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GENERAL TERMS AND CONDITIONS OF THE COMPANY HERMANN FRANZEN GmbH & Co. KG

Version: 02/2017

 

§ 1 Scope, Definition of Consumer and Entrepreneur

  1. These General Terms and Conditions of the company Hermann Franzen GmbH & Co. KG, stipulated for the online shop (hereinafter "GTC"), shall apply to any and all orders and the respective declarations of acceptance and contracts made in the online shop of Herman Franzen GmbH & Co. KG (hereinafter "Franzen") at www.franzen.de.
  2. Franzen disclaims any and all terms and conditions which deviate from or amend these GTC or statutory provisions.
  3. A "Consumer" within the meaning of these GTC is, in accordance with Section 13 German Civil Code ("BGB"), every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession and an "Entrepreneur", in accordance with Section 14 BGB is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.

 

§ 2 Registration, Conclusion of Contract, Place of Delivery, Delivery Time

  1. The purchaser can register in the online shop by entering his personal data. The data provided by the purchaser must be complete and true. Upon registration, the purchaser activates a customer account at Franzen, which is accessible by entering his/her access data. Franzen is not obliged to accept the registration. The purchaser must amend any information without delay which will be requested in the course of the next use of the online shop or the next purchase. Otherwise Franzen shall be entitled to deactivate the customer account.
  2. The presentation of goods in the online shop does not constitute a binding offer by Franzen for the conclusion of a contract. A contract is concluded by an order placed by the purchaser in the online shop and its acceptance by Franzen. The purchaser places the order by electronic transfer of the completed online order form. After having entered his/her personal data and having chosen the dispatch type and payment method, the purchaser makes a binding offer for the conclusion of a contract by clicking on the button "COMMIT TO BUY". In the event that the purchaser has activated a customer account in the online shop, he/she can provide the personal data by logging into the customer account. The purchaser must provide a delivery and billing address in Germany for the order. We recommend the purchaser to verify the accuracy of the article, amount, personal data, dispatch type, and payment method prior to clicking on the button "COMMIT TO BUY" After having clicked on the button "COMMIT TO BUY", the purchaser enters the payment details.
  3. After the reception of the order and the payment details, Franzen automatically sends an email to the purchaser, confirming the reception of the order by Franzen and listing its details (hereinafter "Confirmation of Receipt"). The Confirmation of Receipt does not constitute an acceptance of the order by Franzen, it shall only inform the purchaser about the reception of the order. Franzen will either accept the order by sending an additional email in which Franzen confirms the order ("Order Confirmation") or by sending a shipment notification by email to the purchaser ("Shipment Notification").
  4. Franzen delivers to the following countries: Austria, Belgium, Germany, France, Luxemburg, Netherlands, Switzerland and more other countries.
  5. If the customer does not collect the goods at the retail store of Franzen, the delivery time for DHL express shipping shall be 1 business day; in case of standard shipping, the purchaser will be informed about the delivery time in the online shop right next to the goods as well as in the Order Confirmation and/or the Shipment Notification. The beginning of the delivery time depends on the payment method:
    1. Credit card: In case of payment by credit card, the delivery time begins on the day following the conclusion of contract, i.e. the reception of the Order Confirmation and/or the Shipment Notification.
    2. PayPal: In case of payment by PayPal, the delivery time begins on the day following the conclusion of contract, i.e. the reception of the Order Confirmation and/or the Shipment Notification.
    3. Immediate bank transfer: In case of payment by immediate bank transfer, the delivery time begins on the day following the conclusion of contract, i.e. the reception of the Order Confirmation and/or the Shipment Notification.
    4. Invoice: In case of payment by invoice, the delivery time begins on the day following the conclusion of contract, i.e. the reception of the Order Confirmation and/or the Shipment Notification.
    5. Prepayment: In case of prepayment, the delivery time begins on the day following the day of issuing the properly executed payment order to the transferring bank.
  6. If the purchaser chooses the dispatch type "DHL express parcel", delivery will be on the next business day if the order has been received before noon.
  7. If the purchaser chooses "Pickup @ FRANZEN, Koenigsallee 42, 40212 Duesseldorf" when placing the order, the purchaser must collect the ordered goods at his/her own costs in the retail store of Franzen, Koenigsallee 42, 40212 Duesseldorf, within 10 days after the reception of the Order Confirmation.

