VIA APPIA MODE GMBH
phone: +49 (0)9131 9994 - 0
fax: +49 (0)9131 9994 – 30
Managing Director: Joachim Weisz & Bernd Kießling
Commercial register: Amtsgericht Fürth HRB 3285
VAT ID no.: DE 132 598 579
Public liability Insurance: Allianz AG München
Concept and design of the website: Theresa Haas
Terms and Conditions of Sale and Delivery of VIA APPIA Mode GmbH (VA) (Status: 22.02.2012)
§ 1 Place of jurisdiction and German law
The place of jurisdiction for all legal relationships of the company VIA APPIA Mode GmbH (hereinafter referred to as VA) from delivery contracts, additional delivery contracts or other contracts is, at the option of the VA, Erlangen (local jurisdiction), i.e. (according to subject matter jurisdiction) the AG Erlangen or the LG Nürnberg-Fürth, or Stuttgart (local jurisdiction), i.e. (according to subject matter jurisdiction) the AG Stuttgart or the LG Stuttgart. This shall also apply if the contracting parties of the VA do not have a general place of jurisdiction in Germany or have moved their place of residence or habitual abode out of Germany after conclusion of the contract or their place of residence is not known when legal action is filed. The place of performance for the contracts concluded is Erlangen or Stuttgart. The application of German law is agreed.
§ 2 Order and delivery
Written orders are received by the sales representatives as offers. They shall be deemed accepted if the RA does not object to the order within the date printed on the order. Accepted orders are subject to the resolute condition of production and shall be cancelled without compensation, in whole or in part, with retroactive effect, if orders are not received in sufficient quantity for the goods ordered and therefore worthwhile production cannot take place. A delivery date shall be agreed upon when the order is placed. VA shall have a subsequent delivery period of 12 days after expiry of the agreed delivery period. This additional delivery period shall be deemed agreed at the same time. After expiry of this grace period, the purchaser may withdraw from the contract in the event of non-delivery, excluding compensation for damages. However, the additional delivery periods shall not be set in motion if invoices from previous deliveries of goods have not been paid by the Purchaser beyond the set payment period. The subsequent delivery period shall begin to run when the relevant amount of money has been received in full by the VA or other agreements on payments have been made. If no agreement on a new payment deadline has been reached, the VA may withdraw from the contract in part or in whole. The VA may then resell the goods in an open sale. The VA shall be entitled to sell the goods to a supplier as soon as possible. The price achieved shall be deducted from the invoice and the VA shall be entitled to claim the remaining invoice from the buyer immediately. Should the goods be unsaleable, e.g. due to the season already in progress, it is possible to claim the entire invoice against the buyer.
§ 3 Right of complaint
The buyer has to examine the goods immediately after receipt, if a defect is found, to inform the seller immediately in writing. In this respect § 377 HGB applies. The goods shall be deemed approved if a complaint is not received by the seller within six days of receipt of the goods. In this respect, the regulation of § 377 HGB is concretized with regard to the time lapse. It is deemed to be agreed that the notification must contain a concrete description of the defects. The obligation to examine and give notice of defects is comprehensive, therefore it also includes the .examination of the tolerances customary in trade according to the type and quality of the goods, the dimensions, the fits and quantities of the ordered goods. In the case of larger consignments, this is to be ensured, if necessary, by spot checks. Any later reference to hidden defects or undetected defects is excluded. In the event of justified defects on the part of the buyer, the seller shall be entitled to repair the goods or supply a replacement within the agreed delivery period or, if this period has expired, within two weeks of receipt of the complaint. Claims for compensation are excluded.
§ 4 Transport and acceptance
It is established that the delivery of the goods is ex warehouse VA. The buyer bears the transport risk. The transport costs and packaging costs are borne by the buyer. The buyer must accept the goods. If he is in default of acceptance/acceptance, the VA shall be entitled to insist on acceptance by the purchaser. Alternatively, the VA may sell the goods immediately at the then possible market price. The damage shall be a flat rate of 30% of the net invoice amount plus statutory VAT and shall be invoiced by the VA after the delay in acceptance/acceptance and shall be due immediately. The Buyer reserves the right to prove that less or no damage has been incurred.
§ 5 Sale
The Buyer is not entitled to sell the goods to resellers without the approval of the VA. Branch establishments of the Purchaser may only sell the goods in the branches for which the goods were ordered. In the event of violations of this rule, the VA shall have a right to injunctive relief and a claim for damages.
