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Unsere allgemeine Geschäftsbedingungen |
1. General
The following business terms and conditions apply to all transactions with our buyers, including when they are not referred to in the individual case, for all future deliveries unless different terms and conditions have been agreed in writing. With its order the buyer recognises the following terms and conditions including for subsequent orders even if the buyer’s own business terms and conditions state otherwise. Buyers’ business terms and conditions that differ from our business terms and conditions are not recognised unless we expressly agree to them in writing. Oral declarations by our representatives or employees must be confirmed in writing. Contracts made with us are subject to German law.
2. Quotations
Our quotations are subject to amendment. The contract does not come into existence until written order confirmation. If the delivery is carried out without the buyer receiving prior confirmation, then the contract shall come into being subject to these business terms and conditions upon acceptance of the delivery. We are liable for production statements/ measures only if disclosed by ourselves. Slight variations from the descriptions in the quotation are deemed to be approved and do not adversely affect performance of the contract provided that the variation is not unreasonable from the buyer’s point of view. This applies in particular to variations in models, dimensions, colours and in the event of changes and improvements in line with the state of the art and the latest production techniques.
3. Delivery periods
Delivery periods are not binding unless they are expressly agreed in writing. Part deliveries are permitted. The delivery period has been observed if the subject of the delivery has left the factory by the period’s expiry or it has been notified as ready for dispatch. In the event of unforeseen hindrances to delivery occurring outside our area of influence (e.g. disturbances to operations by, water, fire, breakdown of production plant and machinery, lack of delivery by the parent company, lack of materials, energy, transportation facilities, work disputes etc.) regardless of whether these occur in our company or at our suppliers or at their suppliers, the delivery period is extended as we see fit and reasonable by the duration and extent of such hindrances or we are entitled to set aside the duty to deliver entirely or in part in so far as performance is not completely impossible. In addition, § 275 BGB (Civil Law Code) applies to the exclusion of the duty of performance. We are not obliged to make further deliveries under any ongoing contracts before the payment of invoice amounts due including any interest for arrears and in the event of the specified credit limit being exceeded. In the event of failure to observe a delivery date where we are to blame or of the impossibility of performance, the buyer is entitled to withdraw in the event of delay where this is legally permitted but not until the expiry of a reasonable extension period which is granted. Point 9 applies to claims for compensation. Any further claims are excluded.
4. Sale of goods involving carriage
We reserve the right to choose the transportation route, the means of transport and the carrier although we are not responsible for ensuring that the fastest and cheapest option is chosen. If dispatch is delayed as a result of circumstances for which the ordering party is to blame, then risk passes to the ordering party on the day of readiness for dispatch. Transportation is at the buyer’s expense and risk unless otherwise agreed. The risk of damage or destruction of the subject of the delivery passes to the buyer on dispatch at the latest and this also includes when part deliveries are made. The agreed prices are deemed to be from stock before the addition of the relevant legally due Value Added Tax. They include the packaging usually used in the trade and appropriate for normal dispatch. We provide insurance cover against damage and loss in transit only in the case of carriage paid and carriage and freight paid deliveries. Here the buyer must observe the insurer’s terms and conditions. The buyer shall bear all customs duties and charges associated with export. We will assist the buyer with obtaining the documentation that is to be completed in the destination country and which the buyer requires for exports.
5. Payment
Provided no separate written agreements have been made, the invoice amount is due for receipt in our account without any deduction by 30 days following the invoice date at the latest. In any event, payment by cheque is only deemed to be effective once the cheque is cleared. Payments to our employees are only effective if they have demonstrated that they have the power to accept them. Arrears in payment of an amount due to us arise without the need for a warning. In the event of arrears in payment, interest will be charged at a rate of 8% above the relevant base rate whilst reserving the right to make further claims. If the buyer has fallen into arrears with the payment of an invoice or if our receivable is at risk for any reason whatsoever, then all its liabilities to us shall fall due immediately. This also applies to the balances of any current accounts operated for the buyer. The buyer has a right to withhold payment only if it relates to the same contractual relationship. It may offset only counterclaims that we have recognised or which have been determined by law. Outstanding credit notes do not entitle the buyer to withhold payments.
6. Reservation of title
The delivered goods remain our property until the full settlement of all the buyer’s liabilities arising from the business relationship with us. In the event of arrears with payment, unlawful conduct by the buyer or risk of any nature whatsoever to our receivable, which includes major deterioration in the asset situation, in so far as legally permitted the buyer is obliged to return the goods to us upon the first request. Such a demand for their return is deemed to be a declaration of withdrawal in combination with the issue of our offer to redeliver the goods sold step by step in return for payment on the remaining existing contractual terms and conditions. Until recall, the buyer is entitled to sell the goods with our reservation of title in the course of its normal business but not to pledge them or transfer them as security. It is obliged to resell the reserved goods with this reservation of title only if the goods are not paid for immediately by its customer.
