General Terms and Conditions (B2B)

BLUSUN GmbH
Kreuzgasse 23
66954 Pirmasens · Germany

Phone: +49 (0) 6331 – 7256700 · E-mail: info@blusun.shoes

– hereinafter "Seller" or "we" – vis-à-vis entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) – hereinafter "Customer" –

1. Scope

1.1 These General Terms and Conditions apply to all contracts for the supply of goods between us and entrepreneurs, in particular via our B2B portal, by e-mail, by telephone, at trade fairs, through commercial agents or by any other means.

1.2 These Terms and Conditions apply exclusively vis-à-vis entrepreneurs within the meaning of § 14 BGB. The conclusion of a contract with consumers on the basis of these Terms and Conditions is excluded. 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 consented to their validity. This also applies where we carry out a delivery without reservation in the knowledge of the Customer's deviating terms. Individual agreements within the meaning of § 305b BGB remain unaffected.

2. Subject Matter of the Contract and Conclusion of Contract

2.1 The subject matter of the contract is the supply of the goods offered by us.

2.2 Product presentations, catalogues, price lists, samples and information in the B2B portal do not constitute a legally binding offer, but a non-binding invitation to place an order, unless they are expressly designated as binding.

2.3 By placing an order, the Customer makes a binding offer to conclude a purchase contract.

2.4 The contract is concluded by our order confirmation in text form or by delivery of the ordered goods, whichever occurs first. If an order confirmation deviates in material respects from the Customer's order, in particular with regard to item, quantity, price or delivery time, it shall to that extent be deemed a new offer; its acceptance is governed by the statutory provisions.

2.5 The mutual contractual declarations, the product descriptions referred to, individually agreed product specifications and these Terms and Conditions are decisive for the content of the contract. Individual agreements take precedence.

3. Prices

3.1 All prices are understood to be net prices in euros plus the applicable statutory value added tax as well as plus shipping, packaging, customs and other ancillary costs, insofar as these are incurred and are not expressly stated or agreed otherwise.

3.2 The prices communicated at the time the order is placed shall be decisive, unless other prices have been individually agreed. If our order confirmation contains a price deviating therefrom, Section 2.4 sentence 2 applies.

3.3 Obvious clerical, calculation and transmission errors may be corrected before the conclusion of the contract. Statutory rights, in particular on grounds of error or an incorrect declaration, remain unaffected.

4. Terms of Payment

4.1 Unless otherwise agreed, invoices are due for payment without deduction within 14 calendar days of the invoice date.

4.2 Deviating payment terms, early payment discounts, down payments, payment in advance or other payment conditions may be agreed contractually. Insofar as they have been effectively agreed, they take precedence over Section 4.1. The mere statement of deviating conditions on an invoice issued after the conclusion of the contract does not in itself constitute an amendment of the contract already concluded.

4.3 Payments are deemed to have been made only upon final crediting to our account.

4.4 In the event of default, we are entitled to demand default interest at the statutory rate. For payment claims arising from legal transactions in which no consumer is involved, the statutory default interest rate is nine percentage points above the applicable base rate. In addition, we may assert the statutory flat-rate default charge of EUR 40.00 as well as any damage caused by default exceeding this amount; any set-off pursuant to the statutory provisions remains unaffected.

4.5 If, after conclusion of the contract, it becomes apparent that our claim to the consideration is jeopardised by the Customer's lack of ability to perform, we are entitled pursuant to § 321 BGB to refuse outstanding performance until the consideration has been rendered or adequate security has been provided. Upon the unsuccessful expiry of a reasonable period set by us, the statutory rights of rescission shall apply.

4.6 The Customer is entitled to set-off only with counterclaims that have been finally adjudicated, are undisputed or have been acknowledged by us, as well as with counterclaims arising from the same contractual relationship. A right of retention may only be exercised insofar as the counterclaim is based on the same contractual relationship.

5. Delivery, Delivery Periods and Passing of Risk

5.1 Delivery dates and delivery periods are binding only if we have expressly confirmed them as binding in text form.

5.2 Partial deliveries are permissible insofar as they are reasonable for the Customer. The Customer incurs additional costs as a result only if this has been expressly agreed.

