General Terms and Conditions of Business
General Terms and Conditions for Red Chili, a brand of EDELRID GmbH & Co. KG, Achener Weg 66, 88316 Isny, Germany
These General Terms and Conditions of Business shall apply to the business transactions between us and merchants ("Kaufleute" as defined in the German Commercial Code), publiclaw juristic persons or special funds under public law on an exclusive basis.
All our deliveries, services and offers shall be made exclusively based on these General Terms and Conditions of Business. They shall be an integral part of all future contracts, which we may enter into with our contracting partners.
Terms and conditions of business of our contracting partners or third parties shall not apply, unless we give our express consent to their applicability.
For the area of e-commerce, the "Guidelines on the Sale of Our Products via the Internet" shall apply in addition and supplementary to these General Terms and Conditions of Business.
We reserve the right to modify these General Terms and Conditions of Business and the Guidelines on the Sale of Our Products via the Internet. We will notify our contracting partners of the revision and/or modification of the General Terms and Conditions of Business. They will become effective if the contracting partner does not object to their applicability within 4 weeks of the notification in text form ("Textform" as defined in the German Civil Code).
Our offers are subject to confirmation and non-binding, unless they are expressly labelled as binding or provide for a specific period of acceptance. Declarations of acceptance of our contracting partner require the text form.
If an offer is labelled as binding, a contract will be accomplished if our contracting partner accepts our offer in text form within 2 weeks of the date of receipt or if our contracting partner accepts the goods we deliver. Once this period has lapsed, we are no longer bound to the offer.
We reserve the right to make modifications of the promised service or to deviate from it if our contracting partner can reasonably be expected to accept the modifications or deviations taking into account its interests, as they are particularly caused by the technical development and/or constitute technical, notably safety technology improvements.
In case of custommade products and products manufactured according to the customer's request, we further reserve our right to manufacture such quantities that are technically predetermined by our production. In such a case, our contracting partners shall accept the quantities we offer, be it excessive delivery or short delivery.
Our prices shall be on an ex works basis (EXW Incoterms 2010) plus the statutory value added tax as applicable from time to time and the packaging costs, as well as insurance, customs duty or other ancillary charges.
We have the right to adjust the agreed prices/fees to increased costs for wages, materials and raw materials, if the period between the date of signing the contract and the date of the agreed delivery exceeds 6 weeks and if the cost increases occurred after the signing of the contract.
Periods and deadlines for deliveries and services we hold out shall always apply on an approximate basis only, unless a fixed period or a fixed deadline has been promised or agreed expressly. If shipment was agreed, the delivery periods and delivery deadlines shall relate to the handover to the forwarder, carrier or other third party contracted for the shipment.
Notwithstanding any rights due to delay of our contracting partner, we may request our contracting partner for an extension of periods of delivery and services or a postponement of the delivery and service deadlines by the period during which our contracting partners fail to comply with their contractual duties to us.
We shall not be liable for the impossibility to deliver or for delays of delivery, which are caused by force majeure or other circumstances unforeseeable at the time of signing the contract (e.g. business disruption, difficulties in procuring materials and/or energy, transport delays, strike, legal lockout, lack of workers, energy and raw materials, difficulties in obtaining required approvals, governmental action or the absence of delivery or delivery that is incorrect or not in time by our suppliers), and which we are not responsible for. If such events make it particularly difficult or impossible to us to effect the delivery or service and if the obstruction is not just of a temporary nature, then our contracting partner has the right to rescind the contract. In case of obstructions of a temporary nature, the periods of delivery or service or shall be extended and the delivery or service deadlines shall be postponed by the period of obstruction plus a reasonable start-up period. If the contracting partner cannot be reasonably expected to accept the delivery or service as a result of the delay, the contracting partner may rescind the contract by immediate notification to us in text form.
