GTC - General terms and conditions
of Holst Porzellan/GmbH - Germany
Pre-Statement of the Management Board
General terms and conditions (GTC) are necessary and correct in the trade and business. Nevertheless, in many cases they are the most frequently used example of the difference between theory and practice in the fulfilment of contracts. King customer is always right in case of doubt. To be right and to be proved right are the essential differences in the economy and the judiciary. Unfortunately, porcelain is a type of goods that is only suitable for online trading to a very limited extent. Porcelain is very heavy and thus causes considerable transport costs and a high packaging effort. The cheaper porcelain - like our goods - is higher in the proportionate freight costs. In order to maintain our efficiency, we have to handle our resources carefully. We cannot afford to deliver 3 x 2 plates and take back 2 x 2 because the customer has ordered a "selection for his choice" with the concrete intention to return more than half of it to the supplier.
Over 95% of all buyers rate our company service and good at Trusted Shops as very good. This is mainly due to the high competence that our customers themselves possess. We do not sell "perfect" 100% hand-picked manufactured goods (like almost no other manufacturer in our segment)! Holst Porzellan/Germany stands for good utility porcelain in HoReCa quality with a reasonable price. If you are looking for a "perfect" pizza plate for less than 2 Euro, you are wrong with us! We recommend these customers to go to a local specialist shop and to examine the goods independently and individually before buying. We ourselves have two factory outlets in Cologne and Halle/Westphalia, where you can pick up any piece of Holst porcelain.
The EU-Distance Selling Law grants the online buyer many rights and only a few obligations. The extensive right of exchange and right of revocation, as well as the smaller container quantities and higher freight costs are the reasons for the price difference of our goods in the two shop modules B2B (entrepreneur) and B2C (consumer).
CEO Holst Porzellan GmbH
1. Scope of application
For all orders via our online shop by consumers and entrepreneurs the following terms and conditions apply.
A consumer is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity. Entrepreneur is a natural or legal person or a partnership with legal capacity, which acts in exercise of its commercial or independent professional activity when concluding a legal transaction.
The entrepreneur (also commercial end user) must name a clear reference that documents the commercial activity in a suitable form. This is done, among other things, by stating the business establishment in the name affix, such as "hotel, restaurant" or similar. On request, Holst Porzellan may request a copy of the business registration or an extract from the commercial register.
Decisive for all deliveries and services, including future ones, are the terms and conditions of business set out herein. The following shall apply to entrepreneurs: If the entrepreneur uses conflicting or supplementary general terms and conditions of business, their validity is hereby expressly rejected; they shall only become part of the contract if we have agreed to them in writing. This also applies if we deliver without reservation in the knowledge of such terms and conditions.
2. Contracting party, contract language
The purchase contract is concluded with Holst Porzellan GmbH, D-33790 Halle/Westphalia, Apothekerstrasse 1. The language available for the conclusion of the contract is German. We will save the text of the contract and send you the order data and our general terms and conditions in text form. For security reasons, the contract text is no longer accessible via the Internet.
3. Offers, quotations and conclusion of contract
The presentation of the products in the online shop is not a legally binding offer, but a non-binding online catalogue. You can place our products in the shopping cart without any obligation and correct your entries at any time before sending your binding order by using the correction aids provided and explained in the order process. By clicking on the order button, you place a binding order for the goods contained in the shopping cart. The confirmation of receipt of your order is sent by e-mail immediately after sending the order.
The sales contract is only concluded after receipt of the written order confirmation. The confirmation of receipt sent due to the order merely informs the customer about the receipt of his order and does not correspond to an order confirmation in the legal sense.
We expressly reserve the right to refuse to execute orders.
