General Terms and Conditions for Online Trading (Orders in the “Online Shop”) of the Company Georg Utz GmbH
1. General, Clientèle, Language
1.1. All offerings, purchase agreements, deliveries and services based on orders placed by our customers (“Orderer”) via our www.utzgroup.nl (“Online Shop”) shall be subject to these General Terms and Conditions.
1.2. The product range in our Online Shop shall be exclusively directed at entrepreneurs.
1.3. Terms and conditions of the Orderer shall not be applicable, even if we do not separately object to their applicability in a given case.
1.4. The contracts with the Orderer shall be exclusively concluded in the German or English language, irrespective of whether the Orderer places the order via the German-language or English-language website of the Online Shop. If the Orderer’s order is placed via our German-language website, the German version of these General Terms and Conditions shall exclusively prevail accordingly. If the order is placed via our English-language website, the English version of these General Terms and Conditions shall exclusively prevail.
2. Contract Conclusion
2.1. Our offerings in the Online Shop shall be non-binding.
Samples and specimens shall be non-binding general details. All details referred to in the Online Shop may be subject to technically caused tolerances. All oral and written details of the suitability and possible applications of our goods are provided to the best of our knowledge. They constitute our experience, which shall not be consistently assured. The Orderer must convince itself of the suitability of the good for the use intended by it by carrying out own inspections.
We reserve the rights of ownership, copyrights, rights of use and exploitation rights to illustrations, drawings, calculations, documents, files and any information embodied in any other manner whatsoever, as well as to samples and prototypes. They must not be made accessible to third parties, may be used only for the contractual negotiations and must be neither copied nor reproduced in any other manner whatsoever. Where an order is not placed with us or has not been executed, the data, samples and prototypes must be returned without delay.
By placing an order in the Online Shop, the Orderer shall be deemed to make a binding offer to purchase the relevant product. We may accept the offer until the expiry of the third business day following the day of the offer.
2.2. Immediately after receipt of the offer, we shall send an acknowledgement of receipt of the offer to the Orderer which shall not constitute any acceptance of the offer. The offer shall be deemed accepted by us only once we declare acceptance vis-à-vis the Orderer (by e-mail) or dispatch the goods. The purchase contract with the Orderer shall materialise only with our acceptance.
3. Prices and Shipping Costs
All prices shall be € net prices and shall be subject to VAT. Customs and similar duties must be borne by the Orderer. In addition to the indicated prices, we charge € 15,00€ for a carton for deliveries within the Netherlands and € 54.00 for a truck parking space per order. For order values exceeding € 250, deliveries within the Netherlands shall be free of shipping costs.
4. Dispatch of the Goods, Insurance, Passing of Risk
4.1. Delivery dates and delivery deadlines shall consistently indicate the expected date of delivery, compliance with which we shall endeavour to ensure. Minor deviations shall be possible.
The following shall apply to the start of the delivery deadline: Any and all delivery deadlines indicated by us at the time when the order is placed or any delivery deadlines otherwise agreed shall start, (a) where delivery on advance payment has been agreed, on the day of receipt of the full purchase price (including VAT and shipping costs) or, (b) where payment on account has been agreed, upon service of the order confirmation. The start of the delivery deadline may import timely fulfilment of cooperation duties by the Orderer (releases, documents, drawings).
4.2. Unless explicitly agreed otherwise, we shall define the appropriate shipping method and the transport company at our reasonable discretion. We shall only owe timely, proper delivery of the goods to the transport company and shall not be responsible for any delays caused by the transport company. Any shipping time indicated by us shall thus be non-binding.
4.3. The risk of accidental destruction, accidental damage or accidental loss of the delivered goods shall pass to the Orderer upon delivery of the goods to the transport company. In case of drop shipments, including carriage-paid, FOB or CIF transactions, the risk of accidental destruction shall pass to the Orderer once the goods leave the works or warehouse of our upstream supplier.
4.4. We shall insure the goods against the usual transport risks at our expense.
4.5. Any circumstances not attributable to us that make delivery impossible over the long term or impede delivery to an unreasonable extent (force majeure), e.g. operational disruptions, shortage of raw materials or energy, fire, floods through no fault of our own, shall exempt us from the obligation to delivery for the duration of the impediment and a reasonable ramp-up time, even if they occur at our upstream suppliers’. We shall notify the Orderer without delay if any event of force majeure occurs. If the impediment is expected to continue to exist permanently, we shall be entitled to withdraw from the contract in whole or in part. In any case of force majeure, claims for damages for the Orderer shall be excluded. If the Orderer refuses to accept delivery even after the expiry of a reasonable grace period, we may make use of our statutory rights. If we claim damages, such damages shall be a flat rate of 25% of the purchase price. The assertion of any higher damage shall remain reserved. The Orderer shall be entitled to demonstrate that no damage has occurred or that the occurred damage is significantly lower than the flat rate.
5.1. All payments must be exclusively effected to Georg Utz GmbH, 48465 Schüttorf, Germany. Unless agreed otherwise and confirmed by us in writing, the invoice amounts shall be payable immediately and without deduction. The timeliness of payment shall depend on the date of receipt of the amount at our disposal without reservation.
5.2. We accept cheques only on account of performance.
5.3. If the orderer is in default of payment or where any reasonable doubts arise as to its ability to pay, we shall be authorised to demand sureties before any delivery is performed or service is rendered.
