General terms and conditions
1.1. The following General Terms and Conditions regulate the contractual relationships between the comany engaged in a trade
Fink GmbH & Co. KG
represented by Fink Verwaltungs-GmbH
represented by the managing director managing directors Georg Messing, Hamid Yazdtchi
hereinafter referred to as Fink
and the customers.
We are available under the following contact details:
Phone: +49 2871 9960
Fax: +49 2871 996199
1.2. The contract language is German.
1.3. These General Terms and Conditions may be executed in four language versions for the purpose of easier international understanding, namely in German, English, French and Italian. In case of disputes, the German version prevails; this does especially also mean that the terms and definitions of the German law are decisive in case of disputes about the interpretation of individual clauses of the present General Terms and Conditions.
2.1. A “merchant” (plural: merchants) is either a person who carries on a business or a person who has the name of their company registered in the commercial register.
2.2. A “business” is any business enterprise, unless the nature or size of the enterprise does not require a commercial business organisation.
2.3. An entrepreneur is a natural or legal person or a partnership having legal capacity that upon conclusion of a legal transaction acts performing their commercial or independent professional activity.
2.4. A consumer shall be any natural person who concludes legal transactions for purposes which cannot be predominantly attributed to his / her commercial or independent professional activities.
2.5. “Means of distance communication” are means of communication that can be used in order to initiate or conclude a contract without the simultaneous physical presence of the contractual parties; this includes but is not limited to letters, catalogues, telephone calls, faxes, e-mails as well as broadcasting services, teleservices or media services.
2.6. “Text of the contract” in terms of these General Terms and Conditions includes the product description resulting from our online presentation and the content of the online order. The confirmation of order sent by us in the online portal itself is not considered to be text of the contract, but merely confirms the receipt of the order.
2.7. Text form shall be a legible declaration in which the identity of the declaring person is named and which was provided on a permanent data carrier.
2.8. A permanent data carrier shall be any medium which enables the recipient to store or save a declaration on this data carrier personally directed to them in a way that it is accessible for their purposes over a reasonable period of time and that it is suitable for reproducing the declaration without any changes.
2.9. “Damage caused by defects” is the damage that results from the fact that the object of purchase disadvantages the customer compared to a defect-free object of purchase due to a defect that can be remedied by subsequent performance.
2.10. “Consequential damage caused by defects” is the damage that is not remedied by defect-free subsequent performance and that is suffered by the customer in other legal interests than the object of purchase due to the defect that can be remedied by subsequent performance, particularly to body, property, possession or liabilities to pay damages to third parties.
2.11. The “end delivery costs” and the “cartage” in terms of these General Terms and Conditions are a part of the transport costs of a commodity to the customer. The cartage describes the transport costs from Fink to the freight forwarder and the end delivery costs describe the transport costs from the receiving forwarding agent at the destination to the recipient.
3. Validity of these General Terms and Conditions
3.1. These General Terms and Conditions shall apply exclusively to all contracts, deliveries and other services.
3.2. We do not acknowledge any conflicting or deviating terms and conditions.
3.3. If the customer is a merchant, they shall also apply to all future business relationships, even if they are not expressly agreed upon again.
3.4. We are at any time entitled to change or supplement these General Terms and Conditions. Customers are entitled to object to such change. If no objection is made within four weeks after receipt of the notification of change, the new general terms and conditions become effective in accordance with the change. At the beginning of the period, the customers will be informed in writing that the notification of change is deemed to be accepted if it is not objected within four weeks.
3.5. If the customer exercises the right to object, Fink is entitled to continue the contract according to the previous terms and conditions or to terminate the contract with a one-month period of notice to the end of the month.
4. Contractual parties
4.1. Entrepreneurs or legal persons are exclusively accepted as customers.
4.2. Consumers are excluded as customers.
4.3. The customer is obliged to provide truthful details when registering for the dealer area and to refrain from passing on passwords to third parties.
4.4. If an entrepreneurship is pretended, no sales contract will be concluded. Instead, the parties agree on a contractual penalty in the amount of double the purchase price the non-permitted customer has to pay.
