General Terms and Conditions (GTCs)
TOPLAC Autolackierbedarf GmbH
General Terms and Conditions Last revised 14 July 2015
Section 1 Scope
a) Our General Terms and Conditions apply exclusively for business relationships between TOPLAC Autolackierbedarf GmbH, Hamburger Ring 15, D-01665 Klipphausen, Phone +49 35204/670-0, Fax +49 35204/670-30, email firstname.lastname@example.org, www.toplac.de, Dresden Commercial Register: HRB2244, Managing Directors: Johannes Herrmann, Lutz Poweleit, VAT ID no. DE140212312, and the buyer.
b) The buyer is a consumer if they are a natural person who concludes a legal transaction for purposes that cannot be predominantly attributed to their commercial or their independent professional activity. However, the buyer is an entrepreneur if they are a natural person or legal entity or a partnership having legal capacity, performing their commercial or independent professional activities when entering a legal transaction.
c) The following terms and conditions apply to all contracts concluded between the buyer and TOPLAC Autolackierbedarf GmbH. Deviating terms and conditions of the buyer that TOPLAC Autolackierbedarf GmbH does not expressly recognise are not binding for TOPLAC Autolackierbedarf GmbH, even if they are not expressly rejected. The following terms and conditions also apply if TOPLAC Autolackierbedarf GmbH executes the order without reservation despite being aware of conflicting or deviating general terms and conditions of the buyer.
d) TOPLAC Autolackierbedarf GmbH reserves the right to amend these general terms and conditions at any time without giving reasons. The amended terms and conditions will be sent to the buyer no later than 2 weeks before their entry into force. If the buyer does not object within 2 weeks after receipt, the changed general terms and conditions will be considered has having been accepted. The buyer will be informed separately about this 2-week deadline.
e) Our currently additional conditions apply to small quantities, special blends, etc.
Section 2 Offer and conclusion of contract; ordering process; language of contract
a) The presentation of the products in TOPLAC Autolackierbedarf GmbH’s online shop only constitutes a non-binding invitation to order, rather than a legally binding offer.
b) To the extent that an order is to be regarded as an offer within the meaning of Section 145 of the German Civil Code (BGB), TOPLAC Autolackierbedarf GmbH can accept this offer within two weeks by sending an order confirmation as a binding declaration of acceptance or delivery of the ordered goods (conclusion of contract). If the buyer orders electronically via the Toplac online shop, TOPLAC Autolackierbedarf GmbH will immediately confirm receipt of the order electronically. This confirmation of receipt of the order does not constitute a legally binding acceptance of the order. However, the legally binding acceptance of the order may be connected with the confirmation of receipt of the order.
c) Our offers are generally non-binding and without obligation, unless they have been expressly designated as binding.
d) Our offers are valid subject to any typing, printing and/or arithmetic errors. e) A contract in the online shop can only be concluded if the buyer accepts and confirms these general terms and conditions and, if the buyer is a consumer, he also accepts and confirms the cancellation policy.
f) When placing an order in the TOPLAC online shop, the ordering process comprises a total of four steps. In the first step, the buyer selects the desired product and places it in the "shopping cart". In the second step, the buyer enters their data, including their billing address and a differing delivery address, if applicable. In the third step, the buyer has the opportunity to review the information provided and, if necessary, to correct it and select the type of payment and shipping. By clicking on the “Submit binding order” button, the buyer then issues a binding order for the goods in the shopping cart in the fourth step.
g) The language used for the conclusion of the contract is German.
Section 3 Storage and inspection of the contractual text
The contractual text for the order will be saved. You can view and print the General Terms and Conditions at any time on this page. You can view and print out your specific order data in My account.
Section 4 Submitted documents
TOPLAC Autolackierbedarf GmbH reserves ownership, copyright and other property rights to all documents, such as illustrations, calculations, drawings and other documents submitted to the buyer in connection with the placing of an order. The buyer is only permitted to pass on these documents to third parties with written consent, regardless of whether TOPLAC Autolackierbedarf GmbH has marked them as confidential or not.
