Terms & Conditions

General Terms and Conditions of Sale and Delivery of Gebr. Niessing GmbH & Co. KG 

1.    General and scope

1.1  The following Terms and Conditions of Sale and Delivery apply to all online goods orders between Gebrüder Niessing GmbH & Co. KG (hereinafter the "Supplier") and customers (hereinafter the "Buyer") entered into via our homepage. Conditions to the contrary or such of the Buyer that vary from these conditions shall not be acknowledged unless the Supplier expressly approves of their validity in writing. These Conditions shall also apply if the Supplier carries out the delivery to the Buyer without reservations although the Supplier is aware of contrary conditions or such of the Buyer that vary from these Conditions.

1.2  All agreements entered into between the Supplier and the Buyer with a view to executing the contract are to be set out in writing. Agreements made by telephone or other verbal agreements shall only become valid following written confirmation by the Supplier. The electronic form is deemed to satisfy the written form requirement within the meaning of these Conditions.

1.3  In the case of amendments, deletions and/or supplementary information regarding individual conditions, the other Conditions shall remain in force without change. This also applies insofar as one or more of these Conditions is or becomes legally invalid.

1.4  Our Conditions also apply to future business transactions entered into with the respective Buyer.

2.    Offer and conclusion of contract

2.1  The products and services illustrated in the online shop do not constitute any offers that are binding for the Supplier. These are in fact requests made to the Buyer to make a binding offer to the Supplier by way of placing an order. The Supplier's details about goods and prices within the ordering process are subject to change without notice, and are non-binding.

2.2  The Buyer makes a binding offer by sending the order data at the conclusion of the ordering process. Such an offer is accepted by the Supplier's confirmation by e-mail.

2.3  Work on processing the order shall commence as soon as the Buyer has effected payment.

2.4  Insofar as the Buyer states details in orders or confirmation correspondence that vary from the Supplier's offers, such variations must be clearly highlighted by the Buyer. These shall only become part of the contractual content if the Supplier has expressly approved of such variations in writing.

2.5  Insofar as the documents or other comments by the Supplier contain details on the characteristics and features of the goods, these shall not be deemed quality or shelf-life guarantees within the meaning of Section 443 of BGB [1]. Characteristic features that are to be the subject matter of contract must be agreed separately in writing between the Supplier and Buyer. Unless otherwise agreed, the Supplier is entitled to specify the characteristics of the goods at its reasonable discretion in accordance with Section 315 of BGB.

3.    Prices and payment conditions

3.1  In the absence of express written agreements to the contrary, the Supplier's prices are deemed to include packaging but exclude other incidental costs that may apply, in particular the cost of transporting the goods to the Buyer and customs costs. If an agreement is reached such that the goods are to be delivered to the Buyer, or a person stated by the Buyer, more than three months after concluding the contract, the Supplier reserves the right to adjust the price accordingly by the increase in marketing, material, energy and wage costs. The Buyer shall be deemed to have approved such an amended price if it does not object to it in writing within two weeks from the announcement of the increased price.

3.2  Without registration, the prices stated in the webshop include German VAT. Following registration, the price shall contain the German VAT for Buyers from the EU. The German VAT is not included in the prices for Buyers outside the EU.

3.3  Only the methods of payment stated to customers as part of the registration shall be accepted.

3.4  If the Buyer defaults in payment, the Supplier shall be entitled to demand interest on arrears of 8 percentage points above the respective base lending rate. Default in payment shall entitle the Supplier, following expiry in vain of an additional period of ten days, at its discretion to withdraw from the contract or claim damages in the sum of 10% of the total price or in the sum of the damage caused. The Buyer is permitted to furnish proof that the Supplier suffered no damage or considerably less damage.

3.5  If the Buyer defaults in its payment obligations or if justified doubts arise, before or after conclusion of the contract, regarding the Buyer's ability to pay, the Supplier shall be entitled to withdraw from the contract.