5.3 Delivery periods shall be extended appropriately if we are prevented from performing on time by events which lie outside our reasonable sphere of influence and for which we are not responsible, in particular force majeure, official measures, lawful industrial action, significant operational, energy or transport disruptions. We will inform the Customer of such an impediment to performance and its expected duration without undue delay, as soon as this is possible for us.

5.4 Insofar as we do not receive goods, or do not receive them on time, through no fault of our own despite having concluded a congruent covering transaction in due time and proper form, agreed delivery periods shall be extended for the duration of the impediment plus a reasonable start-up period. This is subject to the condition that we inform the Customer without undue delay of the non-delivery or delayed delivery by our own supplier. If delivery by our own supplier fails definitively, although we concluded the congruent covering transaction in due time and are not responsible for the non-delivery, we are entitled – insofar as we have not exceptionally assumed the procurement risk – to rescind the contract in whole or in part with regard to the affected performance. Considerations already received for the performances affected by the rescission and not rendered will be refunded without undue delay. Further statutory rights remain unaffected.

5.5 Where the goods are dispatched at the Customer's request, the risk passes to the Customer upon handover of the goods to the forwarder, carrier or other third party designated to carry out the dispatch.

5.6 If dispatch or handover is delayed for reasons for which the Customer is responsible, the risk passes to the Customer upon notification of readiness for dispatch or collection. Statutory rights on account of default of acceptance remain unaffected.

6. Retention of Title

6.1 The delivered goods remain our property until full payment of all present and future claims arising from the ongoing business relationship (goods subject to retention of title).

6.2 The Customer may resell the goods subject to retention of title in the ordinary course of business. Pledging or transfer by way of security of the goods subject to retention of title is not permitted without our prior consent.

6.3 The Customer hereby assigns to us, by way of security, the claims against its purchasers arising from the resale of the goods subject to retention of title, in the amount of the respective final invoice amount of our claim including value added tax. We accept the assignment.

6.4 The Customer remains authorised, subject to revocation, to collect the assigned claims as long as it duly meets its payment obligations and no application has been filed for the opening of insolvency proceedings over its assets. If these conditions cease to apply, we may demand that the Customer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors of the assignment.

6.5 In the event of third-party access to the goods subject to retention of title, in particular seizures, or other impairments of our security rights, the Customer must inform us without undue delay in text form and provide us with the documents necessary to safeguard our rights.

6.6 In the event of conduct by the Customer in breach of contract, in particular non-payment of claims due, we are entitled – upon the unsuccessful expiry of a reasonable period for performance set by us, insofar as the setting of a period is not dispensable by law – to rescind the contract in accordance with the statutory provisions. Following effective rescission, we may demand the return of the goods subject to retention of title on the basis of the retention of title. Further statutory rights remain unaffected.

6.7 If the realisable value of the securities to which we are entitled exceeds the claims to be secured by more than 10 %, we will release securities of our choice to a corresponding extent at the Customer's request.

7. Duty to Inspect and Give Notice of Defects, Rights in Respect of Defects and Limitation

7.1 The statutory provisions apply to material defects and defects of title, unless otherwise provided below.

7.2 If the purchase constitutes a commercial transaction for both parties, the duties to inspect and give notice of defects under § 377 of the German Commercial Code (HGB) apply. The Customer must inspect the goods without undue delay after delivery and give notice of apparent defects without undue delay; hidden defects must be notified without undue delay after their discovery. If timely notice is not given, the goods are deemed approved in accordance with § 377 HGB. Timely dispatch of the notice of defects is sufficient to safeguard the Customer's rights.

7.3 In the case of justified defects notified in due time, we shall – taking into account the nature of the defect and the legitimate interests of the Customer – provide subsequent performance at our discretion by way of repair or replacement delivery, unless mandatory statutory provisions preclude this. If the Customer has resold the goods within a supply chain and the statutory recourse provisions, in particular §§ 445a, 445b and 478 BGB, apply, these rights remain unaffected; insofar as § 478 (2) BGB precludes it, we may not invoke the above right of choice to the Customer's disadvantage. Statutory rights to refuse a disproportionate type of subsequent performance remain unaffected.

7.4 If subsequent performance fails, is justifiably refused by us or is unreasonable for the Customer, the Customer is entitled to the statutory rights to a reduction of the purchase price or to rescission. Claims for damages and reimbursement of expenses exist only in accordance with Section 8.

