General Terms and Conditions
Sale of goods to business customers in the online shop and for other orders
This English version is a convenience translation. Only the German version of these General Terms and Conditions is legally binding (see clause 2.4).
1. Subject matter, scope
1.1. These General Terms and Conditions (hereinafter "GTC") govern the contractual relationship between the customer and IWT International Watch Trade, David Piekarz e.K., Goethestraße 5, 80336 Munich, Germany (hereinafter "we" or "us") regarding the sale and delivery of goods ordered via our online shop, by e-mail, in writing or by telephone.
1.2. These GTC apply exclusively to entrepreneurs (§ 14 of the German Civil Code, BGB), legal entities under public law and special funds under public law. By placing an order, the customer confirms that they are acting in the exercise of their commercial or independent professional activity. We are entitled to request suitable proof of entrepreneur status.
1.3. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if we have expressly agreed to their validity in text form. This requirement of consent also applies if we carry out the delivery without reservation in the knowledge of the customer's terms and conditions.
2. Conclusion of contract, contract language
2.1. The presentation of goods in the online shop does not constitute a legally binding offer, but a non-binding invitation to place an order. By submitting an order, the customer makes a binding offer to conclude a purchase contract. For orders placed outside the online shop, the customer's order is likewise deemed a binding contractual offer, unless the order indicates otherwise.
2.2. In the online shop, the customer selects the desired goods and places them in the shopping basket. Before submitting the order, the customer can review their entries and correct them using the technical means provided in the shop. By clicking the final order button, the order is transmitted to us in a binding manner. Receipt of the order is confirmed to the customer electronically without undue delay. Such an acknowledgement of receipt does not yet constitute acceptance of the contractual offer, unless it is expressly designated at the same time as an order confirmation.
2.3. We may accept the customer's offer within five days by
- sending an order confirmation by post or e-mail,
- sending the goods, or
- requesting payment.
The acceptance period begins on the day after the order is submitted. Timely acceptance is determined by the receipt of our order confirmation, payment request or the goods by the customer.
2.4. The contract language is German.
3. Storage of the contract terms
3.1. We store the order data and the GTC applicable at the time of the order. In the online shop, the contract terms including the GTC are made available to the customer in such a way that they can retrieve them when concluding the contract and store them in a reproducible form. Whether and to what extent the individual contract text remains accessible in the customer account after conclusion of the contract depends on the respective technical design of the online shop.
4. Delivery terms
4.1. Delivery dates and delivery periods are only binding if they have been expressly agreed or confirmed by us as binding. Otherwise, any delivery dates and delivery periods stated are non-binding.
4.2. Partial deliveries are permitted insofar as they are reasonable for the customer. Each partial delivery may be invoiced separately.
4.3. The risk of accidental loss and accidental deterioration of the goods passes to the customer upon handover of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment.
4.4. If, through no fault of our own and despite having properly concluded a congruent hedging transaction, we are not supplied by our supplier, not supplied correctly or not supplied on time, we are entitled to withdraw from the contract with regard to the goods concerned. We will inform the customer of the unavailability without undue delay and refund any consideration already received without undue delay. This does not apply if we have assumed the procurement risk or are responsible for the non-delivery.
5. Prices / terms of payment
5.1. The prices stated are in euros plus the applicable statutory value added tax. Unless expressly agreed otherwise, the prices agreed at the time of conclusion of the contract apply.
5.2. Unless expressly agreed otherwise, shipping, packaging, transport and insurance costs are borne by the customer and are shown separately.
5.3. For contracts under which the agreed delivery or service is to take place more than four months after conclusion of the contract, we are entitled to adjust the agreed price if the cost factors relevant to pricing for which we are not responsible (in particular purchasing, material, energy, transport or wage costs and public charges) change significantly after conclusion of the contract. A price increase is limited to the extent of the actual cost increase; cost reductions shall be taken into account in the same way in favour of the customer. If the price increase exceeds 10% of the agreed net price, the customer may withdraw from the contract with regard to the part not yet performed.
5.4. Unless a different payment term is stated in the online shop, in the order confirmation or on the invoice, the purchase price is due for payment without deduction upon conclusion of the contract and invoicing. The payment methods offered in the online shop are displayed during the ordering process. The customer may only set off counterclaims that have been finally established by a court, are undisputed or have been acknowledged by us. The customer is only entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
5.5. If the customer is in default of acceptance, we are entitled to charge storage costs of 0.5% of the invoice amount for each week or part thereof, but not more than 5% of the invoice amount. The customer remains entitled to prove that no damage or significantly less damage has been incurred.
5.6. If, after conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer's lack of ability to pay, we are entitled under the statutory provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
6. Retention of title
6.1. We retain title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
6.2. Goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The buyer must notify us in text form without undue delay if an application for the opening of insolvency proceedings is filed or if third parties access the goods belonging to us (e.g. seizures).
6.3. In the event of conduct by the buyer in breach of contract, in particular non-payment of the purchase price due, we are entitled in accordance with the statutory provisions to withdraw from the contract and/or to demand return of the goods on the basis of the retention of title. A demand for return does not at the same time constitute a declaration of withdrawal. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
6.4. Until revoked in accordance with clause 6.4.3., the buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition.
6.4.1. The retention of title extends to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the case of processing, mixing or combination with goods of third parties, their title remains, we acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered subject to retention of title.
