The following terms and conditions are effective in preference to possible
General Terms and Conditions (especially purchase terms) of the client,
if no special agreements have been reached, which in any case require our
written confirmation to be legally effective. According to the following
conditions, clients are consumers and manufacturers, with whom business
relations exist. Consumers are clients without commercial or self-employed
activities. Manufacturers are clients who are natural or juridical persons
or partnerships with legal capacity, acting in the pursuance of a commercial
or self-employed occupation.
§ 1 General, Sphere of operation
(1) Our sales and delivery conditions are valid exclusively; we do not
accept adverse terms or clien's terms notwithstanding our conditions,
if we have not explicitly agreed to them in writing. Our sales conditions
are legally valid even in the case, in which we unreservedly deliver
to our client in the knowledge of adverse terms or terms notwithstanding
our sales conditions of the same.
(2) According to our conditions, clients are consumers and manufacturers
with whom business relations exist. Consumers are clients without commercial
or self-employed activities. Manufacturers are clients who are natural
or juridical persons or partnerships with legal capacity, acting in the
pursuance of a commercial or self-employed occupation.
§ 2 Offer, Conclusion of contract, Offer Documentation
(1) Our offers are not binding, provided no other terms have been written
down in the respective order confirmation. If a client's order may be qualified
as offer according to § 145 of the Civil Code (Germany), we can accept
the offer within a period of two weeks by sending an order confirmation.
(2) By ordering the goods, the client bindingly declares his intention
to purchase the ordered goods. If the client orders via electronic means,
he will be sent a respective confirmation of receipt. The purchase contract
does not become binding with the confirmation of receipt, but solely with
a separate confirmation of delivery respectively the actual delivery of
the goods.
(3) Seller's details on the articles of the delivery or performance (e.g.
weights and measures) as well as our description of the same (e.g. drawings
and photos) are only approximately representative, if the usability regarding
the contractually designated function does not require an exact match.
They do not reflect guaranteed quality features, but descriptions or characteristics
of the delivery or performance. Standard deviations and deviations, which
are due to legal provisions or technical improvements, as well as the exchange
of components by equivalent parts, are permitted unless they do not affect
the usability with respect to the contractually designated function.
§ 3 Consumer's possibility of revocation
Power of revocation
Within a period of 14 days, you may revoke the declaration of contract
in writing (e.g. letter, fax, e-mail) without giving reasons, or – if
you had received the shipment before expiration of time – by sending
back the shipment. The time begins to run with the receipt of this instruction
in writing, but not before the receipt of the shipment by the addressee
(in case of regular shipments of similar goods, not before the receipt
of the first partial shipment) and also not before the performance of our
duty to inform according to article 246 § 2 in connection with § 1, section 1 and 2 of the Introductory Law of the Civil Code (Germany) as well as our duties
according to § 312g, section 1, sentence 1 of the Civil Code (Germany)
in connection with article 246 § 3 of the Introductory Law of the
Civil Code (Germany). The period of revocation is fully observed, when
the revocation of the shipment is sent in time. If the seller does not
provide the revocation instruction in writing either before conclusion
of contract or immediately after conclusion of contract, the period of
revocation is a month according to § 355, section 2, sentence 2 of
the Civil Code (Germany). The revocation has to be addressed to:
PLATINUM GmbH & Co. KG
Am Ockenheimer Graben 23, 55411 Bingen
info@platinum.com
Tel: 06721-30593-0
Fax: 06721-30593-29
Effects of revocation
If the revocation becomes effective, mutually received services have to
be granted back and – if any – use and profits be surrendered.
If you cannot grant back services received in total or in parts or only
in a deteriorated condition, you may be asked to render compensation for
the value. This does not apply, when goods have been delivered and the
deterioration of these goods is due to the examination of the goods, as
if examined in a sales store. In general, you can avoid the duty of value
compensation for the deterioration of the goods due to contractual use,
if you do not use the goods as if owned and avoid anything impairing their
value. Parcel-post-goods have to be sent back at shipper’s risk.