Section 5 Shipping
a) The shipping conditions, delivery date and any existing delivery restrictions can be found by clicking the corresponding button on our website or in the respective item description.
b) If you are a consumer, the law states that the risk of accidental loss and accidental deterioration of the goods sold will not be transferred to you until delivery of the goods, regardless of whether the shipment is insured or uninsured. This does not apply if you have independently commissioned a transport operator or any other person which was not nominated by the company to carry out the shipment.
c) If you are an entrepreneur, delivery and dispatch are at your own risk.
Section 6 Limitation of liability
In addition to the aforementioned cases of delays in delivery, TOPLAC Autolackierbedarf GmbH is liable for damages due to wilful misconduct or gross negligence in accordance with the statutory provisions. However, in the case of damages due to minor negligence, liability is restricted solely to cases of injury to life, body or health, if there is an infringement of an essential contractual obligation (material obligation) or in the case of impossibility. In case of liability for damages to property or financial damages due to minor negligence, this liability is limited to damages that are typical for the contract and foreseeable upon conclusion of the contract. These limitations also apply to the benefit of the legal representatives and vicarious agents of TOPLAC Autolackierbedarf GmbH if claims are asserted directly against them.
Section 7 Partial deliveries
TOPLAC Autolackierbedarf GmbH is entitled to make partial deliveries to the extent that this may be reasonably acceptable for the buyer. Any additional shipping costs will only be charged if expressly agreed.
Section 8 Packaging
TOPLAC Autolackierbedarf GmbH does not accept transport packaging or packaging of any other type in accordance with the packaging regulations. The only exceptions are pallets and the packaging identified as leased packaging in the delivery note. The leased packaging account will be credited if the leased packaging is returned to us no later than two months after delivery carriage paid in a clean, reusable condition. Otherwise, the buyer must arrange for the disposal of the packaging at its own expense.
b) TOPLAC Autolackierbedarf GmbH almost exclusively uses high-quality packaging material to ensure the goods are kept safe from damage on their way to you. However, we are also required to comply with legal requirements. The German Packaging Regulation (VerpackV) obliges us to ensure that the packaging we use is recycled after use. We have licensed our packaging material with "Der Grüne Punkt" – Duales System Deutschland GmbH. If you call the following phone number: +49 2203/937549 (telephone fees may be charged), an employee at “Der Grüne Punkt” – Duales System Deutschland GmbH will be able to provide you with the details of the nearest collection point for used TOPLAC Autolackierbedarf GmbH packaging. As a consumer, you of course also have the option of putting the packaging in with the waste paper collection, together with old daily newspapers, etc. Necessary substances made from other materials, such as adhesive tape, labels and small amounts of plastic film do not disrupt the recycling process.
Section 10 Retention of title
a) TOPLAC Autolackierbedarf GmbH retains ownership of the delivered goods until full payment of all accounts receivable arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to them. We are entitled to take back the object of purchase if the buyer acts in violation of the contract.
b) The buyer is obliged to handle the purchased goods with care until ownership has been transferred to the buyer. If maintenance and inspection work is required, the buyer is obliged to perform this in good time and at its own expense. The buyer must immediately inform TOPLAC Autolackierbedarf GmbH in writing of any access by third parties, in particular in the event of compulsory execution measures or other impairments. The buyer is obliged to compensate TOPLAC Autolackierbedarf GmbH for all damages and costs that result from a breach of this obligation or necessary intervention measures against access by third parties. If the third party is not able to reimburse TOPLAC Autolackierbedarf GmbH for the court expenses and out-of-court costs of a lawsuit in accordance with Section 771 of the German Code of Civil Procedures (ZPO), the buyer is liable for the loss incurred by TOPLAC Autolackierbedarf GmbH.
c) If the buyer is an entrepreneur, they are entitled to resell the reserved goods in the normal course of business. The buyer here and now assigns to us the receivables from the resale of the reserved goods in the amount of the final invoice total agreed with TOPLAC Autolackierbedarf GmbH (including value added tax). This assignment applies regardless of whether the purchased item was resold without being changed or after processing. The buyer remains authorised to collect the receivables, even after assignment. TOPLAC Autolackierbedarf GmbH’s right to collect the receivables remains unaffected.
