Terms and con­di­tions

Terms and con­di­tions of Sim­ply. Logis­tic Sys­tems GmbH

(As at 1. April 2016)

TRANSLATION FOR INFORMATION PURPOSES ONLY! – ONLY THE GERMAN VERSION OF THE TERMS AND CONDITIONS IS BINDING!

§ 1 Appli­ca­tion
(1) All deliv­er­ies and ser­vices of Sim­ply. Logis­tic Sys­tems GmbH, Gemein­de­wald 4, 86672 Thier­haupten, Ger­many, (in the fol­low­ing: SIMPLY) are exclu­sive­ly sub­ject to the fol­low­ing terms and con­di­tions.
(2) Terms and con­di­tions issued by the cus­tomer which con­flict with or dif­fer from these terms and con­di­tions shall not be rec­og­nized, unless SIMPLY has explic­it­ly agreed there­to in writ­ing. If SIMPLY uncon­di­tion­al­ly deliv­ers goods or ser­vices to the cus­tomer although SIMPLY is aware of the customer’s terms and con­di­tions of busi­ness, then there will be no accep­tance of con­flict­ing or devi­at­ing con­di­tions of the cus­tomer. Even in this event, the fol­low­ing terms and con­di­tions of busi­ness apply exclu­sive­ly.

§ 2 Con­clu­sion of con­tract
A bind­ing con­tract is con­clud­ed with SIMPLY‘s receipt of the order con­fir­ma­tion signed by the cus­tomer. Sub­ject of the agree­ment will be as stat­ed in SIMPLY’s offer con­firmed by the cus­tomer.

§ 3 Deliv­ery and pass­ing of risk
(1) Unless oth­er­wise express­ly agreed in writ­ing between the par­ties, all deliv­er­ies of SIMPLY will take place ex stock Ger­many, i.e. at customer’s expense and risk. Deliv­ery dates shall only be bind­ing in the event SIMPLY has explic­it­ly con­firmed them as such in writ­ing.
(2) SIMPLY’s deliv­ery oblig­a­tion shall be sub­ject to the reser­va­tion of prop­er and time­ly deliv­er­ies from SIMPLY’s sup­pli­ers. In cas­es of force majeure, for exam­ple oper­a­tional dis­tur­bances or break­downs, delay in trans­porta­tion, strikes, lock-outs or oth­er indus­tri­al action, and in case of incor­rect, delayed or non-deliv­ery by SIMPLY’s sup­pli­ers, irre­spec­tive of its cause (reser­va­tion of self-sup­ply), and in any oth­er case of insuf­fi­cient per­for­mance for deliv­ery which SIMPLY is not respon­si­ble, SIMPLY shall be enti­tled to with­draw from the con­tract. In such event SIMPLY will imme­di­ate­ly inform the cus­tomer and refund any con­sid­er­a­tion that the cus­tomer has already paid. In case of a delay of SIMPLY’s deliv­ery of more than 4 weeks caused by such event the cus­tomer shall be enti­tled to with­draw from the con­tract.
(3) The risk of loss or dete­ri­o­ra­tion shall trans­fer to the cus­tomer at the time the goods are deliv­ered to the car­ri­er, ship­ping com­pa­ny or oth­er per­son or insti­tu­tion select­ed for ship­ment of the goods. The same shall apply for deliv­er­ies effect­ed by SIMPLY’s vehi­cles or if freight or car­riage paid and pack­ing includ­ed has been agreed between the par­ties. The same applies to the deliv­ery of prod­ucts when the cus­tomer defaults the accep­tance of the prod­ucts.
(4) Instal­ment deliv­er­ies shall be per­mis­si­ble, pro­vid­ed this does not con­flict with any legit­i­mate inter­est of the cus­tomer.

§ 4 Prices and con­di­tions of pay­ment
(1) Prices to be paid by the cus­tomer are set forth in the agree­ments. SIMPLY prices apply ex works, exclu­sive val­ue-added tax.
(2) SIMPLY will grant dis­counts and oth­er reduc­tions only, if SIMPLY has explic­it­ly agreed there­to in writ­ing in advance.
(3) SIMPLY’s employ­ees and rep­re­sen­ta­tives are enti­tled to accept pay­ment only on basis of an author­i­ty to col­lect signed by SIMPLY’s man­age­ment.

