General Terms and Conditions (GTC-B2B)

International Terms and Conditions of Sale of Petromax GmbH

- for deliveries outside of Germany -

 

§ 1 Applicability of these International Terms and Conditions of Sale

(1) The terms and conditions set out in these International Terms and Conditions of Sale shall form an integral part of the sales contract (“Contract of Sale”). These International Terms and Conditions of Sale apply exclusively. The buyer’s terms and conditions which conflict or differ from these International Terms and Conditions of Sale and/or from the legal provisions do not apply, even if we do not object to them or render performance or accept the buyer’s performance. These International Terms and Conditions of Sale also apply to contracts for the delivery of movable goods ("goods") concluded via our online shop at https://b2b.petromax-shop.de/petromax_b2b_en/agb/ ("Online Shop").

 

(2) These Terms and Conditions of Sale do not apply if the goods are bought for personal, family or household use and we knew or ought to have known at any time before or at conclusion of the Contract of Sale that the goods were bought for any such use. The buyer declares that the goods are not bought for personal, family or household use.

Furthermore, the buyer declares that he does not order the goods for the sole purpose of end use within the meaning of Art. 2 No. 13 Regulation (EU) 2018/302.

 

§ 2 Formation of the Contract of Sale

(1) The course of the formation of the Contract of Sale depends on whether the offers and acceptances are made via our Online shop or outside our Online Shop. If the offers and acceptances are made via our Online Shop, the following applies:

 

  1. The presentation of the goods in the Online Shop does not constitute a legally binding offer by us, but an invitation to the buyer to place an order. 
  2. Before placing an order, the buyer must register and then log in by providing the email-address used and the password sent to him during registration or chosen by him later, as well as his user name. 
  3. By clicking on the "Add to Cart" button, the buyer can then place individual goods in the virtual shopping basket without this constituting an offer to purchase. By subsequently clicking the "Proceed to Checkout" button, the buyer enters the further ordering process as specified in § 2 sec. 1 lit. (d) of these International Terms and Conditions of Sale. Instead of clicking the "Proceed to Checkout" button, the buyer may also click the "View All" button and will then be taken to an overview of the goods in his virtual shopping basket. Before placing an order, the buyer can both add further goods to the shopping basket and remove goods that have been added to the shopping basket. The latter is possible by deleting the goods from the shopping basket again by selecting the "X" button or by changing the respective order quantity and then clicking the "Update Shopping Cart" button. By selecting the button "Proceed to Checkout" the buyer enters the further ordering process as stated in § 2 sec. 1 lit. (d) of these International Terms and Conditions of Sale. The buyer can also cancel the ordering process altogether by closing the browser.
  4. The buyer will be provided with the International Terms and Conditions of Sale for download and the billing and delivery address recorded in his customer account will be displayed. The buyer can edit this information. Under "3. Payment Method" the buyer can choose between "Payment in advance" and "Payment by invoice". In addition, under "4. Order Confirmation" an order summary is displayed, followed by a clear presentation of the net subtotal for the goods in the shopping basket, the shipping costs and the VAT (if applicable) as well as the total amount. By clicking the "PLACE ORDER" button, which is only possible after agreeing to the application of these International Terms and Conditions of Sale, the buyer places a binding order for the goods contained in the shopping basket. 
  5. The Contract of Sale is concluded when we accept the buyer's order by means of an order confirmation, which must be received by the buyer no later than five (5) calendar days after receipt of the buyer's order. The confirmation of receipt of the order follows immediately after the order has been sent and does not constitute acceptance of the order.

 

(2) If the offers and acceptances are made outside our Online Shop, for example only via emails, the following shall apply:

 

  1. Our offers are non-binding and subject to change. The conclusion of the Contract of Sale always requires our final written order confirmation.
  2. A Contract of Sale always requires an order of the buyer, which can be made in writing but also verbally (e.g. by telephone).

 

  1. We may accept the buyer’s written order with our order confirmation (hereinafter the “Order Confirmation”) within ten (10) calendar days after receipt of the buyer’s order.

 

§ 3 Applicable Law

(1) The Contract of Sale and these International Terms and Conditions of Sale are governed by the United Nations Conventions of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention / CISG) in the English version and all legal questions beyond the scope of the CISG are governed by the Swiss law of obligations (Obligationenrecht). The CISG also applies to all agreements as to the jurisdiction of courts and arbitral tribunals.

 

(2) Should commercial terms be used the Incoterms® 2020 of the International Chamber of Commerce apply taking into account the provisions stipulated in these International Terms and Conditions of Sale.