d) If the buyer acts in violation of the contract, including, but not limited to cases where the buyer fails to fulfil their payment obligation despite a reminder from TOPLAC Autolackierbedarf GmbH, TOPLAC Autolackierbedarf GmbH may rescind the contract after a reasonable grace period has expired and demand the surrender of the goods still in the buyer’s possession. The withdrawal of the goods by TOPLAC Autolackierbedarf GmbH represents a withdrawal from the contract. Any transportation costs incurred are to be covered by the buyer. The attachment of the goods by TOPLAC Autolackierbedarf GmbH always represents a withdrawal from the contract. TOPLAC Autolackierbedarf GmbH is entitled to exploit the goods for other purposes once they have been returned.
e) Even if complaints or counterclaims are made, the buyer is only entitled to offset if the counterclaims have been determined by a court or recognised in writing by TOPLAC Autolackierbedarf GmbH or if they are undisputed. The buyer is only authorised to exercise a right of retention if their counterclaim is based on the same contractual relationship.
Section 11 Prices and payment
a) Unless agreed otherwise in writing, our prices are ex works excluding shipping, insurance, packaging and assembly, including VAT in the applicable amount.
b) The purchase price can be paid using the following payment methods:
- Advance payment
- Purchase against invoice
c) The deduction of a discount is only permitted on the basis of a special written agreement between TOPLAC Autolackierbedarf GmbH and the buyer. The purchase price is payable gross (without any deduction) immediately upon receipt of the invoice by the buyer, unless the order confirmation indicates otherwise. A payment is deemed to have been made if TOPLAC Autolackierbedarf GmbH can dispose of the amount. In the case of cheque payments, the payment is deemed to have been made when the check is cashed.
d) Default interest is calculated at 8 percentage points above the respective base interest rate per annum, provided that the buyer is an entrepreneur, otherwise interest on arrears amounting to 5 percentage points above the respective base interest rate per annum will be charged. The assertion of claims for higher damages due to a delay in performance remains reserved.
e) If payment in instalments has been agreed and the buyer is more than seven days in default with an instalment, the entire balance will become due immediately.
f) TOPLAC Autolackierbedarf GmbH is entitled to submit an invoice as soon as the delivery item has left the factory or as soon as the delivery warehouse or the buyer has been notified of the readiness for dispatch.
g) If partial deliveries are made, TOPLAC Autolackierbedarf GmbH is entitled to charge the respective partial delivery price in accordance with the above-mentioned provision.
h) Cheques, bills of exchange, letters of credit and the like are accepted only in accordance with the agreements made and only on account of payment of all additional costs incurred by TOPLAC Autolackierbedarf GmbH (e.g. bills of exchange and discount charges). TOPLAC Autolackierbedarf GmbH is not liable for timely presentation, protesting, notification or return in the event of non-payment.
Section 12 Warranty and notice of defects, recourse/manufacturer's recourse
a) The buyer will be advised of the existence of statutory warranty rights.
b) TOPLAC Autolackierbedarf GmbH is liable for defects in accordance with the statutory provisions, including, but not limited to, Sections 434 et seq. of the German Civil Code (BGB). If the buyer is an entrepreneur, a differing warranty period of 12 months is applicable.
c) Warranty rights of the buyer, to the extent they are an entrepreneur, only exist if such buyer has duly fulfilled their obligations regarding the inspection of the goods and notification of defects pursuant to Section 377 of the German Commercial Code (HGB). Defects must be reported in writing at the latest within 10 days after receipt of the goods. Our approval must be obtained before returning the goods. The defect notification period is one year for non-obvious defects.
d) If, despite all due care, the delivered goods have a defect that was present at the time of passing of the risk, we will repair or replace the goods at our discretion subject to the timely notice of defects. If the buyer is a consumer, they can choose between repair and replacement. We must always be granted the opportunity to provide subsequent performance within a reasonable period. Rights of recourse remain unaffected by the above provision without limitation.
e) If the subsequent performance is unsuccessful, the buyer shall be entitled to withdraw from the contract or reduce the purchase price, without prejudice to any claims for compensation of damages.
f) Claims for defects do not exist in the case of insignificant deviations from the agreed condition, only insignificant impairment of usability, natural wear or tear and damage occurring after the passing of the risk as a result of incorrect or negligent treatment, excessive use, unsuitable equipment, defective construction work, unsuitable building ground or special external influences, which are not provided for according to the contract. If the buyer or a third party carries out improper repairs or changes, no claims may be asserted for defects for these repairs or any resulting consequences.
g) The buyer’s rights of recourse against us only exist to the extent that the buyer has not made any agreements with its own buyers beyond the legally binding claims for defects.
h) A guarantee extending beyond the statutory warranty for defects to goods delivered by TOPLAC Autolackierbedarf GmbH only exists if expressly granted for the respective goods.
