General Terms and Conditions of Sale, between Entrepreneurs
General Terms and Conditions of Business and Sale of Heim-EDT GmbH, Neuweg 7, 74564 Satteldorf
Section 1 General
(1) The following terms and conditions of sale and delivery apply exclusively to all deliveries and other services; they only apply if the buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law.
(2) Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that the seller has expressly agreedUGtheir validity. This consent requirement applies in any case, for example, even if the seller makes the delivery to the buyer in full knowledge of the buyer’s GTC without reservation.
(3) Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and amendments) shall in any case take precedence over these GtC.
(4) References to the validity of statutory provisions have only clarifying meaning. Even without such clarification, these shall apply insofar as they are not amended or expressly excluded in these General Terms and Conditions.
Section 2 Conclusion of the contract
(1) Seller’s contractual offers are subject to change and are non-binding. This also applies if the buyer has been presented with catalogues, technical documentation or other product descriptions or documents, including in electronic form. The seller reserves the right of ownership and copyright to such documents.
(2) The order of the goods by the buyer shall be deemed to be a binding contract offer, which can be accepted by the seller by order confirmation or by delivery of the goods to the buyer.
(3) Documents rounding theUGoffer or the order confirmation, such as illustrations, drawings, dimensions and weights, are generally to be understood only as approximation values, unless they are expressly designated as binding.
Section 3 Prices, Terms of Payment, Payment VerzUG
(1) Unless otherwise agreed in individual cases, the prices shall apply ex stock plus VAT and excluding packaging and other shipping and transport costs. The packaging is calculated at cost and will only be taken back if the seller is obliged to do so by virtue of mandatory statutory regulations. Any duties, fees, taxes and other public charges shall be borne by the buyer.
(2) If there is more than 4 months between conclusion of the contract and delivery, without the Seller being responsible for a delay in delivery, the Seller may charge the price taking into account any increases in material, wage and other ancillary costs, to be borne by the seller. If the purchase price is increased by more than 40, the buyer is entitled to withdraw from the contract.
(3) If the Seller takes into account the Buyer’s requests for changes, the Buyer shall bear the additional costs resulting from this.
(4) The purchase price is due and payable within 14 days from receipt of the consideration and ZUGang of the invoice. Unauthorized DiscountUG will not be permitted and reclaimed. The place of performance for the purchase price payment is the registered office of the seller.
(5) At the end of the above payment period, the buyer enters VerzUG During the VerzUGthe purchase priceUGis to be paid at the applicable interest rate; that is currently 9 percentage points above the respective base rate. In addition, the VerzUGdamages lump sum in the amount of 40 euros. The Seller reserves the right to assert a further verzUGsschaden under the credit to the VerzUGsschaden savory.
Section 4 Set-off, right of retention
Set-off and the assertion of a right of retention on the part of the buyer are excluded, unless the counterclaim on which the set-off or the right of retention is based is undisputed or legally established. In the event of defects in the delivery, the buyer’s counter-rights remain unaffected, in particular in accordance with Section 8 of these General Terms and Conditions.
Section 5 Delivery period, Delivery VerzUG
(1) A delivery date shall be indicated at the best of our discretion upon acceptance of the order. The delivery date is only binding if it is expressly designated as binding.
(2) The delivery period shall be extended appropriately if the buyer delays or fails to cooperate with any necessary or agreed measures of cooperation. Changes to the delivered goods, which were also initiated by the buyer, lead to a reasonable extension of the delivery period.
(3) If the Seller fails to meet binding delivery periods for reasons for which he is not responsible, he will inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery period. If the service is not available within the new delivery period, the seller is entitled to withdraw from the contract in whole or in part; any consideration already provided by the buyer must be refunded immediately. In particular, the non-availability of the service shall be deemed to be the non-timely self-supply by suppliers if neither the seller nor the subcontractor is at fault or if the seller is not obliged to procure in individual cases.
(4) The occurrence of the delivery contract ugUGdetermined in accordance with the statutory provisions. In any case, a reminder from the buyer is required. If the Seller is in Delivery VerzUG, the Buyer may demand a lump sum of damages, this for each completed calendar week in the amount of 0.5 of the net price, but in total not more than 5 of the delivery value of the delivered goods.UG The seller reserves the right to prove that the buyer has either suffered no damage at all or less than the flat rate.
(5) The rights of the buyer pursuant to Section 9 of these General Terms and Conditions and the legal rights of the seller, in particular in the event of an exclusion of the obligation to perform, especially in the event of impossibility or unreasonable performance, remain unaffected.
Section 6 Delivery, Transfer of Risk, Acceptance, Acceptance VerzUG
(1) Delivery takes place from the seller’s warehouse, where the place of performance is also. At the buyer’s request and expense, the goods will be shipped to another destination. Unless otherwise agreed, the seller is entitled to determine the type of shipment, in particular the transport company, shipping route, packaging himself.
(2) The seller is entitled to make partial deliveries to a reasonable extent.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of the shipment purchase, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay already with delivery of the goods
goods to the carrier, carrier or other consignor. If acceptance has been agreed, this is the relevant date for the transfer of risk. In addition, the statutory provisions for the contract law of the contract of work shall also apply accordingly for an agreed acceptance. The handover or acceptance is the same if the buyer is in the acceptance verzUG
(4) If the BuyerUGcomes into acceptance, he fails to cooperate or if the delivery is delayed for other reasons for which the Buyer is responsible, the Seller shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). In addition, the Seller is entitled to further statutory objections.
