General Terms and Conditions of Business
1. Validity
a) We, Topstar GmbH, Augsburger Straße 29, 86863 Langenneufnach, Germany, apply these General Terms and Conditions (GTC) to you, our customer, if you are an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB).
b) The following GTC shall apply exclusively to all deliveries and services provided by us.
c) This also applies in the event that you submit a contract offer or place an order on the basis of your own deviating or supplementary terms and conditions. Your deviating or supplementary terms and conditions, which we have not expressly agreed to, shall in no case become part of the contract, even without our express rejection.
d) Our General Terms and Conditions shall also apply if we carry out the deliveries or services without reservation in the knowledge of your conflicting, supplementary or deviating terms and conditions.
e) All agreements made between us and you for our deliveries and services must be recorded in writing.
f) Our General Terms and Conditions shall also apply to all future transactions with you.
2. Conclusion of contract, content of contract, cancellation of contract
a) Our offers, including those made on our behalf, are always subject to change and non-binding and do not constitute an application to conclude a contract with you, but merely an invitation to you to submit such an application.
b) If we receive your application to conclude a contract, you are bound by it for three weeks.
c) A contract is only concluded when we accept your application in writing or by telex. The execution of your application by us is equivalent to written or telex acceptance.
d) We are at liberty to confirm receipt of your application. However, the confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt can be combined with the order confirmation.
e) The conclusion of the contract with you is subject to the reservation of correct and timely delivery by our suppliers. The effectiveness of the reservation of self-supply is dependent on the fact that a congruent legal transaction has been concluded with the supplier and that we are not responsible for the non-delivery. You will be informed immediately of the non-availability of the services. Any agreed delivery period shall be extended accordingly. If we are still unable to fulfil the delivery after setting a reasonable deadline, you are entitled to withdraw from the contract. In this case, we will immediately reimburse any payments you have already made.
f) You may withdraw from the contract if the entire performance becomes definitively impossible before the transfer of risk or, in the event of delay, the delivery has not been made within a reasonable period of time, which may not be less than one month, unless we are at least predominantly not responsible for the impediment to performance or it is a case of force majeure. Insofar as partial services have been rendered that can be utilised by you even after termination of the contract, your right of withdrawal shall be limited to the parts that have not yet been rendered.
g) If the impossibility occurs during the delay in acceptance or through your fault, you shall remain obliged to provide consideration. If we have already rendered partial services within the meaning of paragraph f), you shall be entitled to remuneration in this respect.
3. subject matter of the contract
a) The subject matter of the contract is solely the delivery or service described in the order confirmation. § Section 243 (1) BGB shall apply accordingly. Amendments, supplements and ancillary agreements shall only be binding if confirmed by us in writing.
b) Contractual services that are not listed in the offer or in the order confirmation, in particular those that are publicised for advertising purposes (e.g. advertising, Internet), are only part of the subject matter of the contract if this is confirmed by us in writing. We reserve the right to make reasonable changes due to technical developments.
c) Only the characteristics listed in the order confirmation shall be deemed agreed as the quality of the subject matter of the contract. Public statements, promotions or advertising by the manufacturer do not constitute a contractual description of the quality of the products.
d) Consultancy services and information of any kind are only binding if they have been confirmed in writing.
e) All dimensions, weights, drawings, clichés and photos are to be understood as approximate and non-binding only. We expressly reserve the right to make design changes that are merely in the interests of progress and are reasonable. Customised products are made at the risk of the customer.
4. Prices, terms of payment, transport
a) Unless otherwise stated, prices are per item in euros ex works or ex distribution centre, excluding packaging, shipping, other ancillary costs and unassembled, unless other conditions have been agreed. We reserve the right to make price adjustments up to the date of delivery if these are demonstrably due to changes in material costs, wages, taxes and duties, etc. We reserve the right to make price adjustments up to the date of delivery. In such cases, the customer shall not be entitled to withdraw from the contract, even in the case of contractually agreed prices.
b) Payment shall be made in cash and without any deductions within 8 days of the invoice date at the latest. Any acceptance of bills of exchange or cheques shall only take place by agreement and for the sake of fulfilment; you shall bear the costs of discounting and collection.
c) If you are in default of payment, we shall be entitled to demand default interest in the amount of 9 percentage points above the respective base interest rate. The assertion of further damages caused by default remains unaffected by this.
d) If, after placing the order, justified doubts arise as to your unconditional ability to pay, we shall be entitled to demand security or to withdraw from the contract.
e) Transport shall be at your expense and risk, even if carriage paid delivery has been agreed. If you discover transport damage, this must be reported immediately. In the case of rail transport damage, a report of the facts must be made immediately. You shall bear the costs of transport insurance; we shall choose the mode of dispatch. If you are responsible for delays in despatch, the risk shall pass to you when the goods are ready for despatch.
5. right of retention, offsetting, assignment
a) You can only assert a right of retention from the same contractual relationship. In addition, all rights of retention – regardless of the legal relationship – against us are excluded.
b) You are only entitled to offset recognised, legally established claims.
c) Your rights against us may only be assigned with our written consent.
