1. Scope
a) These General Terms and Conditions (T&Cs) apply to you, a customer of Topstar GmbH, Augsburger Straße 29, 86863 Langenneufnach, Germany, if you are a contractor within the meaning of § 14 BGB (German Civil Code).
b) All deliveries and services provided by us are subject exclusively to the following General Terms and Conditions.
c) This shall also apply in the event that you submit a contract offer or an order on the basis of your own deviating or supplementary terms and conditions. Your deviating or supplementary terms and conditions, which we have not expressly agreed to, shall not become part of the contract even without our express rejection.
d) Our General Terms and Conditions shall also apply if we carry out deliveries or services without reservation despite being aware of your conflicting, supplementary or deviating terms and conditions.
e) All agreements between us and you which are made for our deliveries and services must be recorded in writing.
f) Our T&Cs also apply to all future transactions with you.
2. Conclusion of Contract, Contents of Contract, Withdrawal from Contract
a) Our offers, including those made on our behalf, are always subject to confirmation and are non-binding and are not a request to enter into a contract with you, but merely an invitation to you to make such a request.
b) If we receive your request to enter into a contract, you are bound by it for three weeks.
c) A contract is concluded only when we accept your request in writing or by telex. The execution by us of your request is equivalent to written acceptance or acceptance by telex.
d) We reserve the right to confirm the receipt of your request. However, the confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt can be combined with the order confirmation.
e) The conclusion of the order with you is subject to correct and punctual delivery by our suppliers. The effectiveness of the self-supply reservation depends on whether a congruent legal transaction has been concluded with the supplier and that we are not responsible for non-delivery. You will be notified immediately of the non-availability of the services. Any agreed delivery period shall be extended accordingly. Should we not be able to carry out the delivery after setting a reasonable deadline, you shall be entitled to withdraw from the contract. In this case, we will immediately reimburse any consideration that you have already provided.
f) You may withdraw from the contract provided that the entire performance ultimately becomes impossible before the transfer of risk or the delivery, in the event of default within a reasonable period of time, which may not be less than one month, did not take place, unless we are at least predominantly not responsible for the obstacle to performance or it is a case of force majeure. If partial services have been rendered which are otherwise usable for you even after termination of the contract, your right of withdrawal shall be limited to the parts not yet rendered.
g) If this situation occurs during a delay in acceptance or owing to your fault, you shall remain obligated to provide consideration. If partial services within the meaning of paragraph f) have already been rendered by us, we shall be entitled to remuneration in this respect.
3. Contractual Object
a) The object of the contract is solely the delivery or service described in the order confirmation. § 243 Section 1 of the BGB shall apply accordingly. Amendments, supplements and subsidiary agreements shall be binding only if confirmed by us in writing.
b) Contract services which are not listed in the offer or in the order confirmation, in particular those which are published for advertising purposes (e.g. advertising, Internet), are only part of the subject matter of the contract if this is confirmed by us in writing. We reserve the right to make reasonable changes based on technical developments.
c) As a matter of principle, only the features listed in the order confirmation shall be deemed agreed as the condition of the contractual object. Public statements, promotions or advertising by the manufacturer do not represent a contractual description of the condition of the products.
d) Consulting services and information of any kind are only binding if they have been confirmed in writing.
e) All dimensions, weights, drawings, clichés and photos are to be understood only as approximate and non-binding. We expressly reserve the right to make design changes which merely serve progress and which are reasonable. Custom-made products are made at the risk of the customer.
4. Prices, Terms of Payment, Transport
a) Unless otherwise stated, prices are quoted per unit in Euros ex works or ex warehouse, excluding packaging, shipping, other ancillary costs and unassembled, unless other conditions have been agreed. We reserve the right to make price adjustments up to the day of delivery if these can be proven to have been caused by changes in material costs, wages, taxes and levies etc. In such cases, the customer shall not be entitled to withdraw from the contract, even in the case of contractually fixed prices.
b) Payment must be made in cash and without any deduction within 8 days of the invoice date at the latest. Any acceptance of bills of exchange or cheques shall be effected exclusively by agreement and on account of performance; you shall bear the costs of discounting and collection.
c) If you are in default of payment, we shall be entitled to charge default interest at 9 percentage points above the relevant base interest rate. The assertion of further damages caused by default remains unaffected by this.
d) If, after placing the order, justified doubts arise as to your unconditional solvency, we shall be entitled to demand security or to withdraw from the contract.
e) Transport takes place at your cost and your risk, even if freight-free supply is agreed upon. If you discover any transport damage, report it immediately. In the event of damage in transit by rail, a statement of the facts must be made immediately. You bear the costs of the transport insurance, we choose the mode of shipment. If you are responsible for delays in dispatch, the risk shall pass to you when the goods are ready for dispatch.
