Terms and conditions
1. Scope of Application
1.1. These General Terms and Conditions apply to all declarations of intent, contracts and contractual or similar activities of SoulAr GmbH & Co. KG (hereinafter referred to as “SoulAr”) with its customers (hereinafter referred to as “Customer”) to the extent they conclude contracts with SoulAr for the purpose of their commercial or independent professional activity. Any terms and conditions of the customer that differ to these Terms and Conditions are not accepted. Any confirmations by the customer to the contrary, with reference to their own terms and conditions of business and/or purchasing, are expressly rejected. They shall not form part of agreements unless the conditions are confirmed in writing by SoulAr.
1.2. These General Terms and Conditions apply from initial inclusion and for all future legal transactions between the parties. Changes may be made at a later date in accordance with Section 19.
2. Conclusion of contract
By submitting an order, the customer makes a binding offer to conclude a purchase agreement with SoulAr. The acknowledgement of receipt subsequently sent by SoulAr does not represent an acceptance of the offer. SoulAr can accept the offer of the customer within 5 days after receipt of the order by making an explicit statement (order confirmation). The contract comes into being on receipt of the acceptance declaration. The sending of the ordered goods and the confirmation of shipping to the customer equate to an explicit acceptance declaration by SoulAr.
3. Prices, Shipping Costs, Shortfalls and Quantity Tolerances
3.1. When goods not included in the product range of SoulAr are ordered and delivered at the request of the customer, SoulAr will charge an administration fee of € 12.93. The administration fee is shown separately on the invoice and will not be refunded in the event of a product return.
3.2. All prices exclude packaging and shipping costs. These will be invoiced to the customer additionally. If the delivery is sent as a cash-on-delivery shipment the customer shall, in addition, bear the COD charge and bank transfer fees. If a delivery service is ordered with the transport of the ordered goods in countries outside the EU (if offered), additional fees and customs duties may be incurred, which the customer shall also bear.
3.3. All prices and information on costs and fees exclude the value added tax applicable on the day of delivery.
4.1. The customer has the option of paying for the ordered goods by bank transfer (for advance payment), cash on delivery or direct debit. Payment shall be due immediately without deduction. If payment is made by means of a SEPA direct debit, SoulAr will notify the customer of the debit at least three business days in advance (“Pre-Notification Period”). The customer shall ensure that their account has the required funds on the date the direct debit is to go through, as per the notification.
4.2. SoulAr reserves the right to exclude payment types in individual cases or to only deliver for advance payment. For new business relationships, the first five deliveries are generally carried out for advance payment or payment on delivery.
4.3. For returned debits, SoulAr shall charge € 20.00 in return fees. SoulAr reserves the right to assert further damages. A return fee is not charged if the debit is returned due to insufficient funds in the customer's account and the debit attempt was made at a time other than that notified by SoulAr. Should returned debits arise, SoulAr is entitled to withhold further deliveries until the claims are paid in full. Should debits be returned multiple times, SoulAr will only supply for cash on delivery.
4.4. The customer shall default on payment without requiring a warning if SoulAr does not receive the payment within 10 days after receipt of invoice by the customer. In the event of delay in payment or failure to pay, interest of 10% above the respectively applicable base interest rate will be charged. In addition, the customer will be charged a dunning fee of up to € 15.00 for each warning unless the warning is a first warning establishing the delay. The right to assert the flat rate pursuant to Section 288 (5) BGB [German Civil Code] and any other further damages remains unaffected. The flat rate pursuant to Section 288 (5) BGB is also to be charged on dunning fees pursuant to sentence 3.
4.5. In the event of payment default and/or a significant deterioration in the financial situation of the customer, SoulAr may, at its own discretion, request immediate payment of all claims as well as request payment on delivery or advance payment for deliveries and services not yet provided. SoulAr shall assume a deterioration in the financial situation in particular if unsatisfactory credit reports regarding the customer are received.
4.6. Despite differing conditions of the customer, SoulAr is entitled to credit payments first to the older arrears and will inform the customer of the assignment of the payment. If costs and interest have already been incurred, SoulAr is entitled to the first assign the payment to costs, then to interest and finally to the principal claim.
5. Delivery Deadlines
5.1. Unless differing delivery deadlines have been agreed to in writing, SoulAr shall deliver the ordered goods without delay, however, no later than within 30 days after contract conclusion; in the event of advance payment, within 30 days after receipt of the payment. The delivery deadline shall be deemed to have been complied with if the goods have left the warehouse within this period.
5.2. If SoulAr misses the delivery deadline, the customer shall set an appropriate period of grace.
6. Non-delivery by SoulAr’s Suppliers
6.1. If the ordered item is not available or temporarily unavailable, SoulAr shall inform the customer thereof without delay after the order is placed. Until receipt of deliveries from the supplier, SoulAr shall be released from the duty to perform unless SoulAr is responsible for the non-delivery by its supplier.
6.2. Any amounts already paid towards the purchase price shall be refunded immediately in the event of a withdrawal. Damage claims by the customer shall be excluded unless SoulAr is responsible for the non-delivery by its supplier.
