General Terms and Conditions of Sale of design112 GmbH

1. Scope

(1) These General Terms and Conditions of Sale (hereinafter referred to as the ‘GTC’) apply in their currently valid version to all contracts under sales law between design112 GmbH (hereinafter referred to as the “Seller”) and its customer (hereinafter referred to as the ‘Buyer’). In connection with the lettering of emergency vehicles offered as a service by design112 GmbH, these GTC do not apply; instead, the General Terms and Conditions of Contract (GTC) apply. These GTC only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law within the meaning of Section 310 (1) BGB.

(2) The Seller's offers are directed exclusively at entrepreneurs (Section 14 BGB), i.e. natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, are acting in the exercise of their commercial or independent professional activity, and at legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB. The Seller expressly does not conclude any contracts with consumers, Section 13 BGB. By placing an order, the Buyer assures the Seller that the order is being placed as an entrepreneur within the meaning of Section 14 BGB, as a legal entity under public law or as a special fund under public law within the meaning of Section 310 (1) BGB.

(3) The GTC apply in particular to contracts for the sale and/or delivery of movable goods (‘goods’), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).

(4) The sole contractual partner of the buyer is the seller, design112 GmbH (Limburg a. d. Lahn Local Court, HRB 4473), represented by the managing director with sole power of representation, Dirk Joeres, Auf der Schanze 1-3, 65555 Limburg a. d. Lahn.

(5) The sale and/or delivery of goods is technically carried out primarily via two channels. On the one hand, via the seller's online shop and, on the other hand, via a verbal (remote) or written order placed by the buyer with the seller.

(6) These GTC apply exclusively. Deviating, conflicting or supplementary terms and conditions of the buyer shall only become part of the contract if and to the extent that the seller has expressly agreed to their validity in writing. This requirement of consent shall apply in all cases, for example even if the seller performs the service for the buyer without reservation in full knowledge of the buyer's terms and conditions.

(7) These GTC also apply to all future business relationships without having to be expressly agreed again.

(8) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply unless they are directly amended or expressly excluded in these GTC.

2. Offer and conclusion of contract

(1) The presentation of the products in the seller's online shop does not constitute a legally binding offer to conclude a purchase contract, but rather a non-binding invitation to place an order (known as an invitatio ad offerendum).

(2) The buyer can place products in the shopping basket without obligation. Entries can be checked and corrected at any time using the correction aids provided and explained in the order process. Furthermore, the order process can be cancelled at any time by closing the browser.

(3) By clicking on the ‘Place order’ button, the buyer submits a binding offer for the goods contained in the shopping basket. An offer by the buyer is a request within the meaning of § 145 BGB (German Civil Code).

(4) The seller confirms receipt of the order by email immediately after the order has been sent (so-called confirmation of receipt). This confirmation of receipt does not yet constitute acceptance of the buyer's request by the seller.

(5) The conclusion of the contract for an order via the online shop depends on the payment method selected by the buyer during the ordering process:

1. Payment method ‘Prepayment (bank transfer)’: The contract is concluded implicitly upon sending the order confirmation, in which the seller provides the buyer with the account details
2. Payment method ‘Invoice’: The contract is concluded when the seller either expressly declares acceptance of the order or implicitly when the seller dispatches the goods to the buyer within 2 working days without expressly declaring acceptance.
3. Payment method ‘PayPal’: The contract is concluded implicitly when the seller requests PayPal to initiate the payment transaction after the buyer has confirmed the payment instruction to PayPal.

(6) The seller generally only offers new customers the option of paying in advance (new customer policy). New customers are all buyers within the meaning of these GTC whose business relationship with the seller has generated a net turnover of less than EUR 2,500.00. The value of all orders processed to date and orders currently in progress at the time of ordering is taken into account. It is irrelevant whether an invoice has been issued in the meantime or not. The contract is concluded implicitly when the seller provides the buyer with the account details and the purpose of the payment. The goods and invoice will be dispatched in any case after receipt of payment or after the seller has taken note of a bank receipt. In such a case, the production time stated in the seller's order confirmation begins after receipt of payment. The seller accepts no liability for delivery dates that are postponed due to delayed receipt of payment, regardless of the reason, on the seller's account. As an exception to the new customer policy, we supply authorities, organisations and regular customers on account.

