General Terms and Conditions of Sale, Delivery, and Payment

fitness.bedarf.de

1. Scope, General 

1. The following terms and conditions of sale, delivery, and payment (terms and conditions) of Bedarf.de Großhandel 2 GmbH, Raboisen 6, 20095 Hamburg, apply exclusively to all contracts, deliveries, and other services including consulting services and information (hereinafter collectively "Delivery/Deliveries"); we do not recognize any terms and conditions of the buyer that contradict or deviate from these terms and conditions, unless we have expressly agreed to their validity. These terms and conditions also apply if we acknowledge and/or execute the order unconditionally with knowledge of conflicting or deviating terms and conditions of the buyer.
2. They also apply to all future contracts with the buyer and future deliveries and other services to him.
3. We deliver exclusively to entrepreneurs (§ 14 BGB). We generally do not deliver to private end consumers.
4. Individually agreed terms with the buyer in specific cases take precedence over these terms and conditions. The content of such agreements is determined by a written contract or written confirmation from us.
5. The written form requirement in the sense of the preceding clause 1.4 and the following provisions is met by the text form of §126 b BGB. Particularly, legally relevant declarations and notifications from the buyer to us after the conclusion of the contract (e.g., setting deadlines, defect reports, declarations of withdrawal or reduction) require the text form to be effective.

 2. Conclusion of the Contract

1. Our offers are non-binding and do not constitute a binding offer unless expressly marked as binding or containing a specific acceptance period. This also applies if we have provided the buyer with catalogs, technical documentation, other product descriptions, or documents.
2. A buyer's order constitutes an offer to us to conclude a purchase contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within four (4) weeks of receipt.
3. When the buyer places an order in our online shop, we send him a message confirming receipt of his order and listing its details (order confirmation). This order confirmation does not constitute acceptance of the buyer's offer but is intended to inform him that his order has been received by us.
4. A purchase contract is only concluded when we either (i) ship the ordered delivery to the buyer and confirm the shipment with an email (shipping confirmation) or (ii) send a written order confirmation (order confirmation) to the buyer.
5. If the delivery to the buyer is shipped in more than one package, we may send a separate shipping confirmation or order confirmation for each package. In this case, a separate purchase contract is concluded for each shipping confirmation/order confirmation regarding the products listed in the respective shipping confirmation/order confirmation.
6. The buyer agrees to receive invoices electronically. Electronic invoices will be provided in PDF format via email.

3. Scope of Services

1. The scope and subject of the delivery are determined solely by our order confirmation or, if the delivery is shipped without prior order confirmation, by the actually delivered goods together with the delivery note. If an order confirmation sent by us contains noticeable changes compared to the buyer's order, the buyer's consent is considered given if the buyer does not object in writing within ten (10) working days of receiving our order confirmation. In any case, consent is considered given if the buyer accepts the delivery without written objection within the scope of his inspection and notification obligations according to clause 8.2.
2. Information, samples, models, or illustrations in catalogs, price lists, or other advertising materials are only approximate (e.g., weight, size, or technical data), unless a significant functional feature is affected and/or usability for the contractual purpose requires exact compliance. A reference to technical standards serves the description of the performance and is not a quality guarantee.
3. We, as dealers, do not take responsibility for public statements by the manufacturer or other third parties (e.g., advertising claims). Liability for defect claims based on statements by the aforementioned persons is excluded.
4. Unless otherwise agreed, we are not obliged to provide training or advice. If we provide technical information or advisory services and these are not part of the contractual scope of services, this is done under the exclusion of any liability. In the case of a consulting contract, the liability limitations of clause 10 apply.
5. Considering the interests and within reasonable limits, we reserve the right to over- or under-deliver by up to 10%, which will be reflected in the invoice. This particularly applies to special productions for production-related reasons.
6. For stock items we specifically procure and store for the buyer based on his demand/consumption data and/or specific stocking agreements, the existing, individual acceptance agreements apply. In the absence of such an individual regulation, the stock must be taken in as evenly as possible periods and quantities. We can, however, demand acceptance of the affected stock at the latest six months after the availability of the delivery at our place has been indicated or agreed.
7. The place of performance is our warehouse in Hamburg.
8. If a contract is concluded based on an estimate created by us, § 650 BGB applies.

