As of: July 2015
PART 1: GENERAL
§ 1 Contract subject matter and scope
1) These contractual terms and conditions exclusively form the basis for the legal relationships between us and the retailer. Retailers (hereinafter referred to as Traders) are those contracting parties who sell products acquired from us to end customers and occasionally to other traders, irrespective of the distribution channel. These are specifically Traders with stationary shop premises or online trading, construction workers such as electrical engineers, architects and planners. The contractual and delivery terms and conditions do not apply to product sales to wholesalers; we conclude individual framework agreements for this purpose.
2) Our contractual and delivery terms and conditions apply to all product sales and other services.
3) Contradictory, deviating or supplemental general terms and conditions of the Trader shall not become part of the contract, even if we are aware of them, unless their application is explicitly consented to in written form. Our sales and delivery terms and conditions shall also apply where we perform the delivery to the Trader without reservation in awareness of Trader’s conditions contradicting or deviating from our contractual and delivery terms and conditions.
4) With the first order after receipt of these contractual terms and conditions and each additional order, the Trader acknowledges these conditions as binding provisions of the business relationship with us and waives the provision and application of own preformulated contractual terms and conditions.
5) These contractual and delivery terms and conditions are exclusively valid for purchase contracts with entrepreneurs in accordance with § 14 BGB [German Civil Code], as well as public-law legal entities and special public-law funds.
6) All agreements that are concluded between us and the Trader for the purpose of executing this contract are laid down in writing.
§ 2 Choice of law, legal jurisdiction, place of performance, severability clause
1) The law of the Federal Republic of Germany applies; the application of the UN Sales Convention is excluded.
2) If the Trader is an entrepreneur, public-law legal entity or a special public-law fund, the exclusive legal jurisdiction for all disputes arising from this contract is our registered office. The same applies if the Trader has no general legal jurisdiction in Germany or its place of residence or usual abode at the time of claim being filed are not known.
3) Unless specified otherwise in the order confirmation, our registered office is the place of performance.
4) If a clause of these contractual and delivery terms and conditions should be or become void or invalid, the remaining conditions shall remain unaffected. The void or invalid clause shall be replaced by a legally valid provision that is as close as possible in commercial terms.
PART 2: CONTRACTUAL TERMS AND CONDITIONS
§ 3 Legal position of the Trader
1) The Trader sells/distributes our products and performs the necessary customer services exclusively in its own name and for its own account and responsibility. The Trader is not entitled to act on our behalf or enter into obligations for us.
2) The Trader is a freelance entrepreneur. The Trader shall procure its personnel, required operating equipment and operating facilities at its own expense and under its own responsibility. The Trader is solely responsible for the economic opportunities and risks of its activity. Therefore, we do not guarantee the profitability of the Trader’s operation.
3) We only supply such traders that have been included on our list of traders. The precondition for this is an inclusion request and notification of the detailes requested from us for this purpose.
§ 4 Prices; trader discounts; bonuses
1) Our product prices for traders are shown in our non-binding recommended list price less the respective discount. The discount levels and their classification are shown by us in the discount list, which the Trader can request from us.
2) In its request for inclusion in the list of traders, the Trader shall disclose the information requested from us about its distribution, so that we can define the applicable discount level. We will notify the discount level with the notification regarding the inclusion in the list of traders, however, no later than in the first order confirmation. If the circumstances disclosed by the Trader regarding its distribution change, it shall notify us of this immediately. We can request suitable proof from the Trader regarding the accuracy of the details.
3) Bonus systems are announced by us with a sufficient lead time. No legal entitlement exists to a bonus system or continuation of an existing bonus system.
4) We can change the non-binding recommended list prices for our products, as well as discount levels and bonus systems on giving two months’ notice by means of written declaration. The orders from the Trader that have already been confirmed by us are not affected by this.
§ 5 Requirements for sale in stationary distribution (shop premises / construction trade / construction planning)
The following provisions apply to the sale of our products in stationary distribution:
1) For shop premises, the Trader must have a business address, which is discernible as sales premises for end customers, which have regular opening times and can be visited by the end customers. In the sales premises, our products shall be appropriately referred to and our sales catalogue must be kept available. For sales within the course of the construction trade (electrical engineer inter alia) and construction planning (architects, inter alia), the Trader must visit the end customer in an appropriate manner, if it does not have sales premises, which can take place at the construction site, for example.
3) For sales in stationary distribution, the Trader must be able to give the end customer technical advice. This can be by reference to the product catalogue and with personal explanations.
§ 6 Special requirements for online distribution and other distance selling
1) If our products are sold on by way of online distribution or other distance selling, the Trader must also comply with the following online conditions. Sales via online distribution means the processing of the sales transaction via the Internet and a sale via distance selling means processing the sales transaction via other methods of distance selling (telephone, e-mail, fax etc.).