We have the right to make partial deliveries if our contracting partner can use the partial delivery within the framework of the contractually determined purpose, the delivery of the residual ordered goods is ensured, and our contracting partner does not incur any substantial additional expense or substantial extra costs for this reason (unless we declare our willingness to pay such costs).
If we get in default with a delivery or service or if any delivery or services proves impossible for us for any reason, whatsoever, then our liability for damages shall be limited as set forth in Section X. of this Agreement.
Place of performance of all duties under the contractual relationship shall be Isny im Allgäu, unless provided otherwise.
The type of shipment and packaging are at our duly exercised discretion.
The risk shall pass to our contracting partner with the handover of the object of delivery (the beginning of the loading process being the decisive time) to the forwarder, carrier or other third party assigned with the shipment. This shall also apply if partial deliveries are made or if we agreed to provide additional services (e.g. shipment). If the handover is delayed due to a circumstance caused by our contracting partner, the risk shall pass to the contracting partner as of the date on which the object of delivery is ready for shipment and we informed the contracting partner thereof.
On the express request and at the expense of our contracting partner, we will take out insurance to cover the shipments against damage caused by theft, breakage, transport, fire and water or other insurable risks.
It is permitted to send invoices in electronic form (e.g. email).
Unless agreed otherwise, our invoices shall be due for payment without deduction within 30 days of the invoice date. Repair invoices shall be paid immediately and without deductions.
The value date on our account shall be decisive.
In case of default of payment, we will bill default interest at the statutory rate. The assertion of any additional damage shall not be excluded.
If the contracting partner does not meet our terms of payment or if circumstances occur, which we get to know after the signing of the contract or which are appropriate to reduce the creditworthiness of our contracting partner or if our contracting partner is in default of payment, we reserve the right to declare all our claims due and payable. Moreover, we have the right to rescind from already signed contracts if our contracting partner should fail to make advance payment or provide other security on our request and at our option.
Our contracting partner does not have the right to set off against own claims. This shall not apply to claims that are undisputed or determined without further legal recourse and/or result from the same contractual relationship.
Our contracting partner shall immediately inspect the delivered goods with care. As to obvious defects or other defects that could have been recognised in case of an immediate and careful inspection, the goods shall be deemed accepted by our contracting partner if such defects are not notified in text form within 10 days of the delivery. As to other defects, the goods shall be deemed accepted by our contracting partner if we do not receive the notification of defects within 10 days of the date on which the defect manifested. The timely dispatch of the notification shall suffice to meet the deadline.
If the goods are defective, we are first obliged and entitled to opt for subsequent improvement or substitute delivery within a reasonable period. If subsequent improvement or the substitute delivery should prove abortive or if our contracting partner cannot be reasonably expected to accept either of them e.g. because we unreasonably delay the subsequent improvement or substitute delivery or if they become impossible; then the contracting partner may rescind from the contract or reduce the purchase price to a reasonable extent.
If the defect is due to our fault, our contracting partner may claim damages subject to the conditions outlined in Section X.
Warranty claims shall become statute-barred one year after the delivery. This period shall not apply to damage claims of the contracting partner resulting from injuries with lethal consequences or resulting in physical disability or damage to health or from wilful or grossly negligent breaches of duty by us or our agents with vicarious liability, which become statutebarred in accordance with the legal regulations as applicable from time to time, as well as to claims under the German Product Liability Act (Produkthaftungsgesetz).
Return deliveries shall be permitted only upon our prior acceptance. The products shall be shipped to us free domicile, without costs for us and in a flawless new condition, as well as in their original package. We may decide in our discretion whether return deliveries are rejected, replaced or credited. In the event of crediting, Red Chili reserves its right to claim expense allowance and a handling fee of up to 20% of the net list purchase price as applicable from time to time.
We reserve the title to the delivered goods until the full payment of the purchase price as well as the satisfaction of all claims under the existing business relationship with our contracting partner.
Our contracting partner must not pledge, assign by way of security or otherwise encumber the goods subject to reservation of title with thirdparty rights.
