AGB

General Terms and Conditions of China TCM Trading GmbH 

General Terms and Conditions of China TCM Trading GmbH, German office, Sickingerstrasse 26, D-10553 Berlin.  

Main seat: China TCM Trading GmbH, Pfarrmatte 6, CH-8807 Freienbach, Switzerland

 

§ 1 General – scope of application 

1. These General Terms and Conditions are provided exclusively for businessmen. According to these General Terms and Conditions, businessmen are natural or legal persons or partnerships with legal capacity, the company enters into business with and who are acting in a commercial or self-employed capacity. By accepting the below General Terms and Conditions as the customer you confirm, amongst other things, to China TCM Trading GmbH, that you are a businessman. 

2. The current version of these General Terms and Conditions apply for all present and future business relations between yourself and China TCM Trading GmbH. They apply to all information provided in this context in brochures, price lists, advertising, etc. This applies irrespective of whether the information is provided verbally or in written form. 

3. Any deviating, contradicting or supplementary General Terms and Conditions shall not become part of the contract even if known to China TCM Trading GmbH, unless this is expressly agreed in writing by China TCM Trading GmbH. 

4. China TCM Trading GmbH shall be entitled to change these General Terms and Conditions at any time with future effect. 

 

§ 2 Conclusion of contract 

1. Any offers made by China TCM Trading GmbH shall be non-binding unless agreed otherwise in writing. 

2. Upon ordering goods you expressly declare your intention to purchase such ordered goods. 

China TCM Trading GmbH shall be entitled to accept the offer contained in the order within two weeks from receipt. Acceptance can either be declared in writing or by shipping the goods to you. 

3. The conclusion of the contract shall be subject to China TCM Trading GmbH being supplied itself correctly and on time. This shall only apply in the event that China TCM Trading GmbH is not accountable for a non-delivery. 

You will be informed immediately about the unavailability of the goods or services. Any payment already rendered shall be reimbursed immediately. 

4. China TCM Trading GmbH allows all goods listed in current brochures and which have not been purchased at a reduced price, to be returned within 14 days from the date of supply. Returned goods will generally only be accepted if unopened, in perfect condition and in their original packaging. Goods shall be returned to China TCM Trading GmbH at your cost and risk. Unpaid return shipments shall not be accepted without prior agreement from China TCM Trading GmbH. 

5. Any changes to a signed agreement must be made in writing. This written form requirement can only be revoked in writing. 

6. § 454 BGB und § 455 BGB (Law of the Federal Republic of Germany) shall not apply (only valid for German customers). 

 

§ 3 Retention of title 

1. China TCM Trading GmbH shall retain the title of all goods until all due payments from an ongoing business relationship have been settled. 

2. As a customer you are obliged to treat the goods with diligent care. Where maintenance and inspection work is required, these shall be regularly carried out by yourself at your own cost. 

You shall also inform China TCM Trading GmbH of any changes to your private or business address. 

3. Where the value of guarantees provided for China TCM Trading GmbH exceeds the amount due to us by more than 20%, China TCM Trading GmbH shall on request and as you choose, release the excessive amount of securities down to 120% of the outstanding amount due. 

4. You shall inform China TCM Trading GmbH immediately if any goods with retained title are ceased by third parties, i.e. in the event of a seizure or any damage or destruction of the goods. 

5. In the event of a breach of contract and in particular in case of default of payment or in case of an infringement of any obligation set out in section 4 of these General Terms and Conditions, China TCM Trading GmbH shall be entitled to rescind from the agreement and demand the return of the goods. 

6. You shall be entitled to sell on the goods in the proper cause of business. You already now assign all claims up to the invoiced amount to China TCM Trading GmbH and against any third party, resulting from the selling on of the goods. China TCM Trading GmbH accepts the assignment. After assignment, you shall be entitled to collect any receivables. China TCM Trading GmbH shall retain the right to collect the receivables themselves in the event that you do not meet your payment obligations and default on payment. 

In the event of defaulting fully or partially on one or several payments, suspension of payment or where insolvency proceedings concerning your assets have been issued, you shall no longer be entitled to dispose of the goods for which we have retained the title. 