Non-parcel-post-goods will be picked up. You will have to pay for the shipment,
if the goods have been delivered as ordered and the price of the goods
to be sent back does not exceed the amount of € 40,-, or if, in case
the price of the goods exceeds € 40,-, you have not yet performed
the legally due quid pro quo or a contractually defined partial performance
at the time of the revocation. If this is not the case, the return is free.
Duties of restitution are to be fulfilled within 30 days. For you, the
time-limit begins to run by either posting your declaration of revocation
or dispatching the goods, for us it begins with their receipt.
--- end of revocation terms ---
In order to avoid penalty postage, we kindly ask you to stamp the delivery
appropriately, even if you do not have to bear the costs for the return.
We will refund the postage immediately together with the refund of the
goods.
§ 4 In case of revocation according to § 312 d, section 1, sentence
1 of the Civil Code (Germany), the customer has to pay for the return,
if the goods have been delivered as ordered and the price of the goods
to be shipped back does not exceed the amount of € 40,- or if, in
case the price of the goods exceeds € 40,-, you have not yet performed
the legally due quid pro quo or a contractually defined partial performance
at the time of the revocation.
§ 5 Prices, Payment conditions, Compensation, Retention
(1) Prices are applicable on the extent of supply and services listed in
the order confirmation. Prices are in EURO including packaging, the respective
legal value added tax and the costs for standard shipment in case of a
mail order purchase. Additional or special services (e.g. express shipment)
are invoiced separately and have to be paid by the client in addition.
(2) Pre-payment is accepted. Goods will be shipped immediately after receipt
of payment. If payment is made by direct debiting, goods will be shipped
directly after receipt of order. Clients will be charged seven days after
shipment. The client is obligated to care for sufficient coverage on the
given account. The direct debit authorization, given by the client, remains
effective as payment alternative for subsequent orders until the client
explicitly revokes it. In general, the client is obligated to pay the purchase
price after receipt of the goods within ten days. After this period of
time, the payment is delayed.
(3) The legal regulations are valid for the effects of delayed payment.
We reserve ourselves the right towards the manufacturer, to verify and
claim a higher damage caused by delay in individual cases. If, in financing
agreements, the client's payment is delayed more than seven days in two
consecutive instalments, the total remaining amount is due at once.
(4) The compensation with counterclaims or the retention of payments due
to such claims is only acceptable, if the counterclaims are undisputed
or established as legally binding. Furthermore, exercising the right of
retention is only acceptable, if the counterclaim is based on the same
contractual partnership.
§ 6 Time of delivery
(1) Unless a deadline or due date has been agreed upon, deliveries have
to be made as fast as can be, latest within a period of about four weeks.
If the deadline is not met, the client has to determine an appropriate
extension of time. In order to be able to meet the delivery times and deadlines,
it is essential that the client fulfils his duties in time and due form.
The plea of non-performance remains reserved.
(2) In the case, the client delays the acceptance or culpably violates
other obligations to co-operate, we are entitled to claim compensation
of the resulting damage, including possible extra expenses. Further claims
and rights remain reserved.
(3) Under the conditions according to clause 2, the risk of an accidental
loss or an accidental deterioration of the object of sale passes on to
the client at the point of time, at which he delayed the acceptance of
delivery.
(4) Clauses 2 and 3 are applicable accordingly, if the delivery is delayed
upon the client's request.
(5) According to the legal regulations, we are liable, if the underlying
purchase contract is a time bargain according to § 286, clause 2 Nr.
4 of the Civil Code (Germany) or of § 376 Commercial Code (Germany).
According to the legal regulations we are also liable, if, due to a delivery
delay for which we are responsible, the client is entitled to prove that
his interest in the further completion of the contract has come into discontinuance.
(6) Furthermore, we are liable according to the legal regulations, if the
delay in delivery is due to an intentional or grossly negligent violation
of contract for which we are responsible; a fault caused by our representatives
or vicarious agents is attributable to us. If the delay in delivery is
due to a grossly negligent violation of the contract for which we are responsible,
our liability for damage is restricted to the predictable, typically occurring
damage.