5. Right of Retention, Offset, Assignment
a) You can only assert a right of retention from the same contractual relationship. In addition, all rights of retention against us – regardless of the legal relationship – are excluded.
b) You shall only be entitled to offset recognised claims which have been established as final and absolute by a court of law.
c) Your rights against us may only be assigned with our written consent.
6. Retention of Title
a) The goods shall remain our property until full payment of all claims, including ancillary claims, claims for damages and cashing of cheques and bills of exchange.
b) The retention of title shall also remain in force if individual claims are included in a current account and the account has been balanced and acknowledged.
c) You are entitled to further process and sell the goods, subject to the following provisions:
aa) Your entitlement to process reserved goods in the ordinary course of business ends with your suspension of payment or with the application for or opening of insolvency proceedings against your assets.
bb) By further processing the reserved goods you do not acquire ownership of the new object in accordance with § 950 BGB. The processing shall be carried out for us without any obligations arising for us therefrom. If the goods are processed, mixed or blended with other objects, we shall acquire co-ownership of the new object in the ratio of the value of our goods subject to retention of title to the total value.
cc) You hereby assign to us the claim with all ancillary rights arising from the resale of the reserved goods, namely on a pro rata basis insofar as the goods have been processed, mixed or blended and we have acquired co-ownership thereof in the amount of our invoice value. In the latter case, we shall be entitled to a fraction of the relevant purchase price claim in this assignment in proportion to the invoice value of our reserved goods to the invoice value of the object. If you have sold the claim as part of genuine factoring, you shall transfer to us the claim against the factor which takes its place. We hereby expressly accept the assignment from the resale as well as from the sale as part of genuine factoring.
dd) We will not collect the assigned claims as long as you meet your payment obligations. The waiver of the direct debit authorisation expires in the event of your default in payment to us. In this case, we are authorised by you to inform your customers of the assignment and to collect the claim ourselves. Upon request, you shall be obliged to provide us with a precise list of the claims to which you are entitled with the names and addresses of the purchasers, the amount of the individual claims, invoice date etc. and to provide us with all information necessary for the assertion of the assigned claims and to allow this information to be checked.
You are entitled to collect the claims yourself as long as we do not give you any other instructions.
ee) We undertake to release the securities to which we are entitled if their value exceeds the claims to be secured by more than 20%.
ff) Pledging or transfer by way of security of the reserved goods or the assigned claims by you is not permissible. You must notify us immediately of any third party seizure, stating the creditor.
gg) If we take back the delivery item on the basis of the reservation of title, this shall not be deemed a withdrawal from the contract. We shall be entitled to satisfy our claims arising from the repossessed reserved goods by private contract.
hh) You shall store the reserved goods for us free of charge. You must insure the reserved goods against the usual risks such as fire, theft or water to a sufficient extent of at least the amount of our claims against you. You hereby assign to us your claims for compensation to which you are entitled against insurance companies or other obligated parties for damages of the kind mentioned above in the amount of our claim. We hereby accept this transfer.
ii) All claims as well as the rights arising from the retention of title to all special forms specified in these terms and conditions shall remain valid until complete release from contingent liabilities which we have entered into in your interest.
7. Guarantee and Recourse
a) You must inspect deliveries and services immediately upon receipt. If you discover defects, these must be reported to us in writing immediately, at the latest 8 days after transfer of risk to you. If you discover hidden defects, you must notify us of these in writing immediately, at the latest 8 days after discovery. If you do not comply with these obligations, all guarantee claims are excluded.
b) As natural products, wood and leather can show slight colour and structure deviations, for which we do not offer any guarantee.
c) We provide a guarantee for the agreed quality – except for minor deviations – by supplying a defect-free product or eliminating the defective condition at our discretion. If we opt for rectification by remedying the defect, you shall only have further guarantee rights if the remedy of the defect has failed twice.
d) If rectification finally fails, you may, at your option, demand a reduction in your remuneration (reduction) or rescission of the contract (withdrawal). In the event of a minor breach of contract, in particular in the event of minor defects, you shall not be entitled to withdraw from the contract. With regard to the assertion of the right of withdrawal and a claim for damages, please refer to the following section.
e) You shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notice of defect.
f) Guarantee claims for all products supplied by us shall lapse within one year, unless otherwise agreed in writing. However, they expire prematurely as soon as repair attempts or modifications are made by you or operating instructions are not followed. The guarantee period begins on the day of delivery to you.
g) You are hereby advised that the quality specifications contained in the product description, a product data sheet or a product sample do not constitute guarantees in the legal sense. Quality specifications and guarantees going beyond the product description shall only be deemed to have been declared to the customer if they have been recorded by us in writing.
h) If we are the supplier or sub-supplier within the meaning of § 445a BGB (German Civil Code), we agree in terms of recourse against us:
aa) We exclude all rights of recourse you may have against us if you have not fulfilled your obligations under letter a) or have not fulfilled them on time.
bb) If the person because of whom you have recourse against us is not a consumer within the meaning of § 13 BGB, we exclude recourse against us.