6.4.2. The buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product, in full or in the amount of our possible co-ownership share in accordance with clause 6.4.1. We accept the assignment. The buyer's obligations under clause 6.2. also apply with regard to the assigned claims.
6.4.3. The buyer remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets their payment obligations towards us, there is no deficiency in their ability to pay and we do not assert the retention of title by exercising a right in accordance with clause 6.3. If these conditions are no longer met, we may demand that the buyer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the related documents and notifies the debtors of the assignment. In this case, we are also entitled to revoke the buyer's authorisation to further sell and process the goods subject to retention of title.
6.4.4. If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the buyer's request.
7. Claims for defects (warranty)
7.1. If the purchase is a commercial transaction for both parties, the inspection and notification obligations of § 377 of the German Commercial Code (HGB) apply. The buyer must inspect the goods without undue delay after delivery, insofar as this is feasible in the ordinary course of business, and notify us of any apparent defects without undue delay. If a defect that was not apparent during the inspection becomes apparent later, it must be notified without undue delay after its discovery. Timely dispatch of the notification is sufficient to preserve the buyer's rights. If timely notification is not made, the goods are deemed approved in accordance with § 377 HGB. This does not apply if we have fraudulently concealed the defect.
7.2. If there is a defect, we shall initially provide warranty by way of subsequent performance, at our choice either by remedying the defect or by delivering a replacement. If subsequent performance has failed, the customer is entitled to reduce the consideration or – in the case of significant defects – to withdraw from the contract.
7.3. The buyer's claims for material defects and defects of title become time-barred – insofar as legally permissible – one year after delivery of the goods. This does not affect, in particular, claims based on intent, gross negligence, injury to life, body or health, fraudulent concealment of a defect, an assumed guarantee, or claims under the German Product Liability Act. Mandatory special statutory limitation periods likewise remain unaffected, in particular for buildings and for items that have been used for a building in accordance with their customary use and have caused its defectiveness, as well as mandatory recourse claims in the supply chain.
8. Form of declarations
8.1. Legally relevant declarations and notifications by the customer relating to the contract (e.g. setting of deadlines, notifications of defects, withdrawal or reduction) must be made at least in text form (§ 126b BGB), in particular by e-mail, unless a stricter form is prescribed by law. Statutory formal requirements and further evidence remain unaffected.
9. Exclusions and limitations of liability
9.1. In the event of intent and gross negligence, including on the part of our vicarious agents, we are liable in accordance with the statutory provisions. The same applies to negligently caused damage resulting from injury to life, body or health.
9.2. In the case of negligently caused damage to property and financial loss, we are only liable for the breach of a material contractual obligation, but limited in amount to the damage foreseeable and typical for the contract at the time of conclusion of the contract; material contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the contractual partner may regularly rely.
9.3. Otherwise, any liability on our part, irrespective of its legal basis, is excluded.
9.4. The exclusions and limitations of liability in the preceding paragraphs also apply accordingly in favour of our vicarious agents.
9.5. Liability for the assumption of a guarantee or under the German Product Liability Act remains unaffected.
10. Use as a reference
10.1. The use of the customer's name, company name, trademarks or company logo for advertising or reference purposes requires the customer's prior consent in text form. Consent given may be revoked with effect for the future.
11. Miscellaneous
11.1. Confidentiality: The parties undertake to keep secret all information obtained in the course of the business relationship that is marked as confidential or is confidential by its nature, and to use it exclusively for the performance of the respective contractual relationship. This obligation does not apply to information that is demonstrably generally known, was lawfully obtained without breach of a confidentiality obligation, or must be disclosed on the basis of a legal obligation or an enforceable official or court order. The confidentiality obligation continues for five years after the end of the business relationship; trade secrets remain protected beyond that in accordance with the statutory provisions.
11.2. Force majeure: If a party is prevented from fulfilling its contractual obligations by an event that was unforeseeable at the time of conclusion of the contract, lies outside its reasonable sphere of influence and for which it is not responsible, the affected performance obligations are suspended for the duration and to the extent of the effects. Such events may include, in particular, natural disasters, war, terrorism, pandemics, official measures, lawful industrial action, and significant disruptions to operations, energy, raw materials or supply chains, provided that the affected party cannot prevent or overcome them despite reasonable precautions. The affected party shall inform the other party without undue delay of the occurrence and the expected duration. If the impediment lasts longer than three months, either party may terminate the contract in text form with regard to the part not yet performed or – where applicable – withdraw from it. Claims for damages due to non-performance caused by force majeure are excluded; mandatory statutory claims remain unaffected.
12. Place of performance / choice of law / place of jurisdiction
12.1. Unless legally prohibited and unless otherwise agreed, the place of performance for both parties' obligations is our registered office.
12.2. The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
12.3. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is – insofar as legally permissible – our registered office. However, we are also entitled to sue the customer at their general place of jurisdiction.