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, Roent­gen­str. 50, 86368 Gerst­ho­fen, 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, Roent­gen­str. 50, 86368 Gerst­ho­fen, Ger­ma­ny, info@simply-logistic.com, +49 821 45 51 8661

§ 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.

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