1. Preliminary remarks
1.2 The Seller’s goods, services and offers shall be made on the basis of these T&Cs alone.
1.3 These T&Cs shall only apply for businesses, legal entities established by public law or public law special funds.
1.4 If the Buyer has terms and conditions of business or purchase which are contrary to or differ from these T&Cs, they shall be hereby expressly rejected, unless the Seller has expressly consented to them in writing. Such consent shall only apply for the specific case concerned and not for earlier or future performances.
1.5 These General Terms and Conditions of Business shall also apply in those cases in which the Seller supplies the Buyer with goods without reservation in the knowledge that the Buyer has terms and conditions of business which differ from, or which are contrary to, the Seller’s T&Cs.
1.6 Discrepancies from these terms and conditions of sale shall be subject to the Buyer’s express written recognition.
2. Subject-matter of the Contract
2.1 The subject-matter of the contract is solely the supply of goods or performance defined in the respective item description. Amendments, supplements and side agreements shall only be binding if they have been confirmed in writing by us.
2.2 Contractual services not listed in the item description, in particular those which have been announced for advertising purposes, shall only constitute part of the subject-matter of the contract if this has been confirmed by the Seller.
2.3 As a matter of principle only the features listed in the item description shall apply as the characteristics of the subject-matter of the contract.
3. Offer and Conclusion of the contract
3.1 The Seller is entitled to accept the Buyer’s order by sending out an order confirmation or by supplying the goods within 14 days. Any confirmation of receipt which may be sent by the Seller shall still not constitute binding acceptance of the order.
3.2 The Seller’s offers, and also those submitted in his name, shall be subject to change without notice and non-binding. A contract shall only be concluded and become legally binding if it is confirmed in writing by the Buyer or has been carried out.
3.3 Should the order confirmation contain spelling mistakes or typing errors, or should the price specified be subject to technical transmission errors, the Seller shall be entitled to contest the contract. Payments already made shall be refunded to the Buyer straight away.
3.4 Drawings, images, dimensions, weights or other performance-related data for the goods shall only be binding if this has been expressly agreed in writing.
- Catalogues shall become invalid when a new edition is published.
4.1 The prices stated by the Seller shall be ex works including packing but excluding VAT.
4.2 Goods shall only be sent out by the Seller if the net value of the consignment is at least €50.00 and the cost of delivery shall be borne by the Buyer for all consignments for which the delivery cost is up to €150.00. If the net value of consignments is €150.01 or more, the Seller shall bear the cost of delivery, if the destination is within the mainland of the Federal Republic of Germany. The costs of delivering consignments to islands shall be at the Buyer’s expense regardless of their net value.
4.3 The contract and invoice currency is EURO.
4.4 The Buyer shall only be entitled to cancel an order materialising in accordance with Number 3 of these T&Cs if the Seller has expressly consented to the cancellation in writing.
4.5 If a contract is cancelled by the Buyer in accordance with Paragraph 4.4 before the goods are despatched, the Seller shall be entitled to demand 15% of the net price to cover the costs incurred for processing the order and for lost profit. The Buyer shall however, be allowed to prove that the losses incurred by the Seller were less or no losses at all were incurred.
4.6 If an order is canceller in accordance with Paragraph 4.4 after the goods have been dispatched, the Buyer shall be obliged to return the goods immediately. A credit will be raised for the original packed undamaged goods subtracting the costs incurred for processing the order plus lost profit and this means that 80% of the invoiced net price will be credited. The Buyer shall, however, be entitled to prove that the loss incurred by the Seller was less than 20% or that he Seller did not incur any loss at all.
5. Delivery and performance period
5.1 The agreed delivery periods and dates shall always be regarded as being non-binding, unless an express agreement otherwise has made in writing.
5.2 The delivery period shall have been observed by the Seller, if by the time it has expired, he has notified the Buyer that the goods are ready for collection, unless, by way of exception, it has not been agreed that the Seller must notify the Buyer that the goods are ready for collection or has to dispatch the goods to the Buyer.
