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General Terms and Conditions of Sale and Delivery GARDENA Deutschland GmbH
1. Scope of application
1.1 The following Terms and Conditions of Sale and Delivery (hereinafter referred to as "GTC") of Gardena Deutschland GmbH (hereinafter referred to as "Gardena") apply to all business relationships with our customers (hereinafter referred to as "Customers") if the customer is an entrepreneur within the meaning of § 14 BGB, legal entities under public law and special funds under public law. They apply in particular to contracts for the sale and/or delivery of movable goods via the Gardena Dealer Portal for Entrepreneurs (hereinafter referred to as "Gardena Dealer Portal"), regardless of whether Gardena manufactures them itself or purchases them from suppliers/suppliers.
1.2 The prerequisite for orders in the Gardena Dealer Portal is the registration of a customer account for the Gardena Dealer Portal. As part of the registration, the customer must provide information about his entrepreneurial status (e.B. indication of VAT ID, company and association membership) in order to enable Gardena to verify the entrepreneurial status. After successful verification, Gardena sends the customer the initial login data via e-mail, with which he can log in to the Gardena dealer portal.
1.3 Unless otherwise agreed, our GTC in the version current at the time of the customer's order shall also apply as a framework agreement (§ 305 para. 3 BGB) for subsequent contracts within the meaning of 1.1 with the same customer, without Gardena having to refer to them again.
1.4 The GTC of Gardena apply exclusively. Conflicting, deviating or supplementary terms and conditions of the customer are hereby rejected and do not become part of the contract, unless Gardena expressly agrees to their validity.
2. Conclusion of contract, reservation of change
2.1 Gardena's offers are always subject to change, unless they are expressly marked as binding.
2.2 Orders of the customer, also by clicking on the "Send order" button on the final order page of the Gardena dealer portal, represent a binding offer to conclude a contract.
2.3 A contract is only concluded upon receipt of an order confirmation from Gardena by the customer or the execution of the delivery by Gardena.
2.4 In the interest of further technical development, Gardena reserves the right to slightly change the design and execution of the goods even after acceptance of the order, provided that this does not unreasonably impair the interests of the customer.
3. Prices
3.1 The prices of the price list valid at the time of delivery shall apply in each case.
3.2 Gardena's prices are net prices and are exclusive of any other taxes, customs duties, duties, charges and packaging costs, unless otherwise agreed.
3.3 From an order value of EUR 825.00 (net), delivery CIP (INCOTERMS 2020) will be made to the agreed destination. For an order value of less than EUR 825.00 (net), Gardena will invoice a logistics flat rate of EUR 15.00 plus VAT separately.
3.4 Gardena is entitled to charge EUR 5.00 (net) for each deviating order item for orders that deviate from the packaging unit in accordance with the current dealer catalogue or the information in the Gardena dealer portal.
4. Terms of payment, credit limit, default of payment
4.1 Invoices from Gardena are due and payable in euros upon delivery of the goods and receipt of invoice.
4.2 Payments must be made net and without deduction within thirty (30) days of the invoice date.
4.3 In the case of payments by direct debit (SEPA basic direct debit), the debit will be made 30 days after the invoice date. At the latest 1 day before this due date, you will receive advance information on direct debit by e-mail. If the specified account does not have the required funds or if direct debit is not possible due to incorrectly provided bank details, our due claim remains valid and we will additionally charge you the bank processing fees incurred as a result of the chargeback. Other statutory rights remain unaffected.
4.4 Gardena shall supply the Customer within the credit limit set by Gardena. The credit limit is updated annually. If the credit limit has been exhausted and incoming orders from the customer are therefore not delivered, Gardena will inform the customer thereof. Gardena is entitled to reduce or delete the credit limit granted to the customer if the customer does not comply with the payment terms granted to him or if Gardena becomes aware of circumstances that allow conclusions to be drawn about a reduced creditworthiness of the customer.
4.5 If, after conclusion of the contract, a significant deterioration or change occurs in the financial circumstances of the customer, which jeopardizes Gardena's claim to the consideration, or if such a situation already existed at the customer at the time of conclusion of the contract, but gardena only became aware of this retrospectively, Gardena may refuse performance until the consideration has been fulfilled. A significant deterioration is to be suspected in particular in the case of enforcement measures against the customer, rejections of an important loan or surrender of uncovered checks. In such cases, Gardena may set the customer a reasonable deadline for the provision of the consideration or security step by step against its own performance. If the consideration or security is nevertheless not provided, Gardena is entitled to withdraw from the contract.
4.6 The customer is only entitled to set-off or retention if his counterclaims have been legally established or are undisputed.