2) Traders, who sell our products via online and other distance selling, must have a business address, which is discernible as their sales premises, which has regular opening times and can also be visited by end customers for sales in person. In the sales premises, our products shall be appropriately referred to and our sales catalogue must be kept available.
3) Our products shall be displayed on the Internet or otherwise in distance selling to a high-quality standard; this specifically includes
- no word or part of a word in domain names, which are detrimental for the brand image of our products (e.g. SLV, cheap, discount, rebate and similar)
- design of the Trader’s website, appropriate to the standard of our products; our products are in particular not permitted to be displayed together with completely different product types (e.g. clothing, sporting goods etc.).
- in the display of our products, our brands, including the logo and company name, as well as the product must be recognisable and distinguishable from competing products. Product images shall be shown by the Trader in an equivalent quality to the pictures published in our main catalogue. For the product description, the texts offered by us shall be adopted as a whole or with the significant parts. Our products shall be clearly delineated from No Name products.
- a prominent reference to the Trader Hotline, stating the telephone no. with opening times and an e-mail address.
- a prominent reference to the stationary sales premises with address and communication details, as well as the opening times for the public.
- compliance with the foregoing requirements when selling the products via sales platforms and auction platforms.
Traders in online and distance selling trading must furthermore maintain sufficient product advice for potential customers and end customers. This can be via the Internet with appropriate product descriptions, with other distance selling this can be technical advice by telephone, e-mail, fax etc.
4) Traders in online and distance selling trading must have a telephone customer service hotline for providing customer services over and above product advice, particularly warranty services, which is sufficiently manned at normal opening times in order to accept customer calls quickly. The hotline shall be manned with sufficient qualified personnel.
5) Traders in online and distance selling trading must make it possible for products to be returned to their business address.
§ 7 Reserved territories and customer groups
1) Traders are not subject to any territorial or customer group restrictions, insofar as we or third parties have not explicitly reserved supply to specific territories or to specific customers. In a reserved territory, the Trader is not permitted to maintain branches, subsidiaries or delivery warehouses directly or indirectly nor to appoint third parties to distribute the contractual goods, and in particular not to appoint any sales agents.
2) Any restrictions shall not apply to passive sales. The Trader can process sales requests from customers from restricted territories. However, it is not permitted to solicit customers in such a territory. For online trading, the publication of offers via the Internet and the acceptance of orders through the Internet are deemed as passive sales; thie does not include approaching customers by sending e-mails.
3) The reserved territories are shown in the “Reserved Territories” appendix attached to these contractual and delivery terms and conditions. A list of the reserved customers can be requested from a Trader who is listed with us. The list is a business secret and must be treated with strict confidentiality by the Trader.
4) We are authorised to change the territories and customer groups that are reserved to us on giving notice of 2 months.
PART 3: DELIVERY TERMS AND CONDITIONS
§ 8 Conclusion of contract
1) Our product illustrations (particularly product descriptions on our website, in brochures or catalogues) are subject to change. Technical changes and modifications to shape and/or colour and/or weight remain reserved until conclusion of the contract. In giving product descriptions, details in offer documentation or operating instructions, we do not assume any quality guarantee or durability guarantee, unless explicitly specified.
2) With the order of a product, the Trader bindingly states its intention to order the product (offer to contract). We are entitled to accept the offer to contract in the order within 2 weeks after receipt by us (contract acceptance). The contract acceptance can either be declared in written form, through the collection of a provided direct debit or by delivering the goods.
3) Conclusion of the contract is subject to correct and timely self-delivery by our upstream supplier. This only applies where the non-delivery is not our fault. This is particularly not our fault upon conclusion of a congruent cover transaction with our supplier and its incorrect or defaulting non-delivery.
4) If the Trader orders the goods electronically, the obligation to confirm the order in accordance with § 312 e I BGB [German Civil Code] is explicitly excluded.
§ 9 Retention of title
1) We retain title to the purchased item until receipt of all payments from the business transaction with the Trader. If the Trader is in breach of contract, particularly payment default, we are entitled to demand the return of the purchased item. Our request for return is simultaneously our withdrawal from the contract. We are entitled to demand compensation from the Trader for all damages incurred by the rescission and offset them against any claims by the Trader for repayment of the purchase price.
2) The Trader is required to handle the purchased item with care during the term of the retention of title; it is particularly obligated to insure it against fire, water and theft damage sufficiently for the replacement value at its own expense. Insofar as servicing and inspection activities are necessary, the Trader must perform these promptly at its own expense.
