Terms and Condition (B2B)

General terms of delivery for internet sales in the B2B sector

 

1. General, Customers, Language

  1. All offers, sales contracts, deliveries and services made on the basis of orders by our customers (each, a „Customer“) through our business online shop “www.winthera.com” (the „Online Shop“) shall be governed by these general terms and conditions of sale (the „General Terms and Conditions“).
  2. The product offerings are directed exclusively to entrepreneurs (as defined in Sec. 14 (1) of the German Civil Code , i. e. natural or legal persons or partnerships with legal capacity acting, when entering into the transaction in the exercise of their commercial, business or professional activity). The customer confirms this either by registering and creating a customer account or, if the order is placed using the “order as guest” function, by providing the corresponding confirmation during the ordering process in the online shop.
  3. Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
  4. Our contracts with the Customer shall be made exclusively in the German or English language, in each case depending on whether the Customer makes the relevant purchase on our English or German language website. Therefore, if the order is made on our German website, exclusively the German version of these General Terms and Conditions shall be relevant. If the order is made on our English website, exclusively the English version of these General Terms and Conditions shall be relevant. English terms to which a German translation has been added shall have the meaning assigned to them by the relevant German term.

2. Conclusion of Contract

  1. Our offerings in the Online Shop are non-binding.
  2. By placing an order in the Online Shop, the Customer makes a binding offer to purchase the relevant product. The offer will remain open for acceptance by us for a period ending at the end of the 10th business day following the day of the offer.
  3. Without undue delay upon receipt of the order, we will send to the Customer by e-mail a confirmation of receipt, which shall not constitute an acceptance of the order. The order shall be deemed to be accepted by us either upon subsequent (e-mail) acceptance of the order or by dispatching the product. The sales contract with the Customer shall not become effective until our acceptance.

3. Prices and Payment

  1. Our prices include statutory VAT, but are net of shipping costs. Any customs duties and similar public charges shall be borne by the Customer.
  2. Unless expressly otherwise agreed by us, all shipments by us shall require advance payment (to be made in the manner specified in our order form made available in the Online Shop) or shall be paid cash on delivery, in each case upon receipt of an invoice.

  3. In the event that we have agreed to payment after delivery, our invoices shall be due and payable by the Customer within 30 days upon receipt by the Customer of the product and the invoice.

  4. The Customer shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by us or been determined by a final and binding decision.

4. Date of Dispatch of the Product, Sell off, Partial Delivery

  1. Any period for the dispatch of the product, specified by us at the time of the order or as otherwise mutually agreed upon, shall begin (a) upon receipt by us of the full purchase price (including VAT and shipping costs) if payment in advance has been agreed or (b) upon conclusion of the sales contract if cash on delivery or payment after delivery has been agreed upon. The date of dispatch shall be such day on which the product is handed over by us to the carrier.
  2. We reserve the right to make design or shape modifications to the contractual product, deviations in color shade, as well as changes to the scope of delivery during the delivery period, provided that the contractual product is not substantially modified and the changes are reasonable for the Customer
  3. Any time period for the dispatch of the product specified by us shall be only approximate and may therefore be exceeded by up to two business days, except if a fixed date of dispatch has been agreed upon. Unless a time period or date of dispatch has been specified or agreed upon, we shall be required to dispatch the product within a period of (five) business days.
  4. Even if the product is indicated on the order form as „in stock“, we may sell the product at any time, unless an agreed advance payment is received by us within a period of (five) business days upon our acceptance of the order. In such case, we shall only be obligated to dispatch the product within the relevant time period (as agreed upon or specified by us) as long as stock lasts.
  5. In the event that our supplier fails to deliver in a timely manner a product that has been indicated on the order form as „not in stock“ or has been sold off in accordance with subsection 3 above, any applicable period for dispatch shall be deemed to be extended until delivery is made by our supplier plus an additional period of three business days, but in no event by a period exceeding four weeks; provided, in each case, that
    • our supplier's failure to timely supply the products is not a result of our fault and
    • we have ordered the relevant product from the supplier prior to conclusion of the sales contract (or, in case of subsection 3, the time of the sell-off) in such a timely manner that under normal circumstances a timely delivery could reasonably be expected.

       

    In the event that the product is no longer available for a reason not attributable to us or cannot be timely delivered despite our timely order, we shall be entitled to terminate the sales contract. We shall without undue delay inform the Customer of the non-availability of the product and, in case of a termination, promptly reimburse the Customer any payments made to us.

  6. We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the failure of suppliers to deliver or to deliver correctly or on time despite a congruent hedging transaction concluded by us) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for us and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written (as defined in Sec. 126 (1) of the German Civil Code) declaration to the seller.