4.    Delivery time and delivery, passing of risk

4.1  Unless otherwise agreed, the ordered goods shall be delivered to the Buyer at its cost by the Supplier. The costs shall be stated separately on the invoice. Risk shall pass to the Buyer upon hand-over of the goods to the transport person. The latter also applies if the goods are ready for dispatch but the shipping is, however, delayed for reasons that are not the Supplier's responsibility.

4.2  Delivery dates are non-binding insofar as they are not expressly stated in writing as fixed dates in the order confirmation or letter of acceptance.

4.3  Force majeure and other events that occur following conclusion of the contract, and which are not the Supplier's responsibility and make it impossible for the Supplier to deliver, or delay or considerably hamper the delivery, shall release the Supplier for the duration of the event and obstruction from the obligation resulting from the respective contract. The stated circumstances are, for example, deemed to include industrial action, operational disruptions, transport obstructions, raw material shortages, official measures, unrest, war, lack of own timely delivery, lawful lockouts and natural disasters. This also applies if the circumstances affect the Supplier's suppliers and this hampers or renders impossible timely delivery by the Supplier. In such a case, the Supplier shall be entitled to withdraw from the contract. In such a case the Supplier shall inform the Buyer without delay of the inability to honour the contract.

5.    Warranty and liability restrictions

5.1  The customer's warranty rights are predicated on the fact that the customer properly honours its obligations to inspect and provide notification of defects in accordance with Section 377 of BGB. The Supplier must be informed in writing of obvious defects without delay following receipt and inspection of the consignment and by stating the delivery from which the goods originate. The Supplier is to be informed of hidden defects without delay once they are identified in writing in the manner stated in sentence 1.

Goods for which a notification of defects is given may not be worn without approval by the Supplier. If goods for which notification of defects is given are nevertheless worn, the Buyer hereby renders the Supplier exempt from all claims resulting from such action.

5.2  Insofar as the goods contain a defect that is the Supplier's responsibility, the Supplier shall, at its own discretion, be entitled to rectify the defect or provide replacement. In the event of rectifying defects, the Supplier shall carry all costs associated with such measures with the exception of the costs that arise for bringing the object of sale to a place other than the place of performance.

The warranty shall be excluded if the goods are damaged due to unsuitable or inappropriate use or faulty or negligent treatment and/or storage, natural wear and tear, or addition of any kind of materials. The Supplier shall only take back the goods if they are in their original condition.

The Buyer's claims against the Supplier regarding defects in the goods may not be assigned.

5.3  In the case of partial deliveries, the Buyer is to store the partial delivery that contains faulty goods separate from other deliveries such that the Supplier can allocate its faulty delivery without further action. Damage caused by the impossibility of allocating such goods shall be the Buyer's responsibility. The Buyer shall, insofar, render the Supplier exempt from claims.

5.4  The Supplier is liable in accordance with the statutory provisions insofar as the Buyer lodges claims for damages based on intent or gross negligence on the part of the Supplier or its representatives or vicarious agents. Beyond intentional breach of contract by the Supplier, the Supplier shall be liable as part of the compensatory damages only for foreseeable and typical damage. Furthermore, liability on the part of the Supplier for all breaches of obligations due to negligence is excluded insofar as it does not concern the violation of key obligations that jeopardise the contractual essence.

5.5  This does not affect liability due to a culpable threat to life and limb. The same applies to the liability in accordance with the German Product Liability Act. Unless otherwise agreed above, the Supplier's liability is excluded.

5.6  The period of limitations for warranty claims is 12 months calculated form the passing of risk. This does not affect the period of limitations in the event of delivery recourse in accordance with Sections 478 and 479 of BGB. This is five years calculated from the delivery or receipt of the faulty goods.

6.    Reservation of title

6.1  The Supplier reserves the right to ownership of the delivered goods (reserved goods) up until settlement in full of all the claims resulting from the ongoing business association.

