Terms & Conditions | Sale & Delivery
§ 1 General
- The contract is concluded with Dr. Spiller GmbH, Voglinger Straße 11, 83313 Siegsdorf, Germany (hereinafter: Dr. Spiller).
- These Terms and Conditions of Sale and Delivery as valid at the time of conclusion of the contract shall be applicable to all business relations between Dr. Spiller and customers that are entrepreneurs according to Section 14 BGB [German Civil Code]. This applies especially irrespective of whether online or offline business relations are concerned. Diverging and/or supplementary terms and conditions of the customer shall not be applicable. Any tacit recognition of diverging and/or supplementary terms and conditions of the customer by Dr. Spiller is excluded. Unless agreed otherwise, the Terms and Conditions of Sale and Delivery of Dr. Spiller shall also be applicable to all future business relations even if they are not expressly stipulated again.
§ 2 Online shop, registration
For being able to use the online shop of Dr. Spiller, the customer must register under the domain http://www.dr-spiller.com and provide the required information correctly and in full.
§ 3 Offer and formation of contract
- The (online) representation of the range of goods offered by Dr. Spiller is not a legally binding offer of contract but merely an invitation to order. Errors and/or modifications shall be reserved. Information on goods and prices during the ordering process is not binding. Offers made by Dr. Spiller are subject to confirmation.
- The order placed by a customer constitutes an offer to Dr. Spiller to enter into a purchase contract. Dr. Spiller reserves the right to decide freely on the acceptance of this offer. When the customer has placed an order with Dr. Spiller, Dr. Spiller will send an email to the customer confirming the receipt of the order and specifying the details of the order (order confirmation). This order confirmation shall not be deemed an acceptance of the offer but is only meant to inform the customer that Dr. Spiller received his order. A contract is only brought about when Dr. Spiller sends the goods ordered to the customer and when the dispatch to the customer is confirmed by a second email (confirmation of dispatch). A purchase contract is not brought about with respect to goods from one and the same order not being specified in the confirmation of dispatch.
- If an offer of the customer is not accepted by Dr. Spiller, Dr. Spiller will notify the customer thereof.
- Staff members of Dr. Spiller shall not be authorised to make verbal collateral agreements or to provide verbal assurances going beyond the content of the contract concluded in written form.
- If Dr. Spiller has entered into a specific covering transaction to meet its supply commitment in relation to the customer and if the supplier of Dr. Spiller fails to deliver the goods owed or fails to deliver the goods in a correct manner or in due time, Dr. Spiller shall be entitled in relation to the customer to withdraw from the contract. Dr. Spiller shall immediately inform the customer about the non-availability and shall immediately refund any considerations provided by the customer. The statutory claims of the customer remain unaffected.
§ 4 Minimum order value
- The conclusion of the contract is subject to the condition that the offer of the customer involves the purchase of goods at a specific minimum value (minimum order value).
- The minimum order value for the first order of a customer shall amount to € 500,00.
- The minimum order value for any further order of a customer shall amount to € 150,00 for each order.
§ 5 Prices
- Dr. Spiller charges the prices as applicable on the day when the order was received plus the statutory value-added tax.
- All prices are exclusive of packaging and transport costs. The forwarding costs amount to a lump sum of € 4,00.
- Costs involving delivery charges, cartage, cash on delivery charges as well as a special type of transport desired by the customer shall be borne by the recipient.
§ 6 Delivery and passing of risk
- Unless otherwise agreed, the delivery shall be ex warehouse of Dr. Spiller to the delivery address indicated by the customer. The goods shall travel at the recipient’s risk. The risk shall pass to the customer at the latest upon delivery of the goods to the forwarder, carrier or any other third party appointed to carry out the delivery. The consignment shall be insured against theft, breakage, transport damage, damage caused by fire and water or other insurable risks only upon the explicit request of the customer and only at the latter’s expense.
- Information on the availability of goods is provided on the website of Dr. Spiller. Dr. Spiller points out explicitly that all details concerning availability, dispatch or delivery of goods constitute non-binding and provisional information as well as approximate guidelines. They are not deemed to be binding and/or guaranteed dates of dispatch and/or delivery. Something different shall apply only if a binding date is mentioned explicitly during the order transaction in connection with the delivery options of the respective goods.
