Terms and Conditions

 

General Terms of Sale and Delivery for clients of Eduard Gerlach GmbH residing in Germany 

1. General 
2. Offers
3. Prices
4. Payment terms 
5 Setoff, right of retention 
6. Delivery times 
7. Shipping 
8. Delivery volumes 
9. Data protection 
10. Creditworthiness 
11. Credit assessment; SCHUFA notice 
12. Material defect claims and claims for damages and withdrawal due to other breaches of duty 
13. Statute of limitations for material defect claims
14. Right of withdrawal 
15. Liquidated damages due to breach of duty by the buyer 
16. Retention of title
17. Replacement units
18. Disposal of waste electrical equipment
19. Place of performance, place of jurisdiction, choice of law

1. General 
The distribution of GEHWOL products is exclusively reserved for specialized trade (entrepreneurs in the sense of § 14 BGB (Civil Code)) such as podiatry practices, foot care practices, pharmacies and specialized drugstores. Opening a client account is possible only with appropriate proof of activity or a certificate of training. A delivery to consumers in the sense of § 13 BGB is therefore excluded. 
The following General Terms of Sale and Delivery shall apply exclusively to the delivery of our products, unless otherwise agreed in writing or confirmed by us. These Terms apply to all our business transactions. Contradictory, different and/or more extensive general terms and conditions of our contractual partners are not recognized. Their validity is expressly excluded. Silence on our part upon the sending of general terms and conditions of the buyer shall not be deemed as consent to the inclusion of the general terms and conditions of the buyer. Our Terms of Sale and Delivery in their currently valid version shall, insofar as they have been effectively agreed upon once, also become part of all future contracts in the case of ongoing business relations, without the need for any further express reference in individual cases, even if these Terms should exceptionally be inapplicable to individual transactions in whole or in part because deviating agreements have been made for these transactions. For transactions and sales to foreign countries, the international sales conditions for clients not resident in Germany apply. 

2. Offers 
Our offers are subject to change. We are bound to verbal agreements only after further written confirmation. Declarations by our employees, travellers or sales representatives require our written confirmation to be effective. 

3. Prices
The prices in our catalogue are not binding. Unless otherwise agreed in writing, only the prices on the date of the order shall apply. The validity of the prices expires with the publication of the new prices. All our prices are net prices and are exclusive of statutory value added tax. For orders placed via our Internet shop, the prices stated there at the time of the order shall apply. The final price indicated in the "Checkout" menu shall be decisive, taking into account any surcharges (e.g., small quantity surcharge, shipping costs) or deductions (e.g., discounts) indicated there. 

4. Payment terms 
The following conditions apply to the payment of our invoices: 
Prepayment or direct debit: 3% discount 
Payment within 8 days from date of invoice or cash on delivery: 2% discount  
Payment within 30 days from date of invoice: without deduction 
Repairs including required spare parts as well as other delivered spare parts are payable immediately: without deduction 

Bills of exchange and checks are accepted, if at all, only on account of performance and subject to the possibility of discounting. All expenses incurred are to be borne by the buyer, as well as bank charges and expenses in the event of non-redemption of bank debits. In these cases, previously credited cash discount amounts will be charged back. Acceptance of a bill of exchange after maturity or rollover shall not constitute a deferral. We reserve the right to return bills of exchange or checks at any time. If the buyer defaults on a payment, we are entitled to charge interest on arrears of 9% p.a. plus the statutory base interest rate (§ 247 para. 1, sentence 1 BGB) from the date of default and to charge reminder fees of 5 euros for each reminder without further evidence. We reserve the right to claim higher damages for delay in individual cases. If the buyer fails to meet his payment obligations or allows a bill of exchange or check to be protested or if other circumstances become known which make the fulfilment of the buyer's liability to us appear to be at risk, all of our claims based on deliveries made shall become due immediately, regardless of any payment agreements previously made. Any outstanding deliveries by us to the Buyer may then be made by us on a cash-on-delivery basis or may be made dependent on the provision of suitable collateral, and our obligation to deliver is suspended until it is provided. The buyer is also entitled to pay in advance instead of a suitable security deposit. If the required security is not provided before the expiry of one week, we may withdraw from the contract. If partial payments have been agreed, the respective remaining amount is due immediately if the buyer is more than 7 days in arrears with an instalment. Payments to third parties, in particular to commercial agents or travellers, will not be recognized unless these persons are expressly authorized to collect.