6.2  The Buyer assigns at this point in time to the Supplier all claims resulting from the sale of the goods, including subsidiary rights, without the necessity of a separate assignment declaration. The Supplier accepts the assignment.

6.3  The Supplier revocably authorises the Buyer to collect the assigned claim. The Buyer is to forward collected amounts without delay to the Supplier. It the Buyer does not do this, the authority to collect shall expire. In such a case, the Buyer is to inform the Supplier without delay of all the debtor's data required for independent collection. The Supplier is entitled to inform the third-party debtor of the assignment of the claim, and collect the claim or demand surrender of the reserved goods.

6.4  In the event of access by third parties to the reserved goods, the Buyer is to inform the third party without delay of the existing reservation of title, and inform the Supplier without delay of attempts to access the reserved goods. Third-party costs that may apply as a result of access to the reserved goods shall be borne by the Buyer insofar as they are not reimbursed by the third party.

6.5  The Supplier shall, at the Buyer's request, release securities at the Supplier's discretion. They shall be released insofar as the realisable value of the securities exceeds the secured claim by at least 20%.

6.6  In the event that the reservation of title in the case of deliveries abroad cannot be agreed with the same effect as in the case of German law, but the reservation of other rights to the reserved goods is permitted, the Supplier shall also be entitled to such rights in accordance with foreign law. The Buyer is to collaborate comprehensively to safeguard the Supplier's rights.

7.    Other provisions

7.1  Solely the law of the Federal Republic of Germany applies to the entire legal relations between the Supplier and the Buyer. Application of the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 (CISG) is excluded.

7.2  All earlier conditions of sale and delivery are hereby rescinded, and replaced by these Conditions.

7.3  Vreden, Federal Republic of Germany, is deemed the place of jurisdiction for all legal disputes resulting from the contractual relationship, including in the case of international deliveries. The Supplier may also bring an action against the Buyer at the court with jurisdiction for its principal place of business. The Supplier reserves the right to bring an action at any other pertinent court in accordance with the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.

7.4  The Buyer consents to the processing of its personal data by the Supplier that is required as part of the business operations. This consent is deemed notification within the meaning of Section 33, sub-section 1, of the German Federal Data Protection Act.

7.5  The legal invalidity of individual provisions of these General Conditions of Sale and Delivery shall not affect the validity of the contract as a whole.

8.    Conditions for non-merchants

If the Buyer is not a merchant within the meaning of Section 14 of BGB, the above conditions apply subject to the following variations:

8.1  Sub-section 2.5, sentence 3, applies with the variation that the reservation to amend applies to unavoidable variations for the Supplier regarding structural and colour variations that are customary in the trade, insignificant and material related. Following acceptance, without restrictions, by the Buyer, the onus of proof shall be on the Buyer to prove that the delivered goods are not to be regarded as honouring the contract.

8.2  Sub-section 3.1, sentence 1, and sub-section 3.2 apply on condition that all end prices are to be understood to include the statutory VAT insofar as the Buyer is from the EU. Sub-section 4.1, sentence 2, does not apply.

8.3  The interest on arrears to be demanded from the Supplier in accordance with sub-section 3.4. shall be 5 percentage points above the respective base lending rate.

8.4  Sub-section 4.3, sentence 5, applies insofar as the Supplier shall reimburse the Buyer without delay following notification for received payments in the event that the goods are not available.

8.5  Sub-section 5.1 does not apply.

8.6  Sub-sections 5.4 and 5.5 apply on condition that liability for damage in the case of a threat to life and limb, and in the case of gross negligence, and in accordance with the German Product Liability Act, is geared towards the statutory regulations. Contrary to sub-section 6, the Supplier reserves the right to ownership to the object of sale up until receipt of all payments resulting from the delivery contract. In the event of default in payment on the part of the Buyer, the Supplier shall be entitled to withdraw from the contract.

8.7  Sub-sections 7.1 to and including 7.3 do not apply.

(Status: 02.11.2007)

[1] German Civil Code