1.1 The Graphit Kropfmühl GmbH, represented by the managing director
Mr. Thomas Junker, Langheinrichstrasse 1, 94051 Hauzenberg,
Germany, phone: +49 8586 609-0, fax:+49 8586 609-111, e-mail: email@example.com,
registration court: Local Court Passau, commercial register No. HRB 7432, VAT
ID No.: DE 815384551 (hereinafter referred to as „GK“ or „we“), is an enterprise
specialised in graphite, which offers its goods, among others, in its online shop at
www.shop-graphite.com for sale.
1.2 These general terms and conditions of sale apply to all purchases of goods of
customers from GK and any declarations of intent and legal transactions connected
therewith. We expressly disagree to any conditions outlined by the customer which
deviate from these general terms and conditions of sale. Such conditions outlined by
the customer shall not become part of agreements with us, unless we expressly
agree to their applicability in writing.
1.3 Our general terms and conditions of sale apply after first effective inclusion even
if we carry out the delivery to the customer in knowledge of opposing customer's
conditions of sale or customer's conditions deviating from our general terms and
conditions of sale without reservation.
1.4 These general terms and conditions of sale apply both to entrepreneurs and
consumers. "Entrepreneurs" in the sense of these general terms and conditions of
sale mean any customer that acts in his/her capacity as a commercial businessman
or in the scope of his/her freelance business activity. "Consumers" mean any natural
person that concludes the contract with us for purposes which mainly are not
attributed to their commercial or freelance professional activity.
2.1 The presentations of the goods (such as drawings, illustrations, technical data,
references to standards etc.) in catalogues, documents, advertising media or on the
website of GK are non-binding and do not constitute an offer for the conclusion of a
sales contract. Warranted qualities or guarantees will be designated as such by us
expressly and in writing.
2.2 In case of orders in the online shop of GK, the customer submits a binding offer
to conclude a sales contract, after selection of the goods and clicking on the button
"Buy Now" at the end of the ordering process. A subsequent confirmation of the
receipt of the order, which is sent by GK does not constitute a binding acceptance of
the offer of the customer. We reserve the right to reject a customer as contractual
party without giving any reasons for such a decision. We will declare the binding
acceptance of the offer or the refusal of the offer in any case within a maximum of
three days after receipt of the order. Upon receipt of the order confirmation, the
contract on the goods is concluded. The delivery of the ordered goods or a shipping
confirmation provided to the customer are equal to an express declaration of
2.3 The following languages can be chosen for the formation of a contract: German
2.4 After having placed the order in the online shop of GK, the customer receives a
confirmation, the invoice and these general terms and conditions of sale by e-mail.
Beyond that, we do not store a separate contract text which would be accessible to
the customer on the internet.
3.1 Unless stated otherwise in the order confirmation, our prices shall apply wich are
valid at the time of placing the order in EUR plus statutory VAT, if applicable, and
plus costs of delivery, which are listed separately in the order. If due to special
agreements between the parties the goods are delivered COD, the customer shall
bear any COD fees for each individual delivery as well as money transfer fees, which
are also separately listed in the order. If the customer wants
a delivery to be shipped outside of the European Union, additional fees and tariffs
may incur, which shall be borne by the customer.
3.2 Discounts or other price reductions will be granted exclusively for the individual
case in writing.
4.1 Unless resulting otherwise from the order confirmation, the purchase price is due
net (without deduction) within 30 days starting from the date of the invoice. When
making the payment, the customer shall indicate the individual invoice number as
well as the customer number or order number, respectively.
4.2 The deduction of early payment discount must be agreed upon in writing and
requires that any accounts payable are settled at the time of the cash discount.
4.3 The customer can select the free of charge payment method PayPal, which is offered
subject to order sum, type of delivery, shipping destination etc. However, there is no
entitlement to a specific payment method. If payment is made via credit card, GK
triggers payment only with the shipping of the goods. Cheques and bills of exchange
are only accepted upon special written agreement and only as conditional payment
against reimbursement of bill and discount charges.
4.4 In case the customer is in delay in payment, we shall be entitled irrespective of
asserting further damage, to charge interest in the amount of the current interest rate
charged by banks for overdrafts, at least however in the amount of 8 percent above
the base interest rate. The customer remains free to prove that no damage or a
smaller damage than the above stated liquidated damage due to delayed payment
4.5 In case it becomes obvious after conclusion of the contract that our payment
claim may be at risk due to customer's lack of ability to pay, we shall be entitled to
enforce the rights as set out in sec. 321 German Civil Code (plea of uncertainty). In
such a case, we are also entitled to declare due and payable any claims not subject
to a statute of limitations against our customer from the current business relationship.