5.3 The goods shall be supplied subject to the reservation that the Supplier has himself been supplied with the correct goods on time by the sub-supplier. This shall only apply in the event that the Seller is not responsible for non-supply. The Seller shall inform the Buyer in writing immediately if he is unable to supply the goods and he shall have to refund any purchase price which has already been paid straight away.
5.4 The Party affected by delays in supply and acceptance as a result of operational disruptions, power cuts or shortages of raw materials, traffic disruptions, provided that such occurrences could not have been foreseen, plus strikes, lock-outs, official instructions and instances of force majeure shall not be responsible for them even if periods and dates have been stipulated in the contract for performance as being binding.
They shall moreover, exempt the Party affected from its obligation of supply or acceptance for the duration of the hindrance plus a reasonable start-up time and for the scope of its effect from the obligation to supply or take acceptance.
5.5 If the hindrance lasts for more than three months, each of the Parties shall be entitled, having set the other Party a reasonable period of time, to withdraw from the part of the contract not yet fulfilled.
5.6 The Seller shall be entitled to supply part-consignments and render part-performances at any time, unless the part consignment or part performance is unreasonable for the Buyer.
5.7 Compliance on the part of the Seller with his obligations to supply goods or to render a service shall assume that the Buyer has fulfilled the obligations incumbent upon him properly. The objection to claim that the contract has not been fulfilled is reserved.
5.8 If goods are to be supplied from Germany to another country, the Buyer shall undertake to take the respective customs and import rules and other regulations into account. Any costs which may possibly be incurred as a result of goods being supplied from Germany to another country for customs fees, import duties, storage and other charges are to be borne by the Buyer. Any taxes which may possibly be payable shall likewise be for the Buyer’s account.
6. Passing of risk
6.1 If the Buyer falls into arrears with payment or acceptance the risk of accidental damage or theft of the goods shall pass over to the Buyer at that point in time at which he falls into arrears with payment or acceptance.
6.2 If, at the Buyer’s request, the goods are despatched to him or to a destination named by him, the risk of accidental damage or theft of the goods shall pass over to the Buyer as soon as the goods have been passed over to the person transporting the goods or if the goods have left the Seller’s store for the purposes of transportation. This shall apply regardless of whether the goods are despatched from the place of fulfilment and who bears the costs of transportation.
6.3 If despatch or collection of the goods is delayed at the Buyer’s request, the risk of accidental damage or theft of the goods shall pass over to the Buyer when he is notified that the goods are ready for despatch or collection.
7. The Buyer’s rights on account of defects
7.1 The Seller guarantees that at the point in time at which risk passes over the sold goods are free of manufacturing and material defects and possess the contractually agreed characteristics.
7.2 The Buyer shall have to conduct a check immediately after receiving the goods to confirm whether they are complete and if they show any transit damage or any other manifest defects, and that they have the contractually agreed characteristics and are suitable for the intended use.
In the event that there are manifest defects, they shall have to be notified to the Seller in writing straight away, and within 3 days from receipt of the goods at the latest. Concealed defects, i.e. defects which cannot be identified within the above-named period of time even with a careful inspection are likewise to be notified to the Seller straight away in writing and within 3 days from discovery at the latest. Otherwise the consignment shall be regarded as having been agreed.
7.3 In so far as the goods do have a defect, the Buyer shall be entitled to demand a cure as he chooses and after he has set a reasonable period of time for it in the form of a the defect being rectified or a fault-free part being supplied. In so far as the cure within the meaning of Section 440 P2 of the German Civil Code [BGB] is unsuccessful, the Buyer shall be entitled, as he chooses, to withdraw from the contract or to reduce the purchase price. This shall also apply if the Seller, in all seriousness refuses, for once and for all, to carry out a cure. If the defect is no more than minor, the Buyer shall only be entitled to reduce the purchase price.
7.4 Any transport costs, travelling expenses, labour and material expenses which may be incurred in effecting a cure shall be for the Seller’s account, provided that they have not been increased because the goods have been relocated following delivery to another location other than the Buyer’s branch offices, unless the relocation is in accordance with the intended use of the goods.
