I. General Provisions:
- All offers, deliveries, services and sales of the seller are performed exclusively on the basis ofthese General Terms and Conditions. Even if not agreed again, these General Terms andConditions also apply to any future business relationships. These General Terms and Conditions willbe accepted, at the latest, by accepting the sales object or service. Confirmation of the buyer withreference to the buyer’s terms and conditions is hereby expressly rejected.
- All agreements between the seller and the buyer to specify the contract must be recorded in thecontract in writing.
II. Offer and Contract Conclusion
- All offers of the seller are non-binding.
- The buyer will be bound to the order. The contract will be performed when the seller confirms theacceptance of the order of the further specified purchase object within this period in writing or bytelex or when the delivery is made. The same applies to side agreements, additions and changes.The scope, quality and dimensions of the delivery and quality and dimensions are based exclusivelyon the seller’s confirmation in writing or by telex.
- Other service data, weights, drawings, measurements or depictions are only binding if expresslyagreed in writing.
- The seller’s employees may not conclude oral side agreements or issue oral assurances thatexceed the content of the written contract.
- Transfers of the buyer’s rights and obligations under the contract require the seller’s writtenpermission.
- Prices are stated ex works
- The seller will remain bound to offered prices for 4 weeks as of their date. VAT must be added.Price changes are permitted if contract conclusion and the agreed delivery period are separated bymore than 4 months. The seller’s then-valid price will apply.
- Costs for transportation insurance, loading, movement, transfers, customs and official fees mustbe borne by the buyer.
- Unless agreed otherwise in writing, invoices of the seller will become due without deduction uponthe handover of the purchase object or, at the latest, receipt of the written notification of provisionand issuance or submission of the invoice.
- Payment instructions, checks or bills of exchange will be accepted with prior agreement and onlyconditionally while charging all collection and discount expenses.
- The seller may, despite contrary provisions of the buyer, first credit payments to older debts. Theseller will inform the buyer about how payments have been credited. If costs or interest have alreadybeen incurred, the seller may first credit the payment to the costs, then to the interest and, finally, tothe main service.
- Payments will be received when the seller may dispose of the amount. Payments made by checkwill be received when the check is redeemed.
- If the buyer defaults on payments, the seller may charge default interest of 2% above DeutscheBundesbank’s discount rate as flat-rate compensation for damages. Default interest will be lower ifthe buyer proves that the seller incurred lower damages. The seller may prove that the sellerincurred greater damages. The exercise of default interest under Sections 352 and 353 of theGerman Commercial Code [Handelsgesetzbuch, HGB] will not be affected by this flat-ratecompensation.
- Should the seller learn of circumstances that draw the buyer’s creditworthiness into question,especially if the buyer suspends payments or if a check is not redeemed, or if the seller learns ofcircumstances that draw the buyer’s creditworthiness into question, the seller may charge allremaining debt, even if the seller accepted checks. In the previous case, the seller may furtherobtain advance payments or collateral
- Even if defects are reported or counterclaims are exercised, the buyer may only offset, retain orreduce payments if the buyer’s counterclaims are uncontested or legally established. Except for thedefense of failed contract performance, the buyer may only exercise rights of retention if based onclaims from the same contractual relationship. However, the buyer is also entitled to retention forcounterclaims under the same contractual relationship.
- If partial payments are agreed between the seller and the buyer and if the buyer is a legal personor if the loan is contractually designated for an already-performed commercial or freelance activity,the entire remaining debt will become due, irrespective of the due date of other bills of exchange,including agreed interest incurred until the due date, if the buyer fully or partially defaults on at least2 consecutive partial payments and at least 10% or, if the loan agreement term exceeds 3 years, 5%of the nominal amount of the loan or partial payment price. Furthermore, the entire remaining debtwill become due if the buyer fully suspends payments or if settlement or bankruptcy proceedings arerequested for the buyer’s assets.The same applies if the buyer is a natural person if the loan is designated for commercial orfreelance activities and if the net loan amount or cash payment price exceeds EUR.... Instead ofobtaining the remaining debt, the seller may, irrespective of the seller’s retention of title, grant a 2-week grace period to the buyer for payment of the outstanding amount with notice that the seller willrefuse contract performance in case of non-payment by this deadline. After the grace period expiresunsuccessfully, the seller may issue a statement in writing or via telex to withdraw from the contractor obtain compensation for damages due to non-payment. Performance claims will then beexcluded.