- Partial deliveries are admissible to the extent that this is deemed acceptable to the customer when balancing the interests of the customer and Dr. Spiller.
- In the event that the customer is in default of acceptance or culpably violates other obligations to cooperate, Dr. Spiller shall be entitled to demand compensation for damage incurred by Dr. Spiller, including any extra expenses. Further rights shall be reserved.
- Claims for damages due to delays in delivery or unavailable goods cannot be asserted. Force majeure and other unforeseen events which are beyond the control of Dr. Spiller and which somehow affect proper delivery shall release Dr. Spiller from the obligation to supply for the respective duration of such interference and/or hindrance; in the event of continuing hindrance, Dr. Spiller shall be entitled to withdraw from the contract.
- As a rule, deliveries shall be carried out by UPS (United Parcel Service).
§ 7 Payment and default
- Payments to Dr. Spiller shall be due no later than on the date of invoice.
- All payments shall accrue to Dr. Spiller in the full amount.
- Dr. Spiller offers alternatively the following methods of payment: direct debiting, cash on delivery, PayPal or cash before delivery.
- Dr. Spiller shall give a 4% discount in case of immediate direct debits and a 3% discount in case of cash on delivery.
- The customer will be in default at the latest if he fails to make payment within 30 days after the due date and receipt of the respective delivery from Dr. Spiller.
- After default has occurred, interest in the amount of 9 percentage points above the relevant base rate will have to be paid on the claim without further reminder. The assertion of any further damage shall not be excluded thereby.
- In the case of default in payment Dr. Spiller shall be entitled, despite contrary terms and conditions of the customer, to first credit payments against older debts of the customer. Dr. Spiller shall inform the customer about the type of setoff that has been effected. In the event that costs have already been incurred and interest has already accrued, Dr. Spiller shall be entitled to credit the payment first against the costs, then against the interest and last of all against the main debt.
- In the event that the customer is in default with payment of a receivable for more than 30 days, all claims, including accessory claims, against the customer shall be due immediately, irrespective of the terms of payment agreed. If the customer fails to make payment although it is due, Dr. Spiller shall be entitled to withdraw from the contract.
- In the event of any return debit entry, all costs shall be borne by the customer, with the 4% discount being forfeited automatically. Costs incurred due to extra work in the amount of EUR 25,00 will be charged additionally. Evidence showing that lower or higher damage has occurred is admissible. Future orders will then be carried out only against payment in advance or per cash on delivery. If acceptance of goods supplied on the basis of cash on delivery is refused, further deliveries will only be carried out against cash in advance.
- The customer is not entitled to effect a setoff against any counterclaims, unless the counterclaims are uncontested or recognized by declaratory judgment. The customer shall only be entitled to exercise rights of retention if his counterclaim is based on the same contractual relationship.
- Cheques and bills of exchange shall only be accepted on account of performance. They count as payment only after they have fully been credited. Discount charges and fees shall be borne by the debtor.
§ 8 Reservation of title
- Except for the payment method “cash on delivery”, the goods shall be delivered only after full payment of the amount due.
- Dr. Spiller retains title to all goods delivered until all claims of Dr. Spiller against the customer – also from earlier or later deliveries of goods – are fully settled.
- The customer is obliged to treat and store the goods delivered with due care.
- The goods owned by Dr. Spiller may be sold to final consumers only in the ordinary course of business. The customer shall assign to Dr. Spiller already now all claims based on the final amount of the invoices of Dr. Spiller which accrue to him from the resale of the goods.
- Dr. Spiller undertakes to release the securities to which Dr. Spiller is entitled insofar as the realizable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released rests with Dr. Spiller.
- The customer is obliged to immediately notify Dr. Spiller in writing of any seizure of goods of Dr. Spiller as well as the institution of insolvency proceedings against the assets of the customer so that Dr. Spiller can bring an action according to Section 771 ZPO [German Code of Civil Procedure] or Section 805 ZPO.
§ 9 Return of goods
- Goods that were ordered and properly delivered cannot be returned. Furthermore, the return of goods of whatever kind and on whatever grounds shall only be possible with the prior consent of Dr. Spiller.
- Any goods to be returned shall be sent freight paid only after prior agreement.
- Instead of issuing a credit note, a comparable replacement can be supplied for goods taken back. Further claims for replacement are excluded as far as permitted by law.