(7) According to the legal regulations, we are also liable, if the delay
in delivery, for which we are responsible, is due to the culpable violation
of an essential contractual obligation; in this case, however, the liability
for damage is restricted to the predictable, typically occurring damage.
(8) We are not liable for the impossibility of delivery or for the delay
in delivery, if they are caused by force majeure or other events unforeseeable
at the time of the conclusion of contract , for which we are not responsible
(e.g. business disruptions of all kinds, difficulties in the procurement
of materials or energy, transportation delays, strikes, legal lockouts,
lack of manpower, energy or raw material, difficulties in obtaining the
required governmental licences, governmental measurements or the failing,
incorrect, delayed delivery by the suppliers).
§ 7 Passing of the risk
(1) If no other arrangement has been made in the order confirmation, we
deliver “ex factory”.
(2) We choose the means of transportation. If the client is manufacturer,
the risk of accidental loss or accidental deterioration of the goods passes
on to the client at the time of delivery, in mail order purchases with
the delivery of the goods to the shipping agent, the carrier or any other
person or institution appointed for the delivery of the shipment. If the
client is consumer, the risk of accidental loss or accidental deterioration
of the object of sale passes on to the client with the delivery of the
shipment to the client – also in mail order purchases. The delivery
is considered to be completed, if the client delays the acceptance.
(3) If the client requests the goods to be stored, also short-term, we
reserve ourselves the right, to invoice the storage expenses to the client.
§ 8 Application-technology Consultation
Application and usage of the delivered goods are exclusively in the client's
responsibility. Any consultation is a non-binding advice and does not exempt
the client from his own control and responsibility.
§ 9 Liability for defects
(1) Prior to dispatch, all products are checked carefully. However, if
the goods are in defective condition, the client is entitled, to demand
supplementary performance (replacement or correction). Replacement is made
on first come first serve basis only. The seller is entitled, to offer
the client replacement, if a correction would lead to a disproportional
effort. If the supplementary performance fails, the client can withdraw
from the contract or reduce the purchase price and assert possible damage
claims or replacement of unavailing expenses, if the following conditions
are fulfilled.
(2) The client asserts the warranty claim by means of complaint, giving
his name and contact details, and shortly describes the reasons for the
complaint per mail, e-mail or by telephone, taking into consideration the
above mentioned contact details of the seller. Please notify apparent damages
of the goods, including transportation damages, immediately, latest, however,
within 10 days after delivery of the goods. After this period of time,
warranty rights due to an apparent damage are foreclosed. Furthermore,
damage claims of the client require, that the client fulfils his possible
obligations to examine and to give notice of defects according to § 377
of the Commercial Law (Germany).
(3) Upon request, the client sends the defective goods for examination
at the seller’s expense to the above mentioned address of the seller.
As far as possible, the client uses the original packaging for the re-shipment.
In order to avoid penalty postage, we kindly ask you to stamp the delivery
appropriately. Refund will be made in connection with the warranty immediately
after receipt of the goods by the seller.
(4) Beyond the liability for defects, the limitation of liability is effective
also for tortious claims as well the liability for (pre-)contractual infringements
of industrial property obligations, impossibility and delay but not for
claims according to the product liability law. Accordingly, the limitation
of liability is effective for the personal liability for employees, representatives
and vicarious agents of the seller.
If we cannot be made liable for deliberate violation of contract, the liability
for damage compensation is restricted to the predictable, typically occurring
damage. If we are made liable according to the legal regulations for violation
of essential parts of the contract, the liability for damage compensation
is restricted to the predictable, typically occurring damage.
(5) Liability is excluded, if no other regulation has been made above.
This is also due with respect to the personal liability for damage compensation
of our staff, employees, representatives and vicarious agents.
(6) The period of limitation for damage claims of clients, who are not
consumers in the sense of the legal regulations, ends after 12 months from
passing of risk.
§ 10 Covering reservation of ownership
(1) We reserve the ownership of the object of sale until all payments from
the business relation with the client have been received. We are entitled
to take the object of sale back, if the client acts in violation of the
contract, especially if payments are delayed. By taking back the goods,
we revoke the contract. Have the goods been taken back, we are entitled
to realize them. The realization profit has to be counted against the obligations
of the client - minus reasonable costs for the realization.