The right to resell the goods is extinguished in the event of arrears with payment or risk of any nature to our receivable. The buyer assigns in advance any receivables arising from the resale along with any associated rights against its customer as of now. The buyer must inform us immediately with submission of any documents necessary for contesting the issue in the event of third party distraint measures involving the subject of the delivery or the assigned receivables. The buyer is obliged to insure goods belonging to us against all storage risks and to evidence the taking out of the insurance policy to us on demand. We undertake to release any security which in our view exceeds the receivable to be secured by more than 20% in value. It shall assign to us as of now any insurance claims or other compensation claims resulting from the destruction or deterioration of the goods subject to reservation of title.
7. Liability
We are liable for physical defects in accordance with the relevant state of the art. The right to make changes in the structure or design that do not adversely affect either the functionality or the value of the goods ordered is reserved and such changes do not justify a complaint. In particular, reasonable variations in models, dimensions and colours and changes in line with the state of the art and the latest production techniques are not physical defects. Liability for physical defects is rectified by rework. Instead of rework, we are entitled to make a replacement delivery. § 439 Para. 3 Sentence 1 BGB (Civil Law Code) is unaffected. However, the buyer is entitled to withdraw from the contract if it so chooses or to demand a reduction in the purchase price if subsequent performance fails, is impossible, cannot be provided by us within a reasonable period, is refused by us or is delayed where we are to blame. If obvious defects or incomplete or incorrect delivery are involved, complaints are to be specified without delay following handover and reported to us in writing 5 days after receipt of the subject of the delivery at the latest. Hidden defects are also to be reported immediately upon discovery and within 5 days following their discovery at the latest. Any breach of this duty may adversely affect guarantee claims. Defects that can be attributed to unsuitable or incorrect use or treatment of the subject of the delivery, defective assembly or startup by the buyer or a third party or to normal wear and tear do not justify liability for physical defects. Liability is excluded for the consequences arising from any changes or repair work carried out by the buyer or third parties. Before subsequent fulfilment (rework/replacement) we must be given the opportunity to inspect the goods complained about. If the goods must be transported for the purpose of subsequent fulfilment, we shall provide this transportation ourselves or arrange it through agents unless otherwise agreed with the buyer. Transportation costs incurred by the buyer for transportation that had not been agreed will not be refunded to the extent that they exceed the amount that we can prove that we would have incurred to collect the goods ourselves. Claims for physical defects expire 12 months after delivery of the subject of the delivery. The buyer has no legal right of withdrawal arising from non-performance or performance other than in accordance with the contract if we are not to blame for the breach of duty. This does not apply if the right of the buyer to withdraw regardless of blame arises from special agreements or in the event of a defect in the subject of the delivery. Point 9 applies to claims for compensation. Moreover, any further liability is excluded.
8. Consumer transactions
As a variation to the above terms and conditions, the statutory provisions apply to consumers (consumer goods purchase). However, the expiry date for the buyer’s rights in the event of sale of second-hand goods is one year following dispatch of the goods. In addition, also in the case of consumer transactions, we are liable for compensation for loss only in accordance with Point 9. If the buyer demonstrates as a business that the goods were sold to the last customer by way of a consumer goods purchase within the meaning of § 474 BGB (Civil Law Code) and a claim has been made against it as the result of a physical defect in accordance with the provisions relating to consumer goods purchase, then the statutory provisions apply to the claim instead of the terms of Point 8. Claims for compensation regarding expenditure that would not have been necessary if our available services and our network of contractual workshops had been called upon and fully employed in good time are excluded.
9. Compensation
Compensation claims by the buyer on any legal basis whatsoever, in particular resulting from the breach of duties arising from the relationship of obligation and from tort, are excluded. This does not apply to claims under the Produkthaftungsgesetz (Product liability Act) in cases of deliberate act, gross negligence, arising from death, injury or harm to health and from breach of major contractual duties. Compensation for slightly negligent breach of major contractual duties is however restricted to the loss/damage typically foreseeable for the contract. The same applies to claims of grossly negligent conduct of simple agents.
10. Disposal of packaging
Packaging is in principle disposed of at our discretion by a system providing full coverage within the meaning of the VerpVO (Packaging Order) or by a third party entrusted with this by us. Packaging which is to be taken back by us in accordance with the statutory provisions is to be delivered to our warehouse carriage paid. The taking back of used equipment always requires a relevant agreement unless the law imposes other rules.
11. Place of jurisdiction
For contracts with our entirely commercial customers, to whom these business terms and conditions apply, Schorndorf is agreed as the place of fulfilment and jurisdiction including for legal action regarding cheques and bills of exchange with the proviso that we are also entitled to bring legal action at the place of the buyer’s registered office or branch. Otherwise the statutory place of jurisdiction applies. The place of fulfilment is Schorndorf.
12. Concluding term
If a term of these terms and conditions is or becomes invalid entirely or in part, the validity of the remaining terms shall not be affected by this. We are entitled to amend these terms and conditions from time to time. These amendments shall come into effect with their receipt by the buyer unless the latter immediately rejects them in writing.
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