In case of a delay in payment we are also entitled to request the return of the
delivered goods after unsuccessful expiration of an appropriate grace period, to
declare rescission from the contract as well as to prohibit resale or further processing
of the delivered goods. These legal consequences may be averted by the customer
either by payment or by way of providing a security in the amount of our payment
claim at risk. The provisions set out in the insolvency regulation remain unaffected
from the above provisions.
5.1 If the customer is in default of acceptance, the risk of accidental loss or accidental
deterioration of the goods passes to the customer at the point in time, at which the
customer falls into default of acceptance.
5.2 During the customer's default of acceptance, we are entitled to store the goods
not accepted at customer's expense and risk. In case storage is undertaken at our
own place, we charge 1% of the amount of the invoice as storage fees for each
commenced month, starting 30 days from the notification of readiness for dispatch or
the date of the unsuccessful attempted delivery, in case of storage of the goods at
external places, we charge our cost price. The customer remains free to prove that
no damage or a smaller damage than the above stated liquidated damage due to
delayed acceptance has occurred. Alternatively, we are also entitled in case of delay
in acceptance after expiration of an adequate grace period set by us to rescind from
the contract and/or claim damages.
5.3 We reserve the right to assert further claims against the customer.
6.1 The delivery times are indicated in the online shop as well as in the order
confirmation. The term starts with the delivery of our order confirmation to the
customer, however, will not start until the documents, approvals, releases or the
receipt of an agreed prepayment or - in case advance payment was agreed -
payment of the total purchase price are procured by the customer. The defence of
non-performance of the contract remains reserved.
6.2 Unless agreed otherwise, the delivery dates and terms are deemed to be
adhered to in case of shipments to entrepreneurs (cf. item 1.4) if the goods leave our
Graphit Kropfmühl GmbH factory in Kropfmühl or Wedel, respectively, before the expiration
of the deadline or if the readiness for dispatch has been communicated to the customer.
6.3 Should a change of the prospective day of availability or the date of readiness for
dispatch occur, the customer shall be informed thereon without delay by e-mail. The
delivery time extends in an appropriate scope in case of labour disputes, in particular
strike and lockout, as well as in case of occurrences of unforeseen impediments,
which are beyond our fault and control, unless such impediments evidently affect the
completion or shipment of the goods. If the customer is a consumer (cf. number 1.4),
the customer may rescind from the contract or make changes to his/her order at any
time prior to the availability of the goods or shipment of the goods. If the customer is
an entrepreneur (cf. item 1.4), the customer must set an appropriate grace period
before making use of his/her legal rights in case of exceedance of the availability or
6.4 The shipment takes place in product-specific packaging. In order to guarantee
comprehensive take-back of sales packaging, we participate in a disposal system in
accordance with sec. 6 para 3 Packaging Ordinance. Therefore, the sales packaging
can be returned by the customer at any provided collection point of the disposal
6.5 We do not assume any procurement risk. In case the goods or intermediate
products should not be deliverable or temporarily not be deliverable from the supplier
(e.g. mines) despite previous conclusion of a timely procurement contract, we shall
inform the customer thereon without delay. Until self-delivery by our supplier we are
exempt from the obligation to perfom and may rescind from the contract in case of
permanent lack of deliverability. This does not apply, if we are liable for the lack of
deliverability by the supplier. Regarding the rights of the customer, clause 6.3 pages
3 and 4, applies accordingly. In case of a rescission from the contract, any amounts
paid shall be refunded immediately. Claims for damages by the customer are
excluded. This does not apply if we are liable for the lack of deliverability by the
7.1 Unless agreed otherwise, the risk of a coincidental loss or deterioration of the
goods shall be transferred to the freight forwarder or carrier in case of contracts with
entrepreneurs (cf. item 1.4), however at the latest at the time at which the goods
leave the factory Kropfmühl or Wedel, respectively, such risk shall be transferred to
the customer. In any other cases, any delivery by us is covered by a transportation
7.2 We are entitled to carry out partial deliveries if reasonable for the customer. In
such cases the subsequent deliveries are carried out free of charge. If partial
deliveries are carried out due to a special customer request, the customer shall bear
the delivery costs for each single delivery separately.