- The seller may terminate agreements between the seller and buyer concerning partial paymentsnot subject to Subsection 8 and may obtain payment of the remaining debt if:
- The buyer fully or partially defaults on at least 2 consecutive partial payments and the outstandingamount totals at least 10% or, in case of partial payment terms exceeding 3 years, 5% of thenominal amount of the loan or of the partial payment price and
- The seller unsuccessfully granted a 2-week grace period to the buyer for payment of theoutstanding amount with notice that the seller will obtain the entire remaining debt in case of non-payment by this deadline. If the seller terminates the agreement and obtains payment of theremaining debt, the remaining debt will be reduced by the loan’s interest and other term-dependentcosts for the time after the remaining debt becomes due when calculated on a sliding scale.Instead of obtaining the remaining debt, the seller may, irrespective of the seller’s retention of title,grant a 2-week grace period to the buyer in writing. After this grace period expires unsuccessfully,the seller may issue a statement in writing or via telex to withdraw from the contract. Performanceclaims will then be excluded.
V. Deliveries and Delays
- Delivery dates and delivery periods must be bindingly or non-bindingly agreed in written form.Delivery periods will commence upon contract conclusion. If changes or additions to the contract aresubsequently agreed, delivery periods will, unless agreed otherwise, recommence upon conclusionof the agreement concerning the changes or additions to the contract.
- If a non-binding delivery date or period is exceeded, the buyer may ask the seller in writing todeliver within an appropriate period. Upon receipt of such a request, the seller will be in default. Inaddition to delivery, the buyer may also obtain compensation for default damages. Suchcompensation claims are excluded for simple negligence of the seller. After the grace period passesunsuccessfully, the buyer may issue a written statement to withdraw from the purchase contract orobtain compensation for non-performance. Such compensation claims are excluded for simplenegligence of the seller. If the buyer is a legal person under public law, special fund under public lawor merchant for whom the contract is part of their commercial enterprise, the buyer will only beentitled to compensation for damages in case of intent or gross negligence of the seller. Deliveryclaims are excluded in such cases. If the seller is accidentally unable to perform the delivery while indefault, the seller will also be liable in accordance with the above provisions, unless the damagealso would have occurred in case of on-time delivery.
- If the seller is responsible for the failure to meet bindingly-assured periods or dates or is indefault, the buyer will be entitled to default damages of 0.5% for each completed week of default,though to no more than 5% of the invoice value of the delivery or service affected by the default.Further claims are excluded, unless the default is due at least to gross negligence of the seller
- Even in case of bindingly-agreed periods or dates, the seller will not be responsible for delivery orservice delays due to force majeure or incidents that make delivery significantly more difficult orimpossible for the seller, especially including strikes, lockouts, official orders, etc., even if sufferedby the seller’s suppliers or their sub-suppliers. This will not represent a late delivery or performance.Such events will allow the seller to postpone the delivery or service for the length of the impairmentplus an appropriate lead time or to fully or partially withdraw from the contract due to the non-performed part.
- If an impairment under Subsection 4 lasts longer than 4 months, the buyer may withdraw fromthe unperformed part of the contract. The buyer may not derive damage claims if the delivery periodis extended or if the seller is released from the seller’s obligations. The seller may only invoke thestated circumstances if the seller notifies the buyer without undue delay.
- Construction or form changes, differences in color and changes to the delivery scope by themanufacturer remain reserved during the entire delivery period, except in case of significantchanges to the purchase object that are unreasonable for the buyer.
- Descriptions of the delivery scope, appearance, performance, dimensions, weights, fuelconsumption, operating costs, etc., of the purchase object valid at the time of contract conclusionare part of the contract. Such descriptions must be considered approximations and are notguarantees, but merely provide a measure for determining whether the purchase object is defect-free within the meaning of the guarantee provisions, unless an express assurance is provided
- In case of delays by the seller’s suppliers even though the seller’s orders were placed in time, anappropriate delivery deadline extension will be granted to the seller. This appropriate deliverydeadline extension will be determined by the length of the delay. In such cases, the buyer may notexercise the rights granted above
- Rights may not be derived from symbols or numbers used by the seller to refer to an order orordered purchase object
VI. Transfer of Risk:
- Risk will be transferred to the buyer when the purchase object is handed to the persontransporting the purchase object or when the purchase object leaves the seller’s establishment.Section 474(2) of the German Civil Code [Bürgerliches Gesetzbuch, BGB] remain unaffected.