4. Prices and tax calculations
This online shop has two modules that show different prices. The shop module "Entrepreneur" (commercial consumers) shows the net price of the respective article or set and is understood for customers from Germany plus the value added tax valid on the day of delivery. The value added tax is shown separately on the receipts of Holst Porzellan GmbH. In the case of customers and delivery addresses from other European countries, the goods shall be exported VAT-exempt upon presentation of the VAT identification number (V.A.T. number). Entrepreneurs" (commercial consumers) from non-European countries may be exempted from the statutory German value-added tax if it is clearly and easily verifiable by means of documents that the delivered goods have actually been exported to a third country (documentary proof of export; cf. Sections 6.5. to 6.9. UStAE).
The shop module "Consumers" (private end user)" shows the gross price of the respective item or set including the VAT valid on the day of delivery. Consumers from abroad are charged with the German VAT. The gross prices shown in the shop module "Consumers" (private end customers) are usually higher than the net prices for "Entrepreneurs" (commercial consumers) shown in the shop module. This is due to the higher unit costs for picking, packing and handling, which are higher for individual purchases than in the container quantities demanded by the "entrepreneurs" (commercial consumers).
Any taxes, import duties, customs duties and other import-dependent, country-specific charges are not included in our prices and must be borne by the customer.
The prices in our factory sales show the gross price of the respective article or set including the value added tax valid on the day of delivery. "Entrepreneurs" (commercial consumers) who identify themselves as such at the time of purchase will receive a commercial invoice on which the gross price shown is shown converted into a net price and shown as a single amount plus the statutory VAT. Since the gross prices in factory sales are usually based on even cent amounts, this can lead to minimal conversion differences from gross to net. "Consumers" (private end customers)" receive a receipt for their purchase in one of our factory outlets.
For the sake of good order, we would like to point out that the prices of the factory outlets may differ from those in the online shop due to the nature of business. Furthermore, many special items and sales are not available in online shops.
All prices mentioned are freight collect ex warehouse Bielefeld (Germany). Shipping costs will be calculated according to expenditure and will be shown separately in all receipts of Holst Porzellan GmbH.
5. Prior sale and delivery guarantees
All items and prices shown in our webshop are subject to prior sale. The offers are valid only while stocks last. We are not obliged to deliver an ordered article, which is no longer in stock, at the same prices or stated delivery times. This applies in particular to lot goods and II. Choice articles. According to paragraph 3 of these terms and conditions, the confirmation of acceptance of an order is also not binding for the execution of the order. Orders for lot goods and II. Wahl are processed according to the date of receipt at Holst Porzellan.
6. Payment and minimum order value
In case of online orders, delivery is only made after payment has been secured. Consumers (private end customers), new customers and entrepreneurs without credit information are bound to a payment in advance or PayPal. If the prepayment invoice is not settled within 10 days, the order will be cancelled without further notice. "Entrepreneurs" (commercial and institutional consumers) with a manual credit check or voluntary credit information can purchase from us on account up to the agreed credit amount. Trade partners and resellers buy within the framework of the previously agreed payment terms.
There is no minimum order value! The packaging units specified for the respective articles must be observed.
In our factory outlets, the terms of payment for consumers (private end customers) are basically the same as for the train-to-train business in the form of a cash payment or an EC card payment. Other payment methods are not possible in our factory outlets. Entrepreneurs" (commercial and institutional consumers) with a credit check or voluntary credit information may purchase in our factory outlets on account up to the agreed credit amount.
All prices of Holst Porzellan GmbH in this online shop are always ex warehouse. The delivery costs depend on the weight and volume of the consignment, regardless of the value of the goods. The respective shipping costs of a shipment will be shown separately in the order process. You will find a list of shipping costs in our terms of payment and shipping. Collectors of goods ordered in our online shop and collected in one of our factory outlets can be accepted there free of charge.