5. Conclusion of contract/storage of the text of the contract and the General Terms and Conditions/specifications/non-availability
5.1. in our internet-shop
5.1.1. Advertising of the products in the Internet shop shall constitute a non-binding invitation subject to alteration to our customers to submit an offer.
5.1.2. The customers shall be deemed to submit an offer by following our ordering procedure and clicking on the “Order liable to payment” link at the end of the process.
5.1.3. Before the order is submitted, any entries made may be corrected using the standard keyboard and mouse functions.
5.1.4. We may accept the customer’s offer within a period of five days at our option, either by confirming the order or by delivering the goods.
5.1.5. The text of the contract and the present GTCs shall be saved.
5.2. for contracts not concluded within the meaning of § 312 b BGB outside of business premises
5.2.1. The application of the products represents a non-binding and non-binding request for the submission of an offer by customers.
5.2.2. Customers may submit an offer verbally, in writing, in writing or by conclusive behavior.
5.2.3. We can accept the offer of the customer within two weeks either by order confirmation or by delivery of the goods.
5.2.4. The text of the contract and the present GTCs shall be saved.
5.3. Illustrations, drawings, dimensions, quality details, weights and colour shades are approximate values customary within the industry. Customary variations and technical modifications in shape and/or colour and/or quality and/or weight remain reserved if the modification or variation is reasonable for the customer in consideration of our interests.
5.4. The contract is concluded with the reservation to not deliver or to only deliver in part in the event of incorrect or improper supply to us. This only applies if the supplier is not responsible for the failed supply and has concluded a specific covering transaction with its supplier. In case of non-availability or only partial availability of the goods, the customer will be informed immediately and any potential considerations already made will be reimbursed promptly.
6. Product presentation and rights to images
6.1. For all presentations of contractual products, clients shall only use images in the design in which they were provided for the relevant purpose.
6.2. If images are made available, they may not be processed or re-designed in any way.
6.3. transfers a non-paid, non-transferable, non-exclusive and revocable right of distribution and publication of the images. These rights are restricted in terms of region, shall be valid only during the term of the contract and relate to the publication of the images in:
- advertisements (print)
- advertising journals (print)
- sales exhibitions (commercial)
- inserts (print)
- offers and/or offer confirmations containing images
- printed brochures (commercial use)
- printed trade publications (commercial / editorial use)
- printed flyers (commercial use)
- on-line trade publications (editorial)
- posters (commercial use)
- social media
and in the own webshop, which is not in the marketplace of a third party.
6.4. To the extent that products may be used in the customer’s own internet shop, this only applies under the condition that the final customer is afforded the opportunity to examine the goods in the customers local shop and also declare revocation in the same said shop. In so far as these images may be used in social media, they may only be used to promote goods from the party’s own web shop or from their own shop premises. It shall not be admissible to upload images to image search engines or to third-party market places. It shall in particular be inadmissible to grant third parties the right of use to these images.
7.1. The prices are strictly net without consideration of any potential discounts agreed with the customer, excluding cash discounts or other reductions in Euros as from Fink loading station plus the respectively applicable value-added tax.
7.2. Authorised discounts or freight reimbursements are inapplicable in the event of judicial or extra-judicial settlement proceedings, insolvency or delay in payment for more than 2 months on part of the customer.
7.3. Packaging, freight and insurance are charged separately.
7.4. In the event of an obligation that is not a long-term obligation, we are entitled to change the prices if reductions or increases of costs have occurred after the conclusion of the contract. In case of a price increase, this shall not apply if our service is carried out within four months after conclusion of the contract.
7.5. We convert payments in currencies other than Euro according to the official exchange rate, in the absence of the same according to the market rate of the day the payment is credited to our account. The costs for the conversion and the credit in Euro shall be borne by the customer.