7.3 In case of call-off contracts concluded with entrepreneurs (cf. item 1.4), i.e.
contracts on a stipulated amount of goods, the delivery or acceptance, respectively,
of which shall take place within a certain period of time upon request of the customer
- partial deliveries, if applicable -, we shall be entitled to cohesively manufacture or
have manufactured the total amount of the ordered goods. No change requests can
be taken into consideration after the placement of the order, unless it was expressly
agreed. With respect to call-off contracts in the sense of this clause, we are entitled
to assert rights arising from delayed acceptance, if the customer violates its
obligation to accept with regard to single partial deliveries. With respect to the call-off
of partial amounts any delivery is considered as an independent transaction with
regard to the obligation to examine and give notice on defects according to sec. 377
German Commercial Code (Handelsgesetzbuch, HGB).
Customers who order as consumers (cf. item 1.4) at us, have a statutory right of
withdrawal, on which we inform as follows:
Right of cancellation
Right of withdrawal
You have the right to withdraw from this contract within 14 days without indicating any
The withdrawal period will expire after fourteen days from the day you acquire, or a third
party other than the carrier and indicated by you acquires physical possession of the
In order to exercise your right of withdrawal, you must notify us (Graphit Kropfmühl
GmbH, Langheinrichstrasse 1, 94051 Hauzenberg, Germany, phone: +49 8586 609-0,
fax: +49 8586 609-111, e-mail: firstname.lastname@example.org) about your decision to withdraw
from this contract to exercise by an unequivocal declaration (e.g. by a letter sent by
mail, telefax or e-mail). For this, you may use the attached model withdrawal form,
which, however, is not mandatory.
In order to observe the withdrawal term it is sufficient that you send the notification
concerning your exercise of the right of withdrawal before expiry of the withdrawal
Contracts on the supply of goods, which are not prefabricated and for the manufacture
of which an individual selection or determination by the consumer is essential or which
are undoubtedly tailored for personal needs of the consumer, shall not be subject to the
right of withdrawal.
Effects of withdrawal
If you withdraw from the present contract, we shall return to you any payments which
we received from you, including any payments for delivery costs (except any additional
costs which result from the fact that you selected a kind of delivery other than the
standard delivery offered by us), immediately and at the latest within fourteen days
starting from the day on which the notification concerning your exercise of the right of
withdrawal from this contract is received by us. For the return of payment, we use the
same means of payment which were used by you for the original transaction, unless
explicitly agreed otherwise; under no circumstances, there will be charged any fees to
you due to the return payment. We can refuse the repayment until we receive the
returned goods or until you provide proof that you returned the goods, depending on
which occurs first.
You shall return the goods immediately and in any case no later than fourteen days
from the date on which you notified us on your exercise of the right of withdrawal from
the contract. The deadline shall be deemed to be observed if you dispatch the goods
before the expiry of the term of fourteen days.
You shall bear the direct costs of the return of the goods.
You shall bear the costs of a possible loss in value of the goods only if this loss in value
is caused by handling of the goods which is not required to examine their condition,
characteristics and functioning.
Model form of withdrawal
(In case you want to withdraw from the contract, please fill out this form and return it to
Graphit Kropfmühl GmbH
94051 Hauzenberg, Germany
Telefax: +49 8586 609-111
- I/We hereby give notice that I/we withdraw from the contract of sale of the following
goods (*) / the performance of the following service (*)
- ordered on (*)/received on (*)
- Name of the consumer(s)
- Address of the consumer(s)
- Signature of the consumer(s) (only if this form is notified on paper)
Graphit Kropfmühl GmbH
(*) delete as applicable
9. 6 Non-binding information on the exercise of the right of withdrawal
Although the customer is not obligated to do so, we ask that for the return of the
goods a secure - if possible, the original - transportation packaging is used in order to
avoid any transportation damage.
10.1 We reserve the property rights and intellectual property rights to any
illustrations, samples, calculations, drawings and similar documents - also if provided
in electronic form. Such documents shall not be disclosed to third parties without our
express written consent. The contents mentioned above may only be used for
information purposes and for customer's personal needs. Any use beyond the abovementioned
use of the contents or linking with the contents for economic purposes is
10.2 To the extent to which we manufactured and delivered the goods in accordance
with drawings, models, samples or any other documents provided by the customer,
the customer shall assume the liability that property rights, such as rights to patents
or designs, do not infringe rights of third parties. In case third parties prohibit in
particular the manufacture and delivery of such goods with reference to property
rights, we are entitled without examination of the legal circumstances to cease any
further activity with respect thereto and to claim damages in case of the fault of the
customer. Besides, the customers commit themselves in case of culpable behaviour
to hold us harmless against any third party claims in connection therewith (including
costs required for legal defence) without delay and upon first request. We commit
ourselves to immediately inform the customer on third party claims and to give the
customer the opportunity to comment on the alleged infringement of rights. The
customer commits himself/herself to provide to us any documents and information
required for the defence.
