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GENERAL TERMS & CONDITIONS

 

This version of the General Terms of Business is a translation only.
The German language version of these Terms alone is binding.
 

 

§ 1 Scope of validity 

§ 2 Offer to contract and conclusion of contract 

§ 3 Cancellation policy  

§ 4 Delivery and availability of goods 

§ 5 Packaging 

§ 6 Retention of title 

§ 7 Prices and delivery costs 

§ 8 Payment terms 

§ 9 Warranty 

§ 10 Liability 

§ 11 Copyright and industrial property rights 

§ 12 Data protection 

§ 13 Place of performance, place of jurisdiction and applicable law 

§ 14 Final provisions  

 


§ 1 Scope of validity 

 

(1) For the business relationship, i.e. including future contracts, deliveries and other services, between lixano GmbH, Im Speyerer Tal 5, 76761 Rülzheim (hereinafter referred to as “lixano”) in business transactions with non-consumers within the meaning of § 310 para. 1 of the German Civil Code as Customers (hereinafter “the Customer”), subject to deviating written agreements, the General Terms of Business shall apply in the version prevalent at the time of the order being placed.

(2) Deviating conditions of the purchaser shall not be recognised except where lixano has given express agreement to their validity in writing. These Terms shall also apply where lixano supplies to the Customer without reservation, in full knowledge of the Customer’s deviating terms of business. If an order is placed with reference to conditions of purchase that partly or wholly are not in accordance with the Terms of Business below, such conditions are hereby expressly rejected.

(3) lixano is a wholesaler and sells its goods to customers for the sole purpose of their resale. Approval by lixano to enter a business relationship is subject to the customer submitting a valid trading licence (‘Gewerbeschein’). In the event that the customer purchases goods that are not intended for resale, lixano reserves the right to terminate business with that customer.

 

§ 2 Offer to contract and conclusion of contract 

 

(1) Online offers by lixano do not form a binding offer for the conclusion of a sales contract, but rather an invitation for the submission of an order (Customer’s offer to buy). The Customer may submit his offer by telephone, in writing, by fax, e-mail or using the ordering system integrated into the Web shop.

(2) If the Customer decides to use the Web shop ordering system, he may select the desired products from lixano’s range and collect these in a “basket” by means of the “Add to Basket” button. By clicking on the appropriate item on the navigation bar, the Customer can then call up the “Basket” and make changes at any time. After the “Go to Checkout” button is pressed and the required personal information and payment and delivery details have been entered, all details of the order are finally displayed again. Not until the “Submit Order” button is activated at the end of the ordering process has the Customer submitted his binding offer to buy. However, the order cannot be submitted or sent unless the Customer clicks to tick the box beside the wording “I have read and agree to the General Terms of Business”, thereby indicating his agreement to these Terms and that he has incorporated them into his offer to buy. Throughout the ordering process, the Customer has the opportunity to review and amend any of the information he has entered (e.g. name, address, delivery address and the items ordered) or abort the order at any time; he can also use the Back function of his browser for this purpose. After sending the binding offer, the Customer receives an automated e-mail from lixano confirming receipt of the order, which leads to the conclusion of the contract (automatic confirmation of receipt). This e-mail lists the contents of the Customer’s order once again. It can be printed using the “Print” function.

(3) The text of the contract (order information and general terms of business) is stored by lixano. However, this storage is temporary and not accessible to the Customer. The Customer should therefore ensure to print out or make a point of saving the order details himself.

 

§ 3 Delivery and availability of goods 

 

(1) lixano will deliver the goods ordered to the address given by the customer, except where the Customer has expressly specified a different delivery address.

(2) lixano is entitled to make partial deliveries.

(3) The terms of delivery given are not binding unless, as a special exception, a delivery date has been accepted as binding by lixano.