7.6. Payments are credited first to the due debt, among several due debts to such debt that provides us with less security, among several equally secure debts to the debt more onerous to the customer, among several equally onerous debts to the older debt, and in case of equally old debts to every debt proportionally. If costs and interests have already accrued, payment will first be made on the costs, then on the interests and lastly on the principal amount.
7.7. Cheques and bills of exchange will only be accepted upon special agreement and only on account of performance by charging all collection and discount charges. The payment shall only be deemed to have been made when the cheque/bill of exchange is cashed and/or the amount of the cheque and/or the bill of exchange is finally credited without reservation.
7.8. If the customer is in arrears with their payments and is responsible for it, we are entitled to demand immediate payment of the entire residual debt. In this case, we are furthermore entitled to demand collateral security to the extent of the receivables the customer is culpably in arrears with. The customer is entitled to the option according to section 232 of the German Civil Code regarding the type of collateral security. We are entitled to the same right to demand collateral security if we identify, after the conclusion of the contract, that the customer is not creditworthy or if the customer has provided incorrect information about their creditworthiness prior to or upon conclusion of the contract. If the customer fails to provide the collateral security on demand, we may rescind the contract.
8. Delivery dates/partial delivery/delivery periods/risk assumption
8.1. Delivery dates the customer indicates on their order need to be confirmed by us to become applicable.
8.2. Partial deliveries are permissible as far as they are reasonable for the customer.
8.3. The start of the delivery period indicated by us requires that the customer has provided us with all information, documents and items to be provided by them according to the contract and that we confirm their complete receipt immediately after receipt of all information. The delivery and/or service period starts upon receipt by the customer of this confirmation. The delivery period shall be deemed to be complied with if the delivery item has left our plant or warehouse until expiry of the period or if we have informed the customer about the readiness for dispatch.
8.4. The delivery period is reasonably extended in case of measures in the framework of labour disputes, including but not limited to strikes and lock-outs or official requirements or instructions and in the event of unforeseen obstacles beyond our control as far as these obstacles are verifiably of substantial influence on the completion or delivery of the item to be delivered. This shall also apply if these circumstances occur during the supply to us.
8.5. The risk of accidental loss and accidental deterioration of the items to be delivered will be transferred to the customer upon delivery to the carrier, the freight forwarder or any other person appointed for shipment. The delivery shall also be deemed to have been made if the customer is in default of acceptance. Furthermore, the risk for the items to be delivered will be transferred to the customer upon receipt of the notice of readiness for dispatch.
8.6. In the absence of expressly deviating agreements, the dispatch route, type and means of dispatch will be left to us without any guarantee for the fastest and most inexpensive transport. The customer’s interests will be reasonably considered. Where possible, we will insure the goods to be delivered on customer’s demand against theft, breakage, transport damage, frost damage, fire damage and water damage as well as against other risks to be named by the customer at customer’s expense.
8.7. If the dispatch is delayed on the customer’s demand, we will charge the costs caused by the storage starting one month after the notification of the readiness for dispatch.
9. Insurance and Packaging, Freight and Delivery Costs
9.1. on the national territory:
9.1.1. Any goods shall be subject to transport insurance to be taken out by Fink
9.1.2. The packaging and insurance costs in the amount of 2.1% shall be borne by the customer.
9.1.3. Delivery shall be carried out freight forward and ex works, unless anything to the contrary has been agreed upon or the present GTCs provide for anything to the contrary.
9.1.4. In case of any consignments shipped by parcel service, the customer’s contribution to the freight costs shall be as follows:
22.214.171.124. 2 kg 3,70 €
126.96.36.199. 4 kg 3,90 €
188.8.131.52. 5 kg 5,00 €
184.108.40.206. 8 kg 5,50 €
220.127.116.11. 10 kg 6,20 €
18.104.22.168. 15 kg 8,10 €
22.214.171.124. 20 kg 10,30 €
126.96.36.199. 25 kg 12,70 €
188.8.131.52. 31,5 kg 15,20 €
9.1.5. Any heavier consignments shall be sent by a forwarding agency. In case of any deliveries performed by a forwarding agency, the customer’s contribution to the freight costs shall be as follows:
184.108.40.206. up to a goods value of € 500.00: 6% of the value of the goods;
220.127.116.11. up to a goods value of € 1,000.00: 4 % of the value of the goods; and
18.104.22.168. up to a goods value of € 1,500.00: 2.5% of the value of the goods; No additional freight costs shall be charged for goods with higher value.