11.1 We reserve the title to ordered goods until receipt of all payments under the
11.2 In case the customer is an entrepreneur (cf. item 1.4) we are entitled to take
back the goods in case of culpable behaviour contrary to the contract, in particular in
case of delay in payment. By taking the goods back, we rescind from the contract.
After taking back the goods, we shall be entitled to their utilization. The redemption
revenue shall be set off against the customer's obligations, less reasonable
11.3 If the customer is an entrepreneur (cf. item 1.4), the customer is obliged to
handle the goods with care; in particular the customer is obliged to take out insurance
at customer's own costs against fire, water and theft at replacement value.
11.4 In case of seizures or other actions by third parties, the customer as
entrepreneur (cf. item 1.4) shall without delay inform us in writing thereon, so that we
may file an action in accordance with sec. 771 German Code of Civil Procedure
(Zivilprozessordnung, ZPO). If the third party is not able to reimburse to us the court
and extrajudicial fees of an action in accordance with sec. 771 German Code of Civil
Procedure (ZPO), the customer shall be liable to reimburse to us the loss resulting
from this. Accordingly, the customer as entrepreneur (cf. item 1.4) shall bear any
costs arising from interventions of third parties for an extrajudicial release of the
11.5 The customer as an entrepreneur (cf. item 1.4) is entitled to further sell the
goods in the ordinary course of business; however, the customer assigns his/her
claims amounting to the invoiced amount of our claims to us, to which the customer is
entitled due to the resale of the goods against his/her purchasers, irrespective of
whether the goods are resold with our without being further processed. For the
collection of such claim, the customer shall remain entitled even after assignment of
such claims. Our authority to collect the sum due ourselves, shall remain unaffected.
We, however, commit ourselves to not collect the receivables as long as the
customer fulfils his/her payment obligations arising from the gained revenues, does
not fall in arrears and in particular as long as there is no application for composition
or insolvency proceedings. If this is, however, the case, we are entitled to request
that the customer notifies us on the assigned claims and the respective debtors,
makes any information necessary for collection, provides to us the corresponding
documents and informs the debtors (third parties) on the assignment.
11.6 Processing or alteration of the goods by the customer as entrepreneur (cf. item
1.4) shall in any case be performed for us. If the goods are altered with objects which
do not belong to us, we also acquire the co-ownership to the new product in the ratio
of the value of the goods (invoiced amount) to the other processed objects at the time
of processing. With respect to the goods resulting from the further processing, the
same shall apply as to the goods delivered with reservation.
11.7 If the goods are mixed with objects which do not belong to us, we also acquire
the co-ownership to the new product in the ratio of the value of the goods (invoiced
amount) to the other mixed objects processed at the time of mixing. If the mixture
takes place in such a manner that the goods of the customer must be regarded as
the main product, it is deemed to be agreed that the customer assigns to us the coownership
on a pro-rata basis. The customer shall retain the sole ownership or coownership
thus arising for us. The customer shall also assign any claims for securing
our claims against the customer which arise by the combination of the goods with
real property against a third party.
11.8 We commit ourselves to release the securities to which we are entitled upon the
request of the customer to the extent to which the realizable value of our securities
exceeds the claims to be secured by more than 10%. The selection of the securities
to be released is at our discretion.
12.1 In the case that the customer is an entrepreneur (cf. item 1.4) any claims arising
from defects of the goods require that the customer duly adhered to the customer's
obligations to examine and obligations to notify pursuant to sec. 377 German
Commercial Code (Handelsgesetzbuch, HGB). Notifications of defects must be made
12.2 If there is a defect of the goods, it is at the customer's discretion to either claim
for supplementary performance or request the delivery of new faultless goods. The
customer requests supplementary performance. In case the customer sets a
deadline, this deadline must be reasonable. In the case of remedy of defects, we are
obliged to bear any required expenses, in particular costs for transportation,
travelling, work and material, to the extent to which these costs are not increased by
the goods being delivered to a place other than the place of performance. If the
remedy of defects fails, it is at the customer's discretion to rescind from the contract
or to claim reduction.
12.3 Claims arising from material defects fall under the statute of limitations after the
expiry of a term of two years from the time of supply of the goods. In case of goods
purchased by entrepreneurs (cf. item 1.4), the claims arising from material defects fall
under the statute of limitations after the expiry of a term of one year from the time of
supply of the goods. The statutory limitation of the right of recourse (cf. sec. 479
German Civil Code (BGB)) shall remain unaffected from the above.
