Table of Contents
- Scope of Application
- Conclusion of the Contract
- Right to Cancel
- Prices and Payment Conditions
- Shipment and Delivery Conditions
- Reservation of Proprietary Rights
- Redemption of Campaign Vouchers
- Applicable Law
- Place of Jurisdiction
- Alternative Dispute Resolution
- Description of catalogues and brochures
- Care and maintenance
- Information and instruction obligations
- Warranty terms
- What the warranty covers
- What the warranty does not cover
- Liability for logically consequential and all other damage
- Exclusivity of the warranty
- Documentation and illustrations
- Supplementary regulations
1) Scope of Application
1.1 These General Terms and Conditions of the company Hermann Francksen Nachf. GmbH & Co. KG (hereinafter referred to as "Seller”) shall apply to all contracts concluded between a consumer or a trader (hereinafter referred to as "Client”) and the Seller relating to all goods and/or services presented in the Seller's online shop. The inclusion of the Client’s own conditions is herewith objected to, unless other terms have been stipulated.
1.2 These Terms and Conditions regarding contracts for the supply of goods presented by the Seller in its print catalogue apply accordingly, unless expressly otherwise agreed upon.
1.3 For contracts regarding the delivery of vouchers, these Terms and Conditions shall apply accordingly, unless expressly agreed otherwise.
1.4 A consumer pursuant to these Terms and Conditions is any natural person concluding a legal transaction for a purpose attributed neither to a mainly commercial nor a self-employed occupational activity. A trader pursuant to these Terms and Conditions is any natural or legal person or partnership with legal capacity acting in the performance of a commercial or self-employed occupational activity when concluding a legal transaction.
2) Conclusion of the Contract
2.1 The product descriptions in the Seller’s online shop do not constitute binding offers on the part of the Seller, but are merely descriptions which allow the Client to submit a a binding offer.
2.2 The Client may submit the offer via the online order form integrated into the Seller's online shop. In doing so, after having placed the selected goods and/or services in the virtual basket and passed through the ordering process, and by clicking the button finalizing the order process, the Client submits a legally binding offer of contract with regard to the goods and/or services contained in the virtual basket. The Client may also submit his offer to the Seller by telephone, e-mail, post or per online contact form.
2.3 In the case of ordered goods displayed shown in the Seller’s print catalogue, the Client may submit his offer by telephone, fax, e-mail or postal .. For this purpose, the Client may fill in the order form enclosed with the Seller’s print catalogue and send it back to the Seller.
2.4 The Seller may accept the Client’s offer within five days,
- by transferring a written order confirmation or an order confirmation in written form (fax or e-mail), insofar as receipt of order confirmation by the Client is decisive, or
- by delivering ordered goods to the Client, insofar as receipt of goods by the customer is decisive, or
- by requesting the Client to pay after placing his order.
The contract shall be concluded at the time when one of the aforementioned alternatives firstly occurs. Should the Seller not accept the Client's offer within the aforementioned period of time, this shall be deemed as rejecting the offer, with the effect that the Client is no longer bound by his statement of intent.
If the Client chooses “PayPal Express” as payment method, he also initiates a payment order to PayPal by clicking the button finalizing the order process. In this case, the Seller hereby declares his acceptance of the Client’s offer at the time when the Client initiates the payment transaction by clicking the button finalizing the ordering process.
2.6 When submitting an offer via the Seller's online order form, the text of the contract is stored by the Seller after the contract has been concluded and transmitted to the Client in text form (e.g. e-mail, fax or letter) after the order has been sent. The seller shall not make the contract text accessible beyond this. If the Client has set up a user account in the Seller's online shop prior to sending his order, the order data shall be stored on the Seller's website and can be accessed by the Client free of charge via his password-protected user account by specifying the corresponding login data.
2.7 Prior to submitting a binding order via the Seller’s online order form, the Client may recognize input errors by attentively reading the information displayed on the screen. Use of the enlargement function of the browser to enlarge the display on the screen may be an effective method for better recognizing input errors.
The Client can correct all the data entered via the usual keyboard and mouse function during the electronic ordering process, until he clicks the button finalizing the ordering process.
2.8 The German and the English language are exclusively available for the conclusion of the contract.
2.9 Order processing and contacting usually take place via e-mail and automated order processing. It is the Client’s responsibility to ensure that the e-mail address he provides for the order processing is accurate so that e-mails sent by the Seller can be received at this address. Particularly, it is the Client`s responsibility, if SPAM filters are used, to ensure that all e-mails sent by the Seller or by third parties commissioned by the Seller with the order processing can be delivered.