(4) The risk of loss or accidental deterioration of the ordered goods is transferred to the Customer when the goods are dispatched or handed to the shipping company. If dispatch of the goods is deferred at the Customer’s request or if delays occur in shipment that are the Customer’s responsibility, this risk is transferred to the Customer on receipt of notification of this.

If the Customer comes into default of acceptance or fails to comply with other duties of cooperation, the risk of accidental loss or damage to the purchased goods passes to the Customer at the time at which he goes into arrears.

(5) Goods are dispatched regularly by lixano within three working days, provided that they are available from stock. Where goods are not in stock, lixano shall endeavour to deliver them as quickly as possible. lixano is entitled to withdraw from the contract where goods remain undelivered that it is unable to obtain within a reasonable extended delivery period, despite having concluded a contract of purchase, owing to failure by its suppliers to deliver. In the event of such a withdrawal, lixano shall inform the Customer and promptly refund any payment already received in respect of the undelivered items.

(6) The delivery time shall be suitably extended - even within a default situation - in the event of force majeure or any unforeseen obstacle arising after conclusion of the contract that is beyond lixano’s control (including in particular operational malfunctions, industrial action, lock-outs or disruption to transport routes), where such obstacles have demonstrably had an adverse effect on the delivery of the purchased goods. This shall also apply if these circumstances affect lixano’s suppliers and their sub-suppliers. lixano shall notify the Customer as soon as possible of the start and end of obstacles of this kind. The Customer may request a declaration from lixano as to whether it will withdraw from the contract or supply within a reasonable time. Claims for compensation are excluded in this case. The above regulations apply accordingly to the Customer in the event that the Customer is affected by the above-mentioned obstacles.

(7) lixano shall be liable in respect of punctual delivery only for wilful damage or gross negligence on its own part or that of its agents. lixano shall not be liable for the faults of its suppliers since these are not its agents. However, lixano is obliged to assign any claims against its suppliers to the Customer if requested to do so.

(8) In the event of delayed delivery, the Customer is obliged, at the request of lixano, to state within a reasonable time whether he will persist in awaiting delivery or wishes to withdraw from the contract owing to the delay.

 

§ 4 Packaging

 

(1) Packaging is included in the delivery costs.

(2) No return of packaging material will be accepted.

(3) In the event of transport damage or external damage to the packaging, the Customer must obtain written confirmation from the transport company at the time of receipt of the goods. Before such confirmation is received, no modification may be made to the packaging. Any infringement of this obligation may void the warranty. 

 

§ 5 Retention of title 

 

(1) The supplied goods remain the property of lixano until payment is received for them in full. Goods obtained by the Customer within an ongoing business relationship shall remain the property of lixano until all claims against the Customer arising from this business relationship, including future claims and also arising from contracts agreed at the same time or later, are fully settled. This shall also apply where individual or all claims by lixano are incorporated into a current account and the balance struck and approved.

(2) The Customer is entitled to resell goods whose title is subject to retention in the proper course of business. He thereby assigns to lixano all claims that may arise from the onward disposal to his purchaser or any third party.

The Customer shall also be authorised to collect these claims after that assignment. The authorisation of lixano to collect the claim itself remains hereby unaffected; however, lixano undertakes not to collect the claims for so long as the Customer duly meets his payment and other obligations. lixano may demand that the Customer declare the assigned accounts receivable and their debts, furnish all information necessary for collection, submit the associated documentation and notify the debtors of the assignment.

(3) If the security exceeds the Customer’s obligations in respect of lixano by more than 20%, lixano shall be obliged to reassign the difference at the Customer’s request. The assignment expires when all the Customer’s obligations are settled.

 

§ 6 Prices and delivery costs 

 

(1) All prices displayed on the lixano website are final prices in euro (€) and are exclusive of statutory value added tax and delivery costs.

(2) The Customer may view the applicable delivery costs on the “Delivery” subpage of the lixano website; these costs are also shown separately in the course of the ordering process. These costs are borne by the Customer.