3) In the case of pledges or other interventions by third parties, the Trader shall immediately notify us in written form, so that we can file legal proceedings in accordance with § 771 ZPO [German Code of Civil Procedure]. Insofar as the third party is not able to compensate us for the court and out-of-court costs of legal proceedings in accordance with § 771 ZPO [German Code of Civil Procedure], the Trader shall be liable to us for the loss that we have incurred.
4) The Trader is entitled to sell the purchased item on in the ordinary course of business; however, it now already assigns to us all claims in the amount of the final invoice (including VAT) of our claim, which it generates from the onward sale against its purchasers or third parties, regardless of whether the purchased item has been sold on without or after processing. The Trader also remains entitled to collect this debt after the assignment. Our authority to collect the debt ourselves remains unaffected by this. However, we undertake to refrain from collection, as long as the Trader complies with its payment obligations from the collected proceeds, does not enter into default and particularly that no discontinuation of payments takes place or an application for commencement of composition or insolvency proceedings is filed. However, if this is the case, we can demand that the purchaser discloses the assigned claims and their debtors, provides all necessary details for collection, surrenders the related documentation and notifies the debtors (third parties) about the assignment.
5) If the purchased item is inseparably combined with other items not belonging to us, we shall acquire co-ownership in the new item, in the proportion of the value of the purchased item (final invoice amount, including VAT) to the other combined items at the time of combining. If the combining takes place in such a way that the Trader’s item is regarded as the main item, it is deemed agreed that the Trader will transfer proportional co-ownership to us. The Trader shall safeguard the sole ownership or co-ownership created in this way for us.
6) The Trader also assigns to us the claims to secure our claims against it, which are generated against a third party by combining the purchased item with a property.
7) We undertake to release the security to which we are entitled upon request by the Trader, to the extent that the realisable value of our security exceeds the value of the claims being secured by more than 10%; the selection of the security to be released is at our discretion.
§ 10 Payment terms
1) Our prices are stated “ex works”. Cash discounts require agreement. The value-added tax is not included; this is shown separately in the amount applicable on the day of invoicing. The due date of invoices and the cash discounts granted by us for specific payment dates are shown in the “Prices, payment terms and cash discounts” section in the appendix to these sales and delivery terms and conditions. The due date and cash discounts for the individual transaction that are notified with the order confirmation are decisive. Upon non-payment of an invoice that falls due, the Trader shall be in default, without a warning being required, if it does not prove that it is not responsible for the payment default.
2) The delivery takes place “ex works”. Shipping packaging, shipping and transport costs and insurance are subject to a separate charge. The prices are shown in the “Shipping costs” chapter in the appendix to these sales and purchasing terms and conditions.
3) In the event of payment default, the Trader shall pay interest on the outstanding purchase price in the amount of 8 percentage points above the respective applicable base interest rate. In addition to this, the Trader shall pay a flatrate fee of € 40.00 (§ 288 (5) BGB [German Civil Code]). We reserve the right to claim a higher default loss; in this case the flatrate fee of € 40.00 will be credited to the amount of compensation for damages, insofar as the loss is the costs of legal action.
4) The Trader shall only be entitled to set-off and retention rights, if its counter-claims are legally established, undisputed or accepted by us. The Trader’s rights in case of defects shall remain unaffected, particularly the right under § 13 (8).
5) We can adapt payment targets that are practised but not agreed at any time on giving adequate notice.
6) Insofar as a payment has been arranged by SEPA direct debit and the contracting party has issued a relevant SEPA direct debit mandate, the following applies: The imminent direct debit collection will usually be notified in advance with the invoice, in any case once again by no later than one calendar day prior to the due date of the direct debit (advance information/”pre-notification”). The Trader explicitly declares its agreement that to simplify the payment transactions, the basic 14-day time limit for notification regarding the collection of a due payment can be shortened to one day prior to the debit. The Trader is obligated to ensure that sufficient cover is on the account specified in the SEPA mandate and to ensure that the amounts falling due can be collected. This obligation also applies where the Trader does not receive pre-notification at all or not on time, in an individual case. The Trader shall immediately notify any change to its bank account details with a fully completed new SEPA mandate in written form.
7) If we have reasonable doubts regarding the Trader’s creditworthiness, or where insufficient cover or liquidity gaps become known after conclusion of the contract or if the original credit volume increases as a consequence of payment default, we are entitled to demand adequate security. If the Trader fails to satisfy such a demand within a reasonable period, we are entitled to withdraw from the contract. The same applies if other events occur with a Trader and we only become aware of these after conclusion of the contract. We are then entitled to invoice partial deliveries as special transactions. If our payment terms are not fulfilled or if other events occur with the trader, which make its creditworthiness appear doubtful or if such circumstances existing prior to conclusion of the contract only become known to us afterwards, notwithstanding our other statutory rights, we shall make further deliveries from the same legal relationship dependent on advance payment for the duration of the payment default until repayment of the resulting outstanding claims.