 

§ 3 Information about Franzen, Contractual Language, Content of the Contact, Storage

Identity and complete address as required for a summons: Hermann Franzen GmbH & Co. KG, Königsallee 42, 40212 Düsseldorf

Personally Liable Partner: Franzen Verwaltung GmbHManaging Directors: Claus Franzen, Hermann Franzen, Peter Franzen, Stephanie Kluth-Franzen

Telephone: +49 (0)211-130 78-0

Company register: Commercial register of the local court of Duesseldorf; company register number: HRA 1743 and HRB 30424

The language available for the conclusion of the contract is English.

The order details (article, amount, personal data, shipping and payment data) are displayed in the tab "CONFIRM ORDER" and can be corrected in it until the purchaser clicks on the button "COMMIT TO BUY". The content of the contract is displayed to the purchaser in the Confirmation Of Receipt sent by e-mail and in the Order Confirmation or the Shipment Notification which each also contains these GTC; the purchaser can either print it by choosing the print function of the browser or save it as a PDF. Franzen stores the order data. If the purchaser is registered in the online shop and has activated a customer account, the purchaser can access the order data after the conclusion of contract if he/she logs into his/her customer account in the online shop. If the purchaser does not register in the online shop, the purchaser cannot directly recall the order data in the online shop.

 

§ 4 Prices, Payment Terms

  1. All prices in the online shop are in Euro and include the statutory VAT; any eventual shipping costs will be added to the order. Shipping costs for deliveries within Germany amount to EUR 5.90 (DHL standard parcel) or EUR 16.90 (DHL express parcel) per delivery. For an order value of EUR 50.00 or more, Franzen delivers free of charge to the purchaser by DHL standard parcel.
  2. Franzen accepts the following payment methods:
    1. Credit card: If the purchaser chooses the payment method "credit card", he/she authorizes Franzen to debit the purchase price from the selected credit card by entering the type of credit card , credit card number, expiry date, and verification number and by clicking on the button "COMMIT TO BUY". The amount is immediately debited from the credit card.
    2. PayPal: If the purchaser chooses the payment method "PayPal", the purchaser will log into his/her PayPal account in the PayPal window which appears after having clicked on the button "COMMIT TO BUY" and will transfer the purchase price according to the instructions of PayPal.
    3. Immediate bank transfer: If the purchaser chooses the payment method "Immediate bank transfer", he/she authorizes Franzen to debit the purchase price from the selected bank account by entering the bank details and by clicking on the button "COMMIT TO BUY". The purchase price is immediately due.
    4. Invoice: If the purchaser is duly registered with the online shop, he/she is entitled to choose the payment method "invoice" as of the third successfully processed order. In case of an order by invoice, the purchase price must be transferred to the bank account of Franzen stated in the invoice within 10 days following the reception of the invoice, the intended use of the transfer must contain the invoice number.
    5. Prepayment / bank transfer: If the purchaser chooses the payment method "prepayment / bank transfer", the purchase price must be transferred to the bank account of Franzen stated in the Order Confirmation within 10 days following the reception of the Order Confirmation.
    Franzen reserves its right to refrain from offering certain payment methods in the course of the order transaction in particular cases or to refer to other payment methods. If the ordered goods are unavailable or the contract is not concluded out of other reasons, Franzen will reimburse any payments received without delay.
  3. In the event that the purchaser is in delay in payment, Franzen shall be entitled to statutory default interest (Section 288 BGB). Any and all other rights of Franzen shall remain reserved.
  4. The customer shall only be entitled to set-off or retention insofar as his/her counterclaims are undisputed or recognized by final judgment. Furthermore, should the customer be a Consumer, he/she shall also have a right of retention if his/her counterclaim derives from the same contractual relationship and is proportionate to the claim of Franzen.

 

§ 5 Execution of Delivery, Reservations, Rescission, Delay in Delivery, Force Majeure, Partial Delivery