3) Right to Cancel
3.1 Consumers are entitled to the right to cancel.
3.2 Detailed information about the right to cancel is provided in the Seller’s instruction on cancellation.
3.3 The right to cancel does not apply to consumers who are not nationals of a member state of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address are located outside the European Union at the time of concluding the contract.
4) Prices and Payment Conditions
4.1 Unless otherwise stated in the product descriptions, prices indicated are total prices and include the statutory value-added tax. Any possible additional delivery and dispatch costs are specified separately in the respective product description.
4.2 Payment can be made using one of the methods mentioned in the Seller’s online shop.
4.3 In case of delivery to countries outside the European Union, additional costs may be incurred in individual cases for which the Seller is not responsible and which have to be borne by the Client. This includes, for example, transfer fees charged by banking institutes (transfer charges, exchange fees) or import duties or taxes (customs). Such additional costs regarding money transfer may also be incurred, if the Client carries out the payment from a country outside the European Union, even if delivery is not made in a country outside the European Union .
4.4 If prepayment by bank transfer has been agreed upon, payment is due immediately after conclusion of the contract, unless the parties have arranged a later maturity date
5) Shipment and Delivery Conditions
5.1 Goods are generally delivered on dispatch route and to the delivery address indicated by the Client, unless agreed otherwise. In the case of an order placed via the Seller's online order form, the delivery address specified in the online order form shall be decisive.
5.2 Should the assigned transport company return the goods to the Seller, because delivery to the Client was not possible, the Client bears the costs for the unsuccessful dispatch. This shall not apply, if the Client exercises his right to cancel effectively, if the delivery cannot be made due to circumstances beyond the Client's control, or if he has been temporarily impeded from receiving the offered service, unless the Seller has notified the Client for a reasonable time in advance about the service.
5.3 If goods are delivered by freight carrier, the goods shall be delivered free curb, that is to say, to the public curb stones which are closest to the delivery address, unless otherwise stipulated in the shipping information displayed in the Seller’s online shop or unless otherwise agreed.
5.4 In case the Client is a trader, the risk of accidental destruction and accidental deterioration of the sold goods shall be transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment. In case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods shall in principle be transferred to the Client upon delivery of the goods to the Client or to an authorized recipient. Deviating from this, even in case the Client is a consumer, the risk of accidental destruction and accidental deterioration of the sold goods is transferred to the Client upon delivery of the goods to the freight forwarder, carrier or other person or institution designated with the task of performing shipment, if the Client has instructed the freight forwarder, carrier or other person or institution designated with the task of performing shipment to carry out the delivery of the goods and if the choice of this person or institution was not previously offered by the Seller.
5.5 The Seller reserves the right to withdraw from the contract in the event of incorrect or improper self-supply. This only applies if the Seller is not responsible for the non-supply and if he has concluded a concrete hedging transaction with the supplier. The Seller shall make all reasonable efforts to obtain the goods. In case of non-availability or partial availability of the goods he shall inform the Client and grant him immediately counterperformance.
5.6 Should the Client collect the goods himself, the Seller informs the Client by e-mail that the goods are available for collection. After receiving the e-mail, the Client may collect the goods in consultation with the Seller. In this case, shipment costs will not be charged.
6) Reservation of Proprietary Rights
If the Client is a consumer, the Seller retains title of ownership to the delivered goods until the purchase price owed has been paid in full.
6.1 If the Client is a trader, the Seller reserves title to the goods delivered until the fulfillment of all claims arising out of the current business relationship.
6.2 If the Client is a trader, he is entitled to resell the reserved goods in the course of regular business operations. All claims resulting from such course of business against a third party shall herewith be assigned in advance to the Seller in the amount of the respective invoice value (including VAT). This assignment of claims shall be valid regardless of whether the reserved goods are processed prior to or after resale or not. The Client remains entitled to collect the claims even after assignment. However, the Seller shall refrain from collecting the claims as long as the Client meets his payment obligations, he is not in default, and no application has been lodged to open insolvency proceedings.
Should the object of purchase be deficient, statutory provisions shall apply. Deviating therefrom, the following shall apply:
7.1 For traders,
- a marginal defect shall generally not constitute warranty claims defects,
- the Seller may choose the type of subsequent performance,
- for new goods, the limitation period for defects shall be one year from transfer of risk,
- for used goods, rights and claims for defects are generally excluded,
- the limitation period shall not recommence if a replacement delivery is carried out within the scope of liability for defects.