5. Delivery period, delivery, partial deliveries, transport damage
5.1 Delivery periods are only binding if Gardena has expressly confirmed them in writing. Delivery periods shall be extended to a reasonable extent if the customer does not fulfil the cooperation activities incumbent on him in good time or if the customer requests changes, unless Gardena is responsible for the delays.
5.2 Compliance with the delivery deadlines is subject to the proviso that Gardena is supplied correctly and on time by its own suppliers, insofar as Gardena is not responsible for the delivery delays on the part of its own suppliers. Gardena will notify the Customer of any impending delays as soon as possible.
5.3 Gardena is entitled to make partial deliveries if this is reasonable for the customer.
5.4 Externally recognizable losses or damage must be reported by the customer to the carrier upon delivery, all others must be informed of this in writing within seven days of delivery and Gardena immediately.
6. Transfer of risk
The risk of loss or deterioration of the goods shall pass to the customer upon handover of the goods for dispatch, even if partial deliveries are made. If the dispatch is delayed for reasons that lie in the person of the customer, the risk shall pass to the customer upon notification of readiness for dispatch.
7. Retention of title
7.1 Gardena retains title to the delivered goods (hereinafter referred to as "reserved goods") until full payment of all claims against the customer from the respective contractual relationship as well as additionally all other claims against the customer from deliveries and services to which Gardena is entitled at the time of the respective conclusion of the contract, including balance claims from current account.
7.2 The customer shall store the reserved goods, to which Gardena is entitled to sole or co-ownership, free of charge for Gardena. The customer is obliged to treat the reserved goods with care.
7.3 The customer is not permitted to pledge or assign the goods subject to retention of title by way of security as long as the retention of title exists. In the event of seizure or other interventions by third parties in the reserved goods, the customer must notify Gardena immediately in writing so that Gardena can bring an action for third-party objection pursuant to § 771 ZPO and take other measures to protect the ownership of the reserved goods. Insofar as the third party is not in a position to reimburse the judicial or extrajudicial costs incurred by Gardena in an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by Gardena.
7.4 The customer is entitled to sell the reserved goods in the ordinary course of business. The customer hereby assigns to Gardena the claims arising from the sale of the reserved goods, regardless of whether further processed, combined, mixed or not, in the amount of Gardena's claim from the respective contract. Gardena hereby accepts this assignment. The customer is revocably entitled to collect the assigned claims. Gardena's right to collect the claim remains unaffected. Gardena will not collect the claims itself and will not revoke the collection authorization as long as the customer fulfils his payment obligations and is not in default of payment. For justified reasons, the customer is obliged, at the request of Gardena, to notify his customer of the assignment and to provide Gardena with the information and documents necessary to assert his own rights.
7.5 If the realisable value of the securities exceeds the value of the claims to be secured by more than 10% in total, Gardena shall release securities of Gardena's choice at the request of the customer.
8. Warranty
8.1 The customer must inspect the goods immediately upon receipt and notify Gardena in writing of any recognizable defects immediately, but at the latest within five (5) working days after delivery. Defects that could not be detected in the context of the proper incoming inspection must be reported by the customer to Gardena in writing immediately, but no later than three (3) working days after discovery of the defects. Otherwise, the goods shall be deemed to have been approved, unless the defect has been fraudulently concealed by Gardena.
8.2 Unless otherwise agreed, Gardena only guarantees compliance with the applicable specifications. In particular, Gardena does not guarantee suitability for a specific purpose. In addition, public statements, promotions or advertising by Gardena do not constitute a contractual quality of the goods.
8.3 Gardena grants a guarantee for goods to the end customers in accordance with a separate guarantee declaration. The content and scope of the warranty are based exclusively on the warranty conditions.
8.4 If the goods are defective at the time of transfer of risk and this has been duly done in accordance with para. 8.1, the customer must first give Gardena the opportunity to repair the goods or deliver a replacement at Gardena's discretion by setting a reasonable deadline ("supplementary performance"). In all other respects, the customer is entitled to withdraw from the contract or to reduce the purchase price in accordance with the statutory provisions. The customer may only pay damages in accordance with para. 10.
8.5 The warranty period is twelve (12) months after delivery of the goods. This period does not apply to claims for damages of the customer according to para. 10 and for cases of recourse according to §§ 445a, 445b BGB in conjunction with § V.m. § 478 BGB, insofar as the end customer is a consumer. Furthermore, claims of the customer in the event of fraudulent concealment of a defect by Gardena or in the case of the express assumption of a guarantee remain unaffected.
