General terms and conditions of the company TOPREGAL GmbH, 70794 Filderstadt
§ 1 General - Scope of application
- Our terms and conditions of sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery without reservation in the knowledge of the customer's terms and conditions that conflict with or deviate from our Terms and Conditions of Sale.
- Our Terms and Conditions of Sale shall also apply to all future transactions with the customer.
- Our terms and conditions of sale apply to all websites affiliated to the TOPREGAL company: www.topregal.com and affiliated country shops as linked in the footer of this website; unless otherwise stated there.
§ 2 Offers - Prices - Terms of payment - Contractual exclusion of set-off
- Our offers remain non-binding until the conclusion of the contract and represent an invitation to submit an offer. A contract is only concluded when we have accepted the customer's order. If we wish to deviate from this principle of non-binding character vis-à-vis a customer, we expressly describe our offer as binding.
- Unless otherwise agreed, our prices are "ex works"; if the customer wishes to have the goods shipped, this is free of charge throughout Germany. For shipping to German islands we charge an island surcharge of currently 99.00 €uro. Separately agreed costs are incurred for shipping outside Germany.
- Unless otherwise stated or agreed, the statutory value-added tax is not included in our prices; it is shown separately on the invoice at the statutory rate on the day of invoicing.
- The deduction of a discount for early payment requires express agreement.
- Unless otherwise agreed, we generally hand over goods to the customer against prepayment, PayPal, EC and credit card payment, cash payment on collection, iDeal, Klarna Sofortüberweisung or delivery on account by bank transfer with a payment term of max. 10 days. In case of bank transfer, the goods will be handed over to the customer only after crediting our account. In case of delivery on account, the final invoice amount is payable within max. 10 days after receipt of the goods. Payment by cash on delivery is offered exclusively within Germany and depending on the shipping company up to a certain amount.
- he customer shall only be entitled to set-off rights if their counterclaims have been legally established, undisputed or acknowledged by us. In addition, they re entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
§ 3 Supplementary conditions especially for internet orders
- Our offers on the Internet on the respective websites (see §1 paragraph 4) represent a non-binding invitation to the customer to order from us.
- The ordering process consists of three input steps. In the third and thus last input step, the customer has the opportunity to check and, if necessary, correct his details. By clicking on the "Buy" button, the customer makes a binding offer to us. We reserve the right of acceptance.
- After the order has been placed, the customer will receive an automatically generated e-mail from us confirming that the order has been received by us. This confirmation of receipt does not yet represent the conclusion of a contract and therefore does not contain a request for payment.
- A contract is only concluded through an explicit acceptance of the offer on our part, which can sometimes take the form of sending a pro forma invoice (prepayment), handing over the goods to the dispatch department combined with information by email to the customer or other contact by letter, fax or email. We will only send a written confirmation of order if expressly requested.
§ 4 Lump-sum compensation
- In case of cancellation or subsequent self-inflicted return of an order by the customer, we are entitled to claim 20% of the total order value as flat-rate compensation. If shipping costs have been agreed upon, the order value excluding the separately stated shipping costs shall be deemed the total order value.
- If the prepayment is not received within a period of 14 days after the request for payment, we reserve the right to cancel the order according to §4 paragraph 1.
- The customer has the right to prove to us that we have suffered no damage or significantly lower damage as a result of the cancellation.
- We are entitled, if we have suffered a higher damage than 20 % of the total order value, to claim this as concrete damages instead of the lump sum compensation.
§ 5 Delivery time - liability for delay
- The delivery time stated by us is calculated from the time of handover to the forwarding agent. In case of payment in advance the delivery time starts 24 hours after receipt of payment on our account.
- The compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer's obligation. The objection of the not fulfilled contract remains reserved.
- If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights are reserved.
- If the customer is in default of acceptance or debtor's delay, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at this point in time.
- We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a firm deal as per the meaning of § 286 paragraph 2 no.4 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that their interest in the further performance of the contract has ceased.
- We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
- We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
§ 6 Place of performance - transfer of risk
- Minor deviations in technical specifications (dimensions, weight, etc.) are not grounds for complaint. Any tolerances are accepted by the buyer. This also applies to special dimensions and custom-made products.
- Delivery "ex works" shall apply, unless we have expressly agreed otherwise with the customer.
- If shipment has been agreed with the customer, "CPT" applies free kerbside according to Incoterms 2010, according to which we are obliged to hand over the goods to the carrier and to conclude a contract of carriage to the contractually agreed destination. If no special place of destination has been agreed with the customer, the customer's place of business shall be deemed to be the place of destination. The transfer of risk to the customer takes place when the goods are handed over to the carrier. As soon as we have handed over the goods to the carrier, we shall inform the customer accordingly. The carrier commissioned by us will deliver the goods from www.topregal.com to the customer within 72 hours as a rule.
- If shipping has been agreed with the customer, he is obliged to guarantee the carrier access to the property.
- In the event of a return shipment, the customer is obliged to pack the goods to be shipped securely against any transport damage and to document any previous damage. The customer is responsible for returning the goods in perfect condition. The transfer of risk from the customer to us takes place upon receipt of the return in our warehouse.
§ 7 Notice - Delivery - Liability for unloading
- Delivery is made during normal business hours and usually by articulated lorry - smaller items are sent by parcel service.