Section 13 Applicable law, place of jurisdiction
a) The relationship between the contracting parties are governed exclusively by the laws applicable in the Federal Republic of Germany. The application of the UN CISG is excluded.
b) If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a special fund under public law or a legal entity under public law, Dresden is the place of jurisdiction for all disputes arising from the contract, including these GTCs. However, TOPLAC Autolackierbedarf GmbH is entitled to sue the aforementioned buyers at their place of residence and/or registered office.
Section 14 Severability clause
To the extent that any provision of this contract, including these GTCs, is invalid, this will not affect the remaining provisions. The statutory provisions will apply in place of the invalid provisions, if available. If, however, this represents an unreasonable hardship for one of the contracting parties, then the contract as a whole will become invalid.
Section 15 Notes regarding alternative dispute resolution for consumers
In accordance with EU Regulation No. 524/2013 of 21 May 2013 on the dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on Online Dispute Resolution for Consumer Disputes), we are required to inform you about the online platform offered by the EU for settling disputes between consumers and merchants in connection with online sales contracts or online service contracts (the “ODR Platform").
The ODR platform is expected to be accessible from 15 February 2016 onwards. The platform is available via this link: http://ec.europa.eu/consumers/odr/
Our email address: email@example.com
The general consumer arbitration board of the Zentrum für Schlichtung e.V., Straßburger Straße 8, 77694 Kehl am Rhein, www.verbraucher-schlichter.de is responsible.
Section 16 Right of cancellation of consumers
Only consumers shall have cancellation rights.
Right of cancellation
You have the right to cancel this contract within 14 days without providing reasons. The cancellation period is 14 days from the date on which you or a third party appointed by you, who is not the carrier, has taken possession of the last goods of your order or, if the goods have been delivered in parts or pieces, the day on which you or a third party appointed by you, who is not the carrier, has taken possession of the last partial shipment or piece. To exercise your cancellation right, you must send a clear statement (e.g. a letter sent by post, fax or email) informing us of your intention to cancel the contract to
TOPLAC Autolackierbedarf GmbH
Hamburger Ring 15 01665
Phone: +49 35204/670-0
Fax: +49 35204/670-30
You can use the attached sample cancellation form for this purpose or download a sample form from our download centre at www.toplac.de/shop/downloadcenter, although this is not compulsory. It will suffice to send the notification of exercise of your cancellation right before the end of the cancellation period to ensure compliance with said period.
Consequences of cancellation
If you cancel this contract, then we must immediately, or at the latest within 14 days after the day on which the notification of your cancellation of the contract was received by us, pay back to you all payments which we have received from you, including the delivery costs (with exception of any additional costs which resulted from your selection of a different type of delivery to the cheapest standard delivery offered by us). We shall utilize the same payment method for refunds that was used for the original transaction unless expressly agreed otherwise; under no circumstances shall you bear charges for such refunds. We will collect the goods at our expense. You shall be liable for any deterioration of the value of the goods only if the deterioration is deemed due to unnecessary handling beyond what is required to ascertain the condition, quality and function of the goods. Exclusion of cancellation rights The cancellation right does not apply to contracts for the delivery of merchandise that is not pre-manufactured and the production of which requires an individual selection or specification by the consumer or which is clearly tailored to the individual requirements of the consumer. In this case, the consumer is not entitled to cancel their declaration of intent.
End of the cancellation information
Sample cancellation form
(If you wish to cancel the contract, please fill out this form and send it back.) – To
TOPLAC Autolackierbedarf GmbH, Hamburger Ring 15, 01665 Klipphausen, Germany, Fax: +49 35204/670-30, email: firstname.lastname@example.org:
- I/we (*) hereby cancel the contract I/we (*) concluded to purchase the following goods (*)/the provision of the following services (*)
- Ordered on (*)/received on (*)
- Name of the consumer(s)
- Address of consumers(s)
- Signature of consumer(s) (only if submitted on paper)
- Date ________ (*) Delete/strike as appropriate.