I. General information
The following terms of delivery apply to all contracts, deliveries and other services, including paid and free consulting services, unless they are amended or excluded with the express written consent of the seller. Consumers within the meaning of these terms and conditions of business are natural persons with whom a business relationship is entered into without a commercial or self-employed professional activity being attributable to them.
Entrepreneurs within the meaning of these terms and conditions of business are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into and who act in the exercise of a commercial or independent professional activity. Buyers in the sense of the terms and conditions are both consumers and entrepreneurs. If the buyer does not wish to have these terms and conditions of business applied to him, he must notify us of this in writing without delay. Deviating general terms and conditions of the buyer shall not apply. The Buyer's terms and conditions shall not become part of the contract even if the Seller does not object to them again and provides the contractually owed delivery/service without reservation. Any agreements deviating from these terms and conditions shall be included in the written contract.
II. Offer and scope of delivery
- offers of the seller are always subject to change. The documents belonging to the offer, such as illustrations, drawings, weight and dimension specifications are only approximately authoritative, unless they are expressly designated as binding. The changes are inappropriate and are no longer to be accepted by the buyer if they go beyond the customary extent. Services and operating costs are stated as average values.
- by placing an order, the buyer makes a binding declaration that he wishes to purchase the ordered goods. The seller is entitled to accept the contractual offer contained in the order within two weeks of receipt.
- if the consumer orders the goods electronically, we will confirm receipt of the order immediately. The confirmation of receipt does not yet represent a binding acceptance of the order.
- if the consumer orders the goods by electronic means, the text of the contract will be stored by us and sent to the customer by e-mail on request, together with these General Terms and Conditions.
III. Price and payment
- In the absence of a special agreement, prices are ex Seller's warehouse or, in the case of shipment from the manufacturer's works, ex works, excluding packaging. The prices are exclusive of value added tax. If delivery is to take place more than 4 months after conclusion of the contract, the seller is entitled to demand negotiations on a new price determination in the event of price increases by his suppliers, unexpected increases in wage and transport costs. The Seller is only bound to the agreed price for the agreed delivery period - but for at least 4 months. Additional expenses incurred by the Seller as a result of the Buyer's default of acceptance may be reimbursed by the Buyer.
- The buyer undertakes to make payment 10 days after delivery and receipt of the invoice. After expiry of this period, the buyer is in default of payment. The rights of retention to which the buyer is entitled under § 320 BGB are not affected by this. Discount promises shall only apply in the event that the buyer is not in arrears with the payment of earlier deliveries.
- During the period of default, the consumer must pay interest on the monetary debt at a rate of 5% above the base rate.
- During the period of default, the entrepreneur must pay interest on the monetary debt at a rate of 8% above the base interest rate.
- We reserve the right to prove and assert higher default damages against the buyer.
- If the buyer is in arrears with payments - with 2 successive instalments if partial payments have been agreed - the seller can withdraw from the contract after setting a reasonable grace period and demand compensation for non-performance.
- If the seller claims damages for non-fulfilment of the purchase contract, these shall amount to 15% of the purchase price. The amount of damages is to be set higher or lower if the seller proves a higher or the buyer proves a lower damage.
- Offsetting against any counterclaims of the buyer which are disputed by the seller or which have not been legally established is not permitted. The buyer can only assert a right of retention if it is based on claims arising from the purchase contract. If a notice of defects is asserted, payments by the buyer may be withheld to an extent that is in reasonable proportion to the defects that have occurred. Offsetting against any counterclaims of the buyer which are disputed by the seller or which have not been legally established is not permitted. The buyer can only assert a right of retention if it is based on claims arising from the purchase contract. If a notice of defects is asserted, payments by the buyer may be withheld to an extent that is in reasonable proportion to the defects that have occurred.
9..Payments may only be made to employees of the seller if they present a valid power of collection.
IV. Delivery periods and delay
- Delivery periods and dates shall only be deemed to be agreed as approximate unless the Seller has expressly given a written commitment as binding. If applicable, the delivery period shall commence on the day of signing the written purchase contract, but not before the Buyer has provided the documents, permits, releases to be obtained by the Buyer and not before receipt of an agreed down payment.
- The conclusion of the contract is subject to correct and timely delivery by our suppliers. This only applies in the event that we are not responsible for the non-delivery, in particular if a congruent covering transaction is concluded with the supplier. The buyer will be informed immediately about the non-availability of the service. The consideration will be refunded immediately.
