General Sale Terms and Delivery Conditions (GTC)
of WERNER & WERNER GbR, Dr. Jörg Werner, Elena Manja Werner
(As of 03/2011)
1. Scope of validity, priority, contract language
2. Contract partner
3. Offer and contract conclusion
4. Right of withdrawal
5. Return costs when exercising right of withdrawal
6. Delivery, prices and shipping charge
7. Payment, set-off
8. Self-supply clause and reservation of title
9. Defects and defects of title, compensation for damages, duty of inspection for merchants
10. Joint liability
11. Place of performance, place of jurisdiction and applicable law
12. Completeness of regulations
13. Headings
1. Scope of validity, priority, contract language
1.1 These General Sale Terms and Delivery Conditions apply to all concluded contracts between WERNER & WERNER GbR as seller (subsequent WERNER & WERNER) and the buyer for the purchase and delivery of properties/goods/articles (hereinafter called products) of WERNER & WERNER. Buyers can be consumers (subject to § 13 German Civil Code (BGB) and traders (subject to § 14 BGB) and also merchants (subject to § 1 German Commercial code, HGB). The buyers are hereinafter collectively called customers, as far as a separation of consumer/trader/merchants is not necessary.
1.2 Hereinafter, a consumer is every natural person who concludes a legal transaction with an aim, that cannot be connected to neither his/her commercial nor his/her independent professional occupation.
1.3 Hereinafter, a trader is a natural or legal person or a partnership with legal capacity, who is exercising his/her independent occupational or commercial activity when concluding a legal transaction.
1.4 Merchant subject to § 1, section 1 HGB, is someone who runs a commercial enterprise (business), unless, a commercially organised business is not necessary. A merchant is also seen someone whose company is registered with the commercial registers or a commercial company subject to § 5 HGB.
1.5 These General Sale Terms and Delivery Conditions apply exclusively. Contrary and/or conflicting terms and conditions by a customer are not accepted, particularly not, if they differ with, deviate from or amend these present General Sale Terms and Delivery Conditions. This shall also apply, even if the inclusion has not been explicitly rejected.
1.6 The contract language is German. Should these General Sale Terms and Delivery Conditions be available as translation in another language and there be differences between both versions, the German version applies and is also applicable in case of interpretations.
2. Contract partner
The sales contract is with: WERNER & WERNER GbR, Dr. Jörg Werner, Elena Manja Werner, Mühlgasse 7, 82335 Berg, Germany. You can reach our customer service regarding questions, complaints and reclamations (however, not for withdrawal as of no.4.!) on weekdays from 9:00 am until 6:00 pm at this telephone number +49 8151 3689395 or via e-mail at
3. Offer and contract conclusion
3.1 The presentation of products in the online shop is not legally binding but represents an invitation for purchase.
3.2 Errors are reserved.
3.3 By clicking the button »Order now« you submit a binding order for the goods contained in the shopping basket. You are bound to the order for
the duration of two (2) weeks after placing your order. If applicable, your existing legal right subject to clause 4.1, to revoke your order, remains unaffected. After completing your order you can continue to access your order data in your customer account.
3.4 We will confirm and validate the receipt of the order and also the receipt of the conclusion of the sales agreement (the acceptance of the order) immediately via e-mail (»Order confirmation«).
3.5 Where such a confirmation e-mail or letter is sent, a contract shall not be concluded, unless, the acceptance is declared next to the confirmation of receipt.
3.6 A contract is only legally effective, when we accept your order through a declaration of acceptance/order confirmation or through the delivery of the ordered products.
4. Right of withdrawal
4.1 Solely consumers subject to § 13 BGB (aforementioned clause 1.2) have a right of withdrawal. The right of withdrawal exclusively applies solely for distance contracts in accordance with applicable legislation.
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***** Begin of caution of right of withdrawal *****
You may revoke your contractual agreement without having to provide a reason, within 14 days in writing (e.g. by letter, fax, e-mail) or - if the item is placed at your disposal prior to the expiry of this period - by returning the item. The period begins upon receipt of this notification in writing, but not before receipt of the goods from the addressee (in the recurring supply of similar goods not before receipt of the first partial delivery) and also not before fulfilling our information requirements pursuant to section 246 § 2 in conjunction with § 1 section 1 and 2 EGBGB as well as our duties as defined by § 312e section 1 clause 1 BGB in conjunction with article 246 § 3 EGBGB. In order not to exceed the withdrawal time limit the timely dispatch of the withdrawal or the goods is sufficient. The withdrawal should be sent to:
WERNER & WERNER GbR Dr. Jörg Werner, Elena Manja Werner Mühlgasse 7 82335 Berg Germany Fax +49 8151 3684845
Consequences of withdrawal In case of effective revocation the products and payments mutually received must be returned and benefits (e.g. interest) drawn, if any, be surrendered. If you are unable to return the merchandise or parts thereof or are only able to return it in a deteriorated condition, you may be required to pay damages as compensation. This will not apply if such deterioration of the merchandise has only been caused by its inspection – as would have for example been possible in a retail store. You can avoid paying compensation by not using the merchandise and not treating it as your property and by avoiding anything that reduces its value. Items suitable for delivery by parcel are to be returned at our risk. You will be required to bear the cost of return delivery if the merchandise delivered corresponds with the one ordered and the price of the item to be sent back does not exceed the amount of Euro 40 or – in case of a higher price of the item – if you have not paid the price or any contractually agreed instalment on the date of revocation as yet. Otherwise, return delivery will be free of charge for you. Items not suitable for delivery by parcel will be picked up at your place. Obligations to refund payments must be met within 30 days. The deadline shall commence for you on the date you sent the notice of withdrawal and for us following its receipt.