(7) If the buyer places an order verbally (including by telephone) or in writing, the seller's offers are subject to change and non-binding. The dates and deadlines specified by the seller are non-binding.

(8) A verbal or written order placed by the buyer based on a non-binding offer from the seller constitutes an application within the meaning of Section 145 of the German Civil Code (BGB). The contract between the seller and the buyer is concluded exclusively through the seller's written order confirmation (acceptance) of the order placed by the buyer.

3. Prices and terms of payment

(1) Prices include the applicable statutory value added tax and other price components. In addition, the shipping costs, which are generally to be borne by the buyer, shall be charged. Furthermore, additional costs may arise for deliveries outside Germany when importing into a third country (customs duties, possible customs fees, import sales tax, etc.). These other costs shall be borne by the buyer.

(2) For goods valued at €1,000.00 or more, the seller shall waive the shipping costs. This does not apply to shipping costs incurred due to shipping by a forwarding agent and XXL parcels. Furthermore, this does not apply to other costs (customs duties, any customs fees, import sales taxes, etc.).

(3) In the case of the payment method ‘prepayment (bank transfer)’, the invoice amount must be transferred to the seller's bank account within 5 working days of notification of the account details in the order confirmation.

(4) If the payment method is ‘invoice’, the invoice amount must be transferred to the seller's bank account within 10 working days of receipt of the invoice. This provision applies subject to § 2 (6) of these GTC (new customer provision).

(5) 
If the payment method ‘PayPal’ is selected, the buyer will be redirected to the PayPal website after placing the order. In order to pay the invoice amount via PayPal, the buyer must have a PayPal account. Following the payment process, the seller requests PayPal to initiate the payment transaction. The payment transaction is carried out automatically by PayPal immediately afterwards.

(6) Upon expiry of the above payment deadlines, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The seller reserves the right to assert further claims for damages caused by default. The claim to commercial interest on arrears (§ 353 HGB) against merchants remains unaffected.

(7) The buyer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer's counter-rights, in particular in accordance with § 7 (6) sentence 2 of these GTC, shall remain unaffected.

(8) If, after conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that the seller's claim to the purchase price is at risk due to the buyer's inability to pay, the seller shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary, after setting a deadline – to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-fungible goods (custom-made products), the Seller may declare its withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

4. Delivery, transfer of risk, acceptance, default of acceptance

(1) Delivery shall be made from the warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods shall be shipped to another destination (sale by delivery). Unless otherwise agreed, the seller shall be entitled to determine the type of shipment (in particular the transport company, shipping route, packaging) itself.

(2) The seller is entitled to make partial deliveries, provided this is reasonable for the customer.

(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance.

(4) Among merchants, the obligation to inspect and give notice of defects as regulated in § 377 HGB (German Commercial Code) applies. If notification is omitted, the goods shall be deemed to have been approved, unless the defect was not apparent during the inspection. This shall not apply if the seller fraudulently conceals a defect.

5. Retention of title

(1) The seller retains title to the goods sold until all current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.

(2) The goods subject to retention of title may not be pledged to third parties or transferred as security before the secured claims have been paid in full. The buyer must notify the seller immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) access the goods belonging to us.

(3) In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, the seller is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, the seller is entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the buyer does not pay the purchase price due, the seller may only assert these rights if it has previously set the buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

(4) The buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

1. The retention of title extends to the full value of the products created by processing, mixing or combining the goods, whereby the seller is deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain in force, the seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
2. The buyer hereby assigns to the seller as security all claims against third parties arising from the resale of the goods or the product, either in full or in the amount of the seller's co-ownership share in accordance with the above paragraph. The seller accepts the assignment. The buyer's obligations set out in paragraph 2 also apply with regard to the assigned claims.
3. The buyer remains authorised to collect the claim alongside the seller. The seller undertakes not to collect the claim as long as the buyer meets its payment obligations, there is no deficiency in its ability to pay and the seller does not assert its retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, the seller may demand that the buyer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment. In addition, the seller is entitled in this case to revoke the buyer's authority to resell and process the goods subject to retention of title.
4. If the realisable value of the securities exceeds the claims by more than 10%, the seller shall release securities of its choice at the buyer's request.