§ 5 Reten­tion of title
(1) SIMPLY retains title to the goods until receipt of all pay­ments in full, exist­ing from SIMPLY’s busi­ness rela­tion­ship with the cus­tomer.
(2) The cus­tomer shall be enti­tled to resell the deliv­ered goods in the ordi­nary course of busi­ness, how­ev­er, the cus­tomer here­with assigns to SIMPLY any and all claims to the amount of the invoice sum total (includ­ing val­ue-added tax) accru­ing to him from the resale against his cus­tomers or third par­ties, irre­spec­tive of whether the deliv­ered goods have been resold with­out or after hav­ing been processed. The claim assigned also refers to a rec­og­nized, and/or in the case of insol­ven­cy of the customer’s cus­tomer, the “causal” bal­ance.
The cus­tomer shall be autho­rized to col­lect this claim even after assign­ment. How­ev­er, SIMPLY shall be autho­rized to col­lect the claim itself if the cus­tomer does not per­form his oblig­a­tions to pay from the col­lect­ed pro­ceeds, defaults in pay­ment or has filed a peti­tion for the insti­tu­tion of insol­ven­cy pro­ceed­ings or such a peti­tion has been filed or pay­ments have ceased. In such cas­es, SIMPLY may demand that the cus­tomer states which claims have been assigned and their debtors, fur­nish­es all infor­ma­tion nec­es­sary for the col­lec­tion, hands over all appur­tenant doc­u­ments and noti­fies the debtor (third par­ty) of the assign­ment. How­ev­er, it will not be pos­si­ble for SIMPLY to col­lect the claim if the Ger­man Insol­ven­cy Code (InsO) pre­cludes this.
(3) Any pro­cess­ing or trans­for­ma­tion of the deliv­ered goods by the cus­tomer shall always be car­ried out on SIMPLY’s behalf. If the deliv­ered goods is processed with oth­er goods not belong­ing to SIMPLY, SIMPLY shall acquire joint title to the new item in the pro­por­tion of the val­ue of the deliv­ered goods to the oth­er processed goods at the time of the pro­cess­ing. In all oth­er respects, the pro­vi­sions applic­a­ble to the goods deliv­ered with a reser­va­tion shall also apply to the item result­ing from the pro­cess­ing.
(4) If the goods deliv­ered by SIMPLY are mixed with oth­er goods not belong­ing to SIMPLY to form an inte­gral part, SIMPLY shall acquire joint title to the new item in the pro­por­tion of the val­ue of the goods deliv­ered by SIMPLY to the oth­er mixed goods at the time of the mix­ing. If the mix­ing is done in such a way that the customer’s goods must be deemed to be the main object, it is agreed that the cus­tomer will have trans­ferred joint title to SIMPLY pro­por­tion­al­ly. The cus­tomer shall hold the sole or joint title in safe­keep­ing for SIMPLY.
(5) The cus­tomer also assigns to SIMPLY claims for secur­ing claims by the lat­ter against him that arise by con­nec­tion of the object with a prop­er­ty against third par­ties.
(6) SIMPLY under­takes to release the secu­ri­ties to which SIMPLY is enti­tled at the customer’s request to the extent that the val­ue of his secu­ri­ties exceeds the claims to be secured by more than 20 %; the selec­tion of secu­ri­ty to be released shall be at sole dis­cre­tion of SIMPLY.

§ 6 Assign­ment, Set-off, With­hold­ing rights
(1) The cus­tomer shall not assign claims aris­ing from con­tracts with­out the pri­or writ­ten con­sent of SIMPLY.
(2) The cus­tomer may invoke set-off or with­hold­ing rights only if the claims made have been acknowl­edged by SIMPLY or have been adju­di­cat­ed in court with legal effect.

§ 7 Duty of inspec­tion and report­ing
(1) Any com­plaints regard­ing mate­r­i­al defects or com­plaints due to wrong quan­ti­ties must be report­ed to SIMPLY with­in 8 days after the deliv­ery of goods; the report must be done in writ­ing describ­ing the detect­ed defects. Besides, the reg­u­la­tions of § 377 of the Ger­man Code of Com­mer­cial Law (HGB) apply.
(2) Minor or com­mer­cial deflec­tions com­pared to the infor­ma­tion and images in weight, form, col­or, dimen­sions, pat­tern­ing, qual­i­ty, con­sti­tu­tion or changes are deemed to be no defects.
(3) In case the par­ties devi­at­ing from these terms and con­di­tions agreed on deliv­ery to be at SIMPLY’s risk, the cus­tomer has to pre­pare writ­ten claims assess­ment with the col­lab­o­ra­tion of the transporter/forwarder pri­or to accept­ing vis­i­bly dam­aged con­sign­ments and in the cas­es in which after accep­tance dam­ages in tran­sit become vis­i­ble. The cus­tomer is oblig­at­ed to hand out this claims assess­ment and all expla­na­tions and orig­i­nal doc­u­ments (bill of con­sign­ment, etc.) to SIMPLY that are nec­es­sary for asser­tion.

§ 8 Fur­ther rea­sons for with­drawl
In the event of a breach of con­tract the cos­tumer, SIMPLY is enti­tled to with­draw from the con­tract and reclaim the deliv­ered goods, if and inso­far as the cus­tomer has not paid the con­sid­er­a­tion. SIMPLY is enti­tled to with­draw from the con­tact if a cus­tomer has pro­vid­ed false infor­ma­tion on his cred­it­wor­thi­ness or sol­ven­cy or if insol­ven­cy pro­ceed­ings have been insti­tut­ed on the customer’s assets or an appli­ca­tion for such pro­ceed­ings has been filed.

