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Terms of service


I.             Scope / Exclusion of Contract

1.1.        The following terms and conditions of Schockemoehle Sports GmbH (“Seller”) are valid exclusively for all current and future business relations so long as the Customer is an entrepreneur, corporate body under public law or special fund under public law.

1.2          Terms and conditions contrary to or differing from the terms and conditions of the Seller shall not be valid unless the Seller consents explicitly to their validity in writing. The terms and conditions of the Seller shall be equally valid if the Seller effects delivery without reservation despite knowledge of terms and conditions contrary to or differing from the terms and conditions of the Seller.

1.3          Should the terms and conditions of the Seller not have been sent to the Customer with the offer or catalogue, they shall be valid nonetheless if they have been agreed upon regularly in the course of ongoing business relations and the Customer does not object to their application.

 

II.            Offer, Conclusion of Contract

2.1.        Any offers made by the Seller shall be without obligation.

2.2          The Customer shall submit a binding offer to be accepted by the Seller within four weeks, by order confirmation in writing or by dispatch of the goods.

2.3          The Seller reserves the right to charge a cancellation fee to the amount of 30% of the net order sum for subsequent order cancellation. After a period of 14 days as of order confirmation date, no order cancellation, in whole or in part, shall be accepted.

2.4          In the event of nonconformity with or noncompliance to the modes of payment agreed upon by both parties, the Seller reserves the right to cancel all existing orders without giving further reasons and charge cancellation fees to the amount of 30% of the net order sum for each cancelled order.

 

III.          Prices

3.1          Unless otherwise agreed, all prices are calculated ex works. Prices do not include packing, freight, postage, insurance or other shipping costs or the legal VAT.

3.2          Prices mentioned in price lists or catalogues of the Seller are guide prices and shall be non-binding until confirmation of the order by the Seller. In the event that delivery is made more than four months after contract formation, in coordination with the Customer or due to reasons beyond the Seller’s responsibility, the Seller reserves the right to charge the Customer elevated prices corresponding to the increase in cost to the Seller (especially due to labor agreements and material price increases) that has occurred since contract formation.

3.3          For orders with delivery to third parties, the purchaser shall be considered the contractee unless otherwise agreed.

3.4          Subsequent changes to the agreement at the contractee’s instigation, including any machine standstill caused thereby shall be charged to the contractee

 

IV.          Time of Delivery and Performance

4.1          Delivery times shall not be binding unless otherwise agreed explicitly. Delivery times start upon the Customer’s receipt of the Seller’s written order confirmation at the earliest.

4.2          In the event of delays in delivery due to circumstances beyond the Seller’s control caused by force majeure (e.g. strike or lockout, civil war, acts of terrorism, riots, natural disasters, delays in material provision due to circumstances beyond the Seller’s control, non timely delivery by the Seller’s suppliers etc.), the delivery times agreed upon shall be extended by the duration of the delay. Should the Seller become permanently, but at least for a period of six months, unable to effect delivery due to force majeure, the Seller shall be exempt from his or her delivery obligation. In this case, the Customer has the right to rescind the contract. The Seller shall under no circumstances be held responsible in this case.

 

V.           Dispatch and Transfer of Risk

5.1          Delivery shall be made ex works. Freight and packing costs shall be charged additionally upon dispatch. Any part consignments, including freight and packing costs for each one, shall be charged individually. The Seller shall be free to choose the mode of shipment.

5.2          Loading and dispatch shall generally be uninsured; the Seller agrees to insure consignments on the Customer’s request, according to custom and at the cost of the Customer.

5.3          On transfer of the consignment to the carrier, forwarder, hauler or collector (even if using the Customer’s means of transport), or upon leaving the Seller’s warehouse at the latest, the Customer shall bear the risk. Should dispatch be impossible due to reasons beyond the Seller’s control, the Customer shall bear the risk as soon as the goods are made available.

5.4          Should the Customer default on accepting delivery due to reasons lying within his own responsibility, or return delivery unwarrantedly, the Seller may demand compensation after unsuccessful expiration of a final deadline set to the Customer. Compensation shall amount to 20% of the net value of the goods unless the Seller proves a higher loss or the Customer proves a lower loss or no loss to the Seller.

