Table of Contents
1. Scope of Application
2. Conclusion of the Contract
3. Prices and Payment Conditions
4. Shipment and Delivery Conditions
5. Force Majeure
6. Delay in performance
7. Reservation of title
8. Warranty Claims
10. Statute of Limitation
11. Retention, assignments
12. Applicable Law and Jurisdiction
1) Scope of Application
These General Terms and Conditions of Konstantin Hirsikorn (hereinafter referred to as
„Seller“) shall apply to all contracts concluded between a consumer or a trader
(hereinafter referred to as “ Client”) using means of distance communication (for
example phone, fax, e-mail, letter) by way of exclusively individual communication in
accordance with section 312 j (5),sentence 1 German Civil Code. The inclusion of the
Client’s own conditions is herewith objected to, unless otherwise agreed.
2) Conclusion of the Contract
2.1 The Client may send a non-binding request to the Seller by phone, fax, e-mail, letter
or via the online form displayed on the Seller’s website regarding the submission of an
offer. Following that request, the Seller will send a binding offer to the Client in text form
(for example by e-mail, fax or letter) regarding the goods from the Seller’s assortments
of products previously selected by the Client.
2.2 The Client can accept this offer by a declaration of acceptance transmitted to the
Seller by phone, fax, e-mail, letter or via the online form displayed on the Seller’s
website or by paying the remuneration offered by the Seller within 7 (seven) days
following the receipt of the offer. For the calculation of the time limit the day of the
receipt of the order is not counted. The day of the Seller’s receipt of payment shall be
decisive for the acceptance of the order by means of paying. If the last day of the
deadline for accepting the offer falls on a Saturday or a Sunday or a public holiday at the
Client’s place of business, such day will be replaced by the following working day. If the
Client does not accept the Seller’s offer within the aforementioned time limit, the
Sellerwill not be bound by his offer and is entitled to freely dispose of the goods.
The Seller will emphasize this point in his offer.
3) Prices and Payment Conditions
3.1 All prices indicated by the seller are net prices plus the legal value-added tax. Costs
for packaging, loading, freight, insurance (in particular transport insurance), duties and
charges will be calculated separately.
3.2 In case of delivery to countries outside the European Union, additional costs may
incur in individual cases for which the Seller is not responsible and which have to be
borne by the Client. This includes for example transfer fees charged by banking
institutes (transfer charges, exchange fees) or import duties or taxes (customs). Such
costs regarding money transfer may also incur, if delivery is not made in a country
outside the European Union and the Client carries out the payment from a country
outside the European Union.
3.3 Payment can be made using one of the methods mentioned in the seller’s online
3.4 If prepayment has been agreed upon, payment shall be due immediately upon
conclusion of the contract.
3.5 Payment shall be deemed to have been made if the equivalent value has been
credited to one of the Seller’s accounts. In the event of delayed payment the seller may
demand default interest in the amount of ten percent above the relevant base interest
rate. All other legal rights to which the seller is entitled in the event of delayed payment
of the client remain unaffected. Provided that claims are overdue, payments received
shall be offset first to possible costs and interests and subsequently to the oldest claim.
3.6 If unforeseeable cost increases should occur (such as currency fluctuations,
unexpected rise in prices of suppliers), the Seller is entitled to pass on such price
increases to the client. However, this only applies if delivery has been agreed to occur
later than four months after conclusion of the contract.
3.7 When choosing the payment method „PayPal“ , the handling of payments is done
via the payment service provider PayPal (Europe) S.a.r.l. et Cie, S.C.A., 22-24 Boulevard
Royal, L-2449, subject to the conditions of use which can viewed at
https://www.paypal.com/de/webapps/mpp/ua/useragreement-full. This would require,
among other things that the Client has opened a PayPal account or he already has such
4) Shipment and Delivery Conditions
4.1 Goods are delivered on dispatch route and to the delivery address indicated by the
Client, unless otherwise agreed upon. In the processing of the transaction, the delivery
address indicated during the Seller’s order processing shall be applicable.
4.2 The Seller is entitled to make partial deliveries, in so far as it seems reasonable forthe Client.
In the event of permissible partial deliveries, the Seller is entitled to issue
4.3 The Seller reserves the right to withdraw from the contract in the event of his own
suppliers failing to deliver or if such delivery is incorrect. This only applies if the Seller is
not liable for the non-delivery and if the Seller has concluded a congruent covering
transaction with his supplier. The Seller shall make every reasonable effort in order to
obtain the goods. In the case of the unavailability or the partial availability of the goods,
the Client will be informed without delay and payments made by the Client will be
4.4 The risk of accidental destruction and accidental deterioration of the goods shall be
transferred to the Client upon delivery of the goods to an adequate forwarding company.
