General Commercial Terms and Conditions of ARTOS Fencing Steffen Grollmisch GmbH & CO.KG

1. Validity

1.1 These General Commercial Terms and Conditions (hereinafter referred to as the “Terms and Conditions“) govern all contracts regarding the delivery and sale of goods, works and services between the Client and ARTOS Fencing Steffen Grollmisch GmbH & Co. KG (hereinafter referred to as the “Seller”). The Terms and Conditions in force when an Order is placed are an inseparable part of the Contract.

1.2 Even if the Seller is aware of other terms and conditions governing the deliveries proposed by the Client or is familiar with the Client’s counterproposals to the Seller’s Terms and Conditions, and even if the Seller does not explicitly reject the Client’s terms and conditions, they shall not be binding. The Client’s terms and conditions will only become binding if they are explicitly accepted by the Seller in writing.

1.3 All contractual arrangements between the Seller and the Client, including any amendments and supplements, must be agreed in writing. In order for any oral agreement to be valid and effective, it must be confirmed by both parties in writing.


2. Materials for offers

2.1 The Seller reserves ownership, copyright and other proprietary rights (especially know-how) to all images, calculations, designs and other documents (hereinafter referred to together as the “Materials”) which the Seller sends or otherwise submits to the Client in connection with an offer. Even if these Materials have not been marked as confidential by the Seller, the Client may not use such Materials for their own use or transfer them to or allow them to be used by a third party without the prior written consent of the Seller.


3. Conclusion and content of Contract

3.1 The Seller’s offers are not binding. The Client’s Order submitted in any form, including by clicking on the box marked “Order”, is considered the Client’s proposal to conclude a Contract. The Contract is concluded when the Seller confirms its acceptance of the proposal in writing. The content and scope of the Contract are governed by the subsequent written confirmation of the Order by the Seller together with any attachments (hereinafter also referred to as the “Order Confirmation”) and these Terms and Conditions. It is the Client’s duty to check the content and scope of the Order Confirmation. If a Client finds any discrepancies between their Order and the Order Confirmation, they are obliged to notify the Seller without delay as otherwise they will not be taken into account.

3.2 Unless otherwise agreed, a hire unit for events amounts to one hire day.

a) In the event of longer hire or delayed return, a surcharge of 30% will be charged for each additional hire unit.
b) If an item is not returned within five working days after the hire period, the retail price of the item will be charged in addition to the full hire price per hire unit.
c) Invoices are payable even without the complete return of items. Items returned late shall be invoiced as specified in 3.2a and 3.2b and also subject to a handling fee of €15.
d) Any changes to the scope of delivery or performance are not always avoidable due to the execution of business operations and unforeseen events, and all transactions are therefore subject to such changes. In such cases, an equivalent or similar product item will be delivered.
e) If a replacement item is accepted, it must be paid for in full and compensation may not be claimed of any kind.
f) If an item cannot be delivered (see 3.2d) or if a technical item is defective, it need not be paid for. However, no compensation or expenses will be paid over and above this.
g) The Client shall not be entitled to a refund or rebate in the event of dissatisfaction with or the lack of success of a particular part (e.g. live streaming), goods and services supplied, or the entire event.
h) No compensation will be paid by the Seller in the event of third-party services to be provided by suppliers of any kind not being delivered in connection with the Order.
i) The Seller is to be immediately notified at the venue concerned of any complaints by the Client upon delivery or during an event. Such complaints must be recorded on the delivery note or in some other way in writing. Subsequent complaints cannot be accepted.
j) A surcharge will be automatically levied for any delays during setup or delivery for which the Client is to blame, as well as any impeded working conditions or transport routes for which the Client is responsible and which create additional work.
k) Delivery times and setup schedules, especially for events, are not binding since delays may occur during the course of business.
l) The Client shall provide electricity, water and waste disposal facilities of the appropriate capacity and quantity free of charge on site from the start of setup until the end of dismantling. The final cleaning of hired items and the venue and their return to their original condition shall be the Client’s responsibility. Fencing mats and wires for example are to be properly cleaned, rolled up and secured with sticky tape.


