costs of remedying the defects resulting from the change.

(7) A delivery of used items agreed with the Customer in individual cases is carried out under exclusion of any warranty for material defects.

(8) The statutory limitation periods for the right of recourse pursuant to § 445b BGB remain unaffected by the above limitations and shortenings.

(9) Unless otherwise stipulated above or in these GTC, the warranty for defects is governed by the statutory provisions.

§ 7 Intellectual property rights

(1) In accordance with this § 7, the Seller is responsible for ensuring that the delivery item is free of intellectual property rights or copyrights of third parties. Each Contracting Party shall immediately notify the other Contracting Party in writing if any claims are asserted against it due to the violation of such rights.

(2) In the event that a delivered item infringes an intellectual property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the item in such a way that no rights of third parties are infringed, but the item continues to perform the contractually agreed functions, or provide the Customer with the right of use by concluding a license agreement with the third party. If the Seller fails to do so within a reasonable period of time, the Customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Customer are subject to the restrictions of § 8 of these GTC.

(3) In the event of infringements by products of other manufacturers supplied by the Seller, the Seller shall, at its option, assert its claims against the manufacturers and upstream suppliers on behalf of the Customer or assign them to the Customer. In these cases, claims against the Seller exist in accordance with this § 7 only if the judicial enforcement of the above-mentioned claims against the manufacturers and upstream suppliers was unsuccessful or, e.g. due to insolvency.

(4) The Seller reserves the ownership and copyright of all offers and cost estimates submitted by the Seller as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. Without the express consent of the Seller, the Customer may not make these items available to third parties either as such or in terms of content, disclose them, use them himself or through third parties, make them publicly accessible, reproduce them or otherwise use them for purposes other than the initiation and execution of the contract. At the Seller's request, he must return these items in full to the Seller and destroy any copies that may have been made if they are no longer needed by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract; at least insofar as there are no statutory retention obligations to the contrary. An exception to this is the storage of electronically provided data for the purpose of normal data backup.

§ 8 Liability for damages due to fault

(1) The Seller's liability for damages, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort is limited in accordance with this § 8 insofar as fault is relevant in each case.

(2) The Seller shall not be liable in the event of simple negligence on the part of its governing bodies, legal representatives, employees or other vicarious agents (in the meaning of German “Erfüllungsgehilfe”), unless it is a violation of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title as well as such material defects that impair its functionality or fitness for use more than insignificantly, as well as duties of advice, protection and care, which are intended to enable the Customer to use the delivery item in accordance with the contract or the protection of life or limb of the Customer's personnel or the protection of his property from significant damage.

(3) Insofar as the Seller is liable for damages pursuant to § 8 (2), this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen by exercising customary care. In addition, indirect and consequential damages resulting from defects in the delivery item are only compensable to the extent that such damage is typically to be expected from the intended use of the delivery item.

(4) The above exclusions and limitations of liability shall apply to the same extent to the benefit of the Seller's governing bodies, legal representatives, employees and other vicarious agents (in the meaning of German “Erfüllungsgehilfe”).

(5) Insofar as the Seller provides technical information or acts as an advisor and this information or advice does not form part of the contractually agreed scope of services owed by the Seller, this is done free of charge and to the exclusion of any liability.

(6) The limitations of this § 8 do not apply to the liability of the Seller due to intentional conduct, for guaranteed quality characteristics, for injury to life, body or health or under the Product Liability Act.

§ 9 Retention of title (in the meaning of German “Eigentumsvorbehalt”)

(1) The goods delivered by the Seller to the Customer shall remain the property of the Seller until all secured claims have been paid in full. The goods as well as the goods that replace them in accordance with the following provisions and are covered by the retention of are hereinafter referred to as "goods subject to retention of title".

(2) The Customer shall keep the goods subject to retention of title for the Seller free of charge.

(3) The Customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the occurrence of the event of exploitation (para. 8). Pledges (in the meaning of German “Verpfändung”) and transfers of ownership by way of security (in the meaning of German “Sicherungsübereignung”) are not permitted.

(4) If the goods subject to retention of title are processed by the Customer, it is agreed that the processing shall be carried out in the name and for the account of the Seller and that the Seller shall directly acquire ownership or – if the processing is made of materials from several owners or if the value of the processed goods is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership should occur with the Seller, the Customer shall now transfer his future ownership or – in the above-mentioned relationship – co-ownership of the newly created object to the Seller as security. If the goods subject to retention of title are combined with other items to form a single item or are inseparably mixed and one of the other items is to be regarded as the main item, the customer shall transfer to the seller the co-ownership of the single item on a pro rata basis in the ratio specified in p. 1, insofar as the main item belongs to him.

(5) In the event of the resale of the goods subject to retention of title, the Customer assigns to the Seller the resulting claim against the purchaser as security – in the case of co-ownership of the goods subject to retention of title on a pro rata basis in accordance with the co-ownership share. The same applies to other claims that take the place of the goods subject to retention of title or otherwise arise with regard to the goods subject to retention of title, such as insurance claims or claims arising from tort in the event of loss or destruction. The Seller revocably authorizes the Customer to collect the receivables assigned to the Seller in its own name. The Seller may only revoke this direct debit authorisation in the event of exploitation (para. 8).

(6) If third parties access the goods subject to retention of title, in particular: by seizure, the Customer will immediately draw the Seller's attention to the Seller's property and inform the Seller thereof in order to enable the Seller to enforce its property rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this context, the Seller's customer shall be liable for this.

(7) The Seller shall release the goods subject to retention of title as well as the items or receivables replacing them, insofar as their value exceeds the amount of the secured receivables by more than 50%. The selection of the items to be released after that is up to the Seller.

(8) If the Seller assumes liability in the event of a breach of contract on the part of the Customer – in particular. Default of payment – withdrawal from the contract (case of exploitation; in the meaning of German “Verwertungsfall”), it is entitled to demand the return of the goods subject to retention of title.

§ 10 Applicable law and place of jurisdiction for disputes and contract language/translations

(1) If the Customer is a merchant (in the sense of the German Commercial Code = Handelsgesetzbuch), a legal entity under public law or a special fund under public law, or if he does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between the seller and the customer shall be Saarbrücken or the registered office of the customer, at the choice of the seller. In these cases, however, Saarbrücken is the exclusive place of jurisdiction for claims against the seller. Mandatory statutory provisions on exclusive jurisdiction remain unaffected by this provision.

(2) The relations between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) does not apply.

(3) Only the German language is available for the conclusion of the contract.

(4) These GTCs as well as all other descriptions and texts relating to the goods or the content of the contract are to be interpreted solely on the basis of applicable German law and according to German legal and linguistic understanding. Insofar as translated versions are also made available on this website, they are for information purposes only; they do not become part of the legal transaction. In the event of discrepancies between the German and other language versions, only the German version shall apply.

(5) Insofar as the contract or these GTC contain gaps in the terms and conditions, the legally effective provisions that the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known about the loophole shall be deemed to have been agreed upon to fill these gaps.