General Terms and Conditions
General Terms and Conditions of Sale and Delivery of PHILIPP Forstwerkzeuge GmbH
§ 1 General provisions, scope
(1) The General Terms and Conditions of Sale and Delivery (hereinafter referred to as GTC) of PHILIPP Forstwerkzeuge GmbH (hereinafter referred to as PHILIPP) for orders placed by customers shall apply exclusively; PHILIPP does not recognise any terms and condi-tions of its customers that conflict with or deviate from these GTC unless PHILIPP has expressly agreed to their applicability in writing. These General Terms and Conditions shall also apply if PHILIPP unconditionally executes the customer's order in the knowledge that the customer's terms and conditions are contrary to or deviate from these General Terms and Conditions.
(2) These GTC apply to all orders placed by the Customer with PHILIPP, whether via PHILIPP's online shop at https://shop.philipp-forstwerkzeuge.com/ (hereinafter referred to as "Online Shop") or via other means of transmission. Special provisions that apply exclusively to orders placed via the Online Shop are marked as such.
(3) These GTC apply only to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law.
(4) These GTC apply both to transactions with customers who have their registered office in the Federal Republic of Germany and to transactions with customers who have their reg-istered office outside the Federal Republic of Germany (hereinafter referred to as export case).
(5) These GTC shall also apply to all future transactions with PHILIPP's customers.
(5) All agreements made between PHILIPP and the customer in the performance of this con-tract are set out in writing in this contract. The written form within the meaning of these General Terms and Conditions includes the text form.
§ 2 Registration and order processing for orders placed in the Online Shop
(1) The registration of customers for the PHILIPP Online Shop is free of charge. There is no entitlement to be admitted to the PHILIPP Online Shop. Only persons with unrestricted legal capacity are entitled to participate. At the request of PHILIPP, the customers must send a copy of their identity card or name their VAT ID number and document their regis-tration. For admission, customers electronically complete the registration form available on the PHILIPP website. The data required for registration must be provided completely and truthfully by the customers. Upon registration, the customers choose a personal user name and a password. The user name must not violate the rights of third parties or other name and trademark rights or morality. The customers are obliged to keep their pass-word secret and not to disclose it to third parties under any circumstances.
(2) Apart from the customers' declaration of agreement with the validity of these General Terms and Conditions, the registration is not associated with any obligations. Customers can delete their entry at any time; to do so, they should contact firstname.lastname@example.org. The mere fact of being registered with PHILIPP does not constitute any obligation to pur-chase the goods offered.
(3) Insofar as personal details change, the customers themselves are responsible for updat-ing them. All changes can be made online after logging in to the customer account, which is accessible via the "Log in" button on the homepage.
(4) The presentation of the goods in PHILIPP's Online Shop does not constitute a legally binding offer, but an invitation to order (invitatio ad offerendum).
(5) By clicking the "Order subject to payment" button in the last step of the ordering process, the customers submit a binding offer to purchase the goods displayed in the order over-view. Immediately after sending the order, the customers will receive an order confirma-tion, which, however, does not constitute an acceptance of the contractual offer. A con-tract between the customers and PHILIPP is concluded as soon as PHILIPP accepts the order by means of a separate e-mail or dispatches the goods.
(6) Customers can select goods for purchase in the PHILIPP Online Shop by placing them in a shopping cart by clicking on the corresponding button. If the customers want to com-plete the order, they go to the shopping cart where they are guided through the rest of the ordering process. After selecting the items in the shopping basket and entering all the necessary order and address data in the following step, clicking the "Continue" button opens a page in which the main item details, including any costs incurred, are summa-rised once again. Up to this point, customers can correct their entries or refrain from making a contractual declaration. A binding offer within the meaning of § 2 (5) of these General Terms and Conditions is only made by subsequently pressing the "Order subject to payment" button.
(7) As part of the ordering process, customers first place the desired goods in the shopping cart, where they can change the desired number of items at any time or remove selected goods completely. If the customers have placed goods in the shopping basket, they can click on the "Continue" buttons to proceed to the checkout. Here, customers can select the shipping and payment method. An overview page then opens where customers can check their details, enter a non-binding desired shipping date and enter an item-related customer reference. They can correct their input errors (e.g. regarding payment method, dates or the desired quantity) by clicking on "Change" in the respective field, or change the quantity via the drop-down menu or remove an item by clicking on the X. If they wish to cancel the ordering process completely, customers can also simply close their brows-er window. Otherwise, after clicking the confirmation button "Order subject to payment", the declaration becomes binding within the meaning of § 2 (5) of these GTC.