Our contracting partner has the right to resell the goods subject to reservation of title in the ordinary and proper course of business. The contracting partner hereby assigns to us its claims from the resale of the goods under reservation of title. Our contracting partner remains authorised to collect the claim even after such assignment. Our right to collect claims ourselves shall not be affected by the foregoing. Nevertheless, we will not collect claims as long as our contracting partner meets its contractual duties, does not get in default of payment and, particularly, no application for the institution of insolvency proceedings against its assets is filed or suspension of payments occurred.
The processing and further processing or transformation of the goods subject to reservation of title shall always be made on our behalf and by our order. If the goods are combined with other objects, we acquire the co-ownership to the new item in the proportion of the value of the goods subject to reservation of title to the other objects at the time of combination. If the combination is made in such a manner as to consider the item of our contracting partner as the main item, our contracting partner shall assign to us the proportional co-ownership to the item.
The claim for surrender of the goods subject to reservation of title shall not be construed as rescission of the contract.
Our contracting partner shall insure the goods subject to reservation of title against the usual risks such as fire, water and theft at its own expense. If our contracting partner fails to comply with its duty to obtain insurance despite our reminder, we may take out the insurance at the expense of the customer and collect the insurance premium as part of the claims under the contract. For an event insured, our contracting partner hereby assigns to us with priority all its claims against the insurance provider or the party at fault. We hereby expressly accept such assignment.
We commit ourselves to release the collateral due to us on the purchaser's request, provided that the respective value exceeds the value of the claims to be secured by more than 20%.
All the property rights attached to the goods in our favour shall remain unaffected. The use of the property rights by our contracting partners shall be subject to our consent.
For the proper labelling of the goods, we grant to our contracting partners a non-exclusive right to use the property rights, particularly our brands. The use of the brands to such extent does not constitute any right for the contracting partner to continue the use even after the end of the contractual relationship with us. After the end of this contractual relationship and the sale of all existing or already delivered goods, the respective contracting partner shall immediately discontinue the use of the property rights applicable in our favour, particularly of the brands.
Our liability for damage compensation on any legal ground, whatsoever, particularly such based on impossibility, delay, defective or wrong delivery, breach of contract, violation of duties in contract negotiations, and tort shall be limited pursuant to these provisions where our fault is of the essence.
We shall not be liable in the event of simple negligence. This shall also apply to our corporate bodies, legal representatives, employees or other agents with vicarious liability, provided that the liability is not attributable to a breach of material contractual duties. Material contractual duties are the duty to deliver the object of delivery in due time, its freedom from defects of title as well as from such material defects restricting its functionality or suitability for use to a more than insignificant extent, as well as the duties of consulting, protection and safeguarding that are meant to enable our contracting partner to use the object of delivery in line with the contract and/or are aimed at protecting life and limb or ownership against significant damage.
Where we are liable for damages on the merits, our liability shall be limited to damages, which we foresaw as possible consequence of a breach of contract at the time of signing the contract or which we ought to have foreseen had reasonable care been applied. Moreover, indirect damages and consequential damages caused by defects of the object of delivery shall be capable of compensation only to the extent in which such damages can be expected as typical in connection with the intended use of the object of delivery.
In the event of liability for simple negligence, our duty to compensate material damages and additional pecuniary damages resulting thereof shall be limited to an amount of Euro 10,000,000, even if it were a breach of material contractual duties.
The previously mentioned exclusions and limitations of liability shall apply to the same extent for the benefit of our corporate bodies, legal representatives, employees and other agents with vicarious liability.
The above exclusions and limitations of liability shall not apply to liability for wilful acting, guaranteed quality features, as well as injuries with lethal consequences or resulting in physical disability or damage to health or violations of the German Product Liability Act.
All our legal relations shall be governed by the law of the Federal Republic of Germany to the exclusion of the rules on conflict of laws and the UN Sales Law (CISG).