6. reservation of title
a) The goods shall remain our property until full payment of all claims, including ancillary claims, claims for damages and encashment of cheques and bills of exchange.
b) The retention of title shall remain in force even if individual claims of ours are included in a current account and the balance has been struck and recognised.
c) You are authorised to further process and sell the goods, subject to the following provisions:
aa) Your authority to process goods subject to retention of title in the ordinary course of business shall end upon your suspension of payments or upon the application for or opening of insolvency proceedings against your assets.
bb) By further processing the reserved goods, you do not acquire ownership of the new item in accordance with § 950 BGB. The processing is carried out for us without any liabilities arising for us. If the goods are processed, mixed or blended with other items, we shall acquire co-ownership of the new item in the ratio of the value of our goods subject to retention of title to the total value.
cc) You hereby assign to us the claim with all ancillary rights arising from the resale of the goods subject to retention of title, also on a pro rata basis to the extent that the goods have been processed, mixed or blended and we have acquired co-ownership in the amount of our invoice value. In the latter case, we shall be entitled to a fraction of the respective purchase price claim in proportion to the invoice value of our reserved goods to the invoice value of the item. If you have sold the claim within the framework of genuine factoring, you shall assign to us the claim against the factor taking its place. We hereby expressly accept the assignment from the resale as well as from the sale within the framework of genuine factoring.
dd) We will not collect the assigned claims as long as you meet your payment obligations. The waiver of the direct debit authorization expires if you default on payment to us. In this case, you authorize us to inform your customers of the assignment and to collect the claim ourselves. You are obliged to provide us with a precise list of the claims to which you are entitled, including the names and addresses of the customers, the amount of the individual claims, the invoice date, etc., upon request, and to provide us with all information necessary to assert the assigned claims and to allow us to check this information.
You are entitled to collect the claims yourself as long as we do not give you any other instructions.
ee) We undertake to release the securities to which we are entitled to the extent that their value exceeds the claims to be secured by more than 20%.
ff) You are not permitted to pledge or transfer the reserved goods or the assigned claims as security. You must notify us immediately of any seizures by third parties, stating the name of the seizing creditor.
gg) If we take back the delivery item due to the retention of title, this does not constitute a withdrawal from the contract. We are entitled to satisfy our claims from the returned reserved goods freely.
hh) You store the reserved goods for us free of charge. You must insure the reserved goods against usual risks such as fire, theft and water to a sufficient extent that at least reaches the amount of our claims against you. You hereby assign to us your claims for compensation that you are entitled to against insurance companies or other parties liable for damages of the type mentioned above, in the amount of our claim. We hereby accept this assignment.
ii) All claims and rights arising from the retention of title to all special forms specified in these terms and conditions remain in force until full release from contingent liabilities that we have entered into in your interest.
7. Warranty and recourse
a) You must inspect deliveries and services immediately upon receipt. If you discover defects, you must report them to us in writing immediately, no later than 8 days after the risk has passed to you. If you discover hidden defects, you must report them to us in writing immediately, no later than 8 days after discovery. If you do not comply with these obligations, all warranty claims are excluded.
b) As natural products, wood and leather may have slight color and structure deviations, for which we do not provide a guarantee.
c) We guarantee the agreed quality – with the exception of insignificant deviations – by delivering a defect-free product or remedying the defective condition at our discretion. If we decide to remedy the defect by remedying the defect, you will only have further warranty rights if the remedy of the defect has failed twice.
d) If the subsequent performance ultimately fails, you can, at your discretion, demand a reduction in your remuneration (reduction) or cancellation of the contract (withdrawal). In the event of a minor breach of contract, in particular in the case of minor defects, you have no right of withdrawal. With regard to the assertion of the right of withdrawal and a claim for damages, reference is made to the following paragraph.
e) You bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the complaint.
f) Warranty claims for all products supplied by us expire within one year, unless otherwise agreed in writing. However, they expire prematurely as soon as you attempt to repair or make changes or do not follow operating instructions. The warranty period begins on the day of delivery to you.
g) You are hereby informed that the quality information presented in the product description, a product data sheet or a product sample do not constitute guarantees in the legal sense. Quality information and guarantees that go beyond the product description are only deemed to have been declared to the customer if they have been recorded in writing by us.
h) If we are a supplier or sub-supplier within the meaning of Section 445a of the German Civil Code (BGB), we agree the following for recourse against us:
aa) We exclude all rights of recourse against us if you have not fulfilled your obligations under letter a) or have not fulfilled them in a timely manner.
bb) If the person for whom you are recourse against us is not a consumer within the meaning of Section 13 of the German Civil Code (BGB), we exclude recourse against us.
cc) If the person for whom you are seeking recourse against us is a consumer within the meaning of Section 13 of the German Civil Code (BGB), but a guarantee is provided to that person, by whomever, outside of the mandatory statutory provisions, e.g. as a gesture of goodwill, as a favour or supposedly on the basis of statutory cancellation rights, you cannot seek recourse against us.
dd) Recourse claims expire in all cases within one year of delivery to you and expire prematurely as soon as you or others in the supply chain attempt to repair or make changes or if you or others in the supply chain do not follow operating instructions.
ee) Letters e) and g) also apply accordingly to recourse claims against us.
i) If you set us deadlines within the scope of the warranty and recourse, these must always be reasonable. If you set unreasonably short deadlines, these will not be extended to reasonable deadlines by way of a reduction to maintain validity, but must be set again by you for a reasonable length.