(3) Goods are shipped by DHL. The Customer bears the shipping risk.

(4) The Customer shall bear any customs clearance or duty charges where these are levied. Where “carriage paid” or “duty paid” sales are subject to increases in one or both of these costs after the transaction is completed, these extra costs shall be borne by the Customer.

 

§ 7 Payment terms

 

(1) Only the payment methods displayed to a given Customer in the course of the ordering process shall be accepted. lixano will supply against prepayment, instant bank transfer (Sofortüberweisung), cash on delivery, credit card payment (MasterCard, VISA, American Express), PayPal or cash for collection in person. lixano reserves the right to accept only prepayment or PayPal payments from first-time Customers or Customers domiciled outside the Federal Republic of Germany. The purchase price and delivery costs become due immediately on conclusion of the contract. Payment is deemed to be made when the funds reach lixano’s bank account.
(2) lixano reserves the opportunity of also supplying Customers on invoice. In this case the option of payment against invoice will be offered.

(3) In the case of amounts payable in advance or on invoice, the purchase price is due 10 days from receipt of the invoice. If payment to lixano is not made within this period, lixano is entitled to withdraw from the contract.

(4) In case of cash on delivery payments, lixano is entitled to indicate the cash on delivery fees separately on the invoice.

(5) If the Customer falls into arrears with a payment, lixano is entitled to apply interest charges at a rate of eight per cent above the base rate of the European Central Bank in accordance with § 247 of the German Civil Code. In addition, lixano is entitled to claim for the damage arising from packaging and warehouse storage at a flat rate of €30.00 per package. The assertion of additional claims for damages remains unaffected by this regulation. The Customer may prove lesser damage.

(6) The Customer is only entitled to offset against demands by lixano where the demand from lixano is recognised or has been ascertained by legal means.

 

§ 8 Warranty

 

(1) Slight variations of the purchased goods in respect of quality, colour, shape and size do not constitute defects, provided that these are commercially reasonable and customary for the Customer. Where variations in sizes result from the fact that the textiles are sold in their country of manufacture under different size designations and this fact is known in the textiles trade, this shall not constitute a defect.

(2) All warranty rights of the Customer are granted on the assumption that he has duly met his obligations to make inspection and give notice of defects as per § 377 of the German Commercial Code (HGB). The Customer must therefore promptly check the quantity and condition of received goods.

The warranty period is one year, beginning at the time of delivery of the goods.

(3) If in spite of all due care the supplied goods contain a defect that was present at the time at which the risk was transferred, lixano shall, at its discretion, repair the defect or supply replacement goods. lixano should always be given the opportunity for supplementary performance within a reasonable time. Rights of recourse remain unaffected by the above regulation without restriction.

(4) Complaints must be made with written explanation within seven days of receipt of the goods by the Customer; defects that could not be detected during initial inspection must be communicated as soon as they are discovered. If the Customer does not complain within the time specified, the goods shall be deemed to be accepted.

A copy of the invoice/delivery note, on which the goods that are the subject of the complaint are marked, should be provided. The Customer is obliged to make the defective goods or a sample thereof available to lixano within 7 days for purposes of checking the complaint. In the case of culpable refusal, the warranty shall be forfeited. The costs of returning the goods shall initially be borne by the Customer. We cannot accept unpaid (carriage forward) shipments.

(5) Should the correction of the defect or delivery of the replacement fail, if lixano is not prepared or not able, or if it is delayed for unreasonable periods for reasons for which lixano is liable, the Customer is entitled, without prejudice to any claims for damages, to withdraw from the contract or to demand a reduction of the purchase price.

(6) In the case of fraudulent concealment of a defect or in the case of the assumption of a warranty for the condition of the goods at the time of transfer of risk as per § 444 of the German Civil Code, the rights of the Customer shall be governed exclusively by the statutory provisions.