4. Cancellation rights

4.1 Consumers have the right to cancel the Order without stating their reasons for doing so and without any penalties within fourteen days after concluding the Contract (i.e. within fourteen days after the Client has received the Order Confirmation described in Section 3.1). If the delivery of goods or services has not taken place, a Client who is a consumer may cancel the Contract within one month of receiving the Order Confirmation. In this case, the Seller is then obliged to refund payment to the Client (who is a consumer) within thirty days following the cancellation of the Contract.

Orders may be cancelled in writing, on a permanent data medium, or by returning the goods to the following address:

ARTOS Fencing Steffen Grollmisch GmbH & Co.KG
Ziegeleiweg 15
04435 Schkeuditz, Germany

4.2 In order to comply with the cancellation period, it is sufficient for notice of cancellation to be sent or the goods to be dispatched in time (date of postmark). The Client shall bear the costs of returning the goods unless they fail to match the goods ordered. Consumers as defined by the Seller’s Terms and Conditions are individuals ordering from the Seller for a purpose which cannot be attributed to either their commercial or their freelance professional activity.

4.3 The Seller reserves the right to refuse orders (including individual call-offs under a contract and orders involving finished products of the Client’s) owing to their content, origin or technical form in accordance with its objective standards if the content breaches laws or official regulations or their implementation is unreasonable for moral, technical, operational or other reasons. Similarly, the Seller has the right to refuse an Order in part or in whole if previous orders have been subject to problems regarding payment, cooperation, or the provision of information, materials and services required for the Order, or if in connection with recurring payments a direct debit or a credit check requested by the Seller to make order processing easier were refused, or credit checks have proved negative. This also applies to orders submitted to branch offices, agencies or representatives. Orders involving the reuse of finished products of the Client’s shall only become binding upon the presentation of a sample and its approval. The Client will be notified of the rejection of an Order without delay.


5. Payment terms

5.1 Unless agreed otherwise in the Order Confirmation, all prices exclude the costs of transport, packaging and transport insurance. Transport and packaging charges are governed by the price list contained in Article 9.2 of these Terms and Conditions. The conditions of transport insurance are contained in Article 9.4 of these Terms and Conditions. The Seller is entitled to add to prices value added tax (VAT) and applicable import and export custom duties.

5.2 Unless agreed otherwise in the Order Confirmation, the purchase price is payable prior to delivery (advanced payment). The Client will receive an invoice together with the Order Confirmation. If the invoice or the Order Confirmation does not contain any other payment instructions, the invoice is to be paid within three days of its receipt by the Client. With regard to the provisional delivery terms stated in the Order Confirmation, the Seller will dispatch the goods after receiving the total amount due but no later than 20 working days after the goods have been paid for. A discount for prompt payment may only be deducted from the price by the Client if specifically agreed previously between the Seller and the Client in writing.

5.3 If goods ordered are to be custom-made according to the Client’s specifications (e.g. using a logo with a certain colour), notwithstanding Section 5.2 of these Terms and Conditions, 50% of the purchase price shall be payable before work on the Client’s Order commences. After the goods have been produced, the remaining 50% of the purchase price shall also be payable before delivery. The goods will be shipped to the Client immediately after the Seller has received payment in full.

5.4 Partial deliveries are permissible. The Seller reserves the right to submit an invoice for each partial delivery.

5.5 The Client’s payment is only considered to have been made when the Seller is able to freely dispose of it. If the Client pays by cheque, payment shall only be considered to have been made once the cheque has been cashed.

5.6 If the Client defaults on payment owed to the Seller, the statutory provisions shall apply. If the Client is a consumer as defined by Section 13 BGB German Civil Code, interest of 5 percentage points above the base rate will be charged; if the Client is an entrepreneur as defined by Section 14 BGB, interest of 8 percentage points above the base rate will be charged. The Seller reserves the right to show that a greater loss has been suffered by delayed payment and to claim this amount from the Client.


6. Offsetting, right of retention

6.1 If the Client is not a consumer, in the event of any claims or counterclaims, they shall only be entitled to offset any amounts or assert their right of retention vis-à-vis the Seller if the counterclaims have come into force, the Seller has accepted them as undisputed, or the legitimacy of the Client’s claims is beyond doubt. The Client is entitled to exercise the right of retention vis-à-vis the Seller only if their counterclaim is based on the same contractual relationship.