§ 10 No repackaging, filling into or transfer to other containers
The products and/or goods of Dr. Spiller may be sold only in original get-up. They must not be repackaged, filled into containers or transferred to other containers.
§ 11 Claims based on defects
- The customer’s assertion of claims based on defects requires that the customer has properly fulfilled his obligation to examine the goods and to give notice of defects according to Section 377 HGB [German Commercial Code].
- If the item purchased shows a defect, the statutory provisions shall be applicable. The assignment of these claims of the customer is excluded.
- If subsequent performance is carried out by means of substitute delivery, the customer is obliged to return the defective goods to Dr. Spiller at the expense of Dr. Spiller. Dr. Spiller reserves the right to claim surrender of the benefits gained according to Sections 346 et seq., 439 (4) BGB [German Civil Code].
- In the event that claims for damages are asserted by the customer, the following restrictions shall apply: Claims for compensation of damage that was not caused to the delivery item itself are excluded. This exclusion of liability shall not be applicable in cases of intent or gross negligence and in cases of damage resulting from injury to life, body or health, which is based on a negligent breach of duty of Dr. Spiller or an intentional or negligent breach of duty of a statutory representative or vicarious agent of Dr. Spiller, as well as in cases of other damage that is based on a grossly negligent breach of duty of Dr. Spiller or an intentional or grossly negligent breach of duty of a statutory representative or vicarious agent of Dr. Spiller and in cases of fault-based breach of essential contractual obligations as well as in cases of liability according to the Product Liability Act and when a warranty is given for the existence of characteristic features. In the event of any fault-based breach of essential contractual obligations, Dr. Spiller shall only be liable for damage which is reasonably foreseeable in connection with contracts of this type.
- Dr. Spiller shall not assume any independent warranty for specific qualities of the goods and, in particular, the information on the goods available on the Internet page of Dr. Spiller is not deemed to represent such warranty.
- Claims based on defects become statute-barred after 12 months from delivery of the goods. The limitation period remains unaffected in the event of a delivery recourse according to Sections 478, 479 BGB.
§ 12 Joint and several liability
- Any liability going beyond the liability for damages provided in § 11 (4) of the present Terms and Conditions of Sale and Delivery shall be excluded.
- The regulation according to § 12 (1) of the present Terms and Conditions of Sale and Delivery shall not apply to claims according to Sections 1,4 ProdHaftG [German Product Liability Act]. In addition, it shall not apply if Dr. Spiller is liable for personal injury or injury to health for other reasons.
- In addition, the regulation according to § 12 (1) of the present Terms and Conditions of Sale and Delivery shall not apply in the event of initial inability or impossibility for which Dr. Spiller is responsible in factual and/or legal and/or any other respect.
- To the extent that the liability of Dr. Spiller is excluded or limited, the same shall apply to the personal liability of the employees, staff members, representatives and vicarious agents of Dr. Spiller.
§ 13 Data protection
- The customer is aware that Dr. Spiller stores data of the customer due to the contractual relationship. This data shall be used solely for processing orders and shall be transmitted to third parties only if and to the extent that this is necessary for the execution of the contract. The customer explicitly consents to the storage of his data for these purposes.
- Dr. Spiller shall be entitled to store, process and transmit data relating to the movement of goods and payment transactions.
§ 14 Settlement of disputes
- The EU Commission provides a platform for the online settlement of disputes (Online Dispute Resolution) between consumers and traders (“ODR platform”). The online dispute resolution is meant to provide an out-of-court resolution of disputes arising from online transactions. Link to the ODR platform of the EU Commission: www.ec.europa.eu/consumers/odr.
- Dr. Spiller is neither obliged nor willing to participate in dispute resolution procedures before a consumer dispute resolution body as defined by the German law on alternative dispute resolution in consumer matters (VSBG).
§ 15 Miscellaneous
- German law shall apply exclusively with the UN Sales Convention being excluded.
- Place of performance for claims arising from the business relationship as well as place of jurisdiction for all legal disputes shall be, as far as permitted by law, Traunstein (Germany).
- Should one or several provisions of the above Terms and Conditions of Sale and Delivery be or become ineffective, the validity of the remaining provisions shall not be affected thereby.
- Deviations from these Terms and Conditions are in each case subject to written agreement and/or confirmation. The same applies to the modification of this requirement of written form.
Version 22 March 2017