 

§ 4 Specifications of the goods; Third party rights

(1) The goods to be delivered have to conform to the specifications and quality requirements (e.g. by stating the item number and thereby referring to the description in the catalogue or Online Shop) set out in the Order Confirmation. To the extent no specifications or quality requirements are stated in the Order Confirmation, the goods conform with the contract if they are fit for the purpose which is usual in Germany and fit for the purpose for which goods of the same description are usually used for in Germany. Unless otherwise explicitly agreed to, the goods do not have to conform to any laws or regulations existing outside of Germany. Second-hand goods are delivered without any liability for their conformity. Notwithstanding the above provisions, we shall, however, endeavour to pack the goods in such a way that they comply with the regulations in the buyer's country. This does not imply any obligation to actually comply with the packaging regulations in the buyer's country, nor does non-compliance with packaging regulations in the buyer's country constitute a claim against us. The buyer is obliged to check the labelling himself and, if necessary, to adapt it to the regulations applicable to him.

 

(2) Should the buyer intend to use the goods in circumstances which are unusual or which could entail a particular risk to the safety and health of any person or to the environment, the buyer has to inform us in writing about these intentions before concluding the Contract of Sale. 

 

(3) Rights and claims of third parties (in particular rights and claims based on title or industrial property rights) only constitute a defect in title if these rights and/or claims are in force and registered in Germany and impede the use of the goods in Germany.

 

§ 5 Obligation to deliver; Passing of risk

(1) We have to deliver the goods referred to in the Order Confirmation including a packaging that is suitable for the means of transportation. 

 

(2) Unless otherwise agreed, delivery shall be made CPT Incoterms® 2020 (place of delivery: Sudenburger Wuhne 61, 39116 Magdeburg/Germany; place of destination: in accordance with the agreement with the buyer at a location outside the Federal Republic of Germany). Even in the case of delivery by means of a C-clause of Incoterms® 2020, the buyer shall bear the transport costs associated with the delivery.

(3) Adherence to the delivery date respectively the delivery period stated in the Order Confirmation is not of the essence and non-adherence to the delivery date or the delivery period respectively does not constitute a fundamental breach of contract. If delivery periods are agreed to, we reserve the right to determine the exact delivery time within the delivery period.

 

(4) All delivery dates and delivery periods are dependent upon the buyer performing all of his obligations in due time. In particular, the buyer has to procure or confirm any necessary permits, drawings etc. and make agreed payments in due time. In particular, if advance payment has been agreed, the buyer is obliged to make the advance payment in full before delivery.

 

(5) We are entitled to make partial deliveries and to invoice these separately.

 

(6) The passing of risk takes place with delivery in accordance with § 5 sec. 2. Should the buyer fail to take delivery, the risk passes at the time the buyer fails to take delivery.

 

(7) In addition to our statutory rights we are entitled to suspend the performance of our obligations if there are reasonable indications that the buyer will not perform his obligations under the Contract of Sale, in particular not be able to pay the agreed price in due time. 

 

§ 6 Delivery Note, Invoice and other documents 

(1) We will provide the buyer with a delivery note issued according to our standard. 

 

(2) Irrespective of the Incoterms-clause used, we are not obliged to clear the goods for export. We will however at the buyer’s risk and expense apply for any necessary export licences and formalities as regards customs provided that the buyer has provided us with all necessary information. 

 

(3) We will provide the buyer only with such documents explicitly stated on the Order Confirmation.

 

§ 7 Force Majeure 

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached the Contract of Sale, for any failure or delay in fulfilling or performing any term of the Contract of Sale, when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation: (a) flood, fire, earthquake, or explosion; (b) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (c) government order or law; (d) actions, embargoes, or blockades in effect on or after the date of the Contract of Sale; (e) action by any governmental authority; (f) national or regional emergency including pandemics or epidemics; (g) strikes or labor stoppages; (h) industrial or supply chain disturbances affecting the subject market; and (i) other acts, occurrences or situations that are not within the reasonable control of the affected party (each, a “Force Majeure Event”). The above also includes the occurrence of such events at sub-suppliers. The party suffering a Force Majeure Event shall give notice within 30 days of the Force Majeure Event to the other party (albeit this notice not being a precondition for such Force Majeure Event to exist and to excuse the respective party), stating the period of time the Force Majeure Event is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.