6.2 If, after concluding the Contract, the Seller discovers circumstances indicating that the Client is insolvent, hence jeopardizing their financial claim against the Client, the Seller shall be entitled to refuse to perform their contractual duties. If such a situation arises, the Seller must grant the Client a reasonable period of time to pay in exchange for the delivery of the goods or to provide adequate guarantee. Should the Client refuse such a request on the Seller’s part, the Seller shall be entitled to cancel the Contract and claim damages caused by the Client’s default.

6.3 Should the Client default on payment, the Seller may, after notifying the Client in writing, postpone their performance obligation until such time as payment is received.


7. Retention of title

7.1 Delivered goods shall continue to remain the property of the Seller until all its claims against the Client have been settled (‘goods with reservation of title’). In the event of breach of Contract by the Client (e.g. delayed payment), the Seller shall be entitled to claim back the goods with reservation of title delivered (and regain the possession of the goods) after having given the Client a reasonable period in which to remedy this breach. Receiving goods which have been sent back shall be considered cancellation of the Contract and the Seller shall be entitled to sell such goods elsewhere. After deducting reasonable costs for the sale, the profits from the sale shall be used to offset the Client’s debt. The Client shall be obliged to treat goods with reservation of title carefully. In the event of any third-party interference with such goods, especially in the case of seizure, the Client will immediately draw attention to the fact that they belong to the Seller and will notify the Seller without delay so that it can claim its ownership rights.

7.2 The Seller’s retention of title shall also apply to the manufacturing, mixing or combining of products created with the help of goods delivered by the Seller up to their full value. The Seller shall be considered to be the manufacturer in such cases.

7.3 If the Client is not a consumer, they hereby assign all potential receivables (up to the value of the Seller’s ownership share) from a third party from subsequent resale to the Seller by way of security. Goods and such receivables must not be pledged to third parties, given by way of security, or assigned by the Seller until the receivables have been paid in full.

8. Delivery and performance terms

8.1 Delivery terms and periods are merely non-binding information about deliveries from Schkeuditz (near Leipzig) unless specifically agreed in writing as binding. In such cases, the Client must ensure that all their obligations to the Seller have been duly fulfilled. If on explicit request by the Client, delivery is to be made to a specific address of a customer in a different place (regardless of whether by the Seller or by others appointed by the Seller), the risk of late delivery shall be borne in full by the Client unless explicitly agreed otherwise in writing.

8.2 If the contractual relationship amounts to a fixed date transaction pursuant to Section 286(2), no. 4 BGB or Section 376 HGB Commercial Code, the Seller shall be liable in accordance with the applicable statutory provisions. This shall also apply if, because of delayed delivery for which the Seller is responsible, the Client is entitled to claim the discontinuance of their interest in the further performance of the contract. In this case, the Seller’s liability for compensation shall be limited to typically occurring, foreseeable loss or damage if delayed delivery is not due to intentional breach of Contract on the part of the Seller, its representatives or agents. The Seller shall be liable to the Client for delayed delivery in accordance with the statutory provisions if delayed delivery is due to intentional or grossly negligent breach of contract on the part of the Seller, its representatives or agents. The Seller’s liability shall be limited to typically occurring, foreseeable loss or damage if delayed delivery is not due to intentional breach of contract for which the Seller is responsible.

8.3 If delayed delivery (taking into account Section 8.1) for which the Seller is responsible, the risk of which has been accepted by the Seller under a written agreement, is due to the culpable breach of a material contractual obligation by the Seller, the Seller shall be liable in accordance with the statutory provisions, provided that in this case liability for compensation is limited to typically occurring foreseeable loss or damage.

8.4 In the event of delayed delivery for which the Seller is responsible, any further liability shall be excluded. This shall not affect any further legal claims or rights on the part of the Client which grant the Client the right to claim compensation in the event of delayed delivery for which the Seller is responsible.

8.5 The Seller shall be entitled to make partial deliveries and deliver partial services without notice at any time, as long as this would not be unreasonable for the Client.

8.6 If the Client defaults on acceptance or enters into debtor’s delay, the risk of the accidental deterioration and accidental loss of the goods shall pass to the Client.


9. Passing of risk, transport, packaging and transport insurance

9.1 If the Client is an entrepreneur as defined by Section 14 BGB, the risk of damage to the goods shall pass to the Client when the goods are handed over for transport.

