AGB / FAQ

I. General

(1) The following terms and conditions shall apply to our deliveries and services, including information, consulting and repairs. Terms and conditions of the customer shall only apply if and to the extent that we expressly accept them in writing.
(2) Deviations from and additions to the purchase contract on the part of the Buyer shall only be effective with our express written confirmation; this shall also apply to the waiver of the written form requirement.
(3) Data of our customers shall be stored and processed by us by means of EDP, insofar as this is necessary for the proper handling of the business relationship.

II Offer and Conclusion of Contract

(1) Offers are subject to change. We reserve the right of prior sale.
(2) Delivery periods are subject to correct and timely delivery to the Seller, unless the Seller has promised binding delivery periods in writing.
(3) Selling prices shall only be deemed to be fixed prices if the Seller has promised them in writing.
(4) Samples and specimens shall be regarded as approximate illustrative pieces for quality, dimensions and color.
(5) All information about our products, in particular the illustrations, drawings, weights, dimensions and performance specifications contained in our offers and printed materials, are to be regarded as approximate average values. They are not warranted characteristics, but descriptions or identifications of the goods. Unless limits for permissible deviations are expressly specified in the order confirmation and designated as such, deviations customary in the industry (manufacturing tolerances) are permissible in any case.

III. Prices

(1) The prices valid on the day of delivery according to our price list shall apply unless a fixed price has been expressly agreed.
Invoice settlement by check or bill of exchange shall be made on account of payment and shall require the Seller's consent. Discount, bill charges and costs shall be borne by the Buyer.
(2) All prices are net prices excluding value-added tax, which the Customer shall pay at the respective statutory rate.
The Seller shall be entitled to charge interest from the due date onwards to the Buyer who is a merchant within the meaning of the German Commercial Code and from the due date onwards to the Buyer who is not a merchant in the amount of the credit costs to be paid by the Buyer himself, but at least in the amount of 5% above the base interest rate, in each case plus VAT. We reserve the right to claim further damages.
(3) Unless expressly agreed otherwise, the Customer shall bear additional freight costs and special packaging costs, ancillary charges, public charges and customs duties in excess of the customary packaging.
In the event of payment difficulties on the part of the Buyer, in particular also in the event of default in payment, protest of a check or bill of exchange, the Seller shall be entitled to make further deliveries only against advance payment, to make all outstanding - including deferred - invoice amounts due immediately and to demand cash payment or the provision of security against the return of bills of exchange accepted on account of payment.
(4) In the case of orders and contracts which are not to be executed within 4 months after conclusion of the contract, we shall be entitled to invoice the prices valid on the date of delivery.
Invoices of the Seller shall be deemed to have been accepted unless objected to in writing within 30 days of the invoice date. The Seller shall inform the Buyer of this with each invoice.
(5) The Buyer waives the right to assert a right of retention from earlier or other transactions of the current business relationship. The offsetting of counterclaims is only permitted to the extent that these are recognized by the Seller and are due for payment or have been legally established.
(6) A merchant within the meaning of the German Commercial Code (HGB) shall be entitled to set off any claims it may have against our parent, subsidiary, sister or otherwise affiliated companies, even if such claims are due at different times.

IV. Delivery

(1) Delivery periods (dates) shall commence on the date of our order confirmation, but not before all details of the order have been clearly clarified and any necessary certificates have been provided.
(2) For deliveries by the Seller, the place of performance shall be the loading point; in the case of delivery, the Buyer shall bear the risk. Delivery shall be made to the agreed place; in the event of changed instructions, the Buyer shall bear the costs.
(3) Industrial disputes or unforeseeable extraordinary events such as sovereign measures and traffic disruptions etc. shall fully release the Seller from the obligation to deliver for the duration of their effects or in the event of impossibility.
(4) In the event of a delay in performance by the Seller or impossibility for which the Seller is responsible, claims for damages by the Buyer shall be excluded unless they are based on intent or gross negligence on the part of the Seller, a legal representative or vicarious agent.
(5) We are entitled to make partial deliveries if these are reasonable for the customer.
(6) The export of our articles by the Buyer requires our prior approval.
(7) If the delivery or order is delayed at the request of the customer, storage charges of 0.5% of the invoice amount per month or part thereof may be charged, starting one month after notification of readiness for delivery. This storage charge shall be limited to a maximum of 5 % unless it can be proven that higher costs have been incurred. The customer reserves the right to prove that a lesser damage has been incurred.