(8) The contractual provisions with details of the ordered goods including these General Terms and Conditions will be sent to the customer by e-mail with the order confirmation in accordance with § 2 (5). PHILIPP does not store the contractual provisions.
§ 3 Offers by PHILIPP outside the Online Shop
(1) PHILIPP's offers are non-binding unless they are expressly marked as binding.
(2) If the customer's order qualifies as an offer pursuant to Section 145 of the German Civil Code (BGB), PHILIPP may accept the order within 2 weeks.
§ 4 Documents relating to the offer; minor deviations
(1) Provided this is reasonable for the customer, PHILIPP reserves the right to make chang-es after the conclusion of the contract with regard to minor deviations in colour, design, weight, dimensions or shape of the item to be delivered or produced by PHILIPP as well as deviations customary in the trade.
(2) The specifications (dimensions and other technical specifications), information and illus-trations contained in the offers, brochures, catalogues, data sheets, documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents of PHILIPP, whether on the home page, in the Online Shop or other media, including in electronic form, are estimated approximations customary in the industry, un-less they are expressly designated by PHILIPP as binding.
(3) PHILIPP reserves all proprietary rights and copyrights as well as the registration of in-dustrial property rights with respect to offers, illustrations, drawings, calculations, infor-mation and other documents of PHILIPP (also in electronic form). This shall apply in par-ticular to documents (also in digital form) which are designated as "confidential" or are obviously to be treated as confidential. The Customer requires the express written con-sent of PHILIPP before disclosing such documents to third parties.
§ 5 Prices, payment terms
(1) Unless otherwise stated in the order confirmation, the prices for a delivery "FCA Sin-zheim" INCOTERMS 2020 shall apply with the following provisos:
a. The customer shall procure any import permit as well as any approvals, permits or other necessary documents in connection with the import into the country of use and the possible transport via third countries. The customer shall bear the risk of an ex-port or import ban at the time of conclusion of the purchase contract.
b. The customer shall bear all costs of transport, export and of a possible export li-cence.
c. At the customer's request, expense and risk, PHILIPP shall organise the transport of the goods as well as the procurement of any necessary export accompanying document.
(2) The statutory value added tax is not included in PHILIPP's prices. To the extent that it is not already mentioned in the offer or the order confirmation, the value added tax shall be added to all prices at the respective statutory rate. It will be shown separately on the in-voice on the day of invoicing.
(3) Unless otherwise stated in the order confirmation or the invoice, invoices shall be paid (without deduction) within 10 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply.
(4) The customer shall not be entitled to rights of set-off in the case of export. In all other cases, the customer shall only be entitled to rights of set-off if its counterclaims have been established in court, are undisputed or have been recognised by PHILIPP. Fur-thermore, the customer shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship. In the event of de-fects in the delivery, the customer's opposing rights shall remain unaffected, in particular pursuant to § 8 of these GTC.
(5) In the event of export, the assignment of claims arising from this contractual relationship shall only be permissible with the express consent of PHILIPP in writing or in text form.
§ 6 Provisions of the customer
(1) If the Customer provides PHILIPP with plans, drawings, sample parts, materials or semi-finished products for the performance of the contract, or if the Customer provides PHILIPP with corresponding technical/organisational specifications, PHILIPP shall not assume any liability for the correctness of the dimensions, functionality and quality. The responsibility for this shall be borne solely by the customer. PHILIPP reserves the right to refuse the installation of provided materials and semi-finished products if they do not meet PHILIPP's quality requirements.
(2) In the event that PHILIPP develops or manufactures technical programmes, tools, means of production, devices or other aids in order to perform the contract, these shall remain the property of PHILIPP and shall not be handed over to the customer.
(3) If materials/semi-finished products provided by PHILIPP have been processed, PHILIPP shall acquire title thereto. They must only be handed over to the customer for the pur-pose of fulfilling the contract.
§ 7 Delivery time; delay in delivery
(1) The delivery period shall be agreed individually or stated by PHILIPP upon acceptance of the order.