4. Subscription Orders

1. We can offer the buyer the possibility to regularly receive deliveries in our online shop based on certain selection criteria and to create a subscription order based on this. With the creation of the subscription order, we are commissioned to regularly deliver to the buyer within the chosen validity period and at the selected execution interval. Creating the subscription order constitutes placing individual orders. The buyer's offer to conclude an individual order becomes effective on the chosen execution interval day and is accepted by us by shipping the delivery and sending a shipping confirmation.
2. Each subscription order can be changed or deleted by the buyer in the online shop. Deletion or change on the chosen execution interval day is excluded. With the deletion of his user account in the online shop, all subscription orders created by the buyer in the online shop are permanently deleted.
3. Both contractual parties have the right to terminate subscription orders properly with a notice period of 30 days to the end of the month. The right to terminate for good cause remains unaffected.
4. We issue an invoice for each delivery according to the agreed conditions.
5. We reserve the right to adjust the existing prices within ongoing subscription orders due to occurring changes (e.g., cost increases or changes in legal requirements). Price changes become effective after a notice period of three weeks, provided the buyer does not object within two (2) weeks after receiving the price change notification.

 5. Prices, Price Lists, Shipping, and Packaging

1. Our prices include packaging ex warehouse Hamburg without installation and assembly plus the applicable statutory VAT. The costs of returning packaging are charged separately. The same applies to shipping costs if the customer requests shipment as well as any customs duties, fees, taxes, and other public charges. In the case of special arrangements (e.g., bulky goods (equipment) or express orders, etc.), additional shipping costs or/and express surcharges may apply.
2. Unless otherwise agreed, we are entitled to determine the type of shipment, especially the transport company, shipping route, and packaging.
3. If we - without the buyer having a legal claim to it - take back ready-to-ship packaged deliveries, this is done as a courtesy. In this case, we are entitled to make the return dependent on reimbursement of the costs incurred by us.
4. If the agreed delivery period is longer than one month from the conclusion of the contract, we are entitled to calculate the prices according to our price list valid on the day of delivery.

6. Payment 

1. All payments are due immediately upon receipt of the invoice by the buyer without deduction, unless otherwise agreed. The buyer can generally pay by prepayment & direct debit or - if offered in individual cases - on account or by using installment payment ("ZeroPay").
2. All details for a payment process via ZeroPay are set out in the ZeroPay Payment Terms, which are part of these terms and conditions and always apply when the payment is processed via ZeroPay.
3. If we are authorized to collect claims against the buyer by direct debit due to a SEPA direct debit mandate, the buyer agrees that we will send him a pre-notification no later than three (3) calendar days before the day of the intended collection of a SEPA direct debit (execution date). In the event of a return debit note for which the buyer is responsible, we charge a lump-sum compensation of EUR 5.50 (return debit fee). The buyer is free to prove that no damage or significantly less damage than the lump sum has occurred.
4. In the case of purchase on account, we are entitled to set a maximum limit up to which the purchase on account is possible. This limit also takes into account open amounts from previous invoice orders and amounts from ZeroPay, with which the buyer is in default.
5. If the value of the goods exceeds EUR 10,000, we are entitled to demand a down payment of 25% of the purchase price for purchase on account. The down payment is due and payable within 10 calendar days after receipt of the pro forma invoice by the buyer.
6. Partial payments require prior written agreement.
7. If we offer a discount for purchase on account, it is only granted under the condition that all previous invoices have been paid in full and in a timely manner by the discount deduction deadline.
8. We do not accept bills of exchange and checks as a means of payment.
9. The buyer can only offset with legally established or undisputed claims. A right of retention can only be exercised by the buyer if his counterclaim is based on the same contractual relationship.
10. All payments must be made free of charge to the paying agent and free of transaction costs.

7. Shipping and Transfer of Risk 

1. Delivery is ex works (EXW according to Incoterms 2020) from our warehouse in Hamburg, which is also the place of performance. At the buyer's request and expense, the goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the type of shipment (especially transport company, shipping route, packaging).
2. The risk of accidental loss and accidental deterioration of the goods is transferred to the buyer at the latest upon delivery. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, is already transferred upon delivery of the goods to the carrier, freight forwarder, or other person or institution designated to carry out the shipment. If acceptance has been agreed, it is decisive for the transfer of risk. For the rest, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. Default of acceptance by the buyer is equivalent to handover or acceptance.
3. If the buyer is in default of acceptance, fails to cooperate, or delays our delivery for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e.g., storage costs).