- The delivery period shall be deemed to have been met if, by the time it expires, the delivery item has left the Seller's warehouse or, in the case of shipment ex works, the manufacturer's works or notification has been given that the item is ready for shipment.
- The delivery period shall be extended appropriately in the event of measures within the scope of legal labour disputes, in particular strikes and lock-outs, as well as in the event of unforeseen obstacles which lie outside the will of the seller or his vicarious agents, insofar as such obstacles demonstrably have an influence on the delivery of the object sold.
- The same shall apply if the Seller, for his part, is not supplied in time. The seller is entitled to withdraw from the contract if the manufacturer does not supply him. However, this does not apply if the seller is responsible for the non-delivery (e.g. default of payment).
- Compliance with the delivery period presupposes that the buyer has fulfilled his contractual obligations.
- The seller shall not be liable for delayed or omitted (impossibility) deliveries due to the fault of his supplier
- except for selection or monitoring faults. Sentence 1 shall not apply if the relationship between the Seller and the Buyer is governed by the law on contracts for work and services. In any case, the Seller shall be obliged to indemnify the Buyer if the Buyer is unable to fully enforce the claims assigned to him against the supplier.
V. Transfer of risk and transport
- In the absence of a special agreement, the dispatch route and means are left to the choice of the seller. The goods will be insured at the request and expense of the buyer.
- if the buyer is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods shall pass to the buyer when the goods are handed over to the buyer, in the case of mail order purchases when the goods are handed over to the forwarding agent or carrier, but at the latest when the goods leave the warehouse or, in the case of direct shipment ex works, when they leave the works. This also applies if partial deliveries are made or the seller has taken over further services.
- the handover is the same if the buyer is in default of acceptance.
- Delivered items, even if they have minor defects, are to be accepted by the buyer without prejudice to the rights in section VII (notification of defects and liability for defects).
- Partial deliveries are permissible.
VI. Retention of title
- In the case of contracts with consumers, we reserve the right of ownership of the goods until the purchase price has been paid in full. In the case of contracts with entrepreneurs, we reserve title to the goods until all claims arising from an ongoing business relationship have been settled in full.
- the buyer is obliged to secure the object of purchase against intervention by third parties and to insure it immediately against fire "for third party account" and to prove this on request; otherwise the seller is entitled to insure it himself at the expense of the buyer. The buyer undertakes to assign to the buyer any claims for compensation for fire damage.
- the buyer may not pledge the object of purchase or assign it as security without the consent of the seller. The buyer is obliged to inform the seller immediately in writing in the event of seizure or other interventions by third parties so that the seller can take legal action in accordance with § 771 ZPO. If the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the Buyer shall be obliged to compensate the Seller for the costs.
- the entrepreneur is entitled to resell the goods in the ordinary course of business. However, he hereby assigns to the seller all claims in the amount of the final invoice amount (including value added tax) of the seller, which accrue to him from the resale against his customers or third parties, irrespective of whether the object of purchase has been resold without or after processing. The buyer is authorised to collect these claims even after assignment. The Seller's authority to collect the claims itself remains unaffected by this, but the Seller undertakes not to collect the claims as long as the Buyer duly meets his payment obligations. Otherwise, the seller may demand that the buyer disclose the claims assigned to him and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors of the assignment. If a vehicle registration document has been issued for the object of purchase, the seller has the sole right to possess the vehicle registration document for the duration of the reservation of title.
- If the buyer acts contrary to the contract, especially in case of default of payment, the seller is entitled to withdraw from the contract and to demand the return of the goods.
- all costs of the taking back including the costs of the return transport to the head office of the seller and the utilization of the object of purchase shall be borne by the buyer. The utilization costs amount without proof 10% of the utilization proceeds including value added tax. They are to be set higher or lower if the seller proves higher costs or the buyer proves lower costs. The proceeds shall be credited to the buyer after deduction of the costs and other claims of the seller in connection with the purchase contract.
VII. Notification of defects and liability for defects
- In the case of new items, the warranty period for entrepreneurs is one year from delivery of the goods. For used goods, the warranty period for consumers is one year from delivery of the goods. The seller shall only be liable for defects in used goods vis-à-vis entrepreneurs if this has been expressly agreed with the buyer in writing.
