Terms and Conditions
General Terms and Conditions of Sale
- These General Terms and Conditions of Sale (hereinafter also „Delivery Terms“) shall apply to all business relationships of Franz Mensch GmbH (hereinafter „we“ or „us“) with our customers (hereinafter also „Buyers“). The Delivery Terms shall only apply if the Buyer is an entrepreneur (Sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a legal person under public law or a special fund under public law. The Buyer shall provide us with its VAT identification number as proof of his entrepreneurial capacity; the Buyer may also prove this capacity in another way.
- The Delivery Terms apply in particular to contracts regarding the sale and/or delivery of movable objects (hereinafter also „Goods“) irrespective of whether we produce the Goods ourselves or purchase them from suppliers (Secs. 433, 651 BGB). The Delivery Terms, in their respectively applicable version, shall apply as a framework agreement also to future contracts regarding the sale and/or delivery of movable objects with the same Buyer, without us having to refer to these again in each individual case; in such event, we will immediately inform the Buyer of any changes to our Delivery Terms. These Delivery Terms shall apply equally to all types of business transactions including orders via our online shop www.franz-mensch.de (hereinafter also „Online Shop“) or via our order hotline.
- These Delivery Terms shall apply exclusively. Any diverging, contrary or complementary general terms and conditions of the Buyer shall only become a part of the contract if and to the extent we have expressly accepted their validity. This consent requirement shall apply in any case, e.g. also where we make a delivery without reservation to the Buyer even though we are aware of the Buyer's general terms and conditions.
- Individual agreements made with the Buyer in the individual case (including side agreements, supplements and changes) shall always take precedence over these Delivery Terms. A written contract, alternatively a written additional clause to the agreement on terms or our written confirmation shall be decisive for the content of such agreements.
- All statements and notifications of legal relevance required to be made by the Buyer vis-à-vis ourselves after the conclusion of the contract (e.g. setting deadlines, notification of defects, declarations of withdrawal or reductions) must be made in writing to be effective.
II. Conclusion of the Contract
- Our offers in the catalogue or the Online Shop are non-binding and subject to change. This also applies to descriptions of Goods. The presentation and advertising of articles, e.g. via our Online Shop or in our catalogues, shall not be deemed a binding offer for the conclusion of a purchase contract. It shall only be deemed a promotion of the Goods.
- The Buyer's order for goods shall be considered a binding offer of contract. By placing an order in the Online Shop via the button „Order now“, the Buyer submits a binding offer of contract which requires our acceptance. Unless otherwise stated in the order, we may accept such offer of contract within 1 week from the date on which we receive it.
- A contract shall only be concluded upon our written order confirmation or implicitly through the delivery of the Goods and shall be governed exclusively by the content of the order confirmation and by these Delivery Terms.
- If an order is placed via the Online Shop the following additional provisions shall apply:
- 4.1. At the end of the respective ordering process the Buyer receives a list of the products ordered as well as the total price to be paid including the statement of statutory VAT and the applicable shipping and additional costs.
- 4.2. Before submitting an order the Buyer also has the possibility to check the order once again and, if necessary, to change or entirely delete the order by clicking on the corresponding buttons.
- 4.3. We confirm the receipt of the order to the customer immediately by e-mail (order confirmation). This is only a notification of receipt of the order. If we do not object to the acceptance of the order within 2 working days, this notification of receipt constitutes an acceptance of the order.
- 4.4. Should the delivery of the Goods ordered by the Buyer not be possible as, for example, the respective Goods are not in stock, we will not send a declaration of acceptance. In such case, a contract is not concluded. We will immediately inform the Buyer about such circumstance and refund considerations already obtained.
- 4.5. The contract language shall exclusively be German. All contractual data is only stored in the context of our commercial accounting in accordance with the statutory provisions. This data will no longer be available/retrievable after the conclusion of a sale. Please save the the contractual documents we send you or make copies thereof. You can download, save and/or print these Delivery Terms and any other contractual provisions. These will additionally be sent to you via email in case of every purchase and sale.
The price indicated in the respective offer for our Goods is the net price plus statutory VAT and other price components. The shipping costs are to be borne by the Buyer and are stated in the respective offer as well as under Types of payment and shipping ("Payment and shipping methods"). Unless otherwise agreed, the following shipping costs shall apply:
- Within Germany, the shipping costs amount to EUR 4.95, unless the Buyer's order value amounts to EUR 200.00 net (bulk consumer) or to EUR 300.00 net (reseller). If the above order values are reached as well as in case of collection by the Buyer, shipping is free of charge. If the order value falls short of EUR 50.00 net (bulk consumer) or EUR 100.00 net (reseller) a processing fee in the amount of EUR 5.00 is charged and shipping costs will consequently amount to a total of EUR 9.95. In case of shipment abroad as well as to islands additional costs will be charged of which the Buyer will be informed in due time.
- In case of a shipment of the purchased item to countries outside the European Community, the indicated final price does not include customs, taxes on imports or other import duties possibly imposed by the target country. We will not take back any transport packaging or other packaging in accordance with the German Regulation on Packaging (Verpackungsverordnung, VerpackV); such packaging becomes the property of the Buyer.