8. Obligations of the Buyer, Notification of Defects, and Warranty

1. It is the buyer's responsibility to check the delivery for completeness and correctness immediately upon receipt.
2. Apparent defects must be reported in writing within eight (8) working days after receipt of the goods at the destination; hidden defects immediately after discovery, but no later than 12 months after receipt of the goods at the destination.
3. If the buyer does not report defects in time, the delivery is deemed approved, and all warranty claims of the buyer are excluded. If a defect is reported in due time, the buyer has the right to choose between repair or replacement delivery (supplementary performance). However, we are entitled to refuse the type of supplementary performance chosen by the buyer if it is only possible with disproportionate costs.
4. If the supplementary performance fails, the buyer can reduce the purchase price or withdraw from the contract. Claims for damages are limited to the amount of the purchase price. The exclusion or limitation of liability does not apply to damages resulting from injury to life, body, or health based on a negligent breach of duty by us or an intentional or negligent breach of duty by our legal representative or vicarious agent, as well as for other damages based on a grossly negligent breach of duty by us or an intentional or grossly negligent breach of duty by our legal representative or vicarious agent.
5. The warranty period is twelve (12) months from delivery. For repaired or replaced parts, the warranty period is twelve (12) months from the date of the supplementary performance.
6. The buyer must ensure that any replacement parts we supply during the warranty period are installed by qualified personnel. Otherwise, any warranty claims are excluded.

9. Retention of Title

1. We retain title to the delivered goods until full payment of all claims arising from the business relationship with the buyer.
2. The buyer is entitled to resell the goods subject to retention of title in the ordinary course of business. However, the buyer already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim that accrue to him from the resale against his customers or third parties, regardless of whether the goods subject to retention of title have been resold without or after processing. The buyer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the buyer meets his payment obligations from the collected proceeds, does not default on payment, and in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
3. The processing or transformation of the goods subject to retention of title by the buyer is always carried out for us. If the goods subject to retention of title are processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. For the item resulting from processing, the same applies as for the goods subject to retention of title.
4. If the goods subject to retention of title are inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the buyer's item is to be regarded as the main item, it is agreed that the buyer transfers proportional co-ownership to us. The buyer holds the resulting sole or co-ownership for us.
5. The buyer must notify us immediately of any seizure or other impairments by third parties. The buyer bears all costs that must be incurred to cancel the access and to restore the delivery items, as far as they cannot be collected from third parties.
6. At the buyer's request, we are obliged to release the securities to which we are entitled to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%. The choice of the securities to be released lies with us.

10. Limitation of Liability

1. We are liable for damages arising from injury to life, body, or health based on a negligent breach of duty by us or an intentional or negligent breach of duty by our legal representative or vicarious agent, as well as for other damages based on a grossly negligent breach of duty by us or an intentional or grossly negligent breach of duty by our legal representative or vicarious agent.
2. In the case of simple negligence, we are only liable for breaches of essential contractual obligations (cardinal obligations). Cardinal obligations are those obligations whose breach jeopardizes the achievement of the purpose of the contract or whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the buyer regularly relies. In the case of breach of such cardinal obligations, our liability is limited to the foreseeable, typically occurring damage. In the case of simple negligence, we are not liable for breaches of secondary obligations that are not cardinal obligations.
3. The limitations of liability resulting from the above clauses do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the buyer under the Product Liability Act.
4. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, and vicarious agents.

11. Data Protection

1. We process personal data in accordance with the applicable data protection laws. Detailed information on the processing of personal data is available in our privacy policy.
2. The buyer undertakes to process personal data received from us only in accordance with the applicable data protection laws and to use them only for the contractually agreed purposes.
3. The buyer undertakes to take appropriate technical and organizational measures to ensure the security of personal data and to inform us immediately of any data breaches.
4. Insofar as the buyer processes personal data on our behalf, the parties will conclude a data processing agreement in accordance with Art. 28 GDPR.

12. Final Provisions

1. German law applies to the exclusion of the UN Sales Convention (CISG) and international private law.
2. Exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Hamburg. However, we are also entitled to sue the buyer at his general place of jurisdiction.
3. Should individual provisions of these terms and conditions be or become invalid, this does not affect the validity of the remaining provisions. The invalid provision is to be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.

As of May 2023