The same applies as well if the Seller bears the costs of the transport. Transport
insurance is provided only upon Client’s instruction and at his own cost. If installation
and assembly are owed by the Seller, the risk passes to the Client with the completion of
those works and with the handing over to the Client.
4.5 Should delivery of goods to the Client be delayed for reasons for which he is
responsible, the risk passes already with the notification of the readiness for dispatch.
Possible storage costs incurred after risk has been transferred are borne by the client.
4.6 Should the Client collect the goods himself, the Seller informs the Client by e-mail
that the goods are available for collection. After receiving the e-mail, the Client may
collect the goods in consultation with the Seller. In this case shipment costs will not be
5) Force Majeure
In cases of force majeure having an impact on the performance of the contract, the
Seller is entitled to postpone the delivery for the duration of the hindrance and, in the
event of longer-term impediment, to withdraw from the contract without giving rise to
claims asserted against him by the Client. Force majeure shall mean any event which is
unforeseeable for the Seller or any event, even if it would have been foreseeable, which
is beyond the control of the Seller and the impact thereof on the performance of the
contract could not be averted despite reasonable efforts used by the Seller. Possible
legal claims of the Client remain unaffected.
6) Delay in performance
6.1 In case of delay in performance, the Client is entitled to withdraw from the contract
within the framework of the statutory provisions provided that the Seller bears the
responsibility of delay.
6.2 In the event of default on the part of the Seller, the Client is obliged to give notice
within a reasonable period of time, whether he wishes to withdraw from the contract or
insists on the delivery being carried out.
6.3 If shipping is delayed at the request of the Client for more than one month after
readiness for shipment has been notified, the Client will be charged for the storage costs
to the amount of 0,5% of the goods to be delivered, for each additional month, but not
more than 5% of the price in total.
6.4 The proof of a higher or a lower damage is expressly reserved to the parties.
6.5 The above liability limitations do not apply in the event of intent, malice
aforethought, gross negligence and in the event of damages caused by injury to life,
physical injury or injury to health.
7) Reservation of title
7.1 The Seller reserves the ownership of the delivered goods until complete payment of
the purchase price has been effected. In addition, the Seller reserves the ownership of
the goods until all his claims arising from his business relationship with the Client are
7.2 In the case of processing of delivered goods, the Seller shall be considered the
manufacturer and shall acquire ownership of the newly arising goods. If processing is
done with other materials, the Seller acquires ownership in proportion of the invoice
amount of his delivered goods to the value of the other used materials. In the case of
combination or mixing of goods belonging to the Seller with objects belonging to the
Client, the article belonging to the Client is considered to be the main object. In this
case, the Seller acquires the co-ownership of this new object in proportion of the
purchase price of his goods or – in the absence of such a purchase price – of the current
market value. In those cases the Client is considered to be the custodian.
7.3 Goods under reservation of title may neither be pledged nor transferred by way of
security. The Client, in his capacity as a reseller, is only allowed to resell in the normal
course of business on condition that the Client’s claims against his customers arising
from the resale will be assigned effectively to the Seller and the ownership of the goods
will be transferred under the condition of payment. By concluding a contract, the Client
assigns his claims against his customers arising from those sales to the Seller by way of
security. The Seller accepts that assignment simultaneously.
7.4 The Client has to give notice to the Seller immediately, if he has access to goods
belonging or co-belonging to the Seller or to claims assigned. He has to pay to the Seller
any amounts assigned to the Seller he has collected, insofar as the Seller’s claims are
7.5 In so far as the value of the Seller’s security rights exceeds the amount of the
secured claims by more than 10%, the Seller will release a corresponding part of his
security rights at the Client’s request.
8) Warranty Claims
In cases of defects the legal provision will apply. Deviating hereof the following will apply
for items which were used for a building in a manner contrary to common practice
thereby causing a defect.
8.1 An insignificant defect does not cause warranty claims and does not entitle the
Client to refuse delivery of the goods. Should part of the goods be defective in a
significant manner, the Client is not entitled to refuse total delivery. This does not apply
if partial delivery is of no interest to the Client. Furthermore, payments effected by the
client may only be retained to an extent which is appropriately proportionate to the
occurred defect. If the item is made available at no cost, the Seller’s liability for defects
is excluded except for cases involving intent and gross negligence.