9.2 Packaging and dispatch shall take place uninsured at the expense and risk of the Client. Transport and packaging costs are determined according to the following price list:

Prices and products for national and international shipping

Parcels

Fencing pistes

9.3 If delivery is performed in multiple stages for reasons for which the Seller is responsible, the Client shall only be charged for transport and packaging once.

9.4 Transport insurance may be arranged at the explicit request of the Client and at their expense. Insurance must be agreed in writing when an Order is submitted.

9.5 If the goods are to be exported, the Client must ensure that the Seller is provided with all the necessary documentation, especially export and import declarations. All potential costs and risks arising from any breach of this obligation shall be borne by the Client.


10. Defects, quality guarantees and compensation for damage

10.1 If the Client is an entrepreneur as defined by Section 14 BGB, claims for defects may only be made if the Client has complied with the inspection and notification obligations contained in Section 377 HGB. If the Client is not an entrepreneur as defined by Section 14 BGB, any obvious defects are to be reported in writing to the Seller within two months of receiving the goods. In order to meet this time limit, it shall suffice for written notification to be sent to the Seller in time.

10.2 In the event of a defect to an item for which the Seller is responsible, the Seller shall provide remedy. The Client shall not be allowed to cancel the Contract or reduce the price. The Seller shall not be obliged to provide remedy if the statutory provisions allow the Seller to refuse remedy. The Client must grant the Seller an appropriate period to provide remedy. If the Client is a consumer, they may demand the repair of the defect or the delivery of a new item. However, the Seller is entitled to refuse the type of remedy chosen by the Client if the costs involved would be disproportionate and the Client would not incur significant disadvantages from the other type. Repair will be deemed to have failed if a second attempt at repair by the Seller is unsuccessful unless, given the nature of the contractual item, other attempts at repair by the Seller would be considered reasonable for both the Seller and the Client. If remedy fails entirely, the Client may at their discretion demand a price reduction or cancel the Contract by declaring their intention to the Seller in writing.

10.3 Goods marked as “fencing blades” have the following characteristics which are hereby explicitly explained and accepted by the Client:
Unbreakable blades do not exist. No guarantee can be accepted that a blade will not break even under regular sporting use unless the Client proves to the Seller that the material was defective.

10.4 If the Client is an entrepreneur as defined by Section 14 BGB, warranty claims will expire one year after delivery of the goods to the Client. This shall not apply to warranty claims in cases in which the defect has been fraudulently concealed by the Seller; in such cases, the statutory provisions shall apply. If the Client is a consumer as defined by Section 13 BGB, the statutory limitation periods shall apply. In the case of used items, the limitation period shall be one year from the receipt of goods. This shall not apply if the Client does not notify the Seller of the defect in good time.

10.5 If the Client cancels the Contract (such cancellation only being valid if made out in writing by post, fax or email), cancellation costs are to be paid to the Seller for the resulting loss of hire fees and profits as well as for work and administrative expenses as per the following scale:

From the placement of order until 90 days before the event:...................30% of the contract sum
From 89 to 60 days.............................................................................50% of the contract sum
From 59 to 30 days.............................................................................70% of the contract sum
From 29 to 15 days.............................................................................80% of the contract sum
From 14 to 1 day(s).............................................................................90% of the contract sum

Expenses already incurred at the time of termination arising from the Order and exceeding the percentages allowed for in the scale above must also be paid by the Client.


11. Limitation of liability

11.1 The Seller draws the Client’s attention to the following: Fencing material is protective equipment which requires care and attention, and must comply with the standards issued by the competent organization for protective equipment. The Client is obliged to seek information from this organization about the standards of protection applying to the Client and to ensure full compliance with them. Unless explicitly agreed between the Client and the Seller in writing, the Seller can accept no liability for goods’ compliance with the specific standards for protective equipment.

11.2 The Seller shall be liable without limitation pursuant to the statutory provisions for any injury caused through negligent or intentional breach of contract by the Seller, the Seller’s legal representatives or other agents, as well as any loss or damage subject to liability under the German Product Liability Act. The Seller shall also be liable in accordance with the statutory provisions for any loss, damage or injury not covered above and which is brought about by intentional or grossly negligent breach of contract or bad faith on the part of the Seller. If the Seller has not acted with intent, with the exception of the cases specified in Sentence 1, liability to compensation shall be limited to the typically occurring, foreseeable loss. If an express condition and/or durability warranty covering the goods has been submitted by the Seller in writing, the Seller shall also be liable under this warranty for any loss or damage based on the guaranteed quality or durability.

