Terms of service
General Terms and Conditions of Business of Daniel Alain GmbH
- Consumers -
Section 1 - Scope of Application
1. All deliveries and services, including all future business relations between the buyer (consumer) and the seller (Daniel Alain GmbH), shall be governed exclusively by these General Terms and Conditions of Business. A consumer is any individual who enters into business relations with the seller for a purpose that is not attributable to either his/her trade or self-employed profession.
2. Terms and conditions deviating from, conflicting with or supplementing these General Terms and Conditions of Business shall become part of the contract only if the seller has given written confirmation of their application in the individual case.
Section 2 - Conclusion of the Contract
1. The buyer's purchase order shall constitute an offer to the seller to conclude a purchase contract. Unless otherwise declared in the individual case, offers from the seller shall be non-binding.
2. A legally valid purchase contract and/or contract for services shall not come into being until the seller has accepted the buyer's offer. Acceptance shall be effected by written acknowledgement of the order, or submission of an invoice, on the part of the seller, or by shipment or hand-over of the goods to the buyer.
Section 3 - Delivery Periods, Delivery Capability, Sub-deliveries, Passage of Risk
1. Periods for delivery, as well as dates for delivery or performance shall be subject to change without notice. Binding dates shall require express agreement in each individual case.
2. If the seller is unable to comply with any binding periods through no fault of its own (non-availability of performance), it shall give the buyer notification thereof forthwith, stating thereby the new period within which it expects to be able to deliver or perform. If performance is unavailable also within the new period for delivery through no fault of the seller, the seller shall be entitled to wholly or partly rescind the contract. Any counter-performance already rendered by the buyer shall be refunded by the seller forthwith. In particular, failure on the part of the seller's suppliers to deliver in due time shall be deemed to be non-availability of performance in this sense, provided that the seller has concluded a congruent covering transaction.
3. The seller shall be entitled to make sub-deliveries, insofar as these are reasonable for the buyer. Such sub-deliveries shall be paid for by the buyer on a pro-rata basis proportionate to the goods ordered by it as a whole.
4. The seller's deliveries shall take place ex warehouse. At the buyer's request and expense, the goods shall be shipped to another place of destination (sale by dispatch).
Section 4 - Prices, Payment Terms, Default in Payment, Prohibition on Set-off
1. Unless otherwise agreed upon, the seller's net recommended retail prices (RRPs) at the time of the conclusion of the contract shall apply. Prices shall be understood to be ex warehouse of the seller in Munich, and shall be subject to the addition of shipping/packaging expenses, as well as value-added tax at the statutory rate. Support services, as well as any additional services (such as e.g. express delivery) requested by the buyer shall be charged separately.
2. All taxes, charges and levies in connection with delivery/performance shall be borne by the buyer.
3. Unless otherwise agreed upon in writing in in individual case, the seller's invoices shall be due for payment immediately.
4. In accordance with Section 266 BGB [German Civil Code], the buyer shall not be entitled to sub-services. Sub-services shall require separate written agreement.
5. If the buyer orders custom-made or made-to-measure products, a down payment in the sum of 50 % of the agreed purchase price shall, unless otherwise agreed upon, be invoiced by the seller, and shall be due for payment immediately. Such custom-made or made-to-measure product shall not be deemed ordered, and work thereon shall not begin, until the seller receives payment.
6. If the buyer defaults on payment, and also fails to make any payments after having been set a reasonable grace period by the
seller, or if the buyer seriously and definitively refuses to pay for the goods ordered, the seller shall be entitled to rescind the contract and/or demand compensatory damages.
7. If the buyer fails to take delivery of the goods ordered upon the expiration of the period for delivery originally agreed upon or upon the expiration of the date for requesting delivery specified in the purchase order, or if the buyer refuses to take delivery of the goods even upon the expiration of the two-week grace period set by the seller, or if the buyer has beforehand already expressly, seriously and definitively refused to take delivery, the seller shall be entitled, at its option, to rescind the contract and/or demand compensatory damages.
8. If, after the conclusion of the contract, the seller receives from a reliable source knowledge of facts indicating that the buyer is unable to fully meet its payments, e.g. if default summons are issued, or compulsory execution measures are taken, against the buyer, the seller shall be entitled to refuse to make delivery.
This right of the seller to refuse to make delivery shall cease to apply, if the buyer makes payment or provides appropriate collateral. The seller may set the buyer an appropriate period for payment, or for the provision of collateral, and shall have the right to rescind the contract after this period has expired to no avail.
9. The buyer shall be entitled to rights of set-off or retention only if its counterclaims have been determined by a final and non-appealable court judgement, are undisputed or have been accepted by the seller. Such rights of set-off or retention shall be asserted in writing.