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4.3 The right of withdrawal does not apply under legal regulations (§ 312d section. 4 No. 1 and No. 2 BGB) inter alia to distance contracts for the supply of goods manufactured according to customer specifications are clearly adapted to personal requirements, or by reason of their nature are not suitable for return shipment, or may deteriorate rapidly, or if after shipping their sell-by-date would be exceeded, and also in case of delivery of audio or video tapes or software where the customer has unsealed the data carriers/media supplied.
4.4 Please avoid damaging or soiling. Please return the product in its complete original packaging, inclusive all accessories to us. If need be, please use a protective secondary packaging. If you do not possess the original packaging anymore, please ensure suitable packing for adequate protection of transport damage, in order to avoid claims of compensation due to damage through inadequate packaging.
4.5 Return the goods as a postpaid package to us and retain the receipt. If you wish, we are able to refund the postage in advance, if you are not liable for these costs yourself.
4.6 Please note, that in section 4.3 to 4.5 what are known as modalities, are not to be prerequisites for an effective use of the right of withdrawal.
5. Return costs when exercising right of withdrawal
In the event that you make use of the legal right of withdrawal (see right of withdrawal), you must bear the costs of returning the goods when the goods supplied correspond to the order and when the price of the goods being returned does not exceed 40.00 euros or if, in the event of the price of the goods being higher at the time of withdrawal, the customer has not yet performed the service in return or paid a contractually agreed part payment. In all other cases return cost is free of charge.
6. Delivery, prices and shipping charge
6.1 The products will be delivered by WERNER & WERNER to the customer. Delivery occurs world-wide.
6.2 Delivery time takes approx. 3 days within Germany starting from the conclusion of the contract and the receipt of payment. Delivery time outside Germany takes approx. 10 days starting from the conclusion of the contract and the receipt of payment.
6.3 The products shown on the product pages in the WERNER & WERNER shop are subject to quoted prices. All prices given are gross prices and include the statutory German sales tax.
6.4 Unless otherwise indicated, all stated prices in the WERNER & WERNER shop are inclusive of shipping charge. The shipping charge is always clearly stated on product pages, in the basket system and is communicated again on the order page next to specifications of the total amount to be paid.
6.5 As far as legally permitted, an invoice without VAT is possible for traders. But this applies exclusively for companies in EU countries as a tax-free intra-Community delivery and also to deliveries in third countries as tax-free delivery. In such case, WERNER & WERNER has to reduce the agreed sales price by the legal share of sales tax, if the customer has evidence of admissibility and requirements.
7. Payment, set-off
7.1 The payment may be made via »advance payment (bank transfer)« or online via PayPal (payment possible according to own account configurations with credit card, debiting the account etc.).
7.2 If »advance payment (bank transfer)« has been chosen we will communicate our bank details via e-mail (»Information for advance payment«) and will deliver the goods – just like with other payment types – after complete payment of the outstanding product price and if applicable shipping charges.
7.3 The customer shall only be entitled to set-off, if his set-off claims are undisputed or have been declared legally effective, even in the event of complaints of defects or counterclaims are being invoked.
8. Self-supply clause and reservation of title
8.1 WERNER & WERNER is entitled to withdraw from the contract, insofar as WERNER & WERNER does not receive the product or necessary delivery items for the production of the product, despite the prior conclusion of a corresponding purchase contract. Liability of WERNER & WERNER for damages caused by intent or negligence remains not affected and intact subject to section 10 of this General Sale Terms and Delivery Conditions. WERNER & WERNER will notify the customer immediately about delayed availability of the product and if WERNER & WERNER would like to withdraw, will exercise the right of withdrawal immediately. In the event of withdrawal WERNER & WERNER will refund the customer any advance payments received immediately.
8.2 Until full payment is received, the goods will remain property of WERNER & WERNER.
9. Defects or defects of title, compensation for damages, duty of inspection for merchants
9.1 The customer’s claims due to defective performance or negligent breaches of duty by the seller (WERNER & WERNER), in particular his/her rights for defects (warranty claim), follows the legal regulations, as far as nothing else has been agreed upon in these General Sale Terms and Delivery Conditions.