In this case, China TCM Trading GmbH shall be entitled to rescind from the agreement, take back the retained goods or rescind the entitlement granted to you for collecting the receivables from selling on the goods and request information about the recipients of the retained goods, notify the recipients of such an assignment and collect the respective receivables itself. China TCM Trading GmbH shall be entitled to utilize any returned retained goods at its own discretion. 

In the event of a subsequent processing of the goods, China TCM Trading GmbH shall remain the manufacturer in the sense of § 950 BGB (Law of the Federal Republic of Germany, applicable only for German customers). 

7. Neither the assertion of a retention of title nor the seizure of the delivered items by China TCM Trading GmbH shall constitute a withdrawal from the agreement. 

 

§ 4 Remuneration 

1. The purchase price offered by China TCM Trading GmbH shall be binding. The specified product (net) price does not include any cost of shipping or insurance or fees and taxes, which shall be calculated separately. 

2. China TCM Trading GmbH shall reserve the right to adjust prices accordingly in the event of changes to the exchange rate, duties, taxes, freight and insurance or purchase costs, and such prices shall be effective for future orders. 

3. China TCM Trading GmbH shall also be entitled to change prices after an agreement has been signed, in the event of proven substantial changes to factors affecting pricing or where China TCM Trading’s supplier has provenly increased prices. 

4. Unless agreed otherwise, the prices of the valid price list of China TCM Trading GmbH shall apply on the date of supply (list price). 

 

§ 5 Terms of payment 

1. Unless agreed otherwise, payment of the purchase price as well as other remunerations, prices for ancillary services and any costs incurred, shall be due on handover of the purchased goods. Any applicable discount is determined from the net invoice amount. 

2. Goods can be paid for in advance, upon delivery, by direct debit or on account. China TCM Trading GmbH shall not be obliged to accept checks or bills of exchange. Where these are accepted, these shall only be deemed to be payment on account. 

3. In the event of a default of payment, China TCM Trading GmbH shall reserve the right to retain the supply of goods and/or services until receipt of the full payment of any outstanding amounts and to demand default interest and compensation for any damage arising for the user as a result of the default of payment. 

4. You can only exercise a right of retention where the counterclaim is based on the same contractual relationship. 

5. You shall not be entitled to offset any claims against amounts receivable by China TCM Trading GmbH, unless where the amount to be offset is undisputed or has been legally determined. 

6. Where at the time of placing the order you have deceived China TCM Trading GmbH about your creditworthiness or have not disclosed your creditworthiness and where this circumstance was not obvious for China TCM Trading GmbH, China TCM Trading GmbH can rescind from the agreement with immediate effect. Where such circumstances occur after the order has been placed, China TCM Trading GmbH shall be entitled to rescind from the agreement. 

7. In the event of a default of payment, interest of 8% above base rate shall be applied. Where payment is overdue by more than 30 days, China TCM Trading GmbH shall issue a payment reminder. The costs for each reminder shall be at least 12,- Euro and shall be payable in addition to any other collection costs. 

 

§ 6 Delivery 

1. Agreed lead times are only approximate. Agreed delivery periods shall only commence once you have fulfilled any obligations to cooperate. 

2. China TCM Trading GmbH shall be entitled to carry out partial deliveries. The order confirmation shall specify the location to which the goods are to be delivered. The goods are supplied in commercial packaging suitable for normal shipment. Where acceptance of the goods is delayed, all resulting costs and in particular storage and working time costs shall be borne by you. 

3. Unless agreed otherwise, China TCM Trading GmbH reserves the right to select the transportation route and means. All goods are generally available ex store and the cost and risk of shipment shall be borne by the customer. As the customer you shall also bear the risk of transportation, where the costs of dispatch are borne by the user in exceptional circumstances.

 

§ 7 Warranty

1. In the event of goods being defective, China TCM Trading GmbH shall determine whether to repair or replace the goods within an appropriate time. 

All items and products listed with an individual price in the invoice/order confirmation, are considered to be independent objects to which any warranty claims apply separately. 

2. Where defects cannot be remedied, you shall be entitled to either reduce the amount of payment or demand that the agreement is cancelled. In the event of only a minor infringement of the agreement, in particular in case of only minor defects, you shall not be entitled to rescind the agreement. 

