Terms & Conditions

General terms and conditions with customer information
Table of contents

    1. Scope of application
    2. Conclusion of contract
    3. Prices and terms of payment
    4. Delivery and shipping conditions
    5. Force majeure
    6. Delay in performance at the request of the customer
    7. Retention of title
    8. Liability for defects / Warranty
    9. Liability
    10. Limitation
    11. Retention, assignment
    12. Special conditions for the processing of goods according to certain specifications of the customer
    13. Applicable law, place of jurisdiction

1) Scope of Application

1.1 These General Terms and Conditions (hereinafter referred to as "GTC") of Th. Niehues GmbH (hereinafter referred to as "Seller") shall apply to all contracts for the delivery of goods concluded by an entrepreneur (hereinafter referred to as "Customer") with the Seller with regard to the goods presented by the Seller in its online store. The inclusion of the Customer's own terms and conditions is hereby objected to, unless otherwise agreed.

1.2 These GTC shall also apply exclusively if the Seller executes the delivery to the Customer without any special reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these GTC.

1.3 An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.

2) Conclusion of contract

2.1 The product descriptions presented in the Seller's online store do not constitute binding offers on the part of the Seller, but serve for the submission of a binding offer by the Customer.

2.2 The Customer may submit the offer via the online order form integrated into the Seller's online store. In doing so, after placing the selected goods and/or services in the virtual shopping cart and going through the electronic ordering process, the Customer submits a legally binding contractual offer with regard to the goods and/or services contained in the shopping cart by clicking the button that concludes the ordering process.

2.3 The Seller may accept the Customer's offer within five days,

    by sending the Customer a written order confirmation or an order confirmation in text form (fax or e-mail), in which case the receipt of the order confirmation by the Customer shall be decisive, or
    by delivering the ordered goods to the customer, in which case the receipt of the goods by the customer shall be decisive, or
    by requesting payment from the customer after the customer has placed the order, or
    if payment by direct debit is offered and the customer chooses this method of payment, by collecting the total price from the customer's bank account, in which case the time at which the customer's account is debited is decisive.

If several of the aforementioned alternatives exist, the contract shall be concluded at the point in time at which one of the aforementioned alternatives occurs first. The period for acceptance of the offer begins on the day after the customer sends the offer and ends at the end of the fifth day following the sending of the offer. If the Seller does not accept the Customer's offer within the aforementioned period, this shall be deemed to be a rejection of the offer with the consequence that the Customer shall no longer be bound by its declaration of intent.

2.4 When submitting an offer via the Seller's online order form, the text of the contract shall be stored by the Seller after the conclusion of the contract and transmitted to the Customer in text form (e.g. e-mail, fax or letter) after the Customer's order has been sent. The Seller shall not make the text of the contract accessible beyond this.

2.5 Before submitting a binding order via the Seller's online order form, the Customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better recognition of input errors can be the enlargement function of the browser, with the help of which the display on the screen is enlarged. The customer can correct his entries during the electronic ordering process using the usual keyboard and mouse functions until he clicks the button that concludes the ordering process.

2.6 Only the German language is available for the conclusion of the contract.

2.7 Order processing and contacting usually take place via e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct, so that e-mails sent by the seller can be received at this address. In particular, when using SPAM filters, the Customer shall ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller to process the order can be delivered.

2.8 If the parties have agreed on special conditions, these shall in principle not apply to simultaneously ongoing and future contractual relationships with the Customer.

2.9 In the event of the Customer's economic inability to fulfill its obligations to the Seller, the Seller may terminate existing exchange contracts with the Customer by rescission without notice. This shall also apply in the event of an application for insolvency by the Customer. § Section 321 of the German Civil Code (BGB) and Section 112 of the German Insolvency Code (InsO) shall remain unaffected. The Customer shall inform the Seller in writing at an early stage of any impending insolvency.

3) Prices and Terms of Payment

3.1 Unless otherwise stated in the Seller's product description, the prices quoted are net prices plus the statutory value added tax. Packaging and shipping costs, loading, insurance (in particular transport insurance), customs duties and levies shall be charged separately, if applicable.

3.2 Various payment options are available to the Customer, which are indicated in the Seller's online store.

3.3 When selecting the payment method delivery on account, the purchase price is due after the goods have been delivered and invoiced.

3.4 If the payment method purchase on account is selected, the purchase price is due after the goods have been delivered and invoiced. In this case, the purchase price shall be paid within 7(seven) days of receipt of the invoice without deduction, unless otherwise agreed. The Seller reserves the right to offer the payment method purchase on account only up to a certain order volume and to refuse this payment method if the specified order volume is exceeded. In this case, the seller will inform the customer of a corresponding payment restriction in his payment information in the online store.

