ZUM DORFKRUG HANDEL GMBH & CO. KG, 21624 NEU WULMSTORF
TERMS AND CONDITIONS OF SALE
Section 1: Preamble and scope
(1) These terms and conditions of sale apply to all business relationships maintained with our customers (hereinafter referred to as Purchasers). These terms and conditions of sale only apply to companies (per BGB [Bürgerliches Gesetzbuch, Civil Code] Section 14), legal entities under public law and special funds under public law as defined in BGB Section 310(1).
(2) The terms and conditions of sale apply as amended and also as a framework for future contracts of sale for movable objects concluded with the same Purchaser without us needing to refer to them again with every new sale.
(3) Our terms and conditions of sale apply to the exclusion of all others. Differing, contradictory or additional terms and conditions of the Purchaser will only become part of the contract when and to the extent we have explicitly approved of them in writing. This requirement for our approval applies to every sale, even those where we perform delivery to the Purchaser without reservation and despite our knowledge of the Purchaser’s terms and conditions.
(4) One-off agreements made individually with the Purchaser (including collateral agreements, additions and changes) always take precedence over these terms and conditions of sale. A written contract or our written confirmation will form the basis for the content of such agreements.
(5) Legally relevant declarations and advice that the Purchaser must submit to us after concluding the contract (e.g. deadline notices, defect notices, declaration of withdrawal or payment reduction) must be given in writing to be enforceable.
(6) Where reference is made to the applicability of statutory regulations, it is only done for the purposes of clarification. Statutory regulations continue to apply regardless of whether reference is made to them unless they have been directly modified or explicitly ruled out in these terms and conditions of sale.
Section 2: Contract entry into force
(1) Our offers are non-binding. They remain non-binding even if we give the Purchaser catalogues, miscellaneous product descriptions or documentation, including electronically, to which we reserve property rights and copyrights. Such documents may not be made accessible to third parties unless we give the orderer our express written permission for it. Should we not accept the orderer’s offer by the date set in (2), the documents must be sent back to us immediately.
(2) The Purchaser’s order of the goods is considered a binding offer to conclude a contract. Provided there are no untoward circumstances arising from the order, we will be entitled to accept this offer of a contract within two weeks of receiving it.
(3) The Purchaser may receive confirmation of our acceptance either in writing (e.g. through an order confirmation) or through delivery of the goods to the Purchaser.
Section 3: Delivery deadline and delays
(1) We will state the delivery deadline when accepting the order. Should that not be the case, the delivery deadline will be approximately two weeks from the conclusion of the contract.
(2) Should we be unable to comply with binding delivery deadlines for reasons unattributable to us (service non-availability), we will immediately inform the Purchaser of this and communicate the new, estimated delivery date at the same time. If the service still does not come become available by the new delivery date, we will be entitled to withdraw from the contract completely or partially, and in this case we will immediately provide a refund for any return service already performed by the Purchaser. Instances of service non-availability will, for these purposes, include when our supplier fails to deliver goods and services to us in a timely manner if we have made a congruent covering transaction. Statutory regulations pertaining to the performance of contracts when a service delivery obligation has been ruled out (e.g. due to impossibility or unfeasibility of the service and/or subsequent performance) remain unaffected by this provision. The Purchaser’s withdrawal and cancellation rights, set forth in Section 8 of these terms and conditions of sale, also remain unaffected by this provision.
(3) We will be considered to have defaulted on delivery when the situation matches that defined in statutory provisions. In any case, the Purchaser will be required to send a payment reminder before we enter default.
Section 4: Delivery, transfer of risk and default in acceptance
(1) Delivery takes place ex works, which is also considered the place of fulfilment. If requested and paid for by the Purchaser, the goods will be sent to another destination (i.e. the sales contract will include carriage of goods). Unless otherwise agreed, we are entitled to decide on the specifics of delivery ourselves (including the logistics company, dispatch route and packaging).
(2) The risk of accidental loss and deterioration of the goods is transferred to the Purchaser by no later than the time at which the goods are handed over. Handover of the goods will not be delayed even if the Purchaser defaults on acceptance. When the contract of sale includes carriage of the goods, the risk of accidental loss and deterioration of the goods and the risk of delay are transferred to the courier, carrier or other person or organisation charged with shipping the goods when we dispatch the goods.
(3) Should the Purchaser default on acceptance, fail to cooperate in a particular action or be responsible for our delivery being delayed, we will be entitled to demand compensation for the losses incurred as a result, including for additional expenses such as storage costs.
Section 5: Prices and terms of payment
(1) Should an individual arrangement not have been made, the prices valid at the time of concluding the contract will be applicable and considered ex-works, subject to the relevant value added tax and not including packaging costs.
(2) Where a fixed price agreement has not been made, we will reserve the right to make reasonable price changes to cover changed labour, material or distribution costs for deliveries taking place three months or more after the contract’s conclusion.
(3) When the contract of sale includes carriage (see Section 4(1)), the Purchaser must cover the ex-works shipping costs and any potential costs for cargo insurance desired by the Purchaser. The Purchaser shall cover any duties, fees, taxes or other public levies. We do not take back packaging for transport or any other purpose as required by the packaging regulations. Such packaging, except for pallets, will become the property of the Purchaser.
(4) The purchase price is due upon issue of the invoice and delivery of the goods, and must be paid within the seven days following the most recently occurring event. Discounts for early payment are only permitted when a special, written agreement has been made.
(5) The Purchaser enters default when the due date specified above passes with no payment made. Interest will be charged on the purchase price at the applicable statutory rate for the duration of the default. We reserve the right to assert claims for additional losses as a result of the default. Our entitlement to commercial maturity interest (HGB [Handelsgesetzbuch, Commercial Code] Section 353) from merchants will remain unaffected.