9.2 (1) WERNER & WERNER is liable assertion of a claim of compensation of damages for defects according to legal requirements, inasmuch as the claims for compensation of damages of the customer are based on intent or grossly negligence conduct, inclusive of intent or grossly negligent conduct of representatives or agents. Liability for simple negligence however, is excluded, inclusive the liability for simple negligence of representatives or agents.
(2) Liability for compensation for damages in case of liability by WERNER & WERNER, is limited to the amount of the typically foreseeable damages.
(3) However, these limitations are not applicable insofar as WERNER & WERNER are accused of intentional breach of contract, including an intentional breach of contract through representatives or agents.
9.3 (1) The aforementioned exclusion of liability (No. 9.2) for the liability of simple negligence, inclusive the liability of exclusion for simple negligence of representatives or agents, is not applicable, inasmuch as WERNER & WERNER culpably violated a significant contractual obligation, including a culpably violation of a significant contractual obligation of representatives or agents. WERNER & WERNER is then liable in accordance with the legal regulations.
(2) Liability for damages shall be restricted to the amount of the foreseeable, typically occurring damages
(3) An essential negligence of contractual obligation (so called cardinal obligation) is in effect, if the breach of obligation implicates such disadvantage for another, that the essential of this consequence escapes, what it might have expected, unless the infringing party missed to foresee this consequence and a responsible person also missed to foresee the same kind of consequence under the same circumstances. (section 25 CISG). A cardinal obligation is therefore a contractual obligation whose compliance the adequate and orderly accomplishment of the contract is enabling in the first place and on whose compliance the customer can trust regularly.
9.4 The aforesaid regulations also apply to entitlements for replacement of vain expenditures. Any change in the onus of proof to the detriment of the customer shall not affect the aforementioned provisions.
9.5 The aforementioned limitation of liability is not applicable to damages to life, body or health, due to fraudulent concealment of deficiencies, due to absence of a warranted quality and due to claims arising from product liability and also for damage claims, that were caused by a contractual product, that in accordance with their normal use, have been used for a building structure and have caused the defectiveness of this structure.
9.6 Only if and insofar as the customer concludes the contract as an trader in terms of § 14 BGB (German Civil Code), he/she is obligated to examine the delivered goods in accordance with the legal obligation in
§ 377 HGB (German Commercial Code) »after delivery«. Warranty claims by the customer are only applicable if the customer has fulfilled his obligations for inspection and rebuke according to § 377 Commercial Code, in particular, if any defects arise, to immediately and not later than 2 weeks after occurrence or discovery, inform the seller (WERNER & WERNER) in writing.
10. Joint liability
10.1 WERNER & WERNER is otherwise liable in all cases of intentional or grossly negligent breach of duty. This is also applicable for representatives or agents.
10.2 An extensive liability regarding compensation for damages as well as entitlements for replacement of vain expenditures – regardless of the legal nature of the asserted claims and solely excluding the liability due to delay and impossibility – are impossible, unless the cause of damage grossly negligent or purposeful breach of obligation (cardinal obligation); in the latter case, the liability sum is limited to the typical, foreseeable damage.
10.3 The violation of a cardinal obligation occurs, if the liability breach has such a disadvantage for the other party, that it misses the essential of of what should have been expected under the contract, unless the infringing party did not foresee this as a possible consequence and a reasonable person of the same kind did not foresee in the same manner the same case under the same circumstances (art. 25 CISG). A cardinal obligation is therefore a contractual obligation, whose compliance thereof makes the execution of the contract possible in the first place and whose compliance can normally be expected by the customer.
10.4 The aforementioned limitation of liability is not applicable to damages to life, body or health, due to fraudulent concealment of deficiencies, due to absence of a warranted quality and due to claims arising from product liability and also for damage claims, that were caused by a contractual product, that in accordance with its normal use, has been used for a building structure and has caused the defectiveness of this structure.
11. Place of execution, court of jurisdiction and applicable law
11.1 Generally and subject to the following provisions, the place of fulfillment is the site or residence of the customer.
11.2 If the customer’s site or residence is not in Germany, the residence of WERNER & WERNER in Starnberg is the place of fulfillment and non-exclusive court of jurisdiction. Exclusive courts of jurisdiction, for example for the collection proceedings, remain unaffected.
11.3 The sole court of local and international exclusive jurisdiction including for all disputes for commercial transactions in connection with this contract (for purchase contracts with merchants according to § 1 HGB as well as legal persons governed by public law or a public law special fund) is the registered seat of the seller (WERNER & WERNER). However, in these cases, the seller (WERNER & WERNER) is entitled to sue the customer at his/her registered seat. Registered seat of the customer is
the seat of the country of his/her central administration or head office.
11.4 The relationships between the contractual parties are dictated exclusively according to the applicable laws in Germany. As far as the customer is the consumer, however, if his/her seat or registered seat at time of purchase is not in Germany, the use of binding regulations of the country where the customer is resident remains untouched.
12. Completeness of regulations
There are no verbal subsidiary agreements.
13. Headings
In these General Sale and Delivery Terms the headings are used for convenience only and do not have their own regulatory content and no legal relevance.