8. Precautionary measures when handling porcelain
Porcelain is an object of daily use. However, many users are not fully aware of the special features associated with this product, especially production-related properties. In our product information, we therefore provide detailed information about measures for the correct handling of porcelain, legal requirements, DIN standards and tips for the value-preserving handling. Ceramic tableware of all kinds is of mineral origin and contains a quartz component. This makes fragments of porcelain particularly dangerous. Improper handling of porcelain increases the risk of injury. We therefore recommend to observe the following rules of handling:
- There is a risk of injury if porcelain falls down.
- Removing porcelain from stacks, superstructures and shelves is at your own risk.
- Porcelain is a material which, if broken, can produce splinters of various sizes.
- There is a risk of injury in the event of shards, cracks in the glaze and sharp edges.
- Never use porcelain on surfaces that are sensitive to scratches.
- Only transport porcelain in suitable packaging.
- Opened cardboard boxes must be carried with the open side up.
- Wear protective gloves when opening transport packaging.
- Ensure that the permissible weight for transport packaging is not exceeded.
- When transporting large quantities of porcelain, observe the maximum load weight of the vehicle.
- Before first use the porcelain must be rinsed to exclude possible production residues.
9. Complaints, returns and credit notes
A case of warranty shall be deemed to exist if a material defect was present at the time of the transfer of risk and the customer asserts his warranty rights in good time while observing the form and deadlines. Not every defect shall justify a liability for defects by Holst Porzellan. Due to the special, production-related nature of porcelain and the different qualities of our range of goods, only those defects which lead to loss of usability shall be recognised as defects. Sorting differences, small defects and the optical differences in shards or glazes, slight colour differences of shards and decorations cannot be accepted as defects. Please also read "Defects & Use" from our product information. Each article in our shop offer is described in detail in its quality and exact condition. According to § 434 BGB, a material defect exists if the goods:
- does not have the agreed quality, e.g. if a plate is delivered in the wrong size,
- is not suitable for normal use, e.g. if a cup is leaking
- does not have a quality which is customary for items of the same kind and which the buyer can expect, or
- does not have a quality which the purchaser may expect, e.g. on the basis of our advertising statements.
In such a case, the customer must give us the opportunity to examine the alleged defect in detail (BGH, ruling of 19.12.2012, VIII ZR 96/12). As a rule, this is done by sending us meaningful pictures. If the customer refuses to produce such photographs and insists on a flat-rate exchange without a precise description of the material defects, he forfeits any warranty rights to which he may be entitled. If the delivered item is actually defective, we shall initially provide a warranty to entrepreneurs at our discretion either by eliminating the defect (rectification of defects) or by delivering a defect-free item (replacement).
In accordance with § 357 BGB (German Civil Code) para. 6, we expressly point out that the direct costs in the event of a return of our goods must be borne by the customer, unless we have agreed to a goodwill arrangement in writing in individual cases and in consultation with the customer. As a rule, ex gratia settlements are made if there are justified reasons which lead to the loss of the usability of the goods. In the event of a return agreed as a gesture of goodwill, the customer will receive a credit note for the agreed value. A payment or refund of the amount is not possible. The credit note can only be used for new purchases.
In case of a return request, the goods can only be returned if they are unused and in their original packaging. Returns are generally not sent back to our head office, but to our warehouse. For this purpose it is necessary to request a return slip for a return shipment from us.
The articles purchased in our factory outlet are generally excluded from exchange.
10. Conformity and warranty
Unless expressly agreed otherwise below, the statutory liability for defects shall apply. The porcelain delivered by Holst Porzellan GmbH complies with the legally prescribed conformity order and is suitable for free circulation within the European Union as well as for use in contact with food. The delivery documents contain a written declaration of conformity for the respective product. If "entrepreneurs" (commercial and institutional consumers) purchase in one of our factory outlets and require a certificate of conformity for this product, such a certificate must be requested separately from our sales personnel.
The warranty period is one year from delivery in case of intended use, for "entrepreneurs" (commercial and institutional consumers). "Consumers" (private end customers) are entitled to a warranty period of 12 months from transfer of risk. In relation to entrepreneurs, only our own information, which has been included in the contract, shall be considered as an agreement on the quality of the goods. Due to the special nature of porcelain, the warranty in particular is excluded:
- breakage of the shards as a result of improper use.