 

§ 8 Obligation to pay the purchase price

(1) The buyer is obliged to pay the agreed purchase price as well as other agreed costs (e.g. transport costs) to the bank account nominated by us. The place of payment is Sudenburger Wuhne 61, 39116 Magdeburg/Germany. Banking fees accrued outside of Germany will be borne by the buyer. The payment shall be made without any deductions and is due for payment on the date or within the time limit as stated on the Order Confirmation. A time limit for payment stated on the Order Confirmation shall be calculated from the date of invoice. In the absence of any payment dates or time limits stated on the Order Confirmation, payment shall be made within 21 (twenty-one) calendar days after date of invoice. The buyer’s acceptance of the goods is no precondition for the payment to become due. 

 

(2) The agreed prices shall exclude any statutory VAT applicable at the date of delivery. The prices we state in our Online Shop and in our catalogues are exclusive of transport costs.

 

(3) The buyer is only entitled to exercise a lien or to suspend his performance if this is based on the same transaction as well as based on a due and undisputed or finally adjudicated counterclaim of the buyer. 

 

(4) The buyer may only offset any claims insofar as the buyer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement.

 

(5) If and till such time the buyer is in arrears with payment of the purchase price, the buyer is obliged to pay interest at the rate of nine (9) percentage points above the base rate of the German Central bank per annum.

 

§ 9 Non-Conforming goods; Goods with a defect in title 

(1) The goods do not conform to the contract if at the time the risk passes they significantly deviate from the requirements set out in § 4 sec. 1 and sec. 2.

 

(2) The goods are not free from rights or claims of third parties if at the time the risk passes they significantly deviate from the requirements set out in § 4 sec. 3. 

 

§ 10 Duty of examination and notification

(1) Without prejudice to the legal provisions, the buyer is obliged to examine the goods comprehensively in respect of deviations as regards type, quantity, quality and packaging. If necessary, the buyer is obliged to conduct the examination with the help of external third parties. 

 

(2) Notice of non-conformity has to be made in within ten (10) calendar days. For very obvious non-conformities, the period for such notification starts with the delivery of the goods, in all other cases after the buyer has discovered the non-conformity or ought to have discovered it. Notice of non-conformity has to be given in writing. The notice of non-conformity has to clearly indicate and describe the non-conformity in such a way that we can take remedial actions. 

 

(3) Apart from the aforesaid as well as with respect to defects in title, the statutory provisions apply. 

 

§ 11 Limitation Period

Without prejudice to claims resulting from a malicious, grossly negligent or intentional conduct as well as claims due to injury of life, body or health, the buyer’s claims in respect of the delivery of non-conforming goods and goods with a defect in title become time-barred one (1) year after delivery of the goods. For second-hand goods § 4 sec. 1 sentence 4 applies. The delivery of substitute goods or the repair of delivered goods does not lead to a restart or suspension of the limitation period.

 

§ 12 Remedies in case of non-conforming goods and goods with a defect in title; Limitation of Liability 

(1) In case of delivery of non-conforming goods, the buyer can claim delivery of substitute goods or declare avoidance of the Contract of Sale only in accordance with the legal provisions.

 

(2) To the extent any costs associated with performing remedies are increased by the fact that the buyer has removed the goods to a place not stated in the Order Confirmation or, in the absence of such an indication, to a place other than the buyer’s place of business, these costs will be borne by the buyer. 

 

(3) If we deliver non-conforming goods or goods with a defect in title or breach any other obligation resulting from the Contract of Sale or the business relationship with the buyer, the buyer is entitled to demand damages only in accordance with the following provisions and any recourse to concurrent bases of claim (in particular of a non-contractual nature) is excluded:

 

a) We are not liable for the conduct of our suppliers or subcontractors. Neither are we liable for damages to which the buyer has contributed.

b) The buyer has to prove that either our directors or employees or other members of staff have deliberately or negligently breached contractual obligations owed to the buyer.

c) In case of liability, the amount of damages for late delivery is limited to 0,5 per cent for each full week of delay, up to a maximum of 5 per cent of the net purchase price of the goods delivered late or not at all, and in case of remedies because of delivery of non-conforming goods and/or goods with a defect in title and in case of all other breaches of obligations is limited to the net purchase price of the goods affected.

d) Irrespective of § 12 sec. 3 c., we are not liable for loss of profit, damages for interruption of production and loss of usage.

e) The aforesaid limitations in § 12 sec. 3 do not apply 

i. to injury of life, body or health,

ii. if we have acted maliciously, grossly negligent or intentionally,

iii. if we are liable according to mandatory product liability laws, and

iv. to liabilities which may not be excluded or limited according to the applicable laws.

 

(4) Apart from the aforesaid, the statutory provisions apply. 

 

§ 13 Rights in documents etc.