11.3 If contractual obligations which are of particular importance for the fulfilment of the purpose of the contract and which have been agreed in writing are breached by the Seller through negligence, the Seller shall be liable for any loss or damage caused by simple negligence. The Seller shall only be held liable if the loss or damage is typically and foreseeably associated with the Contract.

11.4 Regardless of the legal nature of any claims asserted, all further liability on the Seller’s part is excluded unless previously agreed otherwise. This especially applies to tort claims and claims for the reimbursement of expenses in lieu of performance.

11.5 Claims for compensation by the Client because of a defect shall expire one year after the delivery of the goods with the exception of cases in which the Seller has acted with intent or gross negligence, causing loss of life, physical injury or impairment to health.

11.6 The Seller shall be exempt from its duties under this Contract in cases of force majeure. Force majeure shall be construed to mean any unforeseeable events and also events whose impact on the fulfilment of the Contract cannot be blamed on either Party. Such events include industrial action (including in external companies), government action, accidents, inability to work, loss of means of transport or energy, as well as mobilization, defensive war and unrest. In such cases of force majeure, specified periods shall be extended and deadlines postponed by a reasonable period with an appropriate lead period. If delivery becomes impossible, the Seller cannot be held liable.

11.7 The Client shall be liable for any loss of or damage to hired items from their direct receipt by means of delivery or a hire note through indirect acceptance (in the event of structures provided for an event according to loading lists) until their return. Failure by the Client to inspect items and services upon delivery or return shall denote that the Client recognizes the quantities delivered or calculated by the Seller in full, even if subsequent verification is not possible. Subsequent claims cannot be accepted. The Seller cannot be held liable for loss or damage incurred owing to an event unless caused through gross negligence or intent. No insurance is available for hired items or events. The Client is therefore recommended to take out their own appropriate insurance.


12. Place of performance, jurisdiction

12.1 The place of performance for deliveries and payments shall be the Seller’s place of business in Schkeuditz, GERMANY.

12.2 If the purchaser is a registered trader, a legal entity under public law, or a public special fund as defined by Section 38 ZPO Code of Civil Procedure, the sole legal venue for all disputes arising from this Contract, regardless of the amount in dispute, shall be Leipzig Local Court (Amtsgericht Leipzig).


13. Data storage; privacy; secrecy of telecommunications

Personal and corporate customer data is stored by us and processed on electronic data processing systems in accordance with data protection legislation. The Client agrees to their data being stored. Unless objected to in writing by the Client, this data may (if legally permissible) also be anonymized for marketing purposes as well as processed and used for the demand-based design of products. Neither this data nor the content of private messages from the Client will be forwarded to third parties without the Client’s consent. This shall not apply if the Seller is legally obliged to disclose such data to third parties, especially public authorities, or if this is required under internationally accepted technically standards and the Client does not object. The Client is expressly reminded that under the current state of the art, data privacy cannot be guaranteed when transmitted on public networks such as the Internet.

14. Choice of law

All disputes shall be governed by the laws of the Federal Republic of Germany without regard to applicable conflict of laws principles unless the legislation of a foreign Client prescribes exclusive use of the Client’s national law. The United Nations Convention on Contracts for the International Sales of Goods shall not apply. If the Client is a consumer domiciled outside the Federal Republic of Germany but on the territory of the EU, the choice of law made in this section shall only be valid if it is not in breach of Article 6 (Consumer contracts) of Regulation (EC) No 593/2008 of the European Parliament and Council of 17 June, 2008, on the law applicable to contractual obligation (Rome I).

15. Final provision, salvatory clause

15.1 Should any individual provisions of the Contract be or become null and void in part or in whole, the validity of the other provisions shall remain unaffected. In such cases, the Parties to this Contract undertake to replace the invalid provision by a valid provision which is as close to the invalid provision as is legally permissible taking into account the interests expressed by the parties in the Contract. The provisions contained in Article 14.1 shall also apply if the Contract contains an unexpected loophole.

15.2 These Terms and Conditions enter into force on 1 January 2014 and are published on the website www.artos-fencing.com.