3.5 A payment shall be deemed received as soon as the equivalent amount has been credited to one of the Seller's accounts. In the event of default in payment, the Seller shall be entitled to interest on arrears in the amount of 10 percentage points above the respective base interest rate. The remaining statutory rights of the Seller in the event of a default in payment by the Customer shall remain unaffected. If claims are overdue, incoming payments shall first be credited against any costs and interest, then against the oldest claim.

3.6 Should unforeseeable cost increases occur (e.g. currency fluctuations, unexpected price increases by suppliers, etc.), the Seller shall be entitled to pass on the price increase to the Customer. However, this shall only apply if the delivery is to be made later than four months after the conclusion of the contract as agreed.

4) Terms of delivery and shipment

4.1 The delivery of goods shall be made by shipping to the delivery address specified by the Customer, unless otherwise agreed. When processing the transaction, the delivery address specified in the Seller's order processing shall be decisive.

4.2 In the case of goods delivered by freight forwarding, delivery shall be made "free curbside", i.e. to the public curbside nearest to the delivery address, unless otherwise stated in the shipping information in the Seller's online store and unless otherwise agreed.

4.3 The Seller shall be entitled to make partial deliveries insofar as this is reasonable for the Customer. In the event of permissible partial deliveries, the Seller shall also be entitled to issue partial invoices.

4.4 The Seller reserves the right to withdraw from the contract in case of incorrect or improper self-delivery. This shall only apply in the event that the Seller is not responsible for the non-delivery and the Seller has, with due diligence, concluded a specific covering transaction with the supplier. The Seller shall make all reasonable efforts to procure the goods. In case of non-availability or only partial availability of the goods, the customer will be informed immediately and the consideration will be refunded without delay.

4.5 The risk of accidental loss and accidental deterioration of the goods sold shall pass to the Customer as soon as the Seller has delivered the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. This also applies if the seller bears the costs of transport. Transport insurance shall only be taken out at the special request and for the account of the customer.

4.6 If a delivery is not possible for reasons for which the Customer is responsible, e.g. because the goods do not fit through the Customer's entrance door, front door or staircase, or because the Customer is not found at the delivery address provided by him, although the Customer was given reasonable notice of the delivery date, the Customer shall bear the costs of the unsuccessful delivery and shall be obliged to pay a lump-sum compensation for delay. This shall amount to 1% for each full week of delay, but in total not more than 8% of the value of the total delivery or the unaccepted part of the total delivery. The parties shall be at liberty to prove higher or lower damages.

4.7 In the event that the shipment of the goods to the customer is delayed for reasons for which the customer is responsible, the transfer of risk shall take place upon notification to the customer that the goods are ready for shipment. Any storage costs incurred after the transfer of risk shall be borne by the customer.

5) Force majeure

In the event of events of force majeure affecting the performance of the contract, the Seller shall be entitled to postpone delivery for the duration of the impediment and, in the event of longer-term delays, to withdraw from the contract in whole or in part, without this giving rise to any claims against the Seller. Force majeure shall be deemed to be all events unforeseeable by the Seller or such events which - even if they were foreseeable - are beyond the Seller's control and whose effect on the performance of the contract cannot be prevented by reasonable efforts of the Seller. Any legal claims of the Customer shall remain unaffected.

6) Delay in performance at the request of the customer

If shipment or delivery of the goods is delayed at the customer's request by more than one month after notification of readiness for shipment, the customer may be charged storage fees in the amount of 0.5% of the purchase price for each additional month or part thereof, but not more than a total of 5% of the purchase price. The contracting parties shall be at liberty to prove higher or lower damages.

7) Retention of Title

7.1 The Seller shall retain title to the delivered goods until the purchase price owed has been paid in full. Furthermore, the Seller retains title to the delivered goods until all its claims arising from the business relationship with the Customer have been satisfied.

7.2 In the event of processing of the delivered goods, the Seller shall be deemed to be the manufacturer and shall acquire ownership of the newly created goods. If the processing is carried out together with other materials, the Seller shall acquire ownership in the ratio of the invoice values of its goods to that of the other materials. If, in the event of the Seller's goods being combined or mixed with an item belonging to the Customer, the latter is to be regarded as the main item, co-ownership of the item shall pass to the Seller in the ratio of the invoice value of the Seller's goods to the invoice value or, in the absence of such, to the market value of the main item. In such cases, the Customer shall be deemed to be the custodian.

7.3 The Customer may neither pledge nor assign by way of security any items subject to retention of title or reservation of rights. The customer shall only be permitted to resell the goods in the ordinary course of business as a reseller on condition that the customer has effectively assigned to the seller its claims against its customers in connection with the resale and the customer transfers title to its customer subject to payment. By concluding the contract, the customer assigns its claims against its customers in connection with such sales to the seller by way of security, and the seller accepts this assignment at the same time.

7.4 The Customer shall immediately notify the Seller of any access to the goods owned or co-owned by the Seller or of any assigned claims. He shall immediately pay to the Seller any amounts assigned to the Seller and collected by him, insofar as the Seller's claim is due.