(2) If PHILIPP is unable to meet binding delivery deadlines for reasons beyond PHILIPP's control (non-availability of the service), PHILIPP shall inform the customer thereof with-out undue delay and at the same time inform the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, PHILIPP shall be entitled to withdraw from the contract in whole or in part; PHILIPP shall immediately refund any consideration already paid by the customer. Non-availability of the service shall be deemed to exist, for example, if PHILIPP's supplier fails to deliver on time, if PHILIPP has concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, e.g. due to force majeure, or if PHILIPP is not obliged to procure the goods in the individual case.
(3) The occurrence of a default in delivery by PHILIPP shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer shall be required. If PHILIPP is in default of delivery, the customer shall be entitled to claim a lump-sum compensation for the damage caused by the default. The lump-sum compen-sation shall amount to 0.5% of the net price (value of the goods) for each completed cal-endar week of the delay, however, to a maximum of 5% of the value of the goods deliv-ered late. PHILIPP reserves the right to prove that the customer has not suffered any damage or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the customer pursuant to § 9 of these GTC and our statutory rights, in par-ticular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaf-fected.
§ 8 Transfer of risk, acceptance
(1) The risk shall pass to the Customer when the goods to be delivered by PHILIPP are handed over to the carrier, even if partial deliveries are made or PHILIPP has assumed other services such as the shipping costs or delivery and installation, e.g. if PHILIPP or-ganises the shipment at the customer's request, expense and risk (see § 5 (1) lit. c). In-sofar as the goods are subject to acceptance, such acceptance shall be decisive for the passing of risk. It must be carried out without undue delay on the date of acceptance, al-ternatively after PHILIPP has notified the customer that the goods are ready for ac-ceptance. The customer may not refuse acceptance in the event of a non-essential de-fect.
(2) If dispatch or acceptance is delayed or does not take place due to circumstances beyond PHILIPP's control, the risk shall pass to the customer from the date of notification of readiness for dispatch or acceptance.
(3) Partial deliveries and partial performance are permissible insofar as they are not unrea-sonable for the customer.
§ 9 Liability for defects; exclusion of warranty in case of sale of used goods
(1) Unless otherwise stipulated below, the customer's rights shall be governed by the statu-tory provisions in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions).
(2) The basis of PHILIPP's liability for defects shall be, above all, the agreement reached on the quality and the presumed use of the goods (including accessories and instructions), whereby, in the case of export, the standard shall be the generally accepted standards in PHILIPP's country. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by PHILIPP (in particular in catalogues or on our homepage or, in the case of orders placed via our Online Shop, there) at the time of the conclusion of the contract shall be deemed to be an agreement as to quality in this sense. Insofar as the quality has not been agreed and the goods have not been exported, the statutory provisions shall apply to determine whether or not a defect exists. Public statements made by the manufacturer or made on its behalf, in particular in advertising or on the label of the goods, shall take precedence over state-ments made by other third parties.
(3) In the case of export, the following applies:
a. PHILIPP makes no assurances other than those set forth in subsection 2, and in par-ticular PHILIPP does not warrant suitability for any particular purpose or suitability for all ordinary purposes. Nor can any implied assurances be derived from the in-formation given by PHILIPP in connection with a sale. Article 35 (2) CISG is exclud-ed.
b. The customer shall inspect the goods for non-conformities within five (5) calendar days of receipt of the goods from the carrier.
c. The customer shall notify PHILIPP in writing of any lack of conformity within five (5) calendar days of discovery. The customer is obliged to describe the lack of conformi-ty as precisely as possible and to provide PHILIPP with all relevant information.
d. PHILIPP shall have the opportunity to carry out an inspection of the contractual product for a reasonable period of at least one (1) month after receipt of a notice of defects.
e. If, after inspection by PHILIPP, the parties disagree as to whether a lack of conformi-ty exists, either party may retain an independent and mutually appointed expert arbi-trator to investigate and determine the existence or non-existence of a lack of con-formity. The independent expert shall act as an arbitrator and his findings shall be fi-nal and conclusive. The costs of the independent examination shall be borne by the customer, unless the examination shows that the contractual product is defective or otherwise not in conformity with the contract. Should the latter be the case, PHILIPP shall bear the costs.
f. Any hidden lack of conformity which the customer could not detect by inspection must also be notified in accordance with lit. c of this subsection 3.
g. In any case, the customer loses the right to invoke a lack of conformity of the con-tractual product if the customer does not report it in writing to the seller within one year at the latest after receiving it from the carrier.
h. The customer cannot be excused for a failure to report a lack of conformity. Article 44 CISG is excluded.