7.5 Claims based on defects do not exist insofar as a defect is attributable to natural wear and tear or wear and tear in accordance with the contract, improper use, incorrect storage, improper care, unauthorised modifications or other influences for which the Customer or third parties are responsible.

7.6 In the case of products made of natural materials, in particular leather, customary deviations typical of the material in colour, grain, structure or surface appearance do not constitute a defect, provided they do not impair the agreed quality, function or ordinary usability and are reasonable for the Customer.

7.7 The limitation period for claims based on defects in newly manufactured goods is one year from delivery. This shortening does not apply in cases of fraudulent concealment of a defect, in the case of expressly assumed guarantees, to claims based on intentional or grossly negligent breach of duty, to damage arising from injury to life, body or health, to claims under the German Product Liability Act, or in cases where the law mandatorily prescribes a longer limitation period. Statutory recourse claims within the supply chain, in particular under §§ 445a, 445b and 478 BGB, remain unaffected.

7.8 If, after examination of a notice of defects, it emerges that the goods are not defective, a statutory claim to reimbursement of the necessary and reasonable inspection and transport expenses remains unaffected where the Customer knew, or negligently failed to recognise, that no defect existed but that the cause of the appearance or symptom complained of lay within its own sphere of responsibility. The Customer is not obliged to carry out a conclusive technical determination of the cause before giving notice of a defect.

8. Liability

8.1 We are liable without limitation in cases of intent and gross negligence, in cases of culpable injury to life, body or health, in cases of fraudulent concealment of a defect, under the German Product Liability Act, as well as to the extent of expressly assumed guarantees.

8.2 In the case of slightly negligent breach of a material contractual obligation, our liability is limited to the damage typical for the contract and foreseeable at the time the contract was concluded. Material contractual obligations are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the Customer may regularly rely.

8.3 In all other respects, our liability is excluded to the extent permitted by law.

8.4 The above limitations of liability also apply for the benefit of our legal representatives, employees and vicarious agents.

9. Returns and Takebacks

9.1 Entrepreneurs are not entitled to a statutory right of withdrawal.

9.2 Returns, exchanges, goodwill takebacks or takebacks of non-defective goods require our prior consent in text form.

9.3 The conditions of a voluntary takeback, in particular any handling or restocking fee, shall be determined within the scope of the respective takeback agreement. The Customer bears the costs of return transport unless expressly agreed otherwise.

9.4 Acceptance of goods for examination does not constitute an acknowledgement of a defect or of a legal obligation to take the goods back.

10. Intellectual Property Rights and Confidentiality

10.1 We reserve ownership, trademark, copyright and other intellectual property rights in samples, illustrations, drawings, calculations, product data, catalogues and other documents.

10.2 Such documents may not be made accessible to third parties without our prior consent or used for purposes other than the agreed business purposes, insofar as they are not evidently intended for onward transmission for their intended purpose in the course of the distribution of our products.

10.3 The Customer undertakes to treat as confidential, and to use only for the performance of the business relationship, non-obvious commercial and technical information which is expressly designated as confidential or which is recognisably confidential by its nature or the circumstances of its disclosure. This does not apply to information which was demonstrably already lawfully known, which becomes publicly known without breach of a confidentiality obligation, which is lawfully obtained from a third party entitled to disclose it, or which has been independently developed without the use of confidential information. Statutory or official disclosure obligations remain unaffected. The obligation continues to exist for as long as there is a legitimate interest in confidentiality; in the case of trade secrets within the meaning of the German Trade Secrets Act (GeschGehG), for as long as the statutory conditions for protection are met.

11. Place of Performance, Place of Jurisdiction and Applicable Law

11.1 The place of performance for deliveries and payments is, to the extent permitted by law, our registered office in Pirmasens.

11.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from and in connection with the contractual relationship is our registered office in Pirmasens. The same applies, to the extent permitted by law, where the Customer has no general place of jurisdiction in Germany. We remain entitled to bring an action against the Customer at its general place of jurisdiction, provided this is located in a member state of the European Union or in a contracting state of the Lugano II Convention. Mandatory exclusive places of jurisdiction remain unaffected.

11.3 The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

12. Final Provisions

12.1 Individual agreements with the Customer take precedence over these Terms and Conditions. This also applies to individually agreed payment, delivery or conditions arrangements.

12.2 Should individual provisions of these Terms and Conditions be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. The statutory provisions shall take the place of the invalid or unenforceable provision.