  1. For Entrepreneurs, the following applies: Franzen's delivery obligations shall be subject to timely and full delivery by its own suppliers. Likewise, Franzen reservesthe possibility to deliver. For Consumers, the following applies: In the event that Franzen concluded a congruent covering transaction and Franzen is being let down by the supplier, Franzen shall be entitled to rescind the contract insofar as Franzen is not responsible for any impediment to performance resulting therefrom.
  2. Without prejudice to other statutory requirements the purchaser shall only be entitled to rescind the contract for delay in delivery if Franzen is responsible for such delay.
  3. For Entrepreneurs, the following applies: If Franzen is responsible for a delay in delivery, the claim for damages by the purchaser shall be limited to 0.5% for each full week of delayed delivery, not exceeding, however, a total of 5 % of the net order value of the part of the delayed goods. This shall not apply in case of intent or gross negligence.
  4. In case of force majeure, even if it concerns the supplier of Franzen, the delivery time shall be extended by a reasonable period, if Franzen is prevented by it from fulfilling its obligations in a timely manner, without prejudice to Franzen's other rights. Any other events which are unforeseeable for Franzen and which are not due to Franzen's fault, such as difficulties in procuring materials and operational malfunction, strikes, lockouts, lack of means of transport, official interventions, or energy supply difficulties - which are not only of short term duration - shall be considered as cases of force majeure, even if these events concern suppliers of Franzen. If the delivery is impossible or unreasonable due to the aforementioned reasons, Franzen shall be entitled to revoke the contract, without prejudice to its other rights. The purchaser shall have the same right, if he/she can no longer reasonably be expected to uphold the contract. However, Franzen will only claim relief by reason of the aforementioned circumstances, if Franzen informed the purchaser of it without delay.
  5. Franzen shall be entitled to partial delivery, insofar as it is acceptable for the purchaser. The shipping costs for all partial deliveries may not exceed the agreed freight charges. The purchaser's right to revoke the entire contract shall remain unaffected if he/she is not interested in the partial delivery, which has already been provided in case Franzen fails to deliver the remaining goods in a timely manner while acting culpably and in contravention of its duties.

 

§ 6 Retention of Title

  1. In case the purchaser is a Consumer, Franzen retains title to all goods delivered by Franzen until the full payment of the goods. In case the purchaser is an Entrepreneur, Franzen retains title to all goods delivered until all pending receivables from the business relationship are fully paid.
  2. Only for Entrepreneurs: The purchaser shall be entitled to resell the goods delivered by Franzen within the ordinary course of business. The purchaser is not allowed to transfer or pledge the reserved goods by way of security or to dispose of them in any other way, which might prejudice Franzen's ownership. In case the purchaser resells the reserved goods, the purchaser hereby assigns to Franzen, effective immediately, any claim against his customers based on the resale. In case the purchaser resells the reserved goods together with any other goods, the assignment of the claims based on resale shall hereby be limited to the value of the reserved goods invoiced by Franzen. The purchaser shall be entitled to collect the claim assigned to Franzen. In case of a delay in payment by the purchaser or in case a significant decline in the purchaser's financial circumstances becomes apparent after the conclusion of contract which places one of Franzen's claims at risk, in particular in case of suspension of payments or a request for opening of the insolvency procedure regarding the purchaser's assets, Franzen shall be entitled to revoke the authorization to resell the goods as well as the direct debit authorization. Upon request of Franzen, the purchaser shall, at any time, provide Franzen with a detailed list of the claims which have passed on to Franzen, name the debtors and inform the debtors about the assignment to Franzen. Prior to any access by third parties to the reserved goods or any claims which have been assigned to Franzen, the purchaser shall immediately notify Franzen by enclosing the distress documents. Should the realizable value of the collaterals Franzen is entitled to exceed the secured claim of Franzen by more than 10%, Franzen shall be obliged, upon request, to release the collaterals to the purchaser.

 

§ 7 Transfer of Risk

  1. If the purchaser is a Consumer, risk shall pass to the purchaser upon delivery of the goods. If the purchaser is an Entrepreneur, risk shall pass to the purchaser upon handover to the assigned carrier, or, at the latest, upon notification of the readiness for dispatch.
  2. Furthermore, risk shall pass to the purchaser if he/she falls into default of acceptance. In this case, the purchaser shall compensate Franzen for the damages suffered, if he/she is responsible for the default of acceptance.

 