 

VI.          Payment

6.1          Invoices made out by the Seller shall be due without any reduction on receipt by the Customer. Should the Customer not pay the price including additional costs according to section III. (“Prices”) within 10 days after receipt of the invoice and delivery of the goods, he shall be in default without notice.

6.2          Money orders, checks and bills of exchange shall only be accepted on account of payment, and bills of exchange in particular only by virtue of special agreement, invoicing all collection and discount charges. Any payments by the Customer received shall be appropriated to outstanding claims in the following sequence: Costs, interest, damages incurred during delivery of goods. In the event of several claims of the same kind, the first one to be settled shall be the one with the smallest security given; in the event of several equally secure claims, the oldest shall be the first.

6.3          Should the Customer default on a payment, the Seller may demand default interest of 8% p.a. above the base rate. The Seller reserves the right to claim for further damages caused by delayed performances.

6.4          The Customer cannot, due to counterclaims, refuse or hold back any performances or offset them against any own counterclaims unless these counterclaims are indisputable or legally ascertained.

6.5          In the event that consideration for the supply of goods by the Seller is deferred due to a contractual agreement or there exists an open account agreement, the entire outstanding balance of claims shall be settled immediately by the Customer if the Customer defaults on payment, the Customer is culpably in breach of a contractual agreement, the Customer is in breach of or endangering retained ownership, the Customer’s financial circumstances deteriorate materially, or there exist cessation of payment, bills of exchange ineligible for discount, bill or check protests or compulsory enforcement measures taken against the Customer.

6.6          The Seller shall be authorized to assign claims from deliveries and services.

6.7          In the event of exceptional advance services, an appropriate advance payment may be demanded.

6.8          If after conclusion of the contract it becomes apparent that fulfillment of the claim to payment is endangered due to inability to pay on the part of the Customer, the Seller shall be authorized to demand advance payments, keep back goods that have not yet been delivered and stop on-going work on orders that are still in progress. The Seller shall also have these rights if the Customer defaults on payment of a delivery based on the same legal relationship. §321 BGB shall remain unaffected.

 

VII.         Customer’s Rights in the event of Deficiencies

7.1          To establish any defects, the Customer shall examine the goods without delay following delivery and, if an apparent defect is seen, notify the Seller thereof in writing within one week. The Customer shall notify the Seller of non-apparent defects without delay following their discovery, or within one year of delivery at the latest. Should the Customer fail to comply with the abovementioned deadlines, the goods shall be considered approved and the Customer shall lose his rights regarding defects according to sections 7.2 and 7.4.

7.2          Should the goods prove to be deficient, the Customer may demand subsequent fulfillment in the form of rectification of the defects or replacement delivery of zero-defect goods. In the event of justified complaints, the Seller’s duty is to either rectify the defects or carry out a replacement delivery at the Seller’s option. If the Seller fails to meet this obligation within an appropriate period of time or rectification of the defects fails repeatedly, the Customer may demand remuneration (reduction), cancellation of the contract (withdrawal), compensation for fruitless expenses or damages instead of fulfillment. The Customer’s rights to withdrawal and damages are excluded if the defects are negligible.

7.3          The Seller may condition the subsequent fulfillment on the Customer paying an appropriate part of the purchase price considering the defect. The Seller is entitled to refuse the chosen form of subsequent fulfillment if it is possible only in conjunction with disproportionate costs. Defects in a part of the goods delivered do not justify objection to the entire shipment, unless part delivery is of no interest to the Customer.

7.4          In the event that rectification by the Seller fails twice, or the Seller refuses rectification or the Seller fails to carry out rectification within an appropriate period of time set by the Customer, the Customer is entitled to reduce the purchase price or withdraw from the contract or claim for damages or compensation for fruitless expenses instead of fulfillment. The Customer’s rights to withdrawal and damages are excluded if the defects are negligible. The Seller may condition the subsequent fulfillment on the Customer paying an appropriate part of the purchase price considering the defect. The Seller is entitled to refuse the chosen form of subsequent fulfillment if it is possible only in conjunction with disproportionate costs.