9. Restrictions on use and use
9.1 Gardena smart products are not intended for sale or use in the United States of America (USA), as this product group is operated in a radio frequency range that may only be used by the US military. Gardena smart products are therefore not certified for use in the USA, may not be operated in the USA and are not approved by Gardena for sale and/or use in the USA.
9.2 Gardena irrigation products are not intended for sale or use in the U.S. and Canada, as these products manufactured to metric dimensions do not fit the inch-oriented water connections in the U.S. and Canada. When used in the USA and Canada and connected to the water connections there, there is a risk that water escapes and/or the functions of the products are not or not completely available. Gardena irrigation products are not approved by Gardena for sale and/or use in the United States and Canada.
9.3 Gardena electrical appliances that are connected to the power supply via a power cable (hereinafter referred to as "electrical appliances") are not intended for sale in the USA and Canada or for use there, as the plugs of the electrical appliances are not compatible with the sockets there. The electrical appliances cannot be used in the USA and Canada without a suitable adapter. The electrical appliances are not approved by Gardena for sale and/or use in the USA and Canada and Gardena assumes no liability in the event that the electrical appliances are sold and/or used in the USA or Canada.
10. Liability
10.1 Gardena is liable without limitation in the event of culpable injury to life, body and health. Gardena is also liable for intent and gross negligence. Insofar as Gardena is not guilty of intent and there is no culpable injury to life, body and health, liability is limited to the contractually typical, foreseeable damage.
10.2 Gardena is also liable in the event of culpable breach of such obligations, the achievement of which makes the execution of the contract possible in the first place and on the observance of which the customer regularly relies and may rely. Insofar as Gardena is not guilty of intent and there is no culpable injury to life, body and health, liability is limited to the contractually typical, foreseeable damage.
10.3 Gardena is also liable in the event of fraudulent concealment of a defect or in the assumption of a guarantee. In the latter case, the scope of liability depends on the guarantee declaration. Gardena is also liable in cases of mandatory statutory liability, for example under the Product Liability Act.
10.4 In all other respects, the liability of Gardena – regardless of the legal grounds – is excluded, unless otherwise stipulated in these GTC.
10.5 Insofar as the liability of Gardena is excluded or limited in accordance with the above provisions, this also applies to the personal liability of the organs, legal representatives, employees, employees and vicarious agents of Gardena.
11. Electronic communications; Privacy
11.1 When the Customer sends messages to Gardena by e-mail or other communications from his computer or smartphone, he communicates electronically with Gardena. Gardena will also communicate electronically with the customer. For contractual purposes, the customer agrees to receive all communications in electronic form. Furthermore, the customer agrees that all notifications, confirmations and notices that Gardena communicates to the customer do not require a written form, unless mandatory legal regulations require another form of communication.
11.2 Gardena collects and stores data of the customer necessary for business transactions. When processing personal data of the customer or its employees, Gardena observes the legal provisions, in particular the provisions of the EU General Data Protection Regulation. Details on the type, scope, location and purpose of the collection, processing and use of the necessary personal data by Gardena as well as the rights of data subjects can be found in our data protection declaration.
11.3 Data transmission on the Internet (e.B. when communicating by e-mail) may have security gaps. A complete protection of the data against access by third parties is not possible.
12. Copyright and database rights
12.1 The entire content of the content and works created by the operator of the Gardena dealer portal, texts, graphics, logos, button icons, images, digital downloads and data collections is the property of Gardena and is protected by German and international copyright and database law.
12.2 The customer may not extract and/or reuse any page content without express written consent. The duplication, processing, distribution and any kind of exploitation outside the limits of copyright require the written consent of the respective creator. Downloads and copies of individual pages of the Gardena Dealer Portal are only permitted for private, non-commercial use.
13. Choice of law and place of jurisdiction
13.1 These GTC and the contractual relations between Gardena and the customer are exclusively subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2 The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC or the contractual relationship between Gardena and the customer is Ulm. However, Gardena is also entitled to sue the customer at his general seat.
14. Other provisions
14.1 The customer is not entitled to assign rights or claims from the contract to third parties without the prior written consent of Gardena. The provision of § 354a HGB remains unaffected.
14.2 Should any provision of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. The same applies in the event that these GTC do not contain a regulation that is necessary in themselves. The contracting parties shall replace the ineffective or unenforceable provision with the legally permissible and enforceable provision that comes closest to the meaning and purpose of the ineffective and unenforceable provision. Should these GTC or the contracts be incomplete, the contracting parties will conclude an agreement with the content on which they would have agreed within the meaning of these GTC or the contracts if the loophole had been known at the time of conclusion of the contract.
(As of February 2022)