3. China TCM Trading GmbH shall be informed immediately of any obvious defects in writing and at the latest within two weeks from receiving the goods, as otherwise it shall no longer be possible to ascertain any warranty claims. A timely dispatch shall be sufficient for observance of the deadline. The onus shall be on you to prove that prerequisites for making a claim are fulfilled, in particular for the defect itself, for the period of determining the defect and the punctual notification of the defect. 

4. Where after receiving a complaint, investigations find no defect caused by China TCM Trading GmbH or defects that are caused by incorrect operation or handling, you shall reimburse China TCM Trading GmbH any costs incurred as a result of investigating the disputed defects. 

5. Where you opt to rescind the agreement due to a defect of title or due to a material defect, you shall not be entitled to any claims for damages for any defects. 

In the event that a defect cannot be remedied and compensation is requested, the goods will remain with you, provided that this is reasonable. Damages will be limited to the difference between the purchase price and the value of the defective goods. This shall not apply if the violation of the agreement was maliciously caused by China TCM Trading GmbH. 

6. The warranty period shall be one year from the supply of the goods, provided that China TCM Trading GmbH cannot be accused of malicious intent. 

7. No warranty is provided for supplied goods that are used goods and which were expressly sold as used goods. 

China TCM Trading GmbH shall not be liable for any malfunctioning or limitation of usability caused by wear and tear that can typically be expected due to old age. There shall be no entitlement to any replacement delivery. 

8. It is agreed that as a rule, only the manufacturer´s product description is valid as an indication of the quality of the goods. Any official statements, recommendations, exhibited samples or advertising of the manufacturer are not an indication of the goods. 

9. China TCM Trading GmbH shall not provide any guarantees within the terms of the law. This shall not affect any manufacturer´s warranties.

 

§ 8 Limitations of liability 

1.1 In the event of ordinary negligence China TCM Trading GmbH shall only be liable if essential contractual obligations are infringed (cardinal obligations) and in the event of injuries to persons and as stipulated by the German Product Liability Act. Moreover, the pre-contractual, contractual and non-contractual liability of the contractor as regards intent and gross negligence is limited, the limitation of liability also applying in case of fault by an agent or legal representative. 

1.2 Provided that a breach of contractual obligations is not grossly negligent or intentional, the liability of China TCM Trading GmbH for losses incurred (also indirect losses) shall be limited to the typical average damage foreseeable at the signing of the agreement and as regards the amount, shall be limited to the contract value per claim and series of related damage. Further rights and claims, shall be excluded, irrespective of their legal basis and in particular compensation for indirect losses, such as lost profit. 

1.3 Any liability shall be excluded if the occurred loss could have been prevented by you by carrying out reasonable loss-reducing measures. 

1.4 In particular you confirm herewith that the goods will only be used within the scope of the intended use and that you will conduct your business in a professional manner. . 

2. The limitations of liability shall not affect your claims based on product liability. The limitations of liability shall also not apply in the event of injuries or damage to health caused by China TCM Trading GmbH. 

3. Any claims for damages shall be time-barred one year from delivery of the goods. This shall not apply if China TCM Trading GmbH can be accused of fraudulent intent. 

 

§ 9 Data protection 

For detailed information concerning the collection, processing and utilization of personal data of the user in connection with the registration, implementation of the usage agreement and usage of services of China TCM Trading GmbH, see Data Protection Declaration of China TCM Trading GmbH. 

 

§ 10 Final provisions  

1. Swiss law shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods and other international law shall not apply. 

2. The sole place of jurisdiction for any disputes arising from this agreement shall be the registered office of China TCM Trading GmbH, Pfarrmatte 6, CH-8807 Freienbach SZ. China TCM Trading GmbH shall reserve the right to bring any action at the registered office of the customer. 

3. During order processing, customer data will be processed electronically and will be saved as customer master data. For credit check purposes, data may be exchanged with third parties. You agree to data being stored and used as part of order processing. 

4. Where any individual provisions of this agreement with you including these General Terms and Conditions are or become wholly or partially ineffective, this shall not affect the validity of the other provisions. The wholly or partially ineffective provision shall be replaced by a provision whose commercial success comes as close as possible to that of the ineffective provision.