- We are entitled to issue partial invoices for partial deliveries within the meaning of item V.8.
IV. Payment, Due Date, Default in Payment
- The payment by the Buyer can principally be effected via bank transfer (advance payment), on account (creditworthiness provided) or against cash payment (from an order value 200 €). The payment shall be effected without deduction within a period of 30 calendar days from the issuance of the invoice. More information on payment can be found under Types of payment and shipment ("Payment and shipping methods").
- Payment will be considered made in due time if we receive the respective amount in due time.
- The Buyer shall be in default upon expiry of the aforesaid payment period. During the default, interest shall be payable on the purchase price at the respectively applicable statutory default interest rate. We reserve the right to assert further damages for default. Vis-à-vis merchants, our right to commercial default interest (Sec. 353 of the German Commercial Code (Handelsgesetzbuch, HGB)) shall remain unaffected.
- If we subsequently become aware of circumstances from which a considerable deterioration of the Buyer's financial situation becomes evident, which could endanger our payment claims vis-à-vis the Buyer (e.g. by an application to open insolvency proceedings), we shall have the right to withdraw from the contract (Sec. 321 BGB) or to claim an advance payment or the provision of security in case of outstanding items still to be delivered in accordance with the statutory provisions on the refusal of performance - after setting a deadline. In case of contracts regarding the manufacturing of non-fungible goods (customised goods), we are entitled to immediately declare a withdrawal; the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.
- The Buyer may only set off such counterclaims which have been established with final legal effect or which are uncontested or have been acknowledged by us. The Buyer may only assert a right of retention based on counterclaims deriving from the same contractual relationship.
V. Delivery and Shipment, Passing of Risk and Default in Acceptance
- Delivery is effected ex warehouse which is also the place of performance. If requested by the Buyer, the Goods will be shipped to a different destination at the Buyer's expense (sale by delivery, (Versendungskauf)). Unless agreed otherwise, we are entitled to choose the means of shipment (in particular the forwarding company, dispatch route, packaging) at our own discretion.
- If the Buyer selects the shipment type „Pickup“, the Buyer may collect the Goods during our business hours from Monday to Thursday 8:00 am to 4:00 pm and on Friday from 8:00 am to 1:30 pm from our shipment warehouse at the following address: Franz Mensch GmbH, Werner-von-Siemens-Str. 2, 86807 Buchloe (Germany).
- We will inform the Buyer as soon as the Goods are ready for collection. The Buyer will receive the ordered Goods against presentation of the order confirmation. The loading for transport shall not be part of our responsibilities. Consequently, the Buyer himself is responsible for the loading of the Goods. He shall provide any equipment for loading and securing the Goods at his own risk and responsibility.
- The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon the handover of the Goods.
- In case of a sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delays shall already pass when the Goods are handed over to the forwarding agent, the carrier or another person commissioned with the shipment. The goods shall be considered delivered also if the Buyer is in default with accepting the shipment.
- The delivery period shall be agreed individually and/or indicated by us in the ordering process. It is a prerequisite for the start of the delivery period indicated by us that the Buyer provides us with and informs us of any and all information and documents required for the performance of the delivery in due time and effected any agreed advance payments as agreed. Unless otherwise stipulated, agreed deadlines shall commence on the date of the order confirmation. These deadlines shall be extended accordingly if additional or supplementary orders are placed at a later date.
- Should we be unable to meet binding delivery deadlines for reasons beyond our control (non-availability of service), we will inform the Buyer accordingly without undue delay indicating the expected new delivery deadline. Should the service also remain unavailable within the new delivery deadline, we are entitled to withdraw from the contract in whole or in part; we will refund any consideration already rendered by the Buyer without undue delay. Non-availability of the service in this sense shall be deemed, in particular, a delayed delivery by one of our suppliers, if we have concluded a congruent covering transaction, neither we nor our supplier are responsible for the delay or if we are not obliged to procure the goods in the individual case.
- We shall only be entitled to make partial deliveries if (i) the Buyer can use the partial delivery for the contractually agreed purpose, (ii) delivery of the remaining ordered Goods is ensured, and (iii) this does not cause the Buyer considerable additional work and/or expenses (unless we agree to bear such costs).
- Unless otherwise agreed, the delivered goods are excluded from refund policy. Should incorrect or over ordered products nevertheless be refunded, the restocking fee for the returned products is 15% of the purchase price, which will be deducted directly from the creditnote. The condition for the return of goods is their undamaged original condition. Damaged, opened or used products are excluded from the return.
- The dispatch of articles, which are marked as dangerous goods, takes place only within Germany transport by land. Shipping by sea is excluded.
VI. Duty to Inspection and Objection for Entrepreneurs
- The Buyer's claims for defects shall be subject to the Buyer's compliance with its statutory duties to inspect and to report defects (Secs. 377, 381 HGB). The Buyer is obliged to immediately inspect the shipments for defects and to notify us immediately of such defects in writing or in text form, however, at the latest within 10 calendar days from the handing over of the shipment to the Buyer. In case of hidden defects, the objection period begins when the hidden defect was detected or could have been detected without gross negligence. The forwarding of purchased items to third parties or their shipment to a foreign customs territory shall not release the Buyer from his duty to objection pursuant to this item VI.1.