cc) If the person because of whom you have recourse against us is a consumer within the meaning of § 13 BGB (German Civil Code), but if this person is warranted by whomever, outside of the mandatory statutory provisions, e.g. as a gesture of goodwill, courtesy or allegedly on the basis of statutory revocation rights, you cannot have recourse against us.
dd) In all cases, recourse claims shall lapse within one year of delivery to you and shall expire prematurely as soon as repair attempts or modifications are made by you or others in the supply chain or operating instructions have not been followed by you or others in the supply chain.
ee) Letters e) and g) shall also apply mutatis mutandis to recourse claims against us.
i) If you have set us deadlines as part of the guarantee and recourse, these must always be reasonable. If you set unreasonably short deadlines, these will not be extended to reasonable periods by way of the reduction to maintain validity, but must be reset by you to an appropriate length.
8. Liability
a) If you or a third party carry/carries out modifications or repair work without our prior written and express consent, our liability for the resulting consequences shall lapse. The statute of limitations remains unaffected by this.
b) All claims for damages or compensation for wasted expenses by the customer against us are excluded regardless of the legal basis, unless we have acted with intent or gross negligence or violated essential contractual obligations through slight negligence.
c) In the event of gross negligence or slightly negligent breach of an essential contractual obligation, compensation shall be limited to typical and foreseeable damages. We shall only bear any further liability to the extent that our business liability insurance is obliged to indemnify.
d) Liability for damage that does not occur to the subject matter of the contract is excluded except in cases of intent and gross negligence.
e) Liability for the absence of a quality for which we have assumed a guarantee and liability under the Product Liability Act shall remain unaffected by Clauses 8b, 8c and 8d.
f) In all other respects, we shall be liable without limitation for damages
aa) from injury to life, body or health, which are based on a negligent breach of duty by us or an intentional or negligent breach of duty by a legal representative or vicarious agent of us or,
bb) which are based on a grossly negligent breach of duty by us or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of us.
g) A limitation period of one year shall apply to all claims for damages or compensation for wasted expenses in the case of contractual and non-contractual liability asserted against us – except in the cases of letter f). The period begins at the time specified in § 199 BGB (German Civil Code). It occurs at the latest upon expiry of the maximum periods specified in § 199 (3) and (4) BGB. Other statutes of limitations of these conditions remain unaffected by this.
9. Confidentiality / Data Protection
a) Both we and you undertake to treat confidentially all trade and business secrets, in particular documents, knowledge and information of the other which become known or are known in the course of the initiation and execution of the contract, and to maintain secrecy in this respect vis-à-vis third parties, unless these are already generally and publicly known.
b) You expressly agree that we may collect, process, store and use your data, including personal data, in an automated process to the extent necessary for the justification, content, changes and/or execution and performance of the contract (inventory data). If we no longer need your data for the aforementioned purposes, it will be deleted unless we are forced by law to extended storage (e.g. to comply with tax requirements) or you have agreed to extended storage.
10. Force Majeure
(a) “Force Majeure” means the occurrence of an event or circumstance that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that that party proves:
[aa] that such impediment is beyond its reasonable control; and
[ab] that it could not reasonably have been foreseen at the time of the conclusion of the contract; and
[ac] that the effects of the impediment could not reasonably have been avoided or overcome by the affected party.
(b) In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfil conditions (aa) and (ab) under paragraph 1 of this Clause:
(ba) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilisation;
(bb) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy;
(bc) currency and trade restriction, embargo, sanction;
(bd) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalisation;
(be) plague, pandemic epidemic, natural disaster or extreme natural event;
(bf) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy;
(bg) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.
(c) A party successfully invoking this Clause is relieved from its duty to perform its obligations under the contract and from any liability in damages or from any other contractual remedy for breach of contract, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the affected party. Where the duration of the impediment invoked has the effect of substantially depriving the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract by notification within a reasonable period to the other party. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment exceeds 120 days.
(d) If the conditions mentioned under paragraph a lit. (aa) and lit. (ab) exist, Topstar/Wagner is entitled to demand the resulting necessary price discussions in connection with possible price demands detached from agreed deadlines.
11. Arbitration
a) The European Commission provides an online platform for the resolution of disputes out-of-court (ODR Platform = online dispute resolution) that can be accessed at http://ec.europa.eu/consumers/odr. Our email is: info@topstar.de.
b) We do not participate voluntarily or based on legal obligation in a dispute resolution process before a consumer arbitration authority.
12. Final Provisions
a) The law of the Federal Republic of Germany shall apply.
b) Place of fulfilment is our registered office in 86863 Langenneufnach, Augsburger Straße 29.
c) For legal disputes, the state ordinary courts for Langenneufnach have jurisdiction, ratione loci and ratione materiae.
d) The contractual and legal language is German.
e) If these T&Cs or other contract texts are translated, the German version is definitive.