We retain all intellectual property rights to all documents, pictures, drawings etc. (collectively “Documents”) which we have created and/or provided in connection with the performance of our obligations under the Contract of Sale. Such Documents shall belong exclusively to us. The buyer is in particular prohibited from using the images created by us for the resale of the goods on platforms such as, e.g. ebay or Idealo, without our express written consent.

 

§ 14 Provisions in the event of resale by the buyer to the United States of America

If the buyer resells the goods to customers with a place of business or residence in the United States of America, he is obliged to contract for product liability insurance at his own expense with a sum insured of at least € 5,000,000 per claim. If the customer of the buyer with a place of business or residence in the United States of America asserts claims against us or the buyer, the buyer shall be liable for such claims in the relationship between us and the buyer to the extent that they exceed what we would be liable for on the basis of the provisions contained in these International Terms and Conditions of Sale and on the basis of the product liability law applicable in Germany.

 

§ 15 Other Provisions

(1) Title of the goods that have been delivered remains with us until all of our claims against the buyer have been settled. The buyer is obliged to take all measures necessary for the protection of our property and ensure that our title is not prejudiced. If this is necessary for a valid reservation of our title, the buyer in particular undertakes to arrange for any necessary entry in the public registers in the country of location of the goods at its own expense.

 

(2) We are not obliged to perform any obligations not stated in the written Order Confirmation or in these International Terms and Conditions of Sale.

 

(3) There are no side agreements to the Contract of Sale. 

 

(4) Any amendments to a concluded Contract of Sale require our written confirmation, duly approved by signature. 

 

(5) The buyer is not entitled to assign his rights and obligations against us to a third party.

 

(6) The place of performance for delivery is governed in § 5 sec. 2, the place of performance for the payment in § 8 sec. 1. For all remaining obligations and irrespective of the agreement of a differing Incoterms-clause, the place of performance is agreed to be Sudenburger Wuhne 61, 39116 Magdeburg /Germany, including for a replacement delivery, for the rectification of non-conformities and for the restitution of the contractual obligations in case of avoidance of the Contract.

 

(7) If the buyer wishes to resell the goods and use goods carriers obtained from us for this purpose, the buyer is advised that the buyer must always check and regularly inspect the permissible total weight of the goods carrier and its proper construction. We are not be responsible for any damage resulting from failure to comply with these requirements.

 

(8) If the contract is concluded in accordance with § 2 paragraph 1 via our Online Shop, the following shall also apply: The text of the contract will be saved by us. The buyer can view his previous orders in his customer account. In addition, the order data will be sent to the buyer by email after receipt of the order in the confirmation of receipt of the order, so that the buyer can also save and print it himself. Furthermore, the order data and the text of the contract are also included in our Order Confirmation. The buyer can also request the International Terms and Conditions of Sale from us or download them from our Online Shop.

 

(9) All communications, declarations, notices etc. (hereinafter collectively “Notices”) are to be drawn up exclusively in German or English. Notices by means of fax or email fulfil the requirement of being in writing. A signature is not required, unless these International Terms and Conditions of Sale explicitly require a signature. 

 

§ 16 Agreement on arbitration and jurisdiction

(1) If the buyer’s place of business is located within the European Union, Switzerland, Iceland or Norway, for all contractual and extra-contractual disputes, including disputes under insolvency law, arising out of or in connection with a Contract of Sale and/or these International Terms and Conditions of Sale, including its validity, invalidity, violation or cancellation as well as other disputes arising out of the business relationship between the buyer and us, the state court which has jurisdiction for Magdeburg/Germany shall have exclusive jurisdiction. Instead of bringing an action before the state court which has jurisdiction for Magdeburg/Germany, we are also entitled to bring an action before the state court of the buyer’s place of business.

 

(2) If the buyer’s place of business is outside of the European Union, Switzerland, Iceland and Norway, all contractual and extra-contractual disputes, including disputes under insolvency law, arising out of or in connection with a Contract of Sale and/or these International Terms and Conditions of Sale, including its validity, invalidity, violation or cancellation as well as other disputes arising out of the business relationship between the buyer and us shall be finally settled in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The place of the arbitration shall be Zurich/Switzerland, the language used in the arbitral proceedings shall be English.

 

§ 17 Severability

If provisions of these International Terms and Conditions of Sale should be or become partly or wholly ineffective, the remaining provisions will continue to apply. We and the buyer are bound to replace the ineffective provision with a legally valid provision as close as possible to the commercial meaning and purpose of the ineffective provision.

 

 

 

January 2023

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