- If the notice of defects is not made or not made in time, our liability for the defect of which we have not been notified shall be excluded.
VII.Retention of Title
- We shall hold the title in the purchased item until any and all claims arising from the purchase contract have been completely fulfilled. This shall also apply until any of our future claims from an ongoing business relationship plus interest and costs have been completely settled.
- The Buyer shall not be entitled to sell or otherwise dispose of the purchased item, in particular to pledge or transfer it by way of security as long as the purchased item is subject to retention of title, i.e. as long as the Buyer has not fulfilled all of our claims from the purchase contract concerned. A connection of items of the Buyer or third parties with purchased items subject to retention of title shall be prohibited.
- The Buyer shall inform us immediately in writing or in text form if and insofar as third parties access the purchased items subject to retention of title.
VIII. Warranty and Liability
- The Buyer's rights in the event of material or legal defects shall be subject to the statutory provisions, unless agreed otherwise below. The specific statutory provisions regarding the final delivery of the Goods to a consumer (recourse against the supplier pursuant to Secs. 478, 479 BGB) shall remain unaffected in any case.
- Rights arising from product defects in relation to damage to the purchased items shall be excluded if the damage was caused by improper actions or actions otherwise contrary to the contract of the Buyer or individuals who can be attributed to his sphere. This shall particularly apply if the Buyer has not considered the manufacturer's instructions for use.
- The choice of the type of subsequent performance shall be at our own option. Claims of the Buyer for expenses which are required for the purpose of subsequent performance, in particular costs of transport, travel, work and material shall be excluded if the expenses increase due to the subsequent transfer of the purchased item to another place other than the Buyer's place of business.
- We do not provide any additional guarantee unless this has been expressly agreed upon in the order confirmation of the respective Goods.
IX. Limitation of Liability
- Claims of the Buyer for damages shall be excluded. This shall not apply to claims of the Buyer for damages resulting from injury to life, body or health or resulting from a violation of a material contractual obligation (obligation which must be fulfilled to enable a due performance of the contract and on whose fulfilment the contractual partner generally relies and may rely) as well as claims for other damage resulting from the violation of an obligation caused by intent or gross negligence of us, our legal representatives or vicarious agents.
- In case a material contractual obligation is violated, we shall be liable only for any foreseeable damage that might typically occur under the contract if it was caused by simple negligence, unless the Buyer claims damages arising out of injury to life, body or health.
- The restrictions of clauses 1 and 2 shall also apply in favour of the legal representatives and vicarious agents of the us if claims are asserted directly against them.
- The provisions of the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) shall remain unaffected.
X. Limitation of Claims
- The claims for defects become statute-barred within one year from the handover of the purchased item. This limitation period shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the purchased item. Secs. 478, 479 BGB shall remain unaffected.
- Any and all claims for damages and reimbursement of expenses vis-à-vis us shall become statute-barred within one year from the dispatch of the Goods. This shall not apply to claims of the Buyer for damages resulting from injury to life, body or health or resulting from a violation of a material contractual obligation (obligation which must be fulfilled to enable a due performance of the contract and on whose fulfilment the contractual partner generally relies and may rely) as well as claims for other damage resulting from the violation of an obligation caused by intent or gross negligence of us, our legal representatives or vicarious agents.
- The provisions on statutory limitation periods of the ProdHaftG shall remain unaffected.
XI. Choice of Law, Place of Jurisdiction
- Any contracts entered into between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, without giving effect to the international uniform law, in particular the UN Convention on the International Sale of goods (CISG).
- If the Buyer is a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contract shall be the place of business of Franz Mensch. We shall nevertheless have the right to file an action at the general place of jurisdiction of the Buyer. The same shall apply if the Buyer does not have a general place of jurisdiction in Germany or the place of residence or the habitual place of abode is not known at the time the action is brought.
XII. Severability Clause
Should one of the provisions of these Delivery Terms be or become invalid or unenforceable, this shall not affect the remaining provisions of these Delivery Terms, unless one contractual party would be unreasonably disadvantaged due to the omission of individual clauses that a continuation of the relationship under this contract can no longer be expected from the respective party.
1. Franz Mensch GmbH confirms that he is aware of the relevant data protection regulations. In his area of responsibility, he organizes the internal organization in such a way that it meets the special requirements of the data protection regulations.
2. Franz Mensch GmbH warrants that he familiarizes employees working with the data protection rules that are relevant and that they are obliged to maintain confidentiality. He monitors compliance with data protection regulations.
3. Franz Mensch GmbH may collect, process or use the personal data provided to him exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another Contracting State to the Agreement on the European Economic Area. The collection, processing or use of personal data in a third country requires the prior consent of the client and may only take place if the special legal requirements of Art. 44 and 46 GDPR are met.
Last updated: August 2018