7.5          The Customer shall have no right to claim for compensation of defects caused by inappropriate handling of the goods (for example concerning storage, usage or treatment) on the part of the Customer or a third party. The Customer’s claims due to defects shall expire one year after delivery of the goods. In the event of justified complaints, the Seller’s duty is to either rectify the defects or carry out a replacement delivery at the Seller’s option. If the Seller fails to meet this obligation within an appropriate period of time or rectification of the defects fails repeatedly, the Customer may demand remuneration (reduction) or cancellation of the contract (withdrawal). Defects in a part of the goods delivered do not justify objection to the entire shipment, unless part delivery is of no interest to the Customer.

 

VIII.       Retention of Title

8.1          Until satisfaction of all claims resulting from the business relationship with the Customer, the Seller reserves the following securities, which the Seller may decide to release proportionally as soon as their realizable value surpasses the claims against the Customer sustainably by more than 20%. In the case of current accounts, the securities serve to secure the balance claim.

8.2          All goods delivered remain the Seller’s property until full settlement of all claims for payment. The Customer shall not be entitled to pledge or assign by way of security the goods delivered by the Seller. In the event that a third party acquires any rights to the collateral nonetheless, the Customer shall assign any and all of his rights to the collateral to the Seller without delay. The Seller shall accept the assignment. The Customer is obliged to notify the Seller immediately in the event that any seizure, attachment or other disposition of the collateral has been carried out by a third party.

8.3          The retention of title shall also extend to the products resulting from the processing, blending or combining of the Seller’s goods to their full value, wherein the Seller shall be considered manufacturer. Should a third party’s retention of title be valid in the event of processing, blending, or combining of the Seller’s goods with those of the third party, the Seller shall acquire joint ownership in proportion to the invoice value of the processed goods.

8.4          The Customer is entitled to resell goods delivered by the Seller in the orderly course of business. For this case, the Customer shall assign any and all claims resulting from the reselling of the collateral to the Customer, effective immediately. The Seller shall accept the assignment. As long as the Customer fully meets his contractual obligations to the Seller, the Customer shall be entitled to collect the claims assigned to the Seller for security purposes. The Seller is entitled to demand from the Customer disclosure of the retention of title to third parties, or the handing over of any and all documentation necessary for the raising of the Seller’s claims.

 

IX.          Liability

9.1          The Seller shall assume full liability for intention and gross negligence.

9.2          The Seller shall assume liability for simple negligence – except in the event of injury to life, body or health – only if cardinal duties have been violated, and limited to the foreseeable damage typical for the contract, but at most equal to the amount of remuneration resulting to the Seller from the respective contract.

9.3          Liability for indirect or unforeseeable damage, loss of production or use, as well as loss of profit, lost savings or loss of assets due to claims of third parties is excluded in the case of simple negligence.

9.4          A further liability other than provided for in these terms and conditions is excluded, irrespective of the legal nature of the asserted claim.

9.5          The liability restrictions and exclusions according to items 9.2, 9.3 and 9.4 shall not apply for liability without fault as required by law, e.g. arising under a guarantee or the German Product Liability Act.

9.6          In the event that the Seller’s liability is limited or excluded in accordance with 9.2, 9.3 and 9.4, the limitation or exclusion shall also extend to the personal liability of the Seller’s staff, employees or agents.

 

X.            Written Form, Applicable Right, Place of Performance, Place of Jurisdiction, Severability Clause

10.1       Changes to these terms and conditions have to be made in writing. This also applies for changes to this item.

10.2       All legal relationships between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding references to the UN Convention on the International Sale of Goods (CISG).

10.3       The sole place of performance for any and all delivery and payment obligations shall be the Seller’s place of business in Mühlen, Lower Saxony, Germany.

10.4       The sole court of jurisdiction for any and all disputed arising from this contract shall be Vechta, Germany.

10.5       Should individual provisions of these terms and conditions be or become ineffective or impracticable in full or in part, the validity or practicability of the remaining provisions of these terms and conditions shall not be affected thereby. The ineffective or impracticable provisions shall be replaced by the provisions which approximate closest to the terms and conditions as a whole, as well as other contractual agreements in terms of practical, legal and economic intent. The same shall be done in the event that the terms and conditions are incomplete.