If our contracting partner is a merchant, a publiclaw juristic person or a special fund under public law, the place of our registered office shall be the exclusive venue of court.
If any of the provisions in these General Terms and Conditions of Business or any termination under any other agreements should be or become invalid, that shall not affect the validity of all other provisions or agreements. In such a case, we will replace the invalid provision jointly with our contracting partner by a valid one resembling as closely as possible the economic purpose of the invalid provision.
Our customers ("Dealers") shall offer our products ("Contract Products") for sale in a manner safe-guarding and promoting the high value, image and reputation of our company; this encompasses, but is not limited to the condition and the equipment of the store (if available), the presentation and the environment of the Contract Products and our brands, as well as consulting on Contract Products. Therefore, the following requirements shall be met:
a) The Dealer shall exhibit/present the Contract Products in an attractive, appealing and customerfriendly manner.
b) The other goods the Dealer sells shall be comparable to the Contract Products in relation to quality, image and appeal and presented in conformity with their image.
c) The store of the Dealer (if available), including the store window, and the equipment of the store shall meet the upscale image of the Contract Products, i.e. furnishing, decoration and other equipment shall be of premium quality.
d) In presenting the Contract Products, the Dealer shall align the design of the advertisement and/or offer to the image of and the consumer expectations in respect of our brands. The Dealer shall refrain from any action that is appropriate to have a negative impact on the high value, image and reputation of our company and/or our brands.
e) The Dealer and its sales staff need to have the required know-how for the sale of the Contract Products and be able to provide advice and information to the customers of the Dealer with regard to the Contract Products, particularly on all features of the Contract Products, general information regarding the Contract Products, including information on sustainability and environmental compatibility.
f) Our products require intensive consulting and are partially of considerable safety relevance as personal protective equipment (PPE). Our Dealers shall take part in expert training and/or PPE training events - including such for a fee - to a reasonable extent and to ensure the product expertise prior to and concurrently with deliveries to the Dealer. Particularly in case of the first-time delivery to the customer, Red Chili will assign the next free place to the Dealer in own training events and then start the deliveries to the Dealer.
g) In the advertising texts of the Dealer, it must always be clearly recognisable that it is the Dealer's advertisement, but not ours.
h) If the Dealer offers Contract Products in various colours, the Dealer shall display every colour offered for sale.
Customer complaints, if any, shall be processed promptly and efficiently.
The Dealer shall allow us to access its store (if available) and the relevant documents to satisfy our-selves of the compliance with these requirements to the marketing of our Contract Products.
The Dealer shall use only up-to-date and professional photo material i connection with the Contract Products, which is either supplied by us or to the use of which we gave our written consent.
The Dealer shall advertise only such Contract Products, which it actually has on stock in sufficient quantity.
If there are requirements for certain product groups in respect of the assortment, such requirements shall be met when presenting the Contract Products.
The Dealer shall always comply with the all relevant laws, particularly also the competitionlaw regulations with regard to the presentation of the Contract Products and the establishment of contact to its (prospective) customers.
The Dealer shall not alter the Contract Products. In particular, the Dealer shall offer and sell the Contract Products in the condition as we deliver them, and shall not affix any additional labels or parts or remove any existing ones.
The brand presentation shall be made as required by our Corporate Identity and the applicable legal regulations.
The Dealer shall participate in all recall programmes and product checks for our Contract Products we initiate.
The sale of the Contract Products via the internet requires a website meeting the requirements applicable to the local store. For this reason, the website and the offer and sale of Contract Products via the internet shall conform to the "Requirements to the Marketing of Our Products" ("Requirements") and additionally the "Guidelines for the Sale of Our Products via the Internet" ("Internet Guidelines"). The Internet Guidelines can be retrieved on the internet at www.edelrid.de or will be sent to the Dealer on request. To ensure the compliance with the Requirements and the Internet Guidelines, the Dealer shall present its website(s) to us in advance for our inspection and approval on which the Dealer advertises and sells the Contract Products.