§ 6 Retention of title
The goods remain the property of the VA until the purchase price has been paid in full. However, the purchaser is entitled to resell the goods within the scope of his business operations. Any pledging or assignment of the goods as security in favour of third parties is excluded without the consent of the VA until the goods have been paid for in full to the VA. The VA must be notified immediately of any seizure of the goods by third parties, stating the creditor of the seizure, so that the VA can protect its rights. In the event of the resale of goods subject to retention of title, the Buyer hereby assigns to the VA the resulting claims against third parties with all ancillary rights to the VA even under exemption from the restriction of § 181 BGB. The VA shall be entitled to notify the purchaser of the assignment and, if necessary, to demand the purchase price. The Buyer undertakes to provide the information necessary for asserting the assigned rights and to hand over documents on request. The following provisions shall be agreed upon as applicable in the relationship between commission agents (buyers) and principal (VA): The Purchaser shall immediately inform the VA of any imminent or executed attachment or any other impairment of the rights of the VA by third parties, specifying the attaching creditor. The judicial and extrajudicial costs incurred in enforcing the retention of title of the VA shall be borne by the Purchaser.
§ 7 Delay in delivery in cases of force majeure
In cases of force majeure, political unrest, industrial action or shortage of raw materials on the procurement markets, the impossibility of delivery shall not be the responsibility of the VA. Claims for damages are excluded in such cases.
§ 8 Delivery and payment of the invoice
In principle, the VA is not obliged to provide advance payment. In any case, it reserves the right to deliver cash on delivery, cash in advance or step by step against payment. This applies in particular if due invoice amounts including default interest from previous deliveries and invoices have not been paid or have not been paid in full. Before complete payment of due invoice amounts including default interest, the VA shall therefore not be obliged to make deliveries to the Buyer under a contract. This shall also apply if advance performance by the VA with the customer was previously customary. Invoices shall be issued on the day of delivery or provision of the goods and sent without delay. Invoices shall be payable:
a) Up to the day printed on the invoice as the discount payment date, a 4% discount shall be granted.
b) After expiry of this payment period, the invoice shall be paid without discount.
c) After expiry of the payment date printed on the invoice, the buyer is in default of payment without the need for a special reminder. Interest on arrears will then be charged at a rate of 5% above the respective base interest rate. The VA shall have the right to prove any higher damage caused by default and, if necessary, to demand a higher interest rate or further default interest.
d) If the VA becomes aware that the creditworthiness of the Buyer is reduced, all receivables shall be due immediately, irrespective of the date of payment. The Buyer shall be notified of this. For goods not yet delivered but due for delivery, the Buyer shall receive an advance invoice, if necessary also for a partial delivery. He will be requested to make payment within a set period of time. Only after receipt of the payment the buyer is entitled to immediate delivery of the paid goods. The payment can be replaced by the provision of a bank guarantee. If neither the payment nor the bank guarantee is received within the deadline, VA shall be entitled to withdraw from all existing orders. VA shall then be entitled to resell the goods not accepted. The minimum damage shall then be calculated as a lump sum in accordance with § 4 of the Terms and Conditions of Sale and Delivery (reduced proceeds 25% and expenses 5%) and shall be due immediately. The buyer reserves the right to prove that a lower damage or no damage at all has occurred. Alternatively, the VA may also withdraw from the contract immediately upon becoming aware of the lack of creditworthiness and claim the flat-rate minimum damage (as before).
e) If the goods are resold, the VA shall be entitled to sell the goods as soon as possible at the then possible market price.
f) If the Buyer defaults on the payment of an invoice, it is hereby expressly agreed that all outstanding invoices shall become due for payment without further demand.
§ 9 Legal costs
The buyer shall bear the legal costs including the costs for reminders or legal activities. Similarly, the buyer shall also bear the necessary costs for the use of a traffic lawyer or sub-authorised representative.
§ 10 Terms and conditions
The VA sells exclusively only under the aforementioned terms and conditions. The Purchaser also accepts these terms and conditions for the following contracts. Should the Purchaser have different terms and conditions of business, these shall not be agreed upon in order to avoid conflicting terms and conditions of business. Deviations from the terms and conditions of the VA must be agreed in writing to be valid. Silence on terms and conditions of business which are transmitted to the VA shall not constitute consent. Silence can therefore not be interpreted as acceptance of these terms and conditions. This shall also apply to the content of orders or order confirmations. An exception is expressly agreed with the provisions of § 2 of these Terms and Conditions of Sale and Delivery regarding the acceptance of orders. § 10 applies to all agreements between VA and the Customer.
§ 11 Severability clause
Should one of the above terms and conditions of sale and delivery be legally ineffective or be determined to be legally ineffective, the rest of the contract shall remain valid. In this case, the contracting parties undertake to replace any invalid provision with a provision that corresponds to the spirit of the contract.
The company VIA APPIA Mode GmbH does not participate in consumer arbitration proceedings under the Consumer Dispute Settlement Act.