Terms and Conditions
1. FIELD OF APPLICATION
These General Terms and Conditions apply to all wholesale purchases or orders of textile and non-textile goods (hereinafter referred to as “object of purchase”) by entrepreneurs (hereinafter uniformly referred to as “buyer”). Pursuant to Section 14 of the German Civil Code (BGB), an entrepreneur is a natural or legal person or a partnership with legal capacity who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
The user of these General Terms and Conditions is Mr. Andreas Mikolas, trading as Malanga, business address: Osnabrücker Straße 30, 10589 Berlin, contact: Tel: +49 (0) 30 34540248, Fax: +49 (0) 30 34540247, E-Mail: info@malanga.eu (hereinafter uniformly referred to as “Seller”).
These General Terms and Conditions shall also apply to future business relationships without the need to refer to them again. The GTC valid at the time of the order shall apply. Deviations from these terms and conditions shall only be effective if the seller confirms them in writing.
These terms and conditions shall be deemed accepted at the latest upon receipt of the goods.
If the buyer uses conflicting or supplementary general terms and conditions, their validity is hereby contradicted. They shall only become part of the contract if expressly agreed to in writing. This applies in particular to counter-confirmations by the buyer with reference to his terms and conditions of business or purchase.
2. CONTRACT LANGUAGE
The contract language is exclusively German.
3. OBJECT OF PURCHASE
The object of purchase is not individual goods, but rather assemblies (“stocks”) identified by lot numbers, in particular of items of clothing, underwear, bags, watches and shoes (“package sale”).
The type, quality, composition and scope of the packages offered are described by the seller under the respective lot number. The offer includes branded goods labeled as remaining or special items, insolvency, return, surplus and discontinued or B-goods (items with minor defects that do not restrict usability), which are intended exclusively
for wholesalers and retailers. B-goods are expressly not sold as new, but as used goods. Goods that do not contain any explicit labeling are B-goods.
4. ORDERING PROCESS AND CONCLUSION OF CONTRACT
The contract between buyer and seller is not concluded online via the seller’s website.
The buyer’s ordering process – with the exception of direct sales – is as described below and is divided into the following steps:
The buyer navigates through the product range offered on the seller’s website (www.malanga.eu). The product range is subdivided into the areas “Accessories”, “Shoes” and “Underwear” marked by clickable icons. After clicking on an image symbol, the respective stock marked by lot numbers is displayed with a clickable example photo. The offer is non-binding.
Information on the purchase price and delivery status of a stock is only provided to registered and logged-in buyers. The registered buyer can use the “Login” button to log in using his e-mail address and a password he has previously chosen or register as a new customer using the “Register” button. After logging in, the buyer transmits his request for information on one or more stocks to the seller by clicking on the respective example photo and then clicking on the “Add to request list” button. Once the request list has been sent, the seller then sends the buyer an order form. This contains all information relevant to the purchase contract regarding the object of purchase selected by the buyer (“essential characteristics”, such as type, quality or weight) and – depending on the agreement – the expected shipping costs, if applicable. The sending of the order form does not constitute a legally binding offer by the seller to conclude a purchase contract.
After checking the details of the object of purchase, price and other conditions, the buyer either signs the order form and sends it to the seller by fax, letter post or electronically (e-mail) or confirms its accuracy to the seller by e-mail. This order constitutes a binding offer by the buyer to the seller to conclude a purchase contract. The buyer is bound to his offer for 14 days from the date of dispatch.
The purchase contract between the buyer and seller is concluded immediately by sending the object of purchase or by receipt of an order confirmation or invoice (acceptance) from the seller to the buyer. This is sent by fax, letter post or electronically by the seller. The decision as to whether an order is accepted is at the discretion of the seller. If an order cannot be accepted or executed for any reason, the Seller shall inform the Buyer of this immediately. In such a case, payments already made by the Buyer shall be refunded immediately by the Seller.
For direct sales in the Seller’s business premises, the general contractual principles of offer and acceptance pursuant to the German Civil Code shall apply, whereby the offer is always made by the Buyer.
The Buyer’s contractual partner is Mr. Andreas Mikolas, trading as Malanga.
5. PRICES; DELIVERY COSTS
All prices are net prices and are quoted in euros. There is no possibility of discount deduction.
If the subject of the purchase is delivery to countries outside the European Union or countries associated with its customs territory, the buyer shall bear any customs duties or equivalent charges.
In addition to the purchase price, the buyer shall bear any costs incurred by him for the shipment of the object of purchase. Any shipping and handling costs stated by the seller during the ordering process are always non-binding.
6. PAYMENT, DUE DATE
The buyer receives an invoice with the order confirmation. The invoice amount is due for payment immediately. The buyer is obliged to pay in advance (bank transfer). Alternatively, the buyer can pay for the object of purchase in cash on collection.