- No warranty is assumed for damage caused by the following reasons: unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground; chemical, electronic or electrical influences, unless they are attributable to a fault on the part of the seller. Any modifications or repair work carried out improperly by the Buyer or third parties without the Seller's prior approval shall invalidate any liability for the consequences thereof.
- If the buyer is an entrepreneur, he must inspect the received goods for quantity, condition and assured properties immediately after arrival. Obvious defects must be reported to the seller immediately, at the latest within 14 days, by written notification. If the buyer is a consumer, he must notify the seller in writing of obvious defects within a period of two months after the time at which the condition of the goods contrary to the contract was established. The date of receipt of the notification is decisive for compliance with the time limit. If the consumer fails to inform the seller, the warranty rights expire two months after the consumer has discovered the defect. This does not apply in the case of malice on the part of the seller. The consumer bears the burden of proof for the point in time at which the defect was discovered. If the consumer was persuaded to purchase the item by incorrect manufacturer's statements, the burden of proof for his purchase decision lies with him. In the case of used goods, the consumer shall bear the burden of proof for the defectiveness of the item.
- If the buyer is an entrepreneur, those parts which prove to be unusable or impaired in their usability as a result of a circumstance existing at the time of the transfer of risk - in particular due to a lack of design, poor construction materials or defective execution - are to be repaired or replaced free of charge at the seller's reasonable discretion. If the buyer is a consumer, he first has the choice of whether the subsequent performance is to take place by repair or replacement. However, the seller is entitled to refuse the type of subsequent performance chosen if it is only possible at disproportionate cost and the other type of subsequent performance does not cause significant disadvantages for the consumer. Replaced parts become the property of the seller.
- If the supplementary performance fails, the buyer may, at his discretion, demand a reduction of the remuneration (abatement) or cancellation of the contract (withdrawal). However, in the event of only a minor breach of contract, in particular in the case of only minor defects, the buyer shall not be entitled to withdraw from the contract.
- If the buyer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he is not entitled to any additional compensation claims due to the defect. If the buyer chooses compensation for damages after subsequent performance has failed, the goods remain with the buyer if this is reasonable. The compensation for damages is limited to the difference between the purchase price and the value of the defective item. This does not apply if the seller has maliciously caused the breach of contract.
- If the buyer is an entrepreneur, only the manufacturer's product description is deemed agreed as the quality of the goods. Public statements, recommendations or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.
- If the buyer receives faulty assembly instructions, the seller is only obliged to supply faultless assembly instructions, and this only if the fault in the assembly instructions prevents proper assembly. The customer does not receive guarantees in the legal sense from the seller. Manufacturer guarantees remain unaffected by this.
VIII. Field Trial
- If field test conditions are granted, the machine may be tested once in operation for half a day. In this case the machine can only be returned within 3 days without giving reasons. A written request to the seller to pick up the machine is equivalent to the return. The provisions laid down in the above section VII (Notice of defects and liability for defects) shall remain unaffected.
IX. General limitation of liability
- The seller is liable to the buyer for intent and gross negligence in accordance with the statutory provisions. If the Seller breaches a contractual obligation through slight negligence, the Seller's liability shall be limited to the foreseeable, direct average damage typical of the contract and foreseeable according to the type of goods. In all other cases, the liability of the seller - regardless of the legal grounds - is excluded. This also applies to slightly negligent breaches of duty by the legal representatives or vicarious agents of the seller. The Seller shall not be liable to entrepreneurs for slightly negligent breaches of insignificant contractual obligations.
- The above limitations of liability do not affect the buyer's claims arising from product liability. Furthermore, the limitations of liability do not apply to physical injury and damage to health attributable to the seller or in the event of loss of life of the buyer.
- The buyer's claims for damages due to a defect become time-barred one year after delivery of the goods. This does not apply if the seller can be accused of gross negligence or in the case of physical injury and damage to health attributable to the seller or in the case of loss of life of the buyer.
X. Place of performance, place of jurisdiction, applicable law
- The place of performance and exclusive place of jurisdiction for delivery and payment as well as for all disputes arising between the parties, insofar as the buyer is a registered trader, a legal entity under public law or a special fund under public law, is the seller's head office or the Zeven district court.
- The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
- Should any provision of this contract be or become invalid, the validity of the remaining provisions shall remain unaffected. The contracting parties hereby agree to replace the invalid provision by a provision which comes as close as possible to the economic purpose of the invalid provision.