Section 5 – Warranty
1. The seller hereby warrants that the goods shall be free from defects at the time of hand-over. If services from the seller have been agreed upon, no particular result shall be owed.
2. Only product descriptions that form part of the individual contract shall be deemed to be an agreement on the qualities of the goods. Insofar as the seller gives a product description, only the qualities described therein shall be deemed agreed upon. In principle, the seller shall not assume any liability for advertising statements or other public statements by the manufacturer or any other third parties.
3. Defects shall be notified to the seller in writing forthwith.
4. If the item delivered is defective, the buyer may first of all choose whether to claim supplementary performance in the form of rectification (elimination of the defect) or in the form of replacement (delivery of an item free from defects), unless the method of supplementary performance chosen is possible for the seller only at disproportionately high expense, and the other method of supplementary performance would not entail any considerable disadvantages for the buyer. The buyer shall give the seller the time and opportunity necessary for rendering supplementary performance.
5. The seller shall be entitled to make the rendering of such supplementary performance conditional upon payment of the due purchase price by the buyer. However, the buyer shall be entitled to retain a portion of the purchase price proportionate to the defect.
If rectification fails, and/or if any appropriate period to be set by the buyer has expired to no avail, or if it is not necessary to set such period under the statutory provisions, the buyer shall be entitled, at its option, to rescind the contract or reduce the purchase price. When setting such period, the periods for obtaining replacements from the seller's suppliers shall be taken into account. If the goods merely contain an insubstantial defect, the buyer shall only be entitled to a price reduction.
6. Claims of the buyer to compensatory damages or reimbursement of expenditure incurred in vain shall exist only as stipulated in Section 6, and shall otherwise be excluded. 7. The warranty shall not extend to loss incurred upon the buyer as a result of normal wear and tear, extreme temperatures or weather conditions, improper handling or improper storage. Likewise, any warranty for loss caused by failure to observe washing or maintenance instructions is hereby excluded.
Section 6 – Liability
1. Subject to further contractual or statutory prerequisites for liability, the seller shall be liable for loss incurred upon the buyer, on whatever legal basis, only in cases of wrongful intent or gross negligence. The seller shall however, even in cases of slight negligence, be liable in the event of any breach of a material contractual duty (a material duty that needs to be fulfilled in order for the contract to be properly implemented in the first place, and that the buyer may normally expect to be met).
2. In cases of slightly negligent breach of contract, the seller's liability shall be limited to the direct average loss that is typical of this type of contract, and that is foreseeable on the basis of the nature of the goods.
3. Insofar as the seller's liability is excluded or limited, this shall apply also to the personal liability of the seller's employees, workers, personnel, representatives and agents.
4. In any event, liability in cases where liability is mandatory by law shall remain unaffected, particularly in cases of liability on account of culpable mortal injury, physical harm or health damage, in cases where a guarantee has been given, or in cases where a defect has been fraudulently concealed, as well as in cases of mandatory liability under the Produkthaftungsgesetz [Product Liability Act].
Section 7 – Retention of Title
1. Until all payments arising from the business relationship with the buyer have been received, the seller shall retain title to the goods delivered.
2. Processing, mixing, combining, pledging or assignment as collateral prior to the passage of title shall not be permissible.
3. The buyer hereby undertakes to appropriately protect the seller's property even in cases where the goods delivered are intended not directly for the buyer, but for third parties, and shall expressly point out this retention of title to the recipient.
4. The buyer hereby undertakes to treat the seller's property with care. The property under retention of title shall be held in safekeeping by the buyer for the seller free of charge.
Section 8 – Data Protection
Within the scope of the statutory provisions, particularly the Bundesdatenschutzgesetz [German Federal Data Protection Act], the seller may store the buyer's data, process such data internally and, insofar as necessary within the framework of the order, pass on such data to third parties.
Section 9 – Copyright
All texts, images, graphics and photographs in advertising material, such as catalogues, posters etc., and on websites are protected under copyright law. Therefore, any copying, downloading, usage, passing-on or dissemination of such content, or even merely parts thereof, shall be permitted only with the prior express permission of Daniel Alain GmbH.
Section 10 – Applicable Law These General Terms and Conditions of Business, as well as all legal relations between the buyer and the seller shall be governed by the laws of the Federal Republic of Germany. Application of the UN sales law or any other conventions on the international sale of goods is hereby excluded.
Section 11 – Severability Clause
If any individual provisions, or parts of any individual provisions, in these General Terms and Conditions or in the supply contract are or become wholly or partly ineffective, or if there are any omissions, this shall not affect the effectiveness of the other provisions or parts. Any ineffective or incomplete provision shall be replaced with a provision that reflects as closely as possible the commercial result aimed at with the ineffective or incomplete provision.
Munich, October 15th, 2024