7.5 If the value of the Seller's security interests exceeds the amount of the secured claims by more than 10%, the Seller shall release a corresponding portion of the security interests at the Customer's request.

8) Liability for defects / Warranty

If the purchased item is defective, the provisions of the statutory liability for defects shall apply. Deviating from this, the following shall apply:

8.1 Claims for defects shall not arise in the event of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials or as a result of special external influences which are not assumed under the contract. If the customer or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences, unless the customer can prove that the defect complained of was not caused by these modifications or repair work.

8.2 In the case of new goods, the limitation period for claims for defects shall be one year from delivery of the goods. In the case of used goods, rights and claims based on defects shall be excluded.

8.3 The above-mentioned limitations of liability and shortening of the period of limitation shall not apply to

    to items which have been used in accordance with their customary use for a building and have caused its defectiveness,
    for claims for damages and reimbursement of expenses of the customer,
    in the event that the Seller has fraudulently concealed the defect, and
    for the right of recourse according to § 445a BGB.

8.4 In the event of subsequent performance, the Seller shall have the right to choose between repair or replacement.

8.5 If a replacement delivery is made within the scope of liability for defects, the limitation period shall not recommence.

8.6 If the supplementary performance has been carried out by way of replacement delivery, the Customer is obliged to return the goods delivered first to the Seller within 30 days. The return package must contain the reason for the return, the Customer's name and the number assigned for the purchase of the defective goods, which enables the Seller to assign the returned goods. As long as and insofar as the assignment of the return is not possible for reasons for which the customer is responsible, the seller is not obliged to accept returned goods and to repay the purchase price. The costs of a new shipment shall be borne by the customer.

8.7 If the Seller delivers a defect-free item for the purpose of subsequent performance, the Seller may claim compensation for use from the Customer pursuant to Section 346 (1) BGB. Other statutory claims shall remain unaffected.

8.8 If the Customer acts as a merchant within the meaning of § 1 of the German Commercial Code (HGB), he shall be subject to the commercial duty of inspection and notification of defects pursuant to § 377 of the German Commercial Code (HGB). If the customer fails to comply with the notification obligations regulated therein, the goods shall be deemed to have been approved.

9) Liability

The Seller shall be liable to the Customer for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:

9.1 The Seller shall be liable for any legal reason without limitation

    in case of intent or gross negligence,
    in case of intentional or negligent injury to life, body or health,
    on the basis of a warranty promise, unless otherwise regulated in this respect,
    on the basis of mandatory liability such as under the Product Liability Act.

9.2 If the Seller negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited pursuant to the preceding clause. Material contractual obligations are obligations which the contract imposes on the Seller according to its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and compliance with which the Customer may regularly rely on.

9.3 Otherwise, any liability of the Seller shall be excluded.

9.4 The above liability provisions shall also apply with regard to the Seller's liability for its vicarious agents and legal representatives.

10) Statute of Limitations

Claims of the Customer against the Seller shall become statute-barred - with the exception of the claims regulated under the item "Liability for Defects / Warranty" - one year after knowledge of the facts giving rise to the claim, but no later than five years after performance of the service, unless liability is unlimited pursuant to the above item.

11) Retention, Assignment

11.1 Rights of retention and rights to refuse performance on the part of the Customer shall be excluded unless the Seller does not dispute the underlying counterclaims or such counterclaims have been established by a final court decision.

11.2 Assignment by the customer of claims arising from the contract concluded with the customer, in particular assignment of any claims for defects by the customer, shall be excluded.

12) Special conditions for the processing of goods according to certain specifications of the Customer.

12.1 The Customer shall indemnify the Seller against claims of third parties which the latter may assert against the Seller in connection with an infringement of their rights by the contractual use of the Customer's content by the Seller. In this regard, the Customer shall also assume the reasonable costs of the necessary legal defense, including all court and attorney's fees in the statutory amount. This does not apply if the customer is not responsible for the infringement. In the event of a claim by a third party, the customer is obliged to provide the seller immediately, truthfully and completely with all information necessary for the examination of the claims and a defense.

12.2 The Seller reserves the right to refuse processing orders if the content provided by the Customer for this purpose violates legal or official prohibitions or offends common decency. This shall apply in particular in the event of the provision of anti-constitutional, racist, xenophobic, discriminatory, offensive, youth-endangering and/or violence-glorifying content.

13) Applicable law, place of jurisdiction

13.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties to the exclusion of the laws on the international purchase of movable goods.

13.2 If the Customer is acting as a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the Seller's registered office. If the customer is domiciled outside the territory of the Federal Republic of Germany, the place of business of the seller shall be the exclusive place of jurisdiction for all disputes arising from this contract. However, in the aforementioned cases, the Seller shall in any case be entitled to invoke the court at the Customer's place of business.