- If shipment becomes impossible without fault of the seller, risk will be transferred to the buyerwhen the buyer is informed of shipment readiness. This also applies in case of culpable delays ofacceptance
- The seller may perform partial deliveries at any time. Partial deliveries must be paid forproportionately for each delivery.
- In case of deliveries in winter months, the customer must wash the delivered object immediatelyupon delivery to prevent corrosion damage. Damage claims will be based on improper treatment ofthe delivered object and are excluded. Galvanization may result in thermal expansion in the zincbath deforming the tank and parts which may cause a rough surface. This will not impair the functionor quality and corresponding damage claims are excluded.
- The buyer has the right to review the purchase object at the agreed place of acceptance within 8days of receipt of the notification of provision.
- The buyer must accept the purchase object within 8 days.
- Test drives before acceptance must be limited to the customary 2 hours.
- .If the purchase object has significant defects that are not remedied within 30 days of beingreported within the period specified in Subsection 1, the buyer may refuse acceptance.
- If the buyer defaults on acceptance of the purchase object for more than 8 days following receiptof the notification of provision, storage costs of 0.25% of the invoice amount will be charged perweek. The exercise and proof of higher or lower storage costs remain reserved. If the purchaseobject is not accepted within 4 weeks of receipt of the notification of provision or in case of a writtenstatement of withdrawal from the contract, the seller may obtain compensation for damages insteadof payment.
- Compensation for damages obtained by the seller will amount to 15% of the purchase price.Damages may be greater if the seller proves that greater damages were incurred or lower if thebuyer proves that lower damages were incurred.
- f the buyer or the buyer’s agent controls or steers the purchase object during a test drive beforeacceptance, the buyer will be liable for any resulting damage to the purchase object
VIII. Retention of Title
- The purchase object will remain the property of the seller until all claims under the purchasecontract have been settled. This retention of title will apply to any claims the seller acquires againstthe buyer in relation to the purchase object now or subsequently, e.g., for repairs, replacementparts, accessories, fuel supplies, storage and insurance costs or other services.
- If the buyer is a legal person under public law, special fund under public law or merchant forwhom the contract is part of their commercial enterprise, the retention of title will also extend toclaims to which the seller is entitled against the buyer for any current or future legal reason. In thiscase, retention of title will only cease to apply after the buyer settles all claims under the businessrelationship, especially concerning balances (current account reservation). If requested by thebuyer, the seller must waive this retention of title if the buyer settles all of the seller’s claims relatedto the purchase object and if there is adequate collateral for the remaining claims under thebusiness relationship.
- If the buyer acts in breach of contract, especially by defaulting on payments or failing to fulfillretention of title obligations, the seller may take back the purchase object or obtain assignment orsurrender claims from the buyer against third parties. The seller taking back or seizing the objectsubject to retention of title does not represent withdrawal from the contract. This will apply if thebuyer is a legal person under public, special fund under public law or for whom the contract is part oftheir commercial enterprise.
- If the buyer does not fall under the criteria in Subsection 2, the following will apply:
If the buyer acts in breach of contract under Subsection 3, i.e., in case of default, the seller may takeback the object subject to retention of title at the buyer’s expense. The seller taking back or seizingthe object subject to retention of title represents withdrawal from the contract in accordance withSection 13(3) of the German Consumer Credit Act [Verbraucherkreditgesetz, VerbrKrG].
- Rights of retention of the buyer not based on the purchase contract are excluded.
- As long as retention of title applies, the modified purchase object may only be sold, pledged,used as collateral, rented or otherwise provided in a manner that impairs the seller’s securityinterests with the seller’s prior written permission.
- If third parties access, especially by seizing, the object subject to retention of title, the buyer mustinform the third parties of that the seller’s ownership of the object subject to retention of title andmust notify the seller in writing or by telex without undue delay to enable the seller to enforce theseller’s ownership rights. The buyer will be liable if the third party is unable to reimburse the sellerfor resulting court or out-of-court costs.
- For the retention of title period, the buyer must keep the purchase object in proper condition and,except in case of emergencies, have any required and necessary repairs performed by a repairshop recognized by the seller or for the purchase object’s maintenance.
- The object subject to retention of title will only be processed or converted, though without anyobligation, for the seller as the manufacturer. If (co-)ownership expires due to combining, it isalready hereby agreed that the seller’s (co-)ownership of the uniform object will be transferred to theseller in proportion to its value (invoice value). The buyer must store the object (co-)owned by theseller free of charge. Objects for which the seller is entitled to (co-)ownership will hereinafter bereferred to as objects subject to retention of title.