7.2 If the client acts as a consumer, the following restriction applies to used goods: Claims for defects are excluded if the defect does not occur until one year after delivery of the goods. Defects that occur within one year of delivery of the goods can be asserted within the statutory limitation period.
7.3 The aforementioned limitations of liability and the restrictions of limitation periods do not apply
- to a product, which was not used, in accordance with its usual application, for building construction and which was the cause of the building's defectiveness,
- to claims for damages and reimbursement of expenses by the Client.
- If the Seller has fraudulently concealed the defect.
7.4 Furthermore, for traders the statutory limitation periods for recourse claims pursuant to section 445b of the German Civil Code (BGB) remain unaffected.
7.5 If the Client is a businessperson pursuant to section 1 of the German Commercial Code (HGB) he has the commercial duty to examine the goods and notify the Seller of defects pursuant to section 377 HGB. Should the Client neglect the obligations of disclosure specified therein, the goods shall be deemed approved.
7.6 If the Client is a consumer, the forwarding agent has to be immediately notified of any obvious transport damages and the Seller has to be informed accordingly. Should the Client fail to comply therewith, this shall not affect his statutory or contractual claims for defects.
The Seller shall be liable to the Client for any contractual and quasi-contractual claims and for claims of liability in tort regarding damages and effort compensation as follows:
8.1 The Seller shall face unlimited liability regardless of the legal ground
- in case of intent or gross negligence,
- in case of injuries of life, body, or health resulting from intent or negligence,
- in case of a promise of guarantee, unless otherwise provided,
- in case of liability resulting from mandatory statutory provisions such as the product-liability-law.
8.2 If the Seller negligently infringes an essential contractual duty, the liability to pay damages shall be limited to the foreseeable, typically occurring damage, unless unlimited liability applies pursuant to the aforementioned Section. Essential significant contractual obligations are obligations the contract imposes on the Seller according to its content to meet the purpose of the contract and whose fulfillment is essential for the due and proper implementation of the contract and on the fulfillment of which the Client can regularly rely.
8.3 For the rest, the Seller’s liability is excluded.
8.4 The aforementioned provisions on liability apply also to the Seller’s liability regarding his legal representatives and vicarious agents.
9) Redemption of Campaign Vouchers
9.1 Vouchers which are issued by the Seller free of charge, for a specific period of validity in the context of promotional activities and which cannot be purchased by the Client (hereinafter to as "campaign vouchers”) can be redeemed onla in the Seller’s online shop and only within the indicated time period.
9.2 Individual products may be excluded from the voucher campaign, if such a restriction results from the conditions of the campaign voucher.
9.3 Campaign vouchers must be redeemed prior to the conclusion of the order procedure. Subsequent offsetting is not possible.
9.4 In case of an order, several campaign vouchers can be redeemed.
9.5 If the value of the campaign voucher is not enough for the order, the Client may choose one of the remaining payment methods offered by the Seller to pay the difference.
9.6 The campaign voucher credit will not be redeemed in cash and is not subject to any interest.
9.7 The campaign voucher will not be redeemed if the Client, in the context of his legal right to cancel, returns goods paid fully or partially by a campaign voucher.
9.8 Campaign vouchers are only intended for the use of the person designated on the voucher. Transferring the campaign voucher to a third party is not permitted. The Seller is entitled but not obliged to check the entitlement of the respective voucher owner.
10) Applicable Law
10.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties under exclusion of the laws governing the international purchase of movable goods. For consumers, this choice of law applies only to the extent that the granted protection is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.
10.2 Furthermore, this choice of law regarding the right to cancel does not apply to consumers who are not nationals of a Member State of the European Union at the time of concluding the contract and whose exclusive domicile and delivery address are located outside of the European Union at the time of concluding the contract.
11) Place of Jurisdiction
If the Client is a businessman, a legal entity of public law, or a separate estate under public law with its seat in the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract. If the Client is domiciled outside the territory of the Federal Republic of Germany, the Seller’s place of business shall be the sole place of jurisdiction for all legal disputes arising from this contract,provided that the contract or claims from the contract can be assigned to the Client’s professional or commercial activities. In any event however, regarding the aforementioned cases, the Seller is entitled to appeal to the court which has jurisdiction over the area where the Client’s place of business is located.