(2) The client has to notify us immediately of distraints or other interferences
of third parties, so that we may take action according to § 771 Code
of Civil Procedure. If the third party cannot refund the judicial and extrajudicial
costs of a legal action according to § 771 Code of Civil Procedure,
the client is liable for the deficiency.
(3) The client is entitled to resell the object of sale; however and already
now, he assigns all claims amounting to the final invoice amount (including
value added tax) of our claims, which accrued from the resale to his buyers
or third parties, independent of the fact, that the object of sale has
been resold without or after processing. The client remains entitled to
collect the claim after assignment. Our power to collect the claim, remains
unaffected. However, we obligate ourselves, not to collect the claim, as
long as the client meets his payment obligations from the collected proceeds,
does not delay payment, does not propose a motion for the institution of
a composition or insolvency proceeding or ceases to pay at all. However,
if this is the case, we may demand, that the client inform us about the
assigned claims and the involved debitors, provides us with all necessary
details for collection, hands out the corresponding documents and informs
the debitors (third parties) of the assignment.
(4) Processing or transformation of the object of sale by the client is
always done for us. If the object of sale has been processed with other
parts than those belonging to us, we acquire co-ownership of the new object
in relation of the value of the object of sale (final invoice amount, including
value added tax) to the other processed objects at the time of the processing.
All conditions apply to the object created by processing as do apply to
the object of sale delivered under the proviso.
(5) If the object of sale is inseparably processed with parts not belonging
to us, we acquire the co-ownership of the new object in relation of the
value of the object of sale (final invoice amount, including value added
tax) to the other inseparably processed objects at the time of the inseparable
processing. If the inseparable processing is done in a way that the object
of the client is to be seen as the main object, it is to be considered
as agreed upon, that the client passes co-ownership on to us on a pro rata
basis. The client holds in custody the thus created sole ownership or co-ownership
for us.
(6) Furthermore, the client assigns to us the claims for safeguarding our
claims towards him, which result from tying the object of sale up with
a real property unit towards a third party.
(7) We obligate ourselves, to release securities for which we are entitled
upon request of the client insofar, as the realizable value of our securities
exceeds the claims to be secured in more than 10%; the selection of the
securities to be released is incumbent on us.
§ 11 Place of jurisdiction, Place of performance
(1) If the client is businessman, the place of jurisdiction is our official
business location; however, we are entitled, to sue the client at the local
court of his legal residence. This is also due, if the client has no place
of general jurisdiction in Germany or his legal residence or his habitual
place of residence is unknown at the time of the filing of an action. Compulsory
legal regulations concerning exclusive places of jurisdiction remain unaffected
by this regulation.
(2) The law of the Federal Republic of Germany is effective, exclusively;
the “United Nations Convention on Contracts for the International
Sale of Goods”, dated April 11, 1980 (CISG) is excluded.
(3) If no other regulation has been determined in the order confirmation,
our official business location is the place of performance.
(4) Should these conditions or separate parts hereof be ineffective, the
remaining parts remain unaffected. In lieu of the ineffective regulation
or for closing the gap, an appropriate agreement shall be reached, which
comes closest, as far as legally possible, to what the parties would have
agreed upon, had they made provision for this point.
§ 12 Backup of contract
Please note that you have to arrange for a permanent backup of the contractual
texts. If you haven't already received them by e-mail or in letter form
from us, you should permanently store the contractual texts in electronic
form by transforming them into pdf-files (so-called screenshots) or as
print-outs in letter form. The latter is done either by printing out the
pdf-files or directly printing out the texts on desktop via the print function
of your browser.
Hint: The client is informed, that the seller stores data from the contractual
relationship for data processing according to § 28 of the “Data
Protection Act” and reserves himself the right to transfer this data
to third parties, as far as this is necessary for the fulfilment of the
contract . We practise data protection according to the Data Protection
Act (BDSG) as well as according to the “Teleservice Data Protection
Act” (TDDSG).