5. Setoff, right of retention 
Offsetting against our claims is only permissible with undisputed or legally established claims of the buyer, insofar as the counterclaim does not arise from the same contractual relationship. The right of retention due to other claims of the buyer against us not arising from the same contractual relationship is excluded. 

6. Delivery times
a) The specification of delivery periods is subject to change unless an express agreement on a fixed date has been made in writing. Furthermore, our delivery periods are subject to self-supply, the possibility of delivery and interim sales. The delivery period shall commence on the date of acceptance of the order by us, but not before complete clarification of all details of execution. 
b) The delivery period shall be deemed to have been met with the timely notification of readiness for dispatch if dispatch is impossible for us through no fault of our own. The day of delivery shall be the day of dispatch, in case of agreed collection the day of dispatch of the notification of readiness for dispatch. If we exceed a non-binding delivery date or a non-binding delivery time for ordered goods by more than 30 days, the buyer has the right to set us a reasonable grace period in writing. With such reminder, we are put in default. 
c) In the event of delays in delivery due to force majeure, riots, disputes, lockouts, or operational disruptions for which we are not responsible, including at our suppliers, the performance period shall be extended by the period until the disruption has been remedied, insofar as the disruption has an influence on the manufacture or delivery of the delivery item. We shall inform the buyer of the beginning and end of such obstacles as soon as possible. In case of permanent operational disruptions for which we are not responsible, which also includes the case that we are not supplied by our upstream suppliers through no fault of our own, both the buyer and we shall have the right to withdraw from the contract in whole or in part to the exclusion of any claims for compensation. Operational disruptions are permanent if they last at least two months. 
d) Claims for damages against us from the point of view of delay in delivery can only be asserted under the conditions of the following points 12 c) to e). 

7. Shipping 
Delivery shall be made at our discretion by a usually suitable means of transport and for the account of the buyer plus packaging and insurance costs, unless otherwise stated in our respective valid price list. Transport insurance will only be taken out at the express request of the buyer. Deliveries are always made at the risk of the buyer - even if we bear the freight costs - unless we carry out the transport with our own vehicles and our own personnel and the damage is not caused by third parties. Any claims for damages against us arising therefrom shall be governed by the provisions under item 12 c) to e) of these Terms. The risk shall pass to the buyer when the goods are handed over to the post office, the parcel service, the forwarding agent, or the carrier, but at the latest when the goods leave the factory or warehouse. This also applies in particular to sales for which CIF, CFR, FAC, FAS or FOB has been agreed. For deliveries abroad, the separately stated shipping conditions apply. 

8. Delivery volumes 
Deviations between the order and the delivery with regard to weight, number of pieces and dimensions are permitted to an extent of up to 10% both with regard to the entire delivery as well as with regard to a part of the delivery, insofar as the packaging sizes or packaging units used by the company Eduard Gerlach GmbH do not allow an exact execution of the order. Excess or short quantities will be taken into account accordingly when invoicing. Objections can only be raised in writing within 8 days after receipt of the delivery. The return of an excess delivery is only possible insofar as only complete packaging units are returned. 

9. Data protection 
All personal data of our clients are treated confidentially as a matter of principle. The data is only stored and passed on to affiliated companies if this is necessary for the processing of orders placed and the maintenance of the resulting client relationship. Further details, including the client's rights to information, correction, blocking or deletion of his data stored by us, are governed by a separate data protection statement, which is part of these General Terms. Clients of our internet shop must agree to the data protection statement as part of their order in addition to these GTC. 

10. Creditworthiness 
Eduard Gerlach GmbH reserves the right, after the result of a credit assessment (see 11.), to exclude certain types of payment, not to accept the client's order or to refuse performance according to § 321 BGB (German Civil Code), as far as the purchase price claim of Eduard Gerlach GmbH is at risk. 

11. Credit assessment; SCHUFA notice
The client agrees that Eduard Gerlach GmbH transmits his data, which he makes available to Eduard Gerlach GmbH in the context of the purchase initiation and the handling of the purchase contract (personal data), to SCHUFA Holding AG, Kormoranweg 5, 65201 Wiesbaden, for the purpose of credit assessment. Irrespective of this, Gerlach also transmits data to SCHUFA on the basis of non-contractual conduct (e.g., amount of claim after termination in the case of an undisputed claim). Until the final settlement of the business relationship, but in particular for the duration of an instalment payment agreement, Eduard Gerlach GmbH may also receive information about this. According to the Federal Data Protection Act, these reports may only be made to the extent that this is permissible after weighing up all the interests concerned. SCHUFA stores and transmits data for creditworthiness inquiries to its contractual partners in the EU. SCHUFA's contractual partners are primarily credit institutions and credit card and leasing companies. In addition, SCHUFA also provides information to commercial, telecommunications and other companies that provide services and supplies against credit. SCHUFA discloses address data for debtor identification purposes. When providing information, SCHUFA may additionally provide its contractual partners with a probability value calculated from its database to assess the credit risk (score procedure). The data will only be made available if a justified interest in it has been credibly demonstrated. The client may obtain information about the data stored by SCHUFA regarding the client's person from SCHUFA. Further information on the SCHUFA information and score procedure is contained in a leaflet which will be provided on request. Likewise, the client can obtain information about SCHUFA on the Internet at www.schufa.de. The service address of SCHUFA is: SCHUFA HOLDING AG, Verbraucherservice, Postfach 5640, 30056 Hannover. 