7. Place of performance, Delivery and Passing of Risk
7.1. The place of performance is the registered offices of SoulAr.
7.2. In the event of deliveries to another location, the risk of accidental destruction or accidental deterioration shall pass to the customer at the latest on handover to the contracted transport company. This shall also apply if SoulAr has assumed the costs for the transport.
7.3. The deliveries are automatically covered by transport insurance in order to secure the transport risk. SoulAr shall pass on amounts paid by the insurance company to the customer without delay.
7.4. If the customer orders multiple items that cannot be sent together as they are not immediately available, SoulAr shall deliver the goods as partial deliveries as they become available unless a partial delivery is clearly not of interest to the customer due to the goods belonging together for their functioning or for other reasons. The shipping costs pursuant to clause 3.2 will only be invoiced to the customer once.
7.5. Delivery shall be by parcel service or forwarding agent. If the ordered goods are delivered by a forwarding agent, the delivery shall be made to the front door. Any further transport services can be agreed with the freight carrier. Any additional costs incurred thereby shall be paid directly to the freight carrier by the customer.
7.6. To ensure the comprehensive removal of the sales packaging, SoulAr takes part in a waste disposal system within the meaning of section 6 paragraph 3 of the Packaging Ordinance. The customer can thus return the sales packaging to any collection point provided by the waste disposal system.
8. Acceptance and Delay in Acceptance
The customer is obligated to accept the goods. If the customer does not accept the goods, even after an appropriate period of grace has been set, SoulAr is entitled to demand damages in the amount of 20% of the agreed price unless the customer proves that lower damages were incurred by SoulAr. The costs for refused or uncollected shipments shall be invoiced to the customer.
9. Duty of Inspection and Defect Notification
9.1 The customer is obligated to inspect the goods immediately after receipt and, if a defect is apparent, to notify SoulAr thereof without delay. If the customer fails to notify, the goods shall be deemed to be approved unless the defect was not evident at the time of inspection. If such a defect becomes apparent at a later date, it must be notified without delay after discovery otherwise the goods shall also be deemed to be approved even given this defect.
9.2. The defect notification must be made in writing and specify the defect in detail. The period for defect notification is 48 hours from receipt of the goods, for hidden defects from the time of their discovery, unless the customer proves that same was not in a position to adhere to the deadline even in the ordinary course of business.
9.3. Any externally identifiable damages to the transport packaging as well as identifiable damages to the goods based on this transport damage must be noted on the freight carrier’s waybill or on the delivery note, confirmed and SoulAr must be notified in writing within 48 hours with enclosure of the note so that SoulAr can meet its notification obligation in respect of the transport insurance (clause 7.1.3).
10.1. The guarantee period is one year from date of the delivery of the item. The statutory limitation periods for recourse claims (Section 445b of the German Civil Code) shall remain unaffected by this. The aforementioned guarantee period does not apply in the event of wilful intent or fraudulent concealment of a defect or if SoulAr has undertaken a guarantee for the characteristics of the delivered item. In addition, it does not apply to claims for material defects in the event of injury to life, body or health, for claims in accordance with the Product Liability Act, in the event of a grossly negligent violation of a duty or in the event of culpable violation of cardinal contractual obligations.
10.2. If an item should have a defect, the customer shall grant SoulAR an appropriate period for subsequent performance. SoulAr is entitled to refuse the form of subsequent performance selected by the customer if this type of subsequent performance is associated with disproportionate costs. This is the case if
- the costs for subsequent performance exceed the value of the purchased item if it were defect-free, or
- the costs for subsequent performance exceed the amount by which the defect reduces the value of the purchased item, or
- the form of subsequent performance, other than that selected by the purchaser, is more cost-effective and does not mean a significant disadvantage for the purchas
In this case, the purchaser’s guarantee claim is limited to the other type of subsequent performance. If the other type of subsequent performance is associated with disproportionate costs, SoulAr may refuse subsequent performance on the whole.
10.3. If used goods are delivered, guarantee claims for defects in the purchased item as well as claims for damages based on defects in the purchased item are excluded. This does not apply to the exceptions mentioned in clause 10.1 sentence 2 and sentence 3. In this sense, used goods also includes goods reworked and repaired by SoulAR.
11.1. Compensation claims due to breach of duty and due to unauthorised actions as well as claims to compensation for any unnecessary expenditures are excluded, both with regard to SoulAr and also with regard to the assistants or vicarious agents of SoulAr.
11.2. This limitation of liability does not apply if the damage was caused by intent or gross negligence, as well as in the event of the infringement upon major contractual obligations, i.e. those contractual obligations that must be fulfilled in order for the contract to actually be implemented properly and which the contracting party may reasonably expect to be observed, and the infringement upon which also puts at risk the achievement of the contractual purpose. It also does not apply to damages due to personal injury, bodily harm or damage to health if SoulAr is responsible for the breach of duty. Furthermore, the limitation does not apply to damages that are based on the lack of a guaranteed property or for which liability is provided for in accordance with the Product Liability Act.