V. Returns

(1) If we are not responsible for the return, we may reduce the credit by 10% of the costs incurred by us (storage/delivery), depending on the type and scope of the return. The customer reserves the right to prove that a lesser loss has been incurred.
VI. blanket and call orders
(1) Blanket and call-off orders shall oblige the customer to accept the total quantity on which the blanket/call-off order is based.
(2) Insofar as no specific call dates result from the contract, the entire quantity of the blanket/call order shall be called within 12 months.
(3) If the customer fails to meet call-off dates, we shall be entitled to deliver and invoice the total quantity in full four weeks after giving written notice of the consequences of the failure to call-off. Our rights arising from a delay on the part of the customer shall remain unaffected.

VII Payments

(1) Unless otherwise contractually agreed, payments shall be made in Euro and shall be free of postage and expenses. Bills of exchange and checks shall only be considered as payment after they have been cashed and credited and shall be accepted without any obligation to present and protest them in due time.
(2) Payments shall be made within 10 days net, in each case from the date of invoice, in the case of delivery by our Service & Support upon delivery; we reserve the right to demand advance payment at our discretion. In the case of deliveries to fitness studios, advance payment shall generally be deemed to have been agreed.
(3) If payment deadlines are exceeded, we are entitled to charge interest in the amount of the respective bank rates for overdraft facilities, but at least in the amount of 5% above the base interest rate of the European Central Bank. Each party to the contract shall be entitled to prove a different interest disadvantage. Claims in the event of default shall remain unaffected.
(4) The withholding of payments due to or the offsetting of counterclaims by the customer shall only be permissible if these counterclaims are undisputed or have been legally established.
(5) All our claims - including those arising from other contracts with the customer - shall become due immediately, irrespective of the term of any bills of exchange accepted and credited, in the event of default in payment, protest of a bill of exchange or cessation of payments by the customer or if we otherwise become aware of circumstances that give rise to justified and substantial doubts about the customer's solvency or creditworthiness. This shall also apply if these circumstances existed on the part of the customer at the time of conclusion of the contract but were not known to us or should have been known to us. In all the above-mentioned cases, we shall also be entitled to make outstanding deliveries only against advance payment or provision of security and, if the advance payment or security is not provided within two weeks, to withdraw from the contract without setting a new deadline. Further claims remain unaffected.

VIII Retention of Title

(1) The delivered goods shall remain the property of the Seller as reserved goods until the purchase price has been paid and all claims arising from the business relationship and any claims still arising in connection with the object of purchase have been settled. The inclusion of individual claims in a current account or the drawing of a balance and its recognition shall not cancel the retention of title. If, in connection with the payment of the purchase price by the Buyer, a liability of the Seller under a bill of exchange is established, the retention of title shall not expire before the bill of exchange is honored by the Buyer as drawee. In the event of default in payment by the Buyer, the Seller shall be entitled to take back the reserved goods after issuing a reminder and the Buyer shall be obliged to surrender them.
(2) If the goods subject to retention of title are processed by the Buyer to form a new movable item, the processing shall be carried out on behalf of the Seller without the Seller being obliged as a result; the new item shall become the property of the Seller. In the event of processing together with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the other goods at the time of processing. If goods subject to retention of title are combined, mixed or blended with goods not belonging to the Seller pursuant to Section 974 of the German Civil Code, the Seller shall become co-owner in accordance with the statutory provisions. If the Seller acquires sole ownership by combining, mixing or blending, the Buyer hereby assigns to the Seller co-ownership in proportion to the value of the reserved goods to the other goods at the time of combining, mixing or blending. In such cases, the Buyer shall hold in custody, free of charge, the item owned or co-owned by the Seller, which shall also be deemed to be reserved goods within the meaning of the following provision.
(3) If goods subject to retention of title are sold by the Buyer, alone or together with goods not belonging to the Seller, the Buyer hereby assigns the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest; the Seller accepts the assignment. The value of the goods subject to retention of title shall be the invoice amount of the Seller plus a security surcharge of 10 %, which, however, shall not be taken into account if it is opposed by third party rights. If the resold goods subject to retention of title are co-owned by the Seller, the assignment of the claim shall extend to the amount corresponding to the share value of the Seller in the co-ownership; para. 1 sentence 1 shall apply mutatis mutandis to the extended retention of title; the assignment in advance pursuant to para. 3 sentences 1 and 3 shall also extend to the balance claim.
(4) The Purchaser shall be entitled and authorized to resell, use or install the Retained Goods only in the ordinary course of business and only subject to the proviso that the claim within the meaning of subsection 3 shall actually pass to the Seller. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.
(5) The Seller authorizes the Seller, subject to revocation, to collect the claims assigned pursuant to para. 3. The Seller shall not make use of its own collection authority as long as the Seller meets its payment obligations, including those to third parties. At the Seller's request, the Buyer shall name the debtors of the assigned claim and notify them of the assignment; the Seller shall be authorized to notify the debtors of the assignment itself.
(6) The Buyer shall inform the Seller without delay of any compulsory execution measures by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.
(7) The right to resell, use or install the reserved goods and the authorization to collect the assigned claim shall expire upon cessation of payments, application for or opening of insolvency proceedings of judicial or extrajudicial composition proceedings; in the event of a check or bill protest, the authorization to collect shall also expire.
(8) If the value of the securities granted exceeds the claims by more than 20%, the Seller shall be obliged to retransfer or release them at its discretion. Upon settlement of all claims of the Seller arising from the business relationship, title to the reserved goods and the assigned claims shall pass to the Buyer.