12. Material defect claims and claims for damages and withdrawal due to other breaches of duty 
a) In the event of justified complaints, subsequent performance shall be effected at our discretion by repair or replacement, provided that the statutory requirements for this are met. In addition, the buyer shall be entitled to the further statutory claims for withdrawal from the contract and reduction of the purchase price, insofar as the statutory requirements for this are fulfilled. § 377 HGB remains unaffected. 
b) Insofar as, by way of exception, the buyer has a right of recourse under the statutory provisions pursuant to Section 478 of the German Civil Code (BGB), such rights shall exist only to the extent that the buyer does not grant its customer any rights which go beyond the statutory rights based on material defects. 
c) Claims for damages on the part of the buyer exist in accordance with the statutory provisions to an unlimited amount if they are based on injury to life, limb or health and they are caused by an intentional or negligent breach of duty by us, one of our legal representatives or vicarious agents or are based on the Product Liability Act or are based on an intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents or are based on fraudulent intent or we have assumed a procurement risk or a guarantee and are therefore liable. 
d) If a damage is only due to negligent breach of a material contractual obligation (cardinal obligation) by us, our legal representatives, or vicarious agents, we shall also be liable for damages, but the amount shall be limited to the typically arising and foreseeable damage, unless we have unlimited liability pursuant to section c) of this paragraph. 
e) Material contractual obligations (cardinal obligations) within the meaning of the above provisions are obligations the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the buyer may regularly rely. Furthermore, material contractual obligations (cardinal obligations) are those whose breach jeopardizes the achievement of the purpose of the contract. The statutory distribution of the burden of proof shall apply. Further claims for damages against us, our legal representatives, vicarious agents, and aids shall be excluded, irrespective of the legal grounds on which they are based. 

13. Statute of limitations for material defect claims
Claims of the buyer based on material defects shall become statute-barred after one year, unless 
a) it concerns claims of the kind regulated in § 478 BGB or 
b) the defect was fraudulently concealed or is based on an intentional breach of duty by us or our legal representatives or our vicarious agents. 
In cases a) and b) and for claims for damages that are not excluded under item 12 of these Terms, the statutory limitation periods shall apply. The statutory provisions on suspension, suspension of the running and the recommencement of the statute of limitations shall apply.

14. Right of withdrawal
If nothing special has been agreed, the buyer may withdraw from the contract if the purchased item is defective and the statutory requirements for withdrawal (in particular § 440 BGB) are met. In the event of a breach of duty which does not consist of a defect in the purchased item, the buyer may furthermore only withdraw from the contract if we or our legal representatives or vicarious agents are responsible for the breach of duty and the statutory requirements for withdrawal are met. The statutory distribution of the burden of proof shall apply. Point 6 c) of these Terms remains unaffected. In other cases (e.g., accidental wrong order or other motive errors of the buyer), the buyer can only cancel or withdraw from the contract with our express consent. There is no entitlement to consent to the withdrawal. In the event of our consent, the goods must then be marked with our article number and returned to us (company Eduard Gerlach GmbH, Bäckerstraße 4-8, 32312 Lübbecke) carriage paid and in the original packaging. In these cases, the return is always at the risk of the buyer. For the return, we charge a handling fee of 20% of the order value, but at least 25 euros, unless otherwise agreed by contract. If in these cases we have already purchased material for custom-made products, this shall in any case be borne by the buyer in addition to the cost price, unless otherwise agreed in the individual case. 

15. Liquidated damages due to breach of duty by the buyer  
If the buyer violates his obligations - e.g., if he refuses acceptance despite being requested to do so - and if for this reason we are entitled to claim damages in lieu of performance, we shall be entitled to demand a lump-sum compensation amounting to 25% of the purchase price. This shall not apply if and to the extent that the buyer proves that no damage or no damage in this amount has been incurred. We reserve the right to assert claims for damages in excess thereof.