  7. If the Customer has purchased, through the same order, several products that can be used separately, we may dispatch those products in separate deliveries, provided that we shall bear any additional shipping costs. If, however, a product is designated in the Online Shop as “out of stock” and the Customer opts for advance shipment of other products in stock, any additional shipment costs arising therefrom shall be borne by the Customer. The Customer’s statutory rights in relation to a timely and proper delivery shall not be affected thereby.

5.
Type and Time of Shipment, Insurance and Passing of Risk

  1. Unless expressly otherwise agreed upon, we shall be free to determine the appropriate mode of shipment and to select the carrier at our reasonable discretion.
  2. If the product is shipped according to the agreement with the Customer, except where we have agreed to carry out any assembly, installation or similar work, we shall only be obliged to properly and timely deliver the product to the carrier and shall not be responsible for any delays caused by the carrier. Any transit time (i. e. the time between the delivery by us to the carrier and the delivery to the Customer) specified by us shall therefore be non-binding.
  3. The risk of accidental destruction, damage or loss of the delivered product shall, if our obligation is limited to the dispatch of the product (subsection 2), pass to the Customer upon delivery of the product by us to the carrier.
  4. We shall insure the product against the usual risks of transportation at our cost and expense.

6. Retention of Title and Resale

  1. We retain legal title (Eigentumsvorbehalt) to any product supplied by us until the purchase price (including VAT and shipping costs) for that product has been fully paid.
  2. The Customer shall not be entitled to transfer title to any products delivered by us under retention of title (“Retained Goods“) to a third party, except with our prior written consent. The Customer may, however, dispose of its legal position in relation to the Retained Goods (so called expectant right), provided that the third party is made aware of our title rights.
  3. The Customer shall treat the Retained Goods with due care.
  4. In the event that any third party, in particular in connection with any enforcement, seeks to take control of the Retained Goods, the Customer shall make aware the third party of our title right and shall without undue delay notify us in order to enable us to enforce our rights.
  5. In case of a payment default by the Customer, we may require the Customer to surrender the Retained Goods to us, as soon as we have terminated the contract.

7. Warranty

  1. In the event of a defect of the delivered product, we may, at our choice repair the defect or supply another product (as ordered) which is free from defects.
  2. If remediation pursuant to subsection 1 fails or cannot reasonably be expected from the Customer or we refuse to remedy the defect, the Customer shall be entitled to terminate the sales contract, reduce the purchase price or claim damages or frustrated expenses, in each case in accordance with applicable law; provided, however, that damage claims of the Customer shall be subject to the provisions contained in Section 9 of these General Terms and Conditions.
  3. The warranty period shall be 12 months upon delivery of the Product.
  4. The Customer shall promptly upon delivery inspect the product with due care. The delivered product shall be deemed to be approved by the Customer unless the defect is notified to us (i) in case of any obvious defects within a period of ten (10) business days upon delivery or (ii) otherwise within ten (10) business days as from the day when the defect has been identified.

8. Intellectual Property Rights

  1. The Customer is granted the non-exclusive right to use any software delivered with the product for use in connection with the product.
  2. The Customer shall have no right to make copies of the software, except for the purpose to use the software pursuant to Section 8 (1) or for back-up purposes.
  3. The Customer may transfer the rights to the software to any third party only if at the same time title to the relevant product (in particular, a hardware product) is transferred to the transferee and the Customer does not retain any copy whatsoever of the software.
  4. In no event shall we be required to make available the source code of the software.

9. Liability

  1. Our liability for late delivery shall, except in cases of wilful misconduct (Vorsatz) or gross negligence (grobe Fahrlässigkeit), be limited to an amount equal to 10 % of the aggregate purchase price (including VAT).
  2. We shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, assuming a normal use of the product. A detailed overview of typical hazards and risks in connection with the use of the goods can be found in the attached risk description (Annex 9.2).  Furthermore, our liability for consequential damages, in particular for lost profits, business interruptions, or other indirect damages, as well as damages resulting out of a loss of data to the extent that data recovery is not possible or impeded due to a failure to perform appropriate data back-up procedures shall be excluded. The foregoing limitations of liability shall not apply in cases of wilful misconduct or gross negligence.
  3. The provisions of this Section 9 shall not apply with respect to our liability for guaranteed product specifications (within the meaning of Sec. 444 of the German Civil Code), personal injury or under the German Product Liability Act.

10. Data Protection

  1. We may save and process any data relating to the relevant orders only to the extent permitted under applicable law. Details are set out in the privacy policy available on our website.

11. General Covenants

  1. Any contracts entered into between us and the Customer shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions.
  2. The courts in Iserlohn shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract.
  3. If provisions of these General Terms of Delivery should be or become partly or wholly ineffective, the remaining provisions will continue to apply. The parties are bound to replace the ineffective provision with a legally valid provision which corresponds as closely as possible to the commercial meaning and purpose of the ineffective provision.