6. Buyer's claims for defects

(1) Unless otherwise specified below, the statutory provisions shall apply to the buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions). In all cases, the statutory provisions on the sale of consumer goods (§§ 474 et seq. BGB) and the buyer's rights arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.

(2) Our liability for defects is based primarily on the agreement made regarding the quality and intended use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications that are the subject of the individual contract or that were publicly announced by the seller (in particular in catalogues or on the Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement on quality in this sense. If the quality has not been agreed, the statutory provisions shall be used to assess whether or not a defect exists (Section 434 (3) BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the goods, shall take precedence over statements made by other third parties.

(3) The seller is generally not liable for defects that the buyer is aware of at the time of conclusion of the contract or is not aware of due to gross negligence (Section 442 BGB). Furthermore, the buyer's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice (Sections 377, 381 HGB). In the case of goods intended for installation or further processing, an inspection must be carried out immediately before processing in all cases. If a defect becomes apparent during delivery, inspection or at any later point in time, the seller must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 3 working days of delivery and defects that are not apparent during inspection must be reported in writing within the same period of time after discovery/detection. If the buyer fails to carry out the proper inspection and/or report defects, the seller's liability for defects that are not reported or not reported in a timely or proper manner is excluded in accordance with the statutory provisions. In the case of goods intended for installation, attachment or fitting, this shall also apply if the defect only became apparent after processing as a result of a breach of one of these obligations; in this case, the buyer shall have no claims for reimbursement of corresponding costs (‘removal and installation costs’).

(4) If the delivered item is defective, the Seller may first choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). If the chosen type of subsequent performance is unreasonable for the Buyer in individual cases, the Buyer may reject it. The right to refuse subsequent performance under the statutory conditions remains unaffected.

(5) The seller is entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.

(6) The buyer must give the seller the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item at the seller's request in accordance with the statutory provisions; however, the buyer has no right to return the goods. Subsequent performance shall not include the removal, dismantling or uninstallation of the defective item, nor the installation, fitting or installation of a non-defective item, if the Seller was not originally obliged to provide these services; claims by the Buyer for reimbursement of corresponding costs (‘removal and installation costs’) shall remain unaffected.

(7) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as any removal and installation costs, shall be borne or reimbursed by the seller in accordance with the statutory provisions and these GTC if a defect actually exists. Otherwise, the seller may demand reimbursement from the buyer for the costs incurred as a result of the unjustified request to remedy the defect if the buyer knew or could have recognised that there was in fact no defect.

(8) Claims by the buyer for reimbursement of expenses pursuant to Section 445a (1) of the German Civil Code (BGB) are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c (2), 327 (5), 327u BGB). Claims by the buyer for damages or reimbursement of futile expenses (§ 284 BGB) shall also only exist in the event of defects in the goods in accordance with the following provisions.

7. Other liability

(1) Unless otherwise specified in these GTC, including the following provisions, the Seller shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) The Seller shall be liable for damages – regardless of the legal basis – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, it shall only be liable, subject to statutory limitations of liability (e.g. diligence in its own affairs; insignificant breach of duty),

1. for damages resulting from injury to life, limb or health,
2. for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfilment is essential for the proper execution of the contract and on whose fulfilment the contractual partner regularly relies and may rely); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties and to breaches of duty by persons (including for their benefit) for whose fault the Seller is responsible according to statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods, and to claims by the Buyer under the Product Liability Act.

(4) In the event of a breach of duty that does not constitute a defect, the buyer may only withdraw from the contract or terminate it if the seller is responsible for the breach of duty. The buyer's right to terminate the contract at will (in particular in accordance with Sections 650, 648 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

8. Limitation

(1) Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) The above limitation periods under sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the buyer pursuant to Section 7 (2) sentence 1 and sentence 2 no. 1 of these GTC and pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

9. Applicable law and place of jurisdiction

(1) German law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.

(2) The exclusive place of jurisdiction for all disputes arising from contractual relationships between the seller and the buyer is the seller's place of business, Auf der Schanze 1-3, 65555 Limburg a. d. Lahn.

10. Severability clause

(1) Should any provision of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.

(2) Any amendment or supplement to the contract between the Seller and the Buyer or to these GTC must be made in writing. Individual agreements shall take precedence. No ancillary agreements have been made other than those specified in the contract between the Seller and the Buyer or in these GTC.

Status: 1 July 2024