16. Retention of title
We retain title to all goods delivered by us (reserved goods) until the purchase price has been paid in full and until all our claims arising from the business relationship have been paid. The buyer is entitled to process and resell the goods in the ordinary course of business as long as he is not in default with the fulfilment of his obligations towards us or as long as he does not suspend his payments. The following shall apply in detail: the processing or transformation of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating us. By processing or transforming the reserved goods, the buyer does not acquire ownership of the new item in accordance with § 950 BGB (German Civil Code). If the reserved goods are processed, mixed, blended or combined with other items, we shall acquire co-ownership of the new item in a share corresponding to the ratio of the invoice value of our reserved goods to the total value. The provisions applicable to the reserved goods shall apply mutatis mutandis to the co-ownership shares arising under the above provisions. The buyer hereby assigns to us the claims arising from the resale or other sales transactions, such as contracts for work and services, together with all ancillary rights, and also on a pro rata basis to the extent that the goods have been processed, mixed or blended or combined or permanently installed and we have acquired co-ownership thereof in the amount of our invoice value. Insofar as the reserved goods are processed, mixed, blended, combined, or firmly installed, we shall be entitled from this assignment to a fraction of the respective claim from the resale corresponding to the ratio of the invoice value of our reserved goods to the invoice value of the item. If the reserved goods are sold by the buyer together with other goods not supplied by us, the buyer hereby assigns to us a share of the claim from the resale in the amount of the invoice value of our reserved goods. If the buyer has sold this claim within the scope of genuine factoring, he hereby assigns to us the claim against the factor taking its place. If the claim from the resale is placed by the buyer in a current account relationship with his customer, the buyer hereby assigns his claims from the current account relationship to us in the amount of the invoice value of the reserved goods. We hereby accept the above assignments. The buyer is entitled to collect the claims assigned to us until our revocation. The authorization to collect shall expire in the event of revocation, which shall occur in the event of default in payment by the buyer or suspension of payment by the buyer. In this case, we are authorized by the buyer to inform the customers of the assignment and to collect the claim ourselves. Upon our request, the buyer shall be obliged to provide us with a precise list of the claims to which the buyer is entitled, including the names and addresses of the purchasers, the amount of the individual claims, invoice date, etc., and to provide us with all information and documents necessary for the assertion of the assigned claims and to allow us to verify this information. Pledging or chattel mortgaging of the reserved goods or the assigned claims is not permitted. We are to be informed immediately of any attachments, stating the name of the attaching creditor. If the realizable value of the securities to which we are entitled exceeds our total claim against the buyer by more than 10%, we shall be obligated to release such securities at the buyer's request. The buyer shall store the reserved goods for us free of charge. He must insure them against usual risks such as fire, theft and water to the usual extent. The buyer hereby assigns to us his claims for compensation to which he is entitled against insurance companies or other parties obliged to pay compensation as a result of damage of the aforementioned kind in the amount of our claims. We accept the assignment. 

17. Replacement units
For the provision of replacement units for the entire duration of a repair of a device of the client, a rental fee of 30 euros plus legal VAT will be charged in principle. We reserve the right to waive a fee in individual cases. The return of a replacement unit provided for the duration of a repair must be made at the latest within 7 working days after the return of the own device. The date of dispatch is decisive for compliance with the return deadline. If the return takes place more than 7 working days after receipt of the own device, we are entitled to charge a rental surcharge of 10 Euro plus VAT per working day from the 8th working day. For damaged or unusable replacement units, we reserve the right to charge the necessary repair or replacement costs. The shipment of a replacement unit from us to the client and back is always at the client's risk. 

18. Disposal of waste electrical equipment
The client assumes the obligation to properly dispose of the delivered goods after termination of use at his own expense in accordance with the statutory provisions. In the event of a transfer, he must impose a corresponding further obligation. 

19. Place of performance, place of jurisdiction, choice of law
The place of performance for all claims arising from contractual relations between us and the buyer shall be Lübbecke in Westphalia. The place of jurisdiction shall be Bielefeld, Germany, if the buyer is a merchant, a legal entity under public law or a special fund under public law, also for actions in proceedings relating to bills of exchange or checks. We reserve the right to take legal action against the buyer also at his general place of jurisdiction. The contractual relationship shall be governed exclusively by the substantive law of the Federal Republic of Germany. The applicability of international laws, e.g., the UN Convention on Contracts for the International Sale of Goods, is excluded.