§ 11 Delivery period; handover of goods
1) As a rule, we notify a delivery period on the basis of the following provisions, but reserve the right to refrain from specifying a delivery period.
2) Observance of our delivery obligation requires the timely and proper fulfilment of the Trader’s obligation. The plea of non-performance of the contract remains reserved. If we are hindered from effecting prompt delivery due to unforeseeable events or events not due to any fault of ours, which are unavoidable with reasonable diligence, the delivery period will extend accordingly.
3) The risk of accidental loss and accidental deterioration of the goods shall transfer to the purchaser on handover and in the event of sales by despatch it shall transfer with the delivery of the item to the freight carrier, the freight forwarder or other party appointed with the shipment.
4) If the Trader is in default of acceptance, this is equivalent to handover.
§ 12 Warranty
1) The statutory provisions apply for the rights of the Trader for material and legal defects (claims for defects), unless specified otherwise below. Claims for defects by the Trader require that it has properly fulfilled its investigation and complaint obligations in accordance with § 377 of the German Commercial Code (HGB).
2) For defects to the goods, we initially guarantee repair or replacement delivery. If the replacement delivery fails (§ 440 Sentence 2 BGB [German Civil Code]), the Trader may basically demand reduction of the remuneration (reduction) or cancellation of the contract (withdrawal) at its option. However, the Trader is not entitled to any right of withdrawal for only minor non-conformity with the contract, particularly for only minor defects.
3) In the event that the Trader chooses withdrawal from the contract due to a legal or material defect, it shall not be entitled to any additional compensation for damages as a result of the defect. In the event that the Trader chooses compensation for damages after failed supplementary performance, the goods shall remain with the Trader, if this is reasonable for the Trader. The compensation for damages is limited to the difference between the purchase price and the value of the defective goods. This shall not apply, if we have caused the breach of contract fraudulently.
4) The warranty period amounts to 2 years from delivery of the goods; unless the quality of the goods is shorter by reason of the usual working life (e.g. with light bulbs).
5) The basis of the warranty is the agreement concluded regarding the quality of the goods. All product descriptions that are the subject matter of the contract are deemed as an agreement regarding the quality. Insofar as the quality has not been agreed, it must be determined whether a defect exists or not on the basis of the statutory provision.
6) If the Trader receives defective assembly instructions, we shall only be obligated to deliver non-defective assembly instructions and only if the defect in the assembly instructions prevents proper assembly.
7) Our warranty only extends to the goods that we have delivered, but not to any consequential costs.
8) We reserve the right to only carry out supplementary performance, if the purchaser has paid the purchase price due. However, the purchaser is entitled to retain a part of the purchase price that is in proportion to the defect.
§ 13 Other liability
1) We, our lawful representatives and/or lawful agents shall only be liable for compensation for damages in the case of premeditation or gross negligence.
2) The liability limitation in accordance with 1) shall not apply to the breach of significant contractual duties (duties which must be properly fulfilled in order to make proper implementation of the contract possible, the breach of which jeopardises the achievement of the contractual purpose and compliance with which the Trader can usually rely on); however, in this case, our liability is limited to the foreseeable, typical contractual loss at the time of conclusion of the contract.
3) The liability limitation in accordance with 1) shall not apply to claims for compensation for damages on the grounds of injury to life, limb or health. Furthermore, the liability limitation from 1) shall not apply to claims for compensation for damages due to a breach of a guarantee or warranty. Ultimately, the liability under the German Product Liability Act, as well as on the basis of other legally mandatory grounds for liability, shall remain unaffected by the aforementioned liability limitation.
4) Claims for damages by the Trader due to a defect shall expire, insofar as it involves warranty claims, within one year after delivery of the goods; insofar as it involves claims under the law of torts, within one year from occurrence of the damage and awareness of the identity of the perpetrator. This shall not apply if we can be accused of fraud.
§ 14 Returns
The return policy under slv.com shall apply to the return of our goods.
§ 15 Property Rights
1) We shall be entitled to all property rights to the products, including copyrights, trademarks and company rights, as well as other marks and know-how.
2) The Trader undertakes to neither attack our property rights itself or arrange for them to be attacked by third parties or support third parties in any way with the attack. In the event of a breach, we shall decline to continue supplying the Trader.
3) The Trader is not permitted to protect or arrange for the registration of our brands, trade names or other symbols or any brands, trade names or other symbols that are identical or similar to ours. The Trader is not entitled to use or arrange for the registration of the mark specified above as part of its company name or domain name.