i. In the event of a lack of conformity, the customer shall only have the right to demand that PHILIPP repair or replace the contractual product, whereby the choice between repair and replacement shall be at PHILIPP's discretion. Article 46 CISG is excluded.
j. PHILIPP may, at its discretion, compensate the customer for the loss of value in money instead of repair or replacement. Article 50 CISG is excluded.
k. The customer's right to rescind the sales contract based on a material breach of con-tract by PHILIPP is excluded. Only in the event that repair or replacement were un-successful and the lack of conformity constitutes a material breach of contract may the customer rescind the sales contract after giving PHILIPP a reasonable period of at least one (1) month to remedy the breach of contract and such period has expired fruitlessly.
l. The customer shall indemnify PHILIPP against all product liability claims, unless the customer can prove that this is based on circumstances which already existed or arose prior to acceptance of the goods.
(4) In all other cases which are not export cases, the following shall apply:
a. The statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the customer from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
b. In the case of goods with digital elements or other digital content, PHILIPP shall only be obliged to provide and, if applicable, to update the digital content to the extent that this expressly results from a quality agreement pursuant to subsection 2. PHILIPP shall not be liable for public statements of the manufacturer and other third parties in this respect.
e. If the delivered item is defective, PHILIPP may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by supplying an item free of defects (replacement delivery). If the type of subse-quent performance chosen by PHILIPP is unreasonable for the customer in the individual case, the customer may reject it. PHILIPP's right to refuse subsequent performance under the statutory conditions shall remain unaffected.
f. PHILIPP shall be entitled to make the supplementary performance that is owed dependent on the customer paying the purchase price that is due. However, the customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.
g. The customer shall give PHILIPP the time and opportunity required for the subse-quent performance owed and shall in particular hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to PHILIPP upon PHILIPP's request in accordance with the statutory provisions; however, the customer shall not have a right of return. Subsequent performance shall not include the dismantling, removal or deinstalla-tion of the defective item or the installation, mounting or fitting of a defect-free item if PHILIPP was not originally obliged to perform such services; the custom-er's claims for reimbursement of corresponding costs ("dismantling and installa-tion costs") shall remain unaffected.
h. Any claims of the customer for reimbursement of expenses according to § 445a (1) BGB are excluded, unless the last contract in the supply chain is a sale of consumer goods (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c p. 2, 327 (5), 327u BGB). Claims of the customer for damages or reimbursement of futile expenses (§ 284 BGB) also exist in the event of defects in the goods only in accordance with § 10 below.
(8) PHILIPP shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, as well as dismantling and installation costs, if any, in accordance with the statutory provisions and these GTC, if there is actually a defect. Otherwise, PHILIPP may claim reimburse-ment from the customer for the costs incurred due to the unjustified request to remedy the defect if the customer knew or could have known that there was actually no defect.
(9) The warranty periods in the case of export and according to § 438 (1) no. 3 BGB (Ger-man Civil Code) shall be reduced to 1 year. The statutory provisions on the commence-ment of the limitation period, the suspension of the running of the limitation period, the suspension and the recommencement of the limitation period shall also remain unaffect-ed.
(10) Any warranty is excluded for the sale of used goods.
§ 10 Overall liability
(1) Unless otherwise stipulated in these GTC including the following provisions, PHILIPP shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) In the event of export, the following shall apply:
a. The customer's right to claim damages for a breach of contract is excluded, unless the customer can prove that PHILIPP acted intentionally or with gross negligence.
b. PHILIPP's overall liability under this sale agreement is limited to the respective pur-chase price.
(3) In all cases other than export cases, the following shall apply:
a. The customer's right to claim damages for a breach of contract shall be excluded, unless the customer can prove that PHILIPP acted intentionally or with gross negli-gence.
b. In the event of simple negligence, PHILIPP shall only be liable, subject to statutory limitations of liability (e.g. due care in its own affairs; insignificant breach of duty), for damages arising from a breach of a material contractual duty (a duty the perfor-mance of which is a prerequisite for the proper performance of the contract and the observance of which the customer regularly relies on and may rely on); in this case, however, liability shall be limited to compensation for the foreseeable, typically oc-curring damage.
c. These limitations of liability shall also apply to third parties as well as in the event of breaches of duty by persons (also in their favour) whose fault PHILIPP is responsible for according to statutory provisions.
d. Mandatory statutory claims of the customer due to culpable injury to life, limb and health, insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and due to liability under the Product Liability Act shall remain unaffected.