 

§ 9 Liability

 

(1) lixano shall be liable only for damage to the Customer arising from loss of life, bodily injury or damage to health, from guarantees for the condition of the purchased goods or from the breach of material contractual obligations and for other damages arising from a deliberate or grossly negligent breach of obligations by lixano, its legal representatives or agents. Material contractual obligations are those whose fulfilment is necessary for the proper fulfilment of the contract, the violation of which jeopardises the achievement of the objective of the contract and on the observance of which the Customer regularly relies.

(2) In the case of breach of material contractual obligations whose observance is of particular importance for the fulfilment of the contract (cardinal obligations) by lixano through simple negligence, lixano shall only be liable for foreseeable damages typical of the contract except where there are claims by the Customer arising from loss of life, bodily injury or damage to health or from guarantees for the condition of the purchased goods. In the case of breach of a cardinal obligation, liability shall be limited in sum to five times the purchase price and to such damages as must typically be reckoned with in the textiles trade.

(3) Liability under the German Product Liability Act and other compulsory legal regulations shall remain unaffected at all times.

 

§ 10 Copyright and industrial property rights  

 

(1) lixano publishes high-quality product photographs on its web pages. These photographs are protected by copyright. lixano has the exclusive right of use of these photographs.

(2) lixano grants its Customers a simple, non-exclusive right of use of these images for specific purposes that may be revoked at any time: lixano permits its Customers, after full payment for the goods and for the sole purpose of reselling them, to publish, distribute and make publicly available on online shops or online auctions photographs that show those products that the Customer has obtained from lixano. The Customer may not transfer this right to any third party.

(3) The photographs may only be used for reselling purposes. The Customer must ensure that they do not come into obscene or pornographic associations of any kind or are presented in any other way that is offensive to morals and common decency.

(4) This right of use expires when the Customer has sold the purchased goods and not later than after two years.

(5) The Customer is not permitted to edit or otherwise modify photographs from lixano. In particular the Customer may not remove or alter references to the copyright holder or to lixano.

(6) If no reference to the copyright holder is present, the Customer must indicate the copyright of lixano in an appropriate manner.

(7) If the Customer violates the copyright of lixano or one of these provisions, he shall be liable to lixano for each case of non-compliance and for each photograph for damages of at least a flat rate of €250. The Customer may prove lesser damage and lixano may prove greater damage.

Additionally, in this case the right of use to those photographs that are the object of the violation also expires. lixano further reserves the right to termination without notice of all other rights of use that it has granted.

 

§ 11 Data protection 

 

(1) The customer is aware and in agreement that lixano obtains, stores and processes personal information of the Customer in the course of order handling and passes it on where necessary to third parties (e.g. banks, post and transport companies). Beyond this, data stored by lixano is naturally treated in confidence and not passed on to third parties.

(2) All Customers who create an account or have an account created declare their willingness to receive news and updates from lixano by e-mail. Should a Customer wish not to receive such advertising/information mails, he should notify lixano of this in writing.

(3) The Customer is entitled to revoke his consent to this at any time. At the Customer’s request, these data will be promptly deleted, though not until any current order has been fulfilled in full.

 

§ 12 Place of performance, place of jurisdiction and applicable law  

 

(1) Contracts between lixano and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of the uniform law on the international purchase of moveable items (UN Sales Convention/CISG). The language of this contract is German.

(2) If the Customer is a trader, a legal entity or a special fund in public law, the place of performance for deliveries and payments and the place of jurisdiction for all disputes arising from contractual relationships between the Customer and lixano shall be lixano’s registered office in  Rülzheim (Amtsgericht Landau in der Pfalz). lixano is however entitled to bring actions against the Customer at his registered office.

 

§ 13 Final provisions 

 

Even if individual provisions of this contract are unenforceable, this contract shall remain binding in all other matters. In place of the unenforceable points, statutory provisions shall apply where possible. Should this constitute an unreasonable hardship for one contractual party, however, the entire contract shall become ineffective.