- Breakage of the body as a result of thermal shocks.
- Breakage of handles and snout as a result of improper use.
- Edge breakage as a result of improper use.
- Breakage of stacks as a result of improper use.
- Scratches on glazes as a result of mechanical load.
- Cutting marks on glazes as a result of inadequate care.
- Grease streaks and glaze haze as a result of inadequate care.
- Glaze corrosion as a result of improper use.
- Decorative abrasion above the specified dishwasher resistance
Please also read more about this in our product information "Defects & characteristics" of the porcelain.
11. Transport damage
The following applies to consumers: If goods with obvious transport damage are delivered, please complain about such defects to the delivery agent as soon as possible and contact us immediately. Failure to make a complaint or contact us has no consequences for your legal claims and their enforcement, especially your warranty rights. However, you help us to be able to assert our own claims against the carrier or the transport insurance company. "Entrepreneurs" (commercial and institutional consumers) have to document and report transport damages according to their legal position.
The delivery must be examined immediately and carefully. Defects must be noted on the shipping documents and acknowledged by the deliverer. For defects, we shall provide a credit note or replacement delivery at our discretion.
12. Retention of title
Holst Porzellan delivers exclusively under the provisions of the extended reservation of title. This also applies to all future deliveries, even if we do not always expressly refer to this. We reserve the right of ownership of the delivered item until all claims arising from the delivery contract have been paid in full. We are entitled to take back the purchased item if the purchaser acts in breach of contract.
As long as the ownership has not yet been transferred to the buyer, the buyer is obliged to treat the object of sale with care. In particular, he is obliged to insure it sufficiently at his own expense against theft, fire and water damage at replacement value. As long as ownership has not yet been transferred, the buyer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. As far as the third party is not able to reimburse us for the judicial and extrajudicial costs of an action according to §771 ZPO, the buyer is liable for the loss incurred by us.
The buyer is entitled to use or resell the reserved goods in the normal course of business. The buyer hereby assigns to us the claims of the buyer from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The buyer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the buyer meets his payment obligations from the proceeds received, is not in default of payment and in particular no application for the opening of insolvency proceedings has been filed or payments have been suspended.
13. Liability and compensation
For claims based on damages caused by us, our legal representatives or vicarious agents, we are liable within the scope of our legal liability. In the event of a breach of material contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (cardinal obligations) due to slight negligence on our part, on the part of our legal representatives or vicarious agents, liability shall be limited to the amount of damage foreseeable at the time of conclusion of the contract, the occurrence of which must be typically expected. Otherwise, claims for damages are excluded.
14. Code of conduct and dispute settlement
We have voluntarily submitted to the codes of conduct of Trusted Shops. The European Commission provides a platform for online dispute resolution (OS), which you can find here We are neither obliged nor willing to participate in dispute resolution proceedings before a consumer arbitration board.
15. Right of withdrawal
For all business transactions concluded via one of our online portals (web shops), consumers (private end customers) have the statutory right of revocation as described in the revocation policy. "Entrepreneurs" (commercial and institutional consumers) are not granted a voluntary right of withdrawal.
16. Law and place of jurisdiction
All legal relations between us and the "entrepreneurs" (commercial and institutional consumers) shall be governed exclusively by German law. Place of performance is Halle (Westphalia) and place of jurisdiction is Bielefeld (Germany).
17. Final provisions
Should individual provisions of these terms and conditions be or become invalid or void in whole or in part, the validity of the remaining provisions shall not be affected. Rather, in place of the invalid clause, that which comes closest to the purpose of the invalid or void clause in an economically and legally permissible manner shall be deemed agreed.
Holst Porzellan GmbH
D 33790 Halle/Westphalia