§ 9 Mate­r­i­al Defects, Lim­i­ta­tion
(1) War­ran­ty claims shall be time-barred after 12 months after pass­ing of risk.
(2) In case of defects of deliv­ered ser­vices or goods, SIMPLY will at its own dis­cre­tion extent war­ran­ty by an appro­pri­ate dis­count, free repair or replace­ment. In case of fail­ure of the repair or replace­ment, the importer may demand a price reduc­tion.
(3) If the cus­tomer, for rea­sons for which SIMPLY is not respon­si­ble, wrong­ful­ly gives notice of a defect for which SIMPLY are not respon­si­ble, SIMPLY shall be enti­tled to charge the cus­tomer for rea­son­able expens­es incurred by SIMPLY in con­nec­tion with the repair and/or deter­mi­na­tion of defects.
(4) SIMPLY is enti­tled to charge the cus­tomer for addi­tion­al costs of the expens­es nec­es­sar­i­ly incurred for sub­se­quent per­for­mance, par­tic­u­lar­ly trans­port charges, trav­el­ling expens­es, cost of labor and mate­ri­als inso­far as the expens­es are increased as a result of tak­ing the deliv­ered goods to anoth­er place than the agreed place of deliv­ery, unless the deliv­ered goods are tak­en to such oth­er place in con­for­mi­ty with the con­trac­tu­al pur­pose.

§ 10 Lia­bil­i­ty lim­i­ta­tion and Dis­claimer
(1) SIMPLY’s lia­bil­i­ty for (1) dam­ages for loss of life, phys­i­cal injury, injury to health, (2) inten­tion or gross neg­li­gence, or (3) lia­bil­i­ty pur­suant to law on a no-fault basis (e.g. under the Ger­man Prod­uct Lia­bil­i­ty Act) is gov­erned by Ger­man statu­to­ry law.
(2) For dam­ages due to the breach of key con­trac­tu­al duties caused by ordi­nary neg­li­gence, Company’s lia­bil­i­ty is lim­it­ed to fore­see­able dam­ages that are typ­i­cal­ly asso­ci­at­ed with such breach.
(3) If the customer’s dam­age is cov­ered by an insur­ance tak­en out for the rel­e­vant risk (except insur­ances on a fixed-sum basis), SIMPLY shall only be liable for any loss suf­fered by the cus­tomer in asso­ci­a­tion there­with (e.g. high­er insur­ance pre­mi­ums or inter­est payable until set­tle­ment by the insur­ance). The same applies to dam­ages caused by faulty ser­vices or goods.
(4) Any oth­er lia­bil­i­ty for dam­ages is exclud­ed.
(5) The afore­men­tioned lia­bil­i­ty rules shall apply to affil­i­at­ed com­pa­nies in accor­dance with § 15 Ger­man Stock Com­pa­nies Act (AktG), rep­re­sen­ta­tives, agents, ser­vants or mem­bers of the com­pa­ny and its affil­i­at­ed com­pa­nies as well.

§ 11 Data pro­tec­tion
(1) SIMPLY will use data pro­vid­ed by cus­tomers for the han­dling of the con­clud­ed con­tracts between the cus­tomer and SIMPLY only.
(2) SIMPLY will dis­clo­sure customer’s data to (i) the ship­ping com­pa­ny that SIMPLY out­source the deliv­ery of customer’s order, to the extent they are required to deliv­er the goods; and (ii) the com­pa­ny instruct­ed with pay­ment pro­cess­ing and invoic­ing, to the extent they are required inso­far. Besides that SIMPLY will not dis­close customer’s data.
(3) Accord­ing to the Ger­man Fed­er­al Data Pro­tec­tion Act (BDSG), cus­tomers have a right to infor­ma­tion and, under cer­tain con­di­tions, a right to the cor­rec­tion, bar­ring or dele­tion of the data stored by SIMPLY.
(4) With ques­tions to the ele­va­tion, pro­cess­ing or use of per­son­al data, for infor­ma­tion, cor­rec­tion, block­age or dele­tion of data cus­tomers please con­tact: Sim­ply. Logis­tic Sys­tems GmbH, Gemein­de­wald 4, 86672 Thier­haupten, Ger­many, info@simply-logistic.com, +49 8271 81457–16

§ 12 Place of Juris­dic­tion and Applic­a­ble Law; Final Pro­vi­sions
(1) Place of juris­dic­tion is Augs­burg, Ger­many. SIMPLY as plain­tiff is enti­tled to take legal action at the com­pe­tent court of the customer´s reg­is­tered office.
(2) Con­tracts are sub­ject to the law of the Fed­er­al Repub­lic of Ger­many; the Unit­ed Nations Con­ven­tion on Con­tracts for the Inter­na­tion­al Sale of Goods does not apply.
(3) If any pro­vi­sions of this terms and con­di­tions are or become invalid, the valid­i­ty of the remain­ing pro­vi­sions remains unaf­fect­ed there­by. The same applies to bridg­ing pos­si­ble gaps in this terms and con­di­tions. In lieu of the null and void pro­vi­sion the legal pro­vi­sion shall apply.
(4) This terms and con­di­tions can be uni­lat­er­al­ly changed by SIMPLY for future orders at any time.