9.1.6. As a matter of principle, any costs arising for deliveries performed at fixed dates shall be charged to the customer, currently in the amount of € 19.80.
9.1.7. To the extent that any shipments must be announced, the customer shall bear the costs in the amount of € 5.90.
9.1.8. Express shipments shall be made freight forward in any case.
9.1.9. In the event of very small shipments with a goods value of less than € 100.00, a minimum quantity surcharge in the amount of € 5 shall be charged.
9.2. during export:
9.2.1. Any goods shall be subject to transport insurance to be taken out by Fink.
9.2.2. The packaging and insurance costs shall be borne by the customer. In addition, a packaging surcharge in the amount of 1.5% of the merchandise value and an insurance surcharge in the amount of 1.38% of the merchandise value will be charged.
9.2.3. Delivery shall be carried out freight forward and ex works, unless anything to the contrary has been agreed upon or the present GTCs provide for anything to the contrary.
9.2.4. During export, complementary freight and delivery costs, minimum order and payment terms and conditions in accordance with the current freight and delivery cost schedule of Fink shall apply; The customer may enquire about this schedule before placing an order.
9.3 in the case of direct delivery to private consumers (dropshipping):
9.3.1 At the customer’s request, goods can be shipped directly to private consumer by Fink (Dropshipping). The private customer will not become Fink’s contractual partner due to this mode of shipment.
9.3.2 In addition to the freight and insurance costs mentioned under 9.1 and 9.2, Fink charges a fee of € 15.00 for each shipment of Dropshipping goods sent by a parcel service and € 30.00 for each shipment of Dropshipping goods sent by a freight forwarder.
9.3.3 The conditions of point 8 of these General Terms and Conditions (delivery dates/partial delivery/delivery periods/risk-bearing) apply accordingly.
10. Terms of payment
10.1. Fink delivers against prepayment, invoice or cash on delivery.
10.2. Unless otherwise agreed, Fink delivers against prepayment.
10.3. Invoices are due for payment no later than 30 days after the invoice date without deduction. After that, Fink shall be entitled to a payment of a lump-sum to the amount of 20.00 € if a reminder was sent.
10.4. In case of payment within 14 days after the invoice date, we grant 2% cash discount for payment against invoice and 3% cash discount for direct debit payment.
11.1. In accordance with Section 14 of the UStG (Value-Added Tax Act), invoices can be sent electronically subject to the acceptance of this by the recipient.
11.2. Fink is entitled to send invoices in PDF file form by e-mail (electronic invoice dispatch).
12. Security rights over movables, reservation of ownership, industrial property rights
12.1. We reserve the ownership of the goods until complete payment of all receivables based on the current business relationship by our customers. As far as we agree upon the payment of the purchase price debt on the basis of the cheque/bill process with the customer, the reservation also extends on the encashment of the accepted bill by the customer and is not extinguished by the crediting of the cheque received by us.
12.2. We are obliged to release the securities we are entitled to on customer’s demand insofar as the realisable value of our securities exceeds the receivables to be secured by more than 20%; we are responsible to select the securities to be released.
12.3. Any transfer of the item subject to reservation of ownership and/or our equitable lien to a place other than the place of delivery or any disposal without our express consent is not permitted. On our demand, the customer is obliged to attach a label that marks our property to these items on an easily visible place. Moreover, the customer is obliged to inform us immediately about any access of third parties to the goods, e.g. in case of attachment, and about any potential damages to or destruction of the goods. They are also obliged to take all necessary measures regarding all other goods subject to reservation of title and/or our equitable lien according to the law of the location in order to maintain our ownership without limitations and with effect against third parties. As far as the third party is not able to reimburse the extra-judicial and judicial costs of an action according to section 771 of the Code of Civil Procedure or similar foreign remedies to us, the customer is liable for the loss incurred by us. The customer is obliged to inform us about any change in ownership of the goods as well as any change of their residence and/or place of business.