8.2 Warranty claims do not arise in cases of natural wear and tear or in cases of
damages after the passing of risk which are caused by incorrect or negligent treatment,
excessive stress, and unsuitable operating equipment or caused by special external
influences not covered by the contract, or caused by non-reproducible disturbances. If
the Client or a third party undertakes modifications or maintenance works which are
improper, no warranty claims can be made for the resulting damages, unless the Client
can prove that the notified defect was not caused by those modifications or
8.3 Warranty claims are excluded in cases of used goods.
8.4 The limitation period for any claim arising from defects is one year calculated from
the passing of risk. Subsequent performance (new delivery or remedying of a defect)
shall affect exclusively the period of limitation for claims arising from defects which led
to the subsequent performance.
8.5 The aforementioned limitations of liability and reduction of limitation pursuant to
Section 8.1, 8.3 and 8.4 do not refer to cases related to the right of recourse (Section
478 German Civil Code) as well as to claims for damages and compensation of expenses
the Client can make according to the relevant legal provisions related to defects. Section
9 will apply for the latter claims.
8.6 If the client is a business person, he has to comply with the commercial obligation to
inspect and to give notice of defects pursuant to section 377 German Commercial Code.
If the Client fails to comply with those obligations, the goods shall be deemed as
approved, unless the defect was not recognizable during inspection.
8.7 In the case of subsequent performance, the Seller has the right to choose between
rectification and replacement delivery.
8.8 In the case of replacement delivery, the Client is obliged to send back first the
goods delivered within 30 days. The return parcel must contain the reason for return,
the name of the Client and the number assigned to the purchase of the defective goods
in order to enable the Seller to identify the returned goods. So long as and as far as the
identification of the returned goods is not possible on grounds for which the Client is
answerable, the Seller is not bound to accept returned goods and to refund the purchase
prize. The costs for resending the goods will be borne by the Client.
8.9 If the Seller delivers a defect-free item in order to comply with his duty of
subsequent performance, he may claim compensation for use pursuant to section 346,
para 1 German Civil Code. Further legal claims remain unaffected.
Liability for being in default is exhaustively provided for by section 6. Furthermore, the
Seller shall be liable for any claims arising from damages and compensation based on
contract, quasi-contract and on legal provisions or on tort as follows.
9.1 The Seller is liable for every legal reason without limitation
– In cases of intent or gross negligence,
– in cases of negligent or willful physical injury or negligent or willful injury of life, body
or health of a person,
– on the grounds of a warranty promise, unless otherwise agreed,
– on the grounds of compulsory statutory liability as defined for example in the product
9.2 If the Seller has violated essential contractual obligations through negligence, his
liability is limited to foreseeable damage typical of the contract, unless unlimited liability
applies pursuant to section 9, para 1. Essential contractual obligations are those
obligations the contract imposes on the Seller which are material to the contract and
whose fulfillment makes the due performance of the contract possible and on the
performance of which the Client normally relies and is intended to rely.
9.3 Otherwise, the Seller’s liability is excluded.
9.4 The aforementioned liability provisions will also apply in the case of the Seller’s
liability for his assistants and legal representative.
10) Statute of Limitation
The Client’s claims against the Seller – except those mentioned in Section 8 – expire by
limitation no later than one year after the time of knowledge and at the latest five years
after delivery of the performance, unless unlimited liability applies pursuant to Section
9, para 1.
11) Retention, assignments
11.1 The right of retention and the right to retain performance are excluded, unless the
Seller does not deny the underlying counterclaims or those claims have been recognized
by declaratory judgment.
11.2 The assignment of claims by the Client arising from the contract with the Client, in
particular the assignment of Client’s warranty claims, are excluded.
12) Applicable Law and Jurisdiction
12.1 The contract shall be governed by the laws of the Federal Republic of Germany
excluding the laws regarding the international purchase of movable goods.
12.2 If the Client is a business person, a legal entity under public law or a special fund
under public law, the place of jurisdiction for all disputes arising from this contract is the
place where the Seller has his principle place of business. The same applies if the Client
has no general place of jurisdiction in Germany or if his domicile or normal place of
residence is not known at the time of the institution of legal proceedings. In any event
regarding the aforementioned cases, the Seller is entitled to call the court responsible
for the seat of the Client.
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