- If selected in the order process, our forwarding agent will give notice by telephone at least one day before the delivery date.
- Unless otherwise agreed, the customer is obliged to have appropriate unloading equipment and personnel available. In case of doubt, the customer must inquire about these in good time. If there are delays in unloading the means of transport and if the carrier charges us additional costs as a result, these are to be reimbursed to us by the customer.
§ 8 Notification of damage – Complaints (according to §438 of the German Commercial Code, HGB)
- If loss of or damage to the goods is apparent and the consignee does not notify the carrier of the loss or damage at the latest on delivery of the goods, it shall be presumed that the goods have been delivered complete and undamaged.
- The notification must indicate the loss or damage sufficiently clearly - including appropriate pictorial material.
- The presumption under paragraph 1 shall also apply if the loss or damage was not externally apparent and has not been reported within seven days of delivery.
- Claims for exceeding the delivery period shall lapse if the consignee does not notify the carrier of the exceeding of the delivery period within twenty-one days after delivery.
- Damage, delays and additional costs resulting from the customer's failure to comply with his inspection and due diligence obligations shall not be borne by us. This includes in particular compliance with the provisions of DGUV:108-007 (formerly BGR234) and the associated selection of the installation site and inspection of the ground conditions.
- A notice of damage after delivery must be made in text form.
- Timely dispatch suffices to comply with the deadline.
- If loss, damage or exceeding of the delivery period is notified upon delivery, the carrier and TOPREGAL must be notified in writing.
§ 9 Condition of goods - Assembly
- Unless otherwise agreed, the goods are handed over to the customer in unassembled condition.
- The customer himself is responsible for the assembly of the goods.
- Together with the goods, the customer shall receive from us the relevant, valid regulations of DGUV:108-007 (formerly BGR234), which contain the current specifications for storage facilities and equipment. The customer is obliged to observe the local rules for assembly and for the selection of a suitable assembly site, in particular the inspection of the ground conditions.
- In addition, the customer is obliged to observe the load signs and information signs attached to the goods when using them.
- If the customer violates his obligations under paragraphs 3 and 4 and if this results in material or immaterial damages, we shall not be liable for these causal damages.
- Assembly work by our in-house assembly team are fixed appointments with us. Cancellations up to 7 working days (Monday to Friday) before the installation date are free of charge. In the event of a late cancellation, we reserve the right to charge you the following cancellation costs:
- 5 - 6 working days before appointment: 20 % of the installation price
- 3 - 4 working days before the deadline: 50 % of the assembly price
- 1 - 2 working days before deadline: 70 % of the assembly price
- On the day of assembly: 100 % of the assembly price
§ 10 Liability for defects
- Warranty claims of the customer presume that he has properly fulfilled their obligations to inspect and give notice of defects according to § 377 of the German Commercial Code (HGB).
- Insofar as the purchased item is defective, we shall be entitled, at our discretion, to supplementary performance in the form of rectification of the defect or delivery of a new item free of defects. In the case of subsequent performance, we shall bear the necessary expenses only up to a maximum of the purchase price and only to the extent that these are not increased by the fact that the object of sale was taken to a place other than the place of performance.
- If the subsequent performance fails, the customer is entitled to demand withdrawal or reduction at his discretion.
- In the event of disproportionate costs for a subsequent improvement, we shall be entitled to refuse such improvement. The maximum amount of rectification of defects is limited to the value of the order.
- In the event of damage, the customer is obliged to reduce the damage within the scope of his reasonable possibilities.
- We shall be liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
- Insofar as the customer is otherwise entitled to compensation for damages instead of performance due to a negligent breach of duty, our liability is limited to compensation for foreseeable, typically occurring damages.
- Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
- Unless otherwise regulated above, liability is excluded.
- The limitation period for claims based on defects is 12 months, calculated from the transfer of risk. The limitation period in the case of a delivery recourse according to §§ 478, 479 of the BGB remains unaffected; it is five years, calculated from the delivery of the defective item.
§ 11 Joint and several liability
- Any further liability for compensation than provided for in § 8 of these terms and conditions of sale shall be excluded – irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage in accordance with § 823 of the German Civil Code (BGB).
- The limitation according to paragraph 1 shall also apply if the customer demands compensation for useless expenses instead of a claim for damages instead of performance.
- Insofar as liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 12 Reservation of proprietary rights
- We reserve the right of ownership of the purchased item until receipt of all payments arising from the business relationship with the customer. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to sell it; the proceeds of the sale shall be set off against the customer's liabilities - less reasonable costs of sale.
- In the event of confiscation or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action according to § 771 of the ZPO, the customer shall be liable for the loss incurred by us.
- The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer remains entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. We undertake, however, not to collect the claim as long as the customer meets his payment obligations from the proceeds received, does not fall into arrears and, in particular, no application for the opening of composition or insolvency proceedings has been made or payments have been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- The processing or alteration of the object of sale by the customer is always carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the other processed objects at the time of processing. For the rest, the same shall apply to the object resulting from processing as to the object of sale delivered under reservation of title.
- If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer proportional co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created in safekeeping for us.
- We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.
§ 13 Place of jurisdiction - Law of the Federal Republic of Germany
- German law applies exclusively, excluding international sales law. Stuttgart is agreed as the place of jurisdiction.
Status: March 2022