If the seller’s claim to payment of the purchase price is not fulfilled within seven days of conclusion of the contract, the buyer is entitled to withdraw from the purchase contract. In the case of bank transfer, fulfillment shall only occur when the transfer amount is credited to the seller’s business checking account.
7. RESERVATION OF TITLE
The object of purchase shall remain the property of the seller until payment has been made in full. The retention of title shall also apply to claims that the seller has against the buyer from ongoing business relations. If the value of the aforementioned retention of title exceeds the claim(s) to be secured by more than 10%, the seller shall release the securities exceeding this amount upon request.
8. OFFSETTING, RETENTION
The Buyer shall only be entitled to offset if his counterclaims have been legally established or recognized in writing by the Seller.
The Buyer shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
9. DELIVERY, SHIPPING
The buyer is responsible for the organization and execution of the shipment. Shipment of the object of purchase shall always be at the expense and risk of the customer, even if the seller assists the buyer with transportation.
The risk of accidental loss or accidental deterioration of the object of purchase shall pass to the buyer when it is handed over to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment or free on ramp. Cases of force majeure as well as strikes and other unavoidable events shall release the seller from the obligation to deliver.
The delivery time of the object of purchase shall be communicated to the buyer via the respective transport company, if necessary by transmitting a tracking number. If the seller receives this or similar data, he will forward it to the buyer by e-mail.
Fixed transactions in accordance with § 376 HGB require the express prior written confirmation of the seller.
10. WARRANTY AND LIABILITY
The Buyer is obliged to check and acknowledge the type and quantity of the goods received (wrong delivery, short delivery, excess delivery and defective delivery) upon receipt. Incorrect delivery, quantity errors and recognizable defects must be reported to the seller immediately after receipt of the goods in writing or by telephone in accordance with § 377 HGB. If notification is not made in good time, any claims for delivery of the defective object of purchase shall be precluded.
The statutory warranty provisions shall apply – with the following exceptions.
In the case of new goods, the warranty period shall be 12 months from the transfer of risk of the goods. The warranty is subject to the restriction that the manner of subsequent performance (rectification of defects or replacement delivery) is determined by the seller. All warranty claims shall expire within one year of the transfer of risk of the goods.
The warranty is excluded for used goods. Excluded from this exclusion of warranty are cases of the absence of a warranted characteristic and the fraudulent concealment of a defect.
The seller is only liable in cases in which he or a vicarious agent is guilty of intent or gross negligence. This shall not apply in cases of liability for damages resulting from injury to life, limb or health or in the event of a breach of material contractual obligations. These are obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the buyer may regularly rely. Except in cases of intent, gross negligence and damages resulting from injury to life, body or health, liability is limited to the amount of damages typically foreseeable at the time of conclusion of the contract – excluding loss of profit.
11. APPLICABLE LAW AND PLACE OF JURISDICTION,
The law of the Federal Republic of Germany shall apply to all legal relationships between the parties to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The place of performance and exclusive place of jurisdiction shall be the registered office of the seller, provided that the customer is a merchant within the meaning of the German Commercial Code or a legal entity under public law or a special fund under public law or the customer has no registered office or usual place of residence in the Federal Republic of Germany when the action is brought.
12. DATA PROTECTION
The seller uses the buyer’s data – including the text of the contract with details of the object of purchase – exclusively to process the order. All customer data is stored and processed by the seller in compliance with the relevant provisions of the Federal Data Protection Act (BDSG) and the Telemedia Act (TMG). The deletion of the data takes place in compliance with any commercial and tax regulations three months after complete processing of the purchase or order process. The buyer has the right to free information, correction and deletion of his stored data at any time. Personal data, including the business, residential and delivery address as well as the e-mail address, will not be passed on to third parties without the express consent of the buyer, which can be revoked at any time. Excluded from this are service partners of the seller who require the transmission of the data for order processing (e.g. the shipping company commissioned with the delivery and the credit institution commissioned with the payment processing). In these cases, however, the scope of the transmitted data is limited to the necessary minimum.
13. DISCLAIMER FOR EXTERNAL LINKS
Despite careful control of the content, the seller assumes no liability for the content of external links. The operators of the linked pages are solely responsible for their content.
14. LOGOS, BRAND NAMES
With the sale of the object of purchase, the buyer does not acquire a license to use any trademark rights to the items purchased by him. This applies in particular to the use of any figurative marks, for example to advertise the object of purchase or otherwise offer it publicly or non-publicly.
15. INEFFECTIVENESS
Should one of the aforementioned provisions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a
replacement provision that comes as close as possible to the purpose intended by the invalid provision.