7.5 Apart from cases of intent, gross negligence as well as personal injury, the warranty claims with regard to all the products supplied by the Seller shall become time barred within a year, unless an agreement has been made otherwise. The period of time shall begin at the point in time specified in Section 199 of the German Civil Code [BGB]. It shall come into force no later than the expiry of the maximum period of time specified in Section 199 Para 3 and Para 4 of the German Civil code [BGB].
7.6 Warranty claims shall not exist for what are no more than minor discrepancies from the agreed characteristics, minor impairments of function, normal wear and tear as well as for damage caused as a result of faulty or negligent use, excessive loads, faulty assembly after the passing of risk or as a result in particular of external factors not foreseen by the contract. Moreover, if the Buyer has not obeyed the instructions stipulated in particular in the operating instructions with regard to the handling, servicing and inspection and care for the goods, the warranty cover shall not apply.
7.7 If repair work or modifications to the goods are carried out unprofessionally by the Buyer or by third parties, they and the resulting consequences shall likewise not be covered by warranty.
7.8 In the event that the Seller maliciously conceals a defect or in the event that the Seller furnishes a manufacturer’s guarantee for the characteristics of the goods at the point in time at which risk passes over within the meaning of Section 444 of the German Civil Code [BGB], the Buyer’s rights shall be determined exclusively by the statutory regulations.
8. Reservation of title
8.1 The Seller shall reserve the title to the supplied goods as a security for all claims against the Buyer to which he is entitled from the business relationship. If the Buyer’s conduct is in breach of the contract, in particular if he is in default with payment, the Seller shall be entitled to take back the goods. Taking back the goods by the Seller shall constitute withdrawal from the contract. After taking back the goods the Seller shall be entitled to sell them, the proceeds of the sale are to be offset against the Buyer’s liabilities – minus reasonable costs of sale.
8.2 The Seller’s title shall cover the new products created as a result of the goods subject to reservation of title being processed. The goods subject to reservation of title shall be processed for us as manufacturer. If these goods are processed, connected to or combined with goods not belonging to the Seller, the Seller shall acquire co-ownership to them in proportion to the invoiced value of the goods subject to reservation of title to the invoiced value of the other materials.
8.3 All accounts created by the sale of goods subject to reservation of title including drafts and cheques shall be assigned by the Buyer to the Seller here and now as a security for the respective claims in accordance with Para 1. When selling goods in which the Seller has co-ownership, the assignment shall be restricted to that proportion of the account corresponding to his proportion of co-ownership.
8.4 As long as the Buyer is prepared and in apposition to fulfil his obligations to the Seller properly, he may dispose of the goods owned or co-owned by the Seller in a proper business transaction and collect the accounts assigned to the Seller himself. The Seller shall undertake not to collect he account as long as the Buyer fulfils his payment obligations from the proceeds he takes in, does not fall into arrears with his payments and in particular, no application is made to open insolvency proceedings against him and he does not stop making his payments. If this is the case, the Seller may consequently demand that the Buyer informs the Seller of the assigned accounts and who owes them and hands over all the information required for the Seller to collect the debts and hands over to the Seller all the relevant documents and notifies the debtors that the accounts have been assigned to the Seller.
8.5 Assignments by bill of sale as a security, pledges and assignments of accounts, even by way of factoring, are only allowed if the Buyer has obtained the Seller’s prior consent in writing.
8.6 If the value of securities exceeds that of the accounts to be secured by more than 10%, given this, the Seller shall, at the Buyer’s request, release those securities he chooses.
9. Payment, Offsetting
9.1 If the destination is in the Federal Republic of Germany, the Buyer shall have the option of paying the invoiced amount by direct debit, cash in advance or cash on delivery.
9.2 Consignments shall only be delivered from Germany to another country if payment is made in advance. The ordered goods shall in this case only be despatched to the Buyer after the invoiced amount has been received.
9.3 Unless agreed otherwise in writing, the Seller’s invoices shall be due for payment within 30 days from the date of invoice in full.
9.4 The Seller shall be entitled, in spite of the Buyer’s terms and conditions otherwise, to offset payments first of all against the Buyer’s oldest debts, and he shall inform the Buyer of how the offset has been made. If costs and interest has already been incurred, the Seller shall consequently be entitled to offset the payment first of all against the costs and then against the interest and finally against the main debt.