(4) In the event of export, the limitation periods specified under § 9 (9) shall also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of the goods; in cases other than export, this shall apply accordingly, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the customer pur-suant to the above subsection 3 shall become statute-barred exclusively in accordance with the statutory limitation periods. Other special statutory provisions on the statute of limitations (in particular § 438 (1) no. 1, (3), §§ 444, 445b BGB) shall also remain unaf-fected - insofar as no export case is involved.
§ 11 Retention of title
(1) PHILIPP shall retain title to the goods delivered or produced by PHILIPP until receipt of all payments arising from the business relationship. Insofar as a current account relationship exists, the retention of title shall refer to the recognised balance. In the event of a breach of contract by the customer, in particular in the event of default in payment, PHI-LIPP shall be entitled to take back the item delivered or produced by PHILIPP. PHILIPP's tak-ing back of the goods delivered or produced by PHILIPP shall constitute a withdrawal from the contract. After taking back the item delivered or produced by PHILIPP, PHILIPP shall be entitled to realise it; the realisation proceeds shall be credited against the cus-tomer's liabilities - less reasonable realisation costs.
(2) The customer shall be obliged to treat the goods delivered or produced by PHILIPP with care; in particular, the customer shall be obliged to insure them at its own expense against fire, water and theft at their replacement value.
(3) In the event of seizures or other interventions by third parties, the customer shall immedi-ately notify PHILIPP in writing so that PHILIPP can bring an action pursuant to § 771 of the German Code of Civil Procedure (ZPO). To the extent that the third party is not in a position to reimburse PHILIPP for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by PHILIPP.
(4) The customer shall be entitled to resell the goods delivered or produced by PHILIPP in the ordinary course of business; however, the customer hereby assigns to PHILIPP all claims in the amount of the final invoice amount (including VAT) of PHILIPP's claim aris-ing from the resale against its customers or third parties, irrespective of whether the goods delivered or produced by PHILIPP have been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. PHILIPP's right to collect the claim itself shall remain unaffected. However, PHILIPP un-dertakes not to collect the claim as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, has not filed for the opening of bankruptcy proceedings or suspended payments. However, if this is the case, PHILIPP may demand that the customer informs PHILIPP of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the item delivered or produced by PHILIPP by the customer shall always be carried out on behalf of PHILIPP. If the item delivered or pro-duced by PHILIPP is processed together with other items not belonging to PHILIPP, PHILIPP shall acquire co-ownership of the new item in the ratio of the value of the item delivered or produced by PHILIPP (final invoice amount, including VAT) to the other pro-cessed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the item delivered or produced by PHILIPP subject to reservation of title.
(6) If the item delivered or produced by PHILIPP is inseparably mixed with other items not belonging to PHILIPP, PHILIPP shall acquire co-ownership of the new item in the ratio of the value of the item delivered or produced by PHILIPP (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed to be agreed that the customer shall transfer co-ownership to PHILIPP on a pro rata basis. The customer shall hold the resulting sole ownership or co-ownership in safe custody for PHILIPP.
(7) PHILIPP undertakes to release the securities to which PHILIPP is entitled at the custom-er's request to the extent that the realisable value of PHILIPP's securities exceeds the claims to be secured by more than 10 %; PHILIPP shall be responsible for selecting the securities to be released.
§ 12 Inventions and know-how
Subject to any separate agreement or to the use or application to which the customer is entitled in accordance with the meaning and purpose of the contractual relationship, PHILIPP shall hold the exclusive rights to any secret, high-quality and advanced knowledge (know-how) existing at PHILIPP or acquired by PHILIPP on the occasion of the performance of its contractual obligations, as well as to any inventions made by PHILIPP and to any industrial property rights already existing or still to be registered in this respect.
§ 13 Contractual language, place of jurisdiction, place of performance
(1) The contractual language shall be German.
(2) In the event of export, the place of jurisdiction shall be PHILIPP's registered place of busi-ness. If there is no export case, this shall only apply if the customer is a merchant within the meaning of the German Commercial Code (HGB); PHILIPP shall, however, also be entitled to sue the customer at the court of its registered place of business.
(3) The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention / CISG) in the German language version shall apply to this contract. Outside the scope of application of the UN Convention on Contracts for the International Sale of Goods, German law shall apply, namely the German Civil Code/Commercial Code (BGB/HGB), to the exclusion of German private international law.
(4) Unless otherwise stated in the order confirmation, PHILIPP's registered place of business shall be the place of performance.