IX. Warranty and obligation to give notice of defects

(1) The customer is obliged to carefully examine the delivered goods - even if samples or specimens were previously sent - for completeness and correctness immediately upon arrival at the customer's premises. The delivery shall be deemed to have been approved if a notice of defect has not been received in writing, by telex or fax within 7 days of receipt of the goods at the place of destination or, if the defect could not be detected during a proper inspection, within 7 days of its discovery.
The obligations of §§ 377 and 378 of the German Commercial Code shall apply with the proviso that the Buyer, who is a merchant within the meaning of the German Commercial Code, must be notified in writing of all identifiable and all obvious defects, shortages or incorrect deliveries within 5 working days after delivery, but in any case before any processing or installation.
(2) Transport damage must be reported immediately to the forwarding agent/Service & Support; in this respect, the notification obligations of the General German Forwarding Conditions shall apply. In the case of delivery by rail, by vehicles of commercial short- and long-distance transport or by other means of transport, the Buyer shall observe the necessary formalities vis-à-vis the carrier; customary breakage and shrinkage cannot be objected to.
(3) In the event of a justified notice of defect, we shall, at our discretion, provide warranty in the event of defects or the absence of a warranted characteristic of the delivered goods by rectification or replacement delivery. If the rectification or replacement delivery fails, the customer may demand a reduction of the purchase price or rescission of the contract.
(4) We shall only be liable for all other claims for damages to which the customer may be entitled on account of or in connection with defects or the absence of warranted characteristics of the delivered goods, irrespective of the legal grounds, in the event of intent and gross negligence; Section X shall apply.
However, this provision shall not apply to claims for damages due to consequential harm caused by a defect in the absence of a warranted characteristic if the warranted characteristic is intended to protect the customer against the risk of such damage; in this case, too, however, we shall only be liable for the typical and foreseeable damage.
(5) A defect shall not be deemed to exist in the case of deviations of the delivered goods from the order confirmation which are customary in the industry. In the case of goods that have been sold as declassified or used material, the Buyer shall not be entitled to any claims on account of any defects.
(6) Our warranty shall expire if reworking and modifications are carried out without our prior consent or if parts/spare parts not supplied by us are used.
(7) A prerequisite for the warranty is the fulfillment of the contractual obligations incumbent upon the customer, in particular the agreed terms of payment.
(8) Further warranty claims are excluded.

X. Limitation of Liability

(1) In the event of a timely and justified notice of defect of defective goods within the meaning of § 377, 378 of the German Commercial Code (HGB), the Purchaser shall be entitled to warranty claims for one year to the exclusion of any claims for damages. Assured characteristics are to be expressly marked as assurances.
Claims for damages by the Buyer arising from positive breach of contract, culpa in contrahendo and tort are excluded, unless they are based on intent or gross negligence on the part of the Buyer, a legal representative or vicarious agent.
(2) All of the above liability provisions shall also apply in the event that actions of the fitters and forwarding agents commissioned by us should have resulted in damage.

XI. Place of performance, place of jurisdiction and applicable law

(1) The place of performance for our deliveries is Bochum.
(2) Liegen die Voraussetzungen für eine Gerichtsstandsvereinbarung nach § 38 der Zivilprozessordnung vor, ist Gerichtsstand für alle Ansprüche der Vertragsparteien, auch für Wechsel- und Scheckklagen unser Sitz.
(3) Für alle Rechtsbeziehungen zwischen uns und dem Kunden gilt das Recht der Bundesrepublik Deutschland. Das UN-Kaufrecht (CISG) sowie etwaige sonstige zwischenstaatliche Übereinkommen, auch nach ihrer Übernahme in das deutsche Recht, finden keine Anwendung.

Scotfit GmbH
Vierhausstraße 92
44807 Bochum
Deutschland