12) Alternative Dispute Resolution
12.1 The EU Commission provides on its website the following link to the ODR platform: https://ec.europa.eu/consumers/odr.
This platform shall be a point of entry for out-of-court resolutions of disputes arising from online sales and service contracts concluded between consumers and traders.
12.2 The Seller is neither obliged nor prepared to attend a dispute settlement procedure before an alternative dispute resolution entity.
13) Description of catalogues and brochures
If a product is not described in concrete terms in our catalogues, prospects, performance specifications and so on, the requirements for individual products must be discussed or agreed with us. Our specifications concerning the composition of the fittings and the fields of application are binding.
14) Care and maintenance
Safety-relevant components of the fittings must be checked regularly to see that they are firmly seated and have not become excessively worn. Depending on the requirements, the appropriate measures should be taken and/or parts should be replaced. The tracks of rollers with steel wheels must be cleaned at regular intervals and greased appropriately. Only cleaning agents that do not contain any components that encourage corrosion may be used.
15) Information and instruction obligations
In order to fulfill the obligation to provide information and instructions, catalogues, prospects, tendering texts, assembly instructions, installation drawings, servicing and operating instructions as well as – where necessary – factory consultation or training are available to architects, specialist dealers, consulting institutions, the installer or builder, and the user. Architects and planners are obliged to request and to observe the necessary product information for the selection, fitting, operation and maintenance of these products. Specialist dealers or consulting institutions are obliged to observe the product information and to request all the necessary instructions from us and to pass these on to the installer and user. Installers are obliged to observe all the product information and to pass servicing instructions on to the client or user.
16) Warranty terms
We guarantee the fault-free functioning of all our products for 24 months, with the exception of wearing parts, electronic components, components purchased from other manufacturers and special, customer-specific models. In accordance with product liability law for manufacturers (§ 4 ProdHG), and regardless of other country-specific laws our performance, servicing, information and instruction obligations are to be observed. Failure to observe them releases the manufacturer from its liability.
17) What the warranty covers:
We guarantee that our products are shipped without manufacturing faults. The warranty commences at the moment of the transfer of risk, and only applies vis-à-vis the respective contractual partner. Warranty claims cannot be transferred to third parties. A manufacturing fault is present if the product is not suitable for the purpose for which we have clearly described and intended it, or if it is not of normal commercial quality. If the product is combined with or inseparably bonded to a product from another manufacturer we accept no liability for any damage to the product of the third party or to the whole assembly.
18) What the warranty does not cover:
In contrast to the case of manufacturing faults, this warranty excludes all damage to products from us that occurs as a whole, in part or as a consequence of the following circumstances in particular: a) incorrect use, misuse, or the use of excessive force. b) natural wear and tear. c) failure to observe the assembly and servicing instructions. d) circumstances in which the products are used for purposes for which they were not intended. e) damage by third parties. f) damage from environmental infl uences or catastrophes. g) modifications to the product, unless these have demonstrably been authorized by us. h) site-specific changes to our original specifications by the customer. i) faults caused by incorrect installation or inadequate servicing.
19) Liability for logically consequential and all other damage
Under no circumstances can we be considered liable under this warranty for any other damage, whether caused directly or indirectly, and whether as a side effect or as a direct and logical consequence. The warranty exclusively covers faults that are notified in good time during the warranty period, and the subsequent exchange or repair, free of charge, of the products demonstrably subject to production faults for which we are responsible. If on-site fault rectification is wanted, we must be paid for the additional expense. We may require that the faulty parts are sent to us for repair and subsequent return, or that the faulty part is kept available. If it is established that we are not responsible for the fault, all the costs that have arisen in conjunction with this must be paid. We are not liable for contracts, unauthorized handling, costs or fees, loss or damage to private or other legal persons or companies. This also applies, in particular, to losses or financial damage that occurs either as a direct and logical consequence or indirectly as a result of a manufacturing fault for which we are responsible or a breach of warranty.
20) Exclusivity of the warranty
This is the only warranty that we give. Any other warranties – spoken, documented or suggested by some legislation – are hereby excluded provided that this does not breach statutory regulations.
21) Documentation and illustrations
All the illustrations we use are to be considered approximately, and cannot therefore form the basis of any claim. In addition, we retain the right to make changes of any kind and at any time to our products.
22) Supplementary regulations
In every case, the regulations in our standard terms of business and in our imprint under www.tiger.de apply in addition to these conditions www.tiger.de.