5.4. The Orderer may offset only against claims that are undisputed or have been legally established or may exercise a right of retention only due to claims that are based on the same contractual relationship. If the Orderer is a merchant, the assertion of any right to withhold performance or right of retention shall require our prior written consent.
6. Retention of Title
6.1. The delivered goods shall remain our ownership until full receipt of all payments from the delivery contract. The Orderer shall be entitled to alienate the goods subject to retention of title as part of proper business operations as long as it meets its contractual obligations vis-à-vis us. Any pledging or transfer by way of security shall not be permitted; it must notify us of any interference with our property rights without delay.
6.2. The Orderer shall already assign to us any receivables from its customers, including all ancillary rights, upon purchase of the goods subject to retention of title that arise from their re-alienation. It shall remain entitled to collect its receivables assigned to us until further notice. This shall not affect our entitlement to collect the receivable ourselves. We undertake, however, to not collect the receivable as long as the customer meets its payment obligations, does not come into default of payment and, in particular, no application for the initiation of any conciliation or insolvency proceedings has been filed or cessation of payment exists. If this is the case, however, we may require the customer to disclose to us the receivables assigned and their debtors, to provide us with all details required for the collection, to hand out the associated documents and to inform the debtors (third parties) of the assignment.
6.3. Where goods subject to retention of title are processed, we shall be considered as manufacturer and shall acquire ownership of the new item, without any claims arising to the Orderer from such transfer of rights. Where processing is performed together with other materials, we shall acquire joint ownership of the manufactured item at the ratio of the gross invoice value of the goods subject to retention of title to one of the other materials. Where the goods are combined, mixed or intermingled with any other item, which is to be regarded as the main item, joint ownership of the item shall pass to us to the extent of the gross invoice value of the goods subject to retention of title.
6.4. If the value of the sureties transferred to us exceeds our entire receivables against the Orderer by more than ten per cent, we shall be obliged to release the security interests at our option upon the Orderer’s request.
7.1. The customer must thoroughly inspect the goods after consignment without delay. The delivered goods shall be deemed approved by the Orderer if, (i) in the case of any obvious defect, such defect is not notified to us within seven business days after deliver or, (ii) otherwise, within five business days after discovery of the defect.
7.2. Claims for defects shall come under the statute of limitations twelve years after the passage of risk. Where any material defect exists, the Orderer shall be entitled, at our option, to subsequent performance by replacement delivery or subsequent improvement. Shortfalls shall be delivered in addition. If subsequent performance has failed twice, the purchaser shall have a right of withdrawal or reduction.
7.3. Any additional expenditures for the purpose of subsequent performance, especially transport, infrastructure, labour and material costs, that are incurred by the fact that the goods delivered by us have subsequently been taken to any location outside Germany, the Netherlands, Belgium or Luxembourg shall be borne by the Orderer.
7.4. Claims due to the lack of a warranted characteristic may be asserted only where a specific characteristic has been explicitly warranted to the Orderer in writing upon conclusion of the contract.
We shall be liable for damages vis-à-vis our orderers to the following extent:
a) for any damage from the culpable violation of life, body or health and for any other damage that is based on any intentional or grossly negligent breach of duty on our part;
b) pursuant to the German Product Liability Act; and
c) for any damage due to the culpable violation of essential contractual obligations, where the claim for damages is limited to the contract-typical, foreseeable damage, unless unlimited liability based on a) or b) already exists.
Any farther-reaching liability for damages shall be excluded.
To the extent that the liability for damages is excluded, this shall also apply with regard to the personal liability for damages of our salaried employees, staff members, co-workers, representatives and auxiliary agents.
9. Exchange / Return of Goods
If we agree to any exchange request or return of the goods by the Orderer without being obliged to do so by law, the Orderer shall bear the resulting costs. Any exchange or return of goods shall be conditional upon the Orderer sending the goods back at its expense and risk and the goods being in good order and condition upon receipt by us. In case of custom-made products, any exchange or return of the goods shall be excluded. For agreed returns of the goods, we shall issue a credit note, deducting a handling fee of 10% of the gross value of the goods, at least, however, € 30.00.
10. Copy Prohibition
The Orderer shall be prohibited from copying or having third parties copy the goods purchased from us or from using copied goods.
11. Data Protection
11.1. We collect and process personal data within the scope of application of these General Terms and Conditions for the purposes of implementing the contract. Such data shall include, in particular, personal data received as part of the ordering process, such as name, address, e-mail addresses, payment data or goods ordered.
11.2. Such data shall be collected in line with the relevant stipulations under data protection law from the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the German EU Data Protection Amendment and Implementation Act (“New Federal Data Protection Act”) as well as other provisions under ancillary laws. Personal data shall be transferred only where any statutory obligation applies or to handle the order, for example in the payment process.
11.3. Further information on data protection is available on our website at https://www.utzgroup.nl/gegevensbescherming/
12. Place of Performance and Place of Jurisdiction
The place of performance for our deliveries and services shall be Schüttorf. The place of performance for all liabilities of the Orderer shall be Schüttorf. The place of jurisdiction for both parties shall likewise be Schüttorf or, at our option, the Orderer’s place of general jurisdiction. German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 to the Federal Republic of Germany shall be excluded.
13. Final Provisions
The legal ineffectiveness of individual provisions shall not affect the binding force of the remainder of the contract.
Georg Utz GmbH, Schüttorf