Section 7 Retention of title
(1) The Seller reserves the title to the purchased and delivered goods until full payment of all current and future claims arising from the purchase contract and an ongoing business relationship.
(2) The buyer isUGnot required to pledge the goods subject to retention of title to third parties or to transfer them for security, but is entitled to further sell the reserved goods in the orderly course of business. The buyer hereby assigns the resulting claims against his business partners to the seller for security reasons. The seller accepts the assignment. The buyer is revocably authorized to collect the claims assigned to the seller for his own account in his own name.
(3) In the event of a breach of contract on the part of the buyer, in particular in the event of non-payment of the purchase price due, the seller is entitled to withdraw from the contract in accordance with the statutory provisions and the goods are entitled to withdraw from the contract on the basis of the retention of title and the withdrawal to demand. If the buyer does not pay the purchase price, the seller may only assert these rights if he has previously set the buyer a reasonable period for payment without success or if such a deadline is unnecessary in accordance with the statutory provisions.
(4) The retention of title extends to theUGresulting from the processing, mixing or combination of the goods at their full value. If the property of the goods of third parties remains in the processing, mixing or connection with goods of the third party, the seller acquires co-ownership in proportion to the invoice values of the processed, mixed or connected goods. In addition, the same applies to the resulting ortUGnis as to the goods delivered under reservation of title.
(5) If the value of all securities available to the Seller exceeds the existing receivables by more than 10 , the Seller shall, at the buyer’s request, release securities at the Seller’s discretion.
Section 8 Returns of goods
Defects must be reported immediately; see paragraph 9. A return of the goods is only possible after consultation. Goods that do not show any defects are excluded from return.
Section 9 Claims for Defects
(1) The buyer’s claims for defects presuppose that he has complied with his statutory obligations to investigate and complain (Section 377 of the German Commercial Code). If there is a defect during the investigation or later, the seller must notify the buyer immediately in writing. Immediately, a notification is made if it is made within two weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to investigate and complain, the buyer must notify obvious defects in writing within two weeks of delivery; here, too, it is sufficient to send the notification in good time in order to meet the deadline. If the Buyer fails to comply with the
Investigation and / or notification of defects, the seller’s liability for the unreported defect is excluded.
(2) If the delivered item is defective, the buyer may demand supplementary performance in the form of rectification or replacement delivery. The Seller may use the type of supplementary performance chosen by the Buyer in accordance with Section 439 (3) BGB. If the buyer’s decision on the form of supplementary performance is not taken, the right to vote shall be transferred to the seller at the end of a 14-day period. The seller may make the subsequent performance owed conditional on the buyer paying the purchase price due. However, the buyer is entitled to retain a proportionately reasonable part of the purchase price.
(3) The buyer shall give the seller the time and opportunity required for subsequent performance, in particular to hand over the goods complained of for inspection purposes. In the case of the replacement delivery, the buyer hasUGreturned the defective item to the seller in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the re-installation if the seller was not originally obliged to install it.
(4) The Seller shall bear the expenses necessary for the purpose of the examination and subsequent performance, in particular transport, travel, labour and material costs, unless the request for rectification of defects turns out to be unjustified. In this case, the costs shall be reimbursed by the buyer.
(5) Only in urgent cases, e.g. in the event of a threat to operational safety or in order to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from the seller for the costs objectively required for this purpose. The buyer must inform the seller of such self-action immediately, if possible in advance. There is no right to self-performance if the seller would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
(6) In the event of failure of the subsequent performance or the unsuccessful expiry of a reasonable period to be set by the buyer for subsequent performance, or if the setting of the deadline is unnecessary in accordance with the statutory provisions, the buyer may, at his option, reduce the purchase price or withdraw from the contract. The right of withdrawal is excluded in the event of a negligible defect.
(7) Further claims of the buyer, insofar as these do not result from a guarantee assumption, only exist if they result from these GENERAL terms and conditions and are otherwise excluded.
(8) Claims for defects shall be time-barred, to the extent permitted, in one year from the date of delivery of the purchased item, otherwise within the statutory limitation period. If acceptance has been agreed, the limitation period begins with acceptance.
Section 10 Other Limitations of Liability
(1) The Seller’s liability for damages is limited to intent and gross negligence. In the event of simple negligence, the Seller shall only be liable for damages resulting from injury to life, body or health and for damages resulting from the violation of an essential contractual obligation. An obligation is essential if its fulfilment makes the execution of the contract possible in the first place and the contractual partner regularly trusts and can rely on compliance with it. In this case, liability is limited to compensation for foreseeable, typically occurring damage.
(2) The limitations of liability resulting from paragraph 1 do not apply if the seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. This also applies to the claims of the buyer under the Product Liability Act.
(3) Due to a breach of duty which does not consist of a defect, the buyer can only withdraw or terminate if the seller is responsible for it.
Section 11 Choice of law, place of jurisdiction, severability clause
(1) The inclusion and interpretation of these terms and conditions of sale and delivery, as well as the conclusion and interpretation of the legal transactions with the buyer himself, are governed exclusively by the law of the Federal Republic of Germany. The application of the international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
(2) The place of jurisdiction for the seller’s registered office is the place of jurisdiction, insofar as the buyer is a merchant. The Seller is also entitled to bring an action before a court which is responsible for the buyer’s registered office or establishment.
(3) The ineffectiveness of individual provisions of this contract or its components shall not affect the validity of the remaining provisions. The contracting parties are obliged in good faith to replace an ineffective provision with an effective provision equivalent to its economic success, provided that this does not result in a material change in the content of the contract. is brought about; the same applies if a situation in need of regulation is not expressly regulated.