12.4. The customer is obliged to handle the goods subject to our reservation of ownership and/or equitable lien with care, to sufficiently insure them against theft, breakage, fire and water damages and to request on our demand a confirmation of cover (certificate of insurance) from the insurer in our favour and to assign the claims against the insurer and the injuring party to us on our demand. As far as service, maintenance and inspection works are required, the customer must carry them out in due time at their cost. The customer will comply with laws and regulations applicable to the ownership and use of the goods. If the customer fails to comply with the obligation to insure even after the expiry of a reasonable grace period set by us, we are entitled to insure the goods delivered subject to reservation of ownership correspondingly at the customer’s cost. In all other cases, the customer bears the risk of accidental loss of the goods during the period of reservation of ownership.
12.5. The customer hereby assigns all receivables based on resale or another legal ground with respect to the delivered reserved goods and/or goods subject to our equitable lien to us in the amount of the final invoice amount (including value-added tax) of our receivables including all ancillary rights with priority over their other receivables they incur from the resale to the purchaser or on another legal ground towards third parties. This applies irrespective of whether the delivered goods have been resold prior to or after processing or mixing or mingling. We accept the assignments. After the assignment, the customer is entitled to collect the receivable irrespective of our own authorisation. However, we undertake to not collect the receivable ourselves as long as the customer duly complies with their payment obligations and is not in default and, in particular, as long as no request for the opening of insolvency or settlement proceedings is made over their assets and the customer does not suspend their payments. If this is the case, however, we can demand that the customer informs us about the assigned receivables and their debtors, delivers all documents required for collection to us and informs the debtors and/or the third parties about the assignment.
12.6. The processing of the reserved goods and/or goods subject to our equitable lien by the customer shall always be made in our name and by our order without leading to any liabilities on our part. If a processing is made with items not belonging to the customer, we acquire the co-ownership of the new item in proportion of the value of the goods delivered by us (final invoice amount plus value-added tax) to the other processed goods at the time of processing. In all other cases, the same shall apply to the item resulting from the processing as to the purchased item delivered subject to reservation. This shall also apply if the customer acquires sole ownership by activities according to sentence 2. The storage for us is made free of charge. If the purchased item is inseparably mixed with other items not belonging to us, we acquire the co-ownership of the new item in proportion of the value of the goods delivered to us (final invoice amount plus value-added tax) to the other mixed items at the time of mixing. If the mixing is made in a way that the customer’s item must be regarded as the main item, it is agreed that the customer transfers co-ownership to us on a pro-rata basis. The customer shall store the resulting sole property or jointly held property for us free of charge.
12.7. If the customer acts in breach of the contract, particularly if they are in delay with payment, we are entitled, after setting a reasonable grace period, to take the delivered items back or demand them back. The recovery of the purchased item – including by way of attachment – and our request for surrender shall constitute the rescission of the contract. After we have received the purchased item back, we are entitled to its disposal; the proceeds from such disposal minus appropriate disposal costs are to be credited to the liabilities of the customer.
12.8. Our agents are entitled to inspect the delivered reserved goods and/or goods subject to our equitable lien at the customer’s premises during the usual business hours and to mark them as our property.
12.9. We can charge a reasonable fee for all services and measures regarding order, management, release and utilisation of securities and claims to co-debtors in line with section 315 of the German Civil Code. Furthermore, the customer shall bear all other expenses and ancillary costs in this connection, particularly warehousing charges, storage costs, costs of surveillance, commissions and legal costs.
13. Damages due to non-fulfilment
13.1. As far as Fink is entitled to a claim for damages against the customer if the latter fails to fulfil the contract in whole or in part, Fink may assert at least 25% of the purchase price allocated to the non-delivered goods as contractual penalty. The customer is at liberty to prove that a lesser damage has occurred. The customer is expressly permitted to prove that no damage or depreciation has occurred at all or that any damage or depreciation is substantially lesser than the lump sum. We are permitted to prove that higher damage has occurred.