We have the right to modify the said Requirements and the Internet Guidelines to adjust them to changes of the strategy or the market situation. The Dealer shall implement such modifications. We will inform our Dealers in writing of such modifications in good time.
The Dealer shall offer our products ("Contract Products") for sale in a manner safeguarding and promoting the high value, image and reputation of our company and our brands. For this reason, the Dealer shall always meet the following requirements when it comes to selling the Contract Products via the internet:
To ensure compliance with the Requirements and the Internet Guidelines, the Dealer shall present its website(s) (URL) to us in advance for our inspection and approval on which the Dealer advertises, offers and sells the Contract Products. If the Dealer advertises, offers or sells the Contract Products via third-party platforms, the relevant pages shall be presented for inspection and approval. The approvals will be granted if the website(s) or the pages on the third-party platforms meet the Guidelines for the Sale of Our Products via the Internet.
As the seller of the Contract Products, the Dealer shall act as service provider as defined in the Telemediengesetz ("TMG"/German Teleservices Act) for the website.
The Dealer shall always comply with the general information duties defined in sec. 5 TMG, all other applicable information duties pursuant to sec. 312 c – e BGB (German Civil Code), the rights of revocation and return pursuant to sec. 355 et seq. BGB, all data protection regulations and, generally, all the laws applicable from time to time, particularly with regard to competition-law regulations relating to the presentation of the Contract Products and the establishment of contact to its (prospective) customers.
The Dealer must not use any advertising banners on its website, which is not aligned to the high value, image and reputation of our brands and Contract Products.
The Dealer shall not make any modifications regarding the website, which could have an impact on the high value, the image and the reputation of our brands and thus the sale of the Contract Products, unless with our prior consent.
If the Dealer provides data on transacted sales, they must be correct. We have the right to request evidence of the correctness of data if there is reason to believe that the Dealer's data could be incorrect.
Our products require intensive consulting and are partially of considerable safety relevance as personal protective equipment (PPE). The provisions in Section XII. 1 e) and Section XII. 1 f) of the General Terms and Conditions of Business (Requirements to the Marketing of Our Products) shall also apply in particular. Generally, the online sale of our products, too, shall be in line with our brand image.
The Dealer shall take part in expert training and/or PPE training events - including such for a fee - to a reasonable extent and to ensure the product expertise prior to and concurrently with deliveries to the Dealer. Particularly in case of the first-time delivery to the customer, Red Chili will assign the next free place to the Dealer in own training events and then start the deliveries to the Dealer.
The advertising texts of the Dealer on the websites must always clearly show that the Dealer is responsible for the advertisement, unless upon our release. So, for instance, the Dealer must not assert in its advertising texts that the Dealer were an "official EDELRID Online Shop" or "official RED CHILI Shop", unless upon our release.
The product presentations shall always be made in a manner representing and preserving the high value, image and reputation of our brands and Contract Products. In designing the advertisement and the offer, respectively, the Dealer shall consider the consumer expectations in respect of our brands and Contract Products. In this connection, the Dealer commits itself, inter alia, not to advertise and/or sell third-party products in connection with our Contract Products that are appropriate to have a negative impact on our reputation. In particular, the Dealer shall include the Contract Products in thematically appropriate categories only rather than in categories of other brands.
For the product search, the Contract Products shall be placed in a brand-specific manner and separated from the rest of the store assortment.
We will provide the Dealer with image pictures in electronic form relating to the Contract Products the Dealer offers on its website.
The Dealer commits itself to use the logos and lettering we provided and released on an exclusive basis for the advertising and sale of the Contract Products. The Dealer shall only use the pictures we provided or the professional pictures of third parties as product pictures on its website; in this connection, different product views and at least one high-resolution product picture should be displayed. The Dealer is not allowed to alter the pictures, logos etc. we provided or to pass them on to third parties.