11.3. In the case of compensation claims breaches of material contractual obligations caused by minor negligence and in cases of gross negligence contractual secondary obligations liability is limited to typical and foreseeable damage.
The limitation does not apply to personal damages, to damages that are based on the lack of a guaranteed property or for which liability is provided for in accordance with the Product Liability Act.
12. Reservation of Title
12.1. The delivered goods remain the property of SoulAr until the purchase price is paid in full. In addition, SoulAr reserves title in the delivered goods until all the claims arising at the time of contract conclusion, including all claims arising from follow-on contracts and subsequent deliveries (hereinafter referred to as “total claim”) have been paid.
12.2. The customer already at this point assigns all the claims from its buyer it acquires from a resale by way of collateral in the full amount to SoulAr. The customer is irrevocably authorised to collect these claims. SoulAr shall only revoke its collection authorisation and collect the assigned claims itself if the customer defaults on its payment obligations in respect of SoulAr or an application for the institution of insolvency proceedings over the assets of the customer is initiated.
12.3. SoulAr is obligated to release the existing collateral on request of the customer to the extent the value thereof exceeds the total claim by more than 20%. The choice of collateral to be released is at the discretion of SoulAr.
13. Prohibition of Offsetting, Right of Retention
13.1. The customer is not entitled to offset unless the counterclaims are uncontested by SoulAr, established by declaratory judgement or ready for final judgement.
13.2. The customer may not assert a right of retention.
14. Data Privacy
The data privacy practice of SoulAr is in compliance with the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz: BDSG) and the German Telemedia Act (Telemediengesetz: TMG). All the information on the collection, processing and use of users’ personal data can be found in the data privacy notices provided on SoulAr’s website for download.
15. Data Security
15.1. The customer is responsible for the security of its data. For repair orders or modifications and upgrades to the devices handed to SoulAr, the customer shall ensure that the data is fully backed up on external storage media using its own personnel at its own cost directly before the work by SoulAr is executed.
15.2. SoulAr assumes no guarantee for the security and existence of the data and no liability for any loss or damage to data or databases. A guarantee is also not assumed if it was expressly agreed that particular value is to be placed on data security.
15.3. Damage claims due to partial or total destruction of the customer’s data are excluded unless the customer proves that SoulAr was grossly negligent or acted with wilful intent in the handling of the data.
16. Online Registration, Access Data
16.1. A requirement for the use of SoulAr’s Internet offering is that customers register and store the data provided by the customer. A user account is set up for the customer after registration. The customer will be informed of the required access and user data (hereinafter referred to as “access data”; this term shall include the password). SoulAr is entitled to change the customer's access data at a later date. In this case, the customer will be informed of the new access data without delay.
16.2. The customer is responsible for protecting the access data. The customer shall ensure that only employees authorised to represent the company have access to the access data within its company. The access data must be kept confidential and may not be made accessible to third parties unless SoulAr has agreed thereto in writing. The customer shall inform the employees authorised to represent the company of the confidentiality obligations provided for in this clause. The customer is aware that, if third parties gain knowledge of the access data, those third parties will be able to place orders with SoulAr in the name of the customer. If the customer determines or suspects that its access data are being used by third parties, the customer is obligated to immediately change its access data or, if this is not possible, immediately inform SoulAr
16.3. If there is a justified suspicion that the customer's access data are being misused, in particular if this was notified by the customer, SoulAr shall be entitled to immediately block access. SoulAr shall inform the customer of the block.
16.4. SoulAr shall not be liable for damages arising for the customer due to misuse or loss of the access data unless the damage was caused with wilful intent or gross negligence.
17. Return of Goods
Goods returned outside of the legal or contractual claims of the customer from the original order are subject to SoulAr’s RMA guidelines. These can be downloaded under www.soular.de. Any credits granted shall only be offset against new orders. A cash payment will not be made. Items that are not part of SoulAr’s product range and/or that were ordered at the request of the customer from the manufacturer can be neither cancelled nor returned.
18. Place of Jurisdiction
If the customer is a merchant, legal entity under public law or a special fund under public law, Würzburg shall be the exclusive place of jurisdiction for all claims arising from the contractual relationship. This shall also apply in the event that the registered offices or the general domicile of the customer is relocated out of the scope of application of the Code of Civil Procedure after contract conclusion or if same is unknown at the time a lawsuit is commenced.
SoulAr is entitled to amend these General Terms and Conditions with effect for the future. The amendments shall become effective once the amended General Terms and Conditions are included in a legal transaction.
20. Final Provisions
20.1. Oral agreements, side agreements and other agreements between the parties shall only become effective if they are confirmed in writing by SoulAr. This also applies to an agreement to waive the written form.
20.2. Should one or more provisions of these General Terms and Conditions be or become ineffective, both the contract as well as the remaining Terms and Conditions remain effective.
20.3. The law of the Federal Republic of Germany shall apply exclusively to the contract. Application of the United Nations Convention on the International Sale of Goods is excluded.
Effective: 18 January 2018