13.2. In case Fink takes the goods back for reasons the customer is responsible for, Fink reserves the right to assert refurbishment costs and depreciation without prejudice to the assertion of further claims for compensation.
14. Requirement to give notice of defects
14.1. If the sale is a commercial transaction for both parties, clients shall be obliged to examine the goods immediately after their receipt, if this is feasible in the ordinary course of business, and to immediately inform the seller of any defects found.
14.2. If the purchaser does not inform the seller, goods shall be considered to be accepted, unless there is a defect which could not be seen at the time of examination.
14.3. If such defect appears at a later time, information must be given immediately after its discovery; in all other cases, goods shall be considered to be accepted with regard to the relevant defect.
14.4. If we fraudulently concealed this defect, we shall have no right to appeal to this provision.
15. Liability for defects / Period of limitation
15.1. There is basically a statutory right of defect, unless another is determined.
15.2. If the delivered item is not of the agreed quality or is not suitable for the presumed use in accordance with the contract or is not suitable for the usual use or is not of a condition which is usual for products of the same kind and which the buyer can expect according to the type of the product or if it does not have properties which the customer can expect based on public statements from our side, we are obliged to supplementary performance.
15.3. An unremarkable defect or remarkable reduction of the suitability is irrelevant. Damages caused by defects and consequential damages caused by defects that have occurred due to improper use or handling of the goods by the customer are not included in the warranty rights.
15.4. The supplementary performance shall be made to entrepreneurs of our choice by rectification of the defect (repair) or delivery of new goods, to consumers at his discretion.
15.5. We can refuse the supplementary performance without prejudice to § 275 Abs. 2 and 3 BGB, if it is only possible with disproportionate costs.
15.6. Clients may claim for damages only after a subsequent performance has failed. Their right to claim additional damages on the basis of the “Liability” section below shall be not affected by this.
15.7. For entrepreneurs, the period of limitations for new products shall be one year from the transfer of risks; a liability for defects in case of second-hand goods shall be excluded. This shall not apply to claims for damages and reimbursement of expenses due to defects on the basis of the “Liability” section below. The period of limitation shall also remain unaffected in cases of delivery recourse on the basis of sections 478 and 479 BGB; it shall be five years from the delivery of the defective item.
16.1. We exclude our liability for slightly negligent breach of duty, unless damages arising from death, injury to body or health or claims according to the Product Liability Act or warranties are concerned. Moreover, the liability for the breach of obligations which fulfilment makes the proper execution of the contract possible in the first place and on which fulfilment the customer may regularly relay on remains unaffected (essential contractual obligations). .
16.2. In the event of material damages and financial losses caused by negligence, we are only liable in case of a violation of essential contractual duties. The liability for damages is limited to the compensation of the typical and foreseeable damage on conclusion of the contract.
16.3. The same shall apply to breaches of duty by our vicarious agents.
17. Prohibition of set-off
The entrepreneur is not entitled to set off own claims against our payment claims, unless the claims are based on the same contractual relationship, or they are undisputed or legally established.
18. Right of retention
The entrepreneur is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
19. Severability clause (partial ineffectiveness)
Should any provision of these General Terms and Conditions be invalid, this does not affect the validity of the remaining provisions.
20. Applicable law, place of jurisdiction, collateral agreements and severability
20.1. The contract including these General Terms and Conditions is subject to the substantive law of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods from 11 April 1980 (CISG) do not apply.
20.2. In the event of legal disputes, our registered office shall be the place of jurisdiction if
20.2.1. the customer is a merchant or
20.2.2. the customer does not have a general place of jurisdiction in the territory of the Federal Republic of Germany or if
20.2.3. the customer is a legal person under public law.
20.3. We are entitled to sue at any other statutorily provided place of jurisdiction as well.
20.4. Collateral agreements have not been made.