- Pledging or using objects subject to retention of title as collateral is not permitted. The buyeralready hereby fully assigns any claims (including current account reservation claims) establishedfrom the sale or another legal reason (insurance or unlawful acts) concerning objects subject toretention of title to the seller. The seller irrevocably authorizes the buyer to, for the account and inthe name of the buyer, collect the claims assigned to the seller. This authorization may only berevoked if the buyer fails to properly satisfy the buyer’s payment obligations. If requested by theseller, the buyer must disclose the information necessary for each collection of the seller’s claimsand must notify the debtor about the assignment.
If goods sold to a consumer are defective at the time of the transfer of risk, the legal rights to which theconsumer is entitled will not be affected by the following terms and conditions.
- If the delivered object is defective at the time of the transfer of risk, the seller will provide areplacement or rectify the defect. Several rectification attempts are permitted.
- Guarantee claims of the buyer will expire 1 year after delivery of the goods. Section 438(1) Number2 and Section 634a(1) Number 2 of the German Civil Code will remain unaffected.
- If operating or maintenance instructions of the seller are not followed, changes are made to thepurchase object, parts are replaced or consumables are used that do not correspond to the originalspecifications, the guarantee will not apply if the buyer cannot refute the substantiated allegation thatthe defect was caused by one of these incidents.
- The buyer must report any defects to the seller in writing without undue delay, at the latest, within 1week of receipt of the purchase object. Defects that could not be detected during this period despitediligent inspection must be reported to the seller without undue delay upon discovery. For inspection bythe seller, the delivery object must be maintained in the condition it had when the defect wasdiscovered
- If rectification or replacement delivery fails after an appropriate period, the buyer may, at the buyer’sdiscretion, reduce the purchase price or rescind the contract. Rectification will have failed after asecond unsuccessful attempt, unless required otherwise, especially due to the type of the matter ordefect or other circumstances.
- Liability for normal wear is excluded.
- Only the direct buyer is entitled to guarantee claims against the seller. Such guarantee claims maynot be assigned.
- If the buyer specifies the construction or material, guarantee claims will not extend to defectsresulting thereby.
- This Section IX only applies to contracts for deliveries of newly-produced objects and services.Deliveries will be made without guarantees for contracts for deliveries of used objects.
Claims to compensation for damages resulting from injuries to life, limb or health are, irrespective ofthe legal reason on which they are based outside of the German Product Liability Act[Produkthaftungsgesetz, ProdHaftG], excluded, unless they are based on negligent breaches of dutyby the seller or intentional or grossly negligent breaches of duty by a legal representative or vicariousagent of the seller. Other damage claims are excluded, unless they are based on grossly negligentbreaches of duty by the seller. The latter does not apply to damage claims if a guarantee or quality riskis assumed or if rectification or replacement delivery within the meaning of Section IX Subsection 5 fail.
XI. Data Protection
If a contract is concluded, we will collect and process the personal data you provide to usonoursystemand will use this data for the contract processing period, i.e., for order processing andinvoicing.Personal data means any information whereby a person may be directly or indirectlyidentified,e.g., their name,home address, email address,date of birth,profession,account details,etc.If requested, we will inform you free of charge about which personal data we stored concerning you.You may have your personal data rectified, erased or blocked by us at any time.For the length of your credit check and to prevent default, we will transfer your necessary personaldata to the companies commissioned by us,especially collectionandfactoring companies andattorneys.For the purpose and period of the shipment of your goods, we will provide your necessarypersonal data to the companies commissioned by us,especially transportation companies
XII. Construction Changes:
The seller reserves the right to make construction changes at any time; however, the seller is notrequired to make such changes to delivered objects.
XIII. Applicable Law
These General Terms and Conditions and the entire legal relationship between the seller and thebuyer are governed by the law of the Federal Republic of Germany.
XIV. Place of Performance and Place of Jurisdiction
- The place of performance is Polling, Germany
- If the buyer is a merchant registered in a German trade register within the meaning of the GermanCommercial Code, a legal person under public law or a special fund under public law, Mühldorf amInn, Germany, will serve as the exclusive place of jurisdiction for any disputes resulting directly orindirectly from the contractual relationship.
XV. Partial Ineffectiveness:
Should a provision of these General Terms and Conditions or of another agreement be or becomeineffective, this will not affect the effectiveness of any other provisions or agreements.