§ 8 Defects of Quality

  1. For Entrepreneurs, the following applies: If the purchaser is a businessman (i. e. "Kaufmann" within the meaning of Section 1 (1) German Commercial Code "HGB"), he/she shall notify Franzen in writing of apparent defects in quality without delay, but at the latest within eight days after delivery; otherwise the goods shall be deemed approved. Franzen shall be notified in writing about hidden defects in quality without delay, but at the latest within eight days after their discovery; otherwise the goods shall be deemed approved.
  2. If the purchaser is a Consumer, the statutory warranty rights apply to any and all goods of the Franzen online shop under exclusion of claims for damages and claims for reimbursement of expenses. Section 9 lays down the rules for any and all claims for damages and claims for reimbursement of expenses of the purchaser. Section 8 No. 6 governs the statute of limitations in detail.
  3. For Entrepreneurs, the following applies: If the delivered item shows a defect of quality at the time of passing of risk, Franzen will cure the defect by removing the defect (remedy) or delivery of an item free of defects (subsequent delivery). If the purchaser is an Entrepreneur, Franzen shall choose the modality of supplementary performance (remedy or subsequent delivery). In case the supplementary performance fails, the purchaser shall be entitled to choose, at his/her discretion, either to revoke the contract or to reduce the purchase price. Section 9 shall apply in case of claims for damages or compensation of expenses.
  4. Place of performance for any supplementary performance shall be the registered office of Franzen.
  5. In the event that, during the inspection of the goods, the purchaser's request for supplementary performance proves to be unfounded, Franzen shall be entitled, without prejudice to any other rights, to invoice any eventual costs for the shipment to Franzen and the return shipment to the purchaser as well as the costs for the inspection of the goods, if the purchaser realized or negligently failed to realize that the request for supplementary performance was unfounded.
  6. Any claims of the purchaser based on defects in quality shall become time-barred one year after delivery. This shall not apply
    1. in case of Section 438 (1) No. 1 BGB (real rights of a third party on the basis of which return of the thing may be demanded);
    2. in case of claims for damages based on intent or gross negligence, injury to life, limb or health, or any liability under the Product Liability Act;
    3. if the purchaser is a Consumer: to claims for supplementary performance, claims in case of a rescission of the contract or in case of a reduction in price;
    4. if the purchaser is an Entrepreneur: in case of Sections 478, 479 BGB (Recourse of the Entrepreneur).
    In the aforementioned cases, the claims of the purchaser based on defects in quality shall become time-barred within the statutory period of limitation.

 

§ 9 Damages and Reimbursement of Expenses

  1. Franzen shall not be liable for damages or the reimbursement of expenses, in particular based on defects in quality, other breaches of duty or tort, irrespective of the legal grounds. This shall not apply
    1. in the event of culpable injury to life, limb or health;
    2. in the event of intent or gross negligence;
    3. in the event of a liability under the German Product Liability Act;
    4. in the event of culpable infringement of essential contractual obligations. Essential contractual obligations are, in particular, such obligations which must be fulfilled in order to duly execute the contract and, accordingly, the purchaser generally relies and may rely on the compliance with these obligations. In case Franzen is not liable for intent, gross negligence, injury to life, limb or health or under the Product Liability Act, Franzen's liability based on an infringement of essential contractual obligations shall be limited to foreseeable damages, typical of such contracts.
  2. In case Franzen's liability is excluded or limited pursuant to Section 10.1, such limitation shall also apply to the personal liability of the legal representatives and vicarious agents of Franzen.
  3. The preceding provisions do not lead to a shift in the burden of proof.

 

§ 10 Data Privacy, Salvatory Clause, Governing Law, Jurisdiction and Dispute Resolution

  1. Franzen points out that personal data (such as the name, designation of the occupation, industry or business classification, telephone number, and email address) of the purchaser and/or his employees are stored for the purpose of the establishment, execution or termination of contractual or quasi-contractual obligations with respect to the purchaser. Furthermore, the privacy policy of Franzen shall apply.
  2. Should any provisions of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected hereof.
  3. Any and all legal relationships between Franzen and the purchaser shall be governed and interpreted in accordance with the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (UN sales law / CISG).
  4. Exclusive place of venue for any and all disputes shall be the registered office of Franzen if the purchaser is a corporation, limited liability company, commercial partnership or otherwise operates a commercial business ("Kaufmann" within the meaning of Sec. 1 (1) HGB) or if the Customer is a body corporate or a special fund organized under public law; however, Franzen shall also be entitled to pursue legal remedies against the purchaser at his/her general place of jurisdiction.
  5. With respect to non-merchants (i. e. whoever is not a “Kaufmann” within the meaning of Sec. 1 (1) HGB), the registered office of Franzen shall be the place of venue, if the purchaser has relocated his/her residence or usual whereabouts abroad after conclusion of the contract or if his/her place of residence or usual whereabouts is not known when Franzen asserts its claims in court.
  6. The European Commission provides for an online dispute resolution platform. This platform can be found under http://ec.europa.eu/consumers/odr. Consumers have the possibility to use this platform for settlement of disputes. Franzen is not willing and not obliged to participate in dispute resolution procedures before a consumer arbitration board.