12.4 The limitation periods in the sense of the above item 12.3 shall not apply in case
of intent or in case of fraudulent non-disclosure of a defect or to the extent to which
we granted a guarantee for the commodity of the goods. Moreover, this additionally
does not apply for claims due to material defects in cases of violation of life, body or
health, with respect to claims pursuant to the product liability laws, in case of grossly
negligent violation of duty or in case of culpable violation of essential contractual
duties, i.e. such contractual duties, which are necessary to fulfil the proper
performance of the contract and on the adherence to those the customer may rely on
and the violation of those endangers the achievement of the contractual purpose on
the other side.
13.1 Any claims for damages in case of a breach of duty and of tortious acts as well as
claims for compensation due to futile expenditures claims are excluded both against us
and our employees, authorised persons, vicarious agents and parties employed in
performing a contractual obligation for whom the principal is vicariously liable. This in
particular applies to claims for damages due to culpa in contrahendo, due to other
Graphit Kropfmühl GmbH violations of obligations or due to claims in tort for compensation
for material damage pursuant to sec. 823 German Civil Code (BGB).
13.2 The above limitation of liability does not apply in cases of intent or gross negligence
as well as in the cases mentioned in item 12.4. 13.3 The goods are insured for carriage by
us in order to protect the transportation risk (cf. item 7.1 at the end). Amounts paid by the
insurance shall be transferred from us to the customer without delay. This applies, even if
our liability is excluded due to the above provisions, the typical and predictable damage
however is covered by the insurance. In such cases any other and further claims of the
customer against us are excluded.
Act (BDSG) and the German Telemedia Act (TMG). We store and process the personal
data only for the purpose of the movement of goods and capital with the customer. Details
15.1 In principle, a registration is not required for placing orders in our online shop.
However, it facilitates subsequent purchases. After the registration, we create an
account for the customer. We will communicate to the customer the necessary
access and usage data (hereinafter referred to as "access data"). For safety reasons,
we are entitled to change the access data at any time. In such a case, we will
communicate the new access data without delay. The customer will implement the
changes to the customer's personal data (e.g. change of e-mail address) without
delay in the account or shall inform us in any other way on such a change.
15.2 It is the customer's sole responsibility to protect the customer's access data. The
access data are to be kept secret and shall not be made accessible to third parties
without our consent. If the customer finds out that his/her access data are used by
third parties, the customer is obliged to immediately change the access data or, if this
should not be possible for the customer, to immediately inform us on these
15.3 In case of justified suspicion that the access data are misused, we are entitled to
immediately block the access to the account. We shall immediately inform the
customer on the blocking of the account.
15.4 We are not liable for damage, which results to the customer from abuse or loss
of the access data. This does not apply if the damage was culpably caused by us.
We reserve the right to inform our customer on news of our company and new
products by our free e-mail newsletter. We will only send the newsletter if the
customer previously has agreed to the receipt of this newsletter. A cancellation of the
receipt of the newsletter is possible at any time in the customer account, by sending
an e-mail to email@example.com or by clicking on the appropriate link contained in
17.1 The laws of the Federal Republic of Germany shall apply. The United Nations
Convention on the International Sale of Goods (CISG) as well as German
international private law is excluded. If the customer is a consumer (cf. item 1.4), the
mandatory consumer protection provisions shall be additionally applicable that apply
in the state, where the customer has his habitual residence, provided that they offer a
broader protection than German laws.
17.2 If the customer is an entrepreneur (cf. item 1.4) place of performance for all
obligations arising under this contract shall be our factory in Kropfmühl or Wedel,
respectively. If the customer is an entrepreneur (cf. item 1.4), a legal entity under
public law or special fund under public law, exclusive venue for any disputes arising
from this contract shall be Munich City.
17.3 In cases of doubt or discrepancies, the German version of these General Terms
of Sale shall prevail.
17.4 If individual provisions of the contract with the customer including these terms of
business are declared to be partly or fully void the validity of the remaining
regulations is not affected. The parties commit themselves to undertake to replace
the provision which is invalid, in full or in part, with a valid provision which most
closely reflects its commercial intention and purpose. The same applies in case of
omissions of the contract including these terms of business.
17.5 In cases of conflicts, there is the possibility to accomplish a quick and costefficient
settlement on the internet platform of the EU Commission. The link to the socalled
„OS-platform" in accordance with art. 14 para 1. of regulation (EU) No.
524/2013 is: http://ec.europa.eu/consumers/odr/.
Graphit Kropfmühl GmbH