9.5 A payment shall only be regarded as having been made in those cases in which the Seller is able to dispose of the funds received.
9.6 The Buyer shall be in default if he fails to pay invoices by the contractual payment date.
9.7 If the Buyer is in default with his payments, the Seller shall consequently be entitled to demand interest at 8 percentage points above base rate as a lump sum compensation for damages from the point in time the Buyer is in default.
9.8 If, after signing the contract, the Seller becomes aware of specific circumstances which question the Buyer’s creditworthiness, in particular if enforcement measures have been instigated by the Buyer’s creditors, or if fails to pay on time or if the Buyer stops making his payments, the Seller shall consequently be entitled to make all outstanding debt payable. In this case the Seller shall, moreover, be entitled to demand that securities are furnished within a reasonable period of time. After this period of time has expired, the Seller shall be entitled to withdraw from the contract.
9.9 If the Buyer is in default with payment for goods and services based upon the same legal relationship, the Seller - irrespective of his other rights – shall be entitled to demand payment in advance as well as withhold goods not yet delivered or services not yet rendered.
9.10 The Buyer shall only be entitled to offset if his counter-claims have been adjudicated or if they have been recognised by the Seller or if they are not disputed.
10.1 All the Buyer’s compensation claims for damages against the Seller shall be inadmissible regardless of whatever legal reason upon which they are based, unless the Seller or his assistants have acted with intent or gross negligence, or if he has breached important contractual duties through ordinary negligence. Important contractual duties are those obligations protecting the essential legal positions of the Party to the contract, which the contract specifically has to grant him in its content and purpose. Those contractual duties the fulfilment of which makes it possible to execute the contract properly at all in the first place and upon the fulfilment of which the other Party to the contract has relied and ought to be able to rely, constitute, moreover, important contractual duties.
10.2 In the event of grossly negligent or ordinary negligent breach of an important contractual obligation, compensation for damages shall be limited to typical and foreseeable damages.
10.3 Except in cases of intent and gross negligence, the liability for damages not affecting the subject-matter of the contract shall be inadmissible.
10.4 The limitations of and exclusions from liability in Paragraphs 1 and 2 above shall not apply for claims arising as a result of fraudulent behaviour on the part of the Seller, as well as for liability for warranted performance and characteristics, for claims under the German Product Liability Act as well as from death, personal injury or physical harm.
10.5 The Seller cannot be held liable for possible damage to health based on the consumption of cigars, tobacco products, smoking pipes and other related smoking products – neither directly during consumption or subsequently at any point in time.
10.6 In so far as the Seller cannot be held liable or if his liability is limited, this shall also apply for his salaried staff, employees, representatives and assistants.
10.7 In cases in which liability is contractual and non-contractual, a time limit of one year shall apply for all compensation claims, which can be asserted against the Seller for damages or compensation for expenditure spent in vain, except in cases of intent, gross negligence or personal injury. The period of time shall begin at the point in time specified in Section 199 of the German Civil Code [BGB]. It shall come into force no later than the expiry of the maximum periods specified in Section 199 Para 3 and Para 4 of the German Civil Code [BGB].
11. Final Provisions, Applicable Law, Place of jurisdiction
11.1 These General Terms and Conditions of Business and all legal relationships between the Seller and Buyer shall be governed by the law of the Federal Republic of Germany. The provisions of the UN law on sales [CISG] shall not apply.
11.2 The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Augsburg. The Seller shall, however, also be entitled to take legal action against the Buyer at the latter’s general place of jurisdiction. If the Buyer does not have a general place of jurisdiction within Germany or another EU member state, the place of jurisdiction for all disputes arising from and in connection with this contract shall be the courts having jurisdiction where the Seller is based.
11.3 The place of fulfilment is the Seller’s principal place of business.
11.4 Should one or more or the provisions of these terms of business be or become invalid or incomplete, or in need of a supplement, the validity of the remaining provisions shall not be affected as a result.
11.5 The Parties to the contract shall in this case be obliged to make an arrangement which comes closest to the economic objective of the invalid provision or fills the gap.