8. Liability
a) If you or a third party make changes or repairs without our prior written and express permission, we shall not be liable for the resulting consequences. The statute of limitations remains unaffected.
b) All claims for damages or compensation for wasted expenses incurred by the customer against us are excluded regardless of the legal basis, unless we have acted intentionally or with gross negligence or have negligently breached essential contractual obligations.
c) In the event of gross negligence or negligent breach of an essential contractual obligation, compensation is limited to the typical and foreseeable damage. We shall only be liable for any further damage to the extent that our business liability insurance is obliged to pay.
d) Liability for damage that does not occur to the subject matter of the contract is excluded except in cases of intent and gross negligence. e) Liability for the lack of a quality for which we have assumed a guarantee, as well as liability under the Product Liability Act, remains unaffected by Section 8 b, Section 8 c, Section 8 d.
f) In all other respects, we shall be liable without limitation for damages
aa) resulting from injury to life, body or health, which are based on a negligent breach of duty by us or an intentional or negligent breach of duty by a legal representative or vicarious agent of ours or,
bb) which are based on a grossly negligent breach of duty by us or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of ours.
g) For all claims for damages or compensation for wasted expenditure in the case of contractual and non-contractual liability, which are asserted against us – except in the cases of letter f) – a limitation period of one year applies. The period begins at the time specified in Section 199 of the German Civil Code. It begins at the latest upon expiry of the maximum periods specified in Section 199 Paragraph 3 and Paragraph 4 of the German Civil Code. Other limitation provisions of these terms and conditions remain unaffected.
9. Confidentiality / Data Protection
a) Both we and you undertake to treat all trade and business secrets, in particular documents, findings and information of the other party, which become known or are known in the context of the initiation and execution of the order, as confidential and to maintain confidentiality about this towards outsiders, unless these are already generally and publicly known.
b) You expressly agree that we may collect, process, store and use your data, including personal data, in an automated procedure insofar as this is necessary for the establishment, content design, changes and/or execution and fulfillment of the contract (master data). If we no longer need your data for the aforementioned purposes, we will delete it unless we are forced to store it for a longer period due to legal regulations (e.g. to fulfill tax law requirements) or you have agreed to longer storage.
10. Force Majeure
a) Force majeure means the occurrence of an event or circumstance that prevents a party from fulfilling one or more of its contractual obligations under the contract if and to the extent that the party affected by the impediment proves that:
aa) this impediment is beyond its reasonable control; and
ab) it was not reasonably foreseeable at the time the contract was concluded; and
ac) the effects of the impediment could not have been reasonably avoided or overcome by the party affected.
b) Until proven otherwise, the following events affecting a party are presumed to meet the requirements of paragraphs (aa) and (ab) of paragraph (a) of this clause:
ba) war (declared or undeclared), hostilities, attack, acts of foreign enemies, large-scale military mobilization;
bb) civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy;
bc) currency and trade restrictions, embargoes, sanctions;
bd) lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalization;
be) plague, pandemic, epidemic, natural disaster or extreme natural event;
bf) explosion, fire, destruction of equipment, prolonged failure of means of transport, telecommunications, information systems or energy;
bg) general industrial unrest such as boycotts, strikes and lockouts, go-slows, occupation of factories and buildings.
c) A party who successfully invokes this clause shall be released from its obligation to perform its contractual obligations and from any obligation to pay damages or any other contractual remedy for breach of contract from the moment the impediment renders it impossible to perform, provided that this is communicated without delay. If the communication is not made without delay, the release shall take effect from the moment the communication reaches the other party. If the effect of the impediment or event invoked is temporary, the consequences set out above shall apply only for as long as the impediment invoked prevents the performance of the contract by the party concerned. If the duration of the impediment invoked has the effect of depriving the parties of what they were entitled to expect under the contract to a significant extent, either party shall have the right to terminate the contract by giving notice to the other party within a reasonable period of time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment exceeds 120 days.
d) If the conditions set out in paragraph a) lit. (aa) and lit. (ab) are met, Topstar/Wagner is entitled to request any resulting necessary price discussions in connection with possible price demands, regardless of agreed deadlines.
11. Arbitration
a) The European Commission provides a platform for out-of-court online dispute resolution (ODR platform), which is available at http://ec.europa.eu/consumers/odrab. Our email address is: info@de.
b) We do not participate in dispute resolution proceedings before a consumer arbitration board, either voluntarily or due to a legal obligation.
12. Final provisions
a) The law of the Federal Republic of Germany applies.
b) The place of performance is our registered office at Augsburger Straße 29, 86863 Langenneufnach.
c) Legal disputes shall be subject to the jurisdiction of the ordinary state courts with local and subject-matter jurisdiction for Langenneufnach.
d) The language of the contract and the courts is German.
e) If these General Terms and Conditions or other contract texts are translated, the German version shall prevail.