If possible, the Dealer should ensure that several pictures of each product are available showing the respective product from different perspectives or as panoramic view.
On the website, the Dealer shall present detailed product descriptions and product pictures to the customers to provide the customers with insights into the Contract Products comparable with the purchase in the store. In the product descriptions, the Dealer shall describe the material quality, details and the characteristics of the respective Contract Product in an accurate manner and in observing the legal regulations.
The Dealer shall specify exactly the available colours and sizes of the Contract Products.
The price details shall comply with the legal regulations and be of an unequivocal and easily comprehensible nature; the shipment costs have to be specified exactly.
a) The Dealer shall offer only such Contract Products that it actually has on stock. If the Dealer provides details on the exact number of the available Contract Products, such details shall be correct and up-to-date.
b) If there are assortment requirements for specific product groups, such requirements shall be met in connection with the sale via the internet, too, i.e. the Dealer shall offer the determined Contract Products as part of its assortment on the website.
Handling of purchase orders and confirmation by email
a) The Dealer shall confirm purchase orders of customers immediately by email.
b) If a Contract Product ordered by a customer is not available due to the fact that two customers concurrently ordered a product available only once, the Dealer shall immediately send a notice in this respect to the customer via email.
a) The Dealer shall ship the ordered Contract Products to the customer within two business days after the receipt of the purchase order.
b) The Dealer shall confirm the shipment of the ordered Contract Products to the customer by email.
c) The Dealer shall use the packaging materials/cardboard boxes appropriate for the shipment.
d) The Dealer shall enclose a delivery note and an invoice to each shipment.
e) The shipment costs must be reasonable.
Methods of payment
The Dealer shall offer two different options for payment to its customers, one option being "immediate payment" (e.g. by credit card or PayPal).
Customer service/help page on the website
a) The Dealer shall not register or use our brand names and labels of a confusable similarity as elements of the top-level, second-level or other subdomains. The Dealer does not have the right to register or use domains including a wrong spelling of our brands. The URLs of the Dealer accounts shall correspond with any of the following formats:
• www.yourdomain.TLD (i.e. without reference to our brands)
In particular, the following formats are invalid:
b) The Dealer shall clearly highlight its contact details, including telephone number, fax number and email address on its website in accordance with the legal regulations.
c) The Dealer's website shall comprise a clear help page where particularly information on methods of payment, terms of shipment, rights of revocation and return, as well as refunds can be retrieved.
d) The Dealer shall provide a telephonic customer service during the usual business hours and specify the contact information for the customer service on the first page of its website in an easily accessible and easy-to-find manner.
e) Telephone calls of customers shall be processed promptly and reliably.
f) Customer requests via email shall be answered properly within two business.
Revocation and Returns
a) The Dealer shall comply with the legal regulations governing the right of revocation and return in connection with consumer contracts.
b) The Dealer shall inform the customer expressly that return shipments of Contract Products for defect liability claims must be made to the Dealer.
It has to be ensured that the Dealer's website is optimised for the usual screen resolutions (currently 1,024 x 768 pixels) and compatible with the generally used browsers (currently IE 6.0 and higher, Firefox).
The Dealer's website must have a search function for brands and product areas, among other things, and the Contract Products must be differentiated and found based on such search functions.
The Dealer's website should have a simple navigation structure.
The Dealer's website should have a "track & trace" function (unless provided by the shipment company used by the Dealer).
The website should have a clear "About us" page to be found easily on each page or a FAQ page with information about the Dealer and the website.
The usual order handling processes and functions (shopping cart, login, proceed to checkout, options for checking/changing the order process) have to be offered.
A secure encryption according to the state of the art (as of May 2018: SSL encryption) is used in the order process.
The IT infrastructure, particularly with regard to the standards of security, performance and availability must comply with the most recent state of the art.
To avoid that goods are sold out, a stock management system must be used.