(6) The Purchaser will only be entitled to rights of offset or retention where a court has recognised the Purchaser’s claim or if we do not dispute it. Section 7(6) will remain unaffected by defective deliveries.
(7) If, after concluding the contract, it becomes visible to us that our entitlement to the purchase price may be affected by the Purchaser’s inability to pay it (e.g. by declaring insolvency), statutory regulations allow us to refuse service and, upon providing any required notice, entitle us to withdraw from the contract (BGB Section 321).
Section 6: Retention of title
(1) Until complete payment has been received for all of our present and future receivables from the contract of sale and ongoing business relationship (secured receivables), title to the goods sold will remain vested in us.
(2) The goods to which we retain title may be neither pledged nor given as security to third parties until we have received full payment for secured receivables. The Purchaser must immediately notify us in writing if third parties gain access to goods belonging to us, and inform us of the extent to which this has occurred. The Purchaser is required to have sufficient original-value insurance against theft, fire and water damages for the goods to which we retain title and to pay for the insurance itself.
(3) Should the Purchaser violate the contract, including by not paying the purchase price due, we will be entitled to withdraw from it in accordance with statutory provisions and demand the return of our goods on the basis of this retention of title and withdrawal from the contract. Should the Purchaser not pay the due purchase price, we may only enforce these rights if we have unsuccessfully set an appropriate payment deadline beforehand or if such a deadline is unnecessary based on statutory provisions.
(4) The Purchaser is authorised to resell and/or manipulate the goods to which we retain title as part of its ordinary course of business. In this case, the following conditions will apply in addition.
(a) Our retention of title extends to all objects created through the manipulation, mixture or combination of our products, to their full value, and we will be considered their manufacturer. Should our goods be manipulated, mixed or combined with those of third parties and should those third parties retain title, we will acquire joint ownership of the manipulated, mixed or combined goods proportionate to the respective invoice amounts for the goods. Furthermore, the same conditions will apply to the product created as those for goods delivered with a retention of title.
(b) The receivables owed by third parties to the Purchaser through the resale of the goods or created product are hereby assigned to us as security in their entirety or proportionate to our share of joint ownership as defined in the preceding provision. We accept this assignment. The Purchaser’s obligations defined in (2) also apply in view of any assigned receivables.
(c) Both we and the Purchaser remain entitled to collect the receivables. We undertake not to collect the receivables for as long as the Purchaser meets its payment obligations to us, does not enter default, does not declare insolvency and has not done anything to discredit its ability to pay us. Should that however be the case, we can demand that the Purchaser disclose to us all assigned receivables and the associated debtors, give us all information required to collect those receivables, hand over to us the associated documentation and inform the debtors (third parties) of the assignment.
(d) Should the realisable value of the securities exceed our receivables by more than 10 per cent, we will release securities of our choice if requested by the Purchaser.
Section 7: Purchaser’s claims for defects
(1) With regard to the Purchaser’s rights in cases of material and legal deficiencies (including incorrect or short delivery), statutory provisions apply where nothing to the contrary has been defined in the following. The special statutory provisions for the final delivery of goods to a consumer (supplier’s redress per BGB Sections 478 and 479) remain unaffected in any situation.
(2) The agreement made regarding the quality of the goods forms the primary basis of our liability for defects. Agreements regarding the quality of the goods include product descriptions marked as such that have been given to the Purchaser before making the order or have been incorporated into the contract in a manner similar to these terms and conditions.
(3) Should no agreement have been made regarding the quality of the goods, statutory regulations will be used as a basis for deciding whether a defect exists or not (BGB Section 434(1) Sentences 2 and 3). However, we do not assume liability for the public statements of third parties.
(4) For the Purchaser to assert claims for defects, it will be required to have met its statutory inspection and notification obligations (HGB Sections 377 and 381). Should a defect be observed during inspection or later on, we must be given written notice immediately. Notification will be considered to have been given immediately when it is sent within two weeks. Irrespective of these inspection and notification obligations, the Purchaser must provide written notice of obvious defects (including incorrect or short delivery) within two weeks of delivery. The deadline will be considered as being met when notice is sent by this date.
(5) If the object delivered is defective, we may first choose whether we repair the defect (rectification) or deliver a defect-free object (replacement delivery) as a form of subsequent performance of contractual duties. We maintain our right to refuse the selected form of subsequent performance based on legal requirements.
(6) We are entitled to make the owed subsequent performance of contractual duties dependent on the Purchaser paying the due purchase price. The Purchaser is however entitled to retain an appropriate part of the purchase price in proportion
to the defect.
(7) The Purchaser must grant us the time and opportunity for the owed subsequent performance, including for handing over the disputed goods for assessment purposes. In the instance of a replacement delivery, the Purchaser must return the defective object to us based on statutory regulations.
(8) We cover the expenses required for assessment and subsequent performance, including transport, infrastructure, labour and material costs, provided a defect actually exists. Should, however, the Purchaser’s request to rectify a defect prove to be unjustified, we will be entitled to demand compensation for the resulting costs incurred.
(9) In urgent situations, e.g. when operational safety is at risk or to prevent disproportionate losses, the Purchaser will have the right to repair the defect itself and demand compensation from us for the objectively required expenses for this. We must be immediately notified of such situations where the Purchaser takes matters into its own hands, and, where possible, in advance. The Purchaser will not have the right to carry out such work itself if we would be entitled to refuse subsequent performance on the basis of statutory regulations.
(10) If subsequent performance fails or an appropriate deadline set by the customer for the subsequent performance passes without success or is rendered unnecessary by statutory regulations, the Purchaser can withdraw from the contract of sale or reduce the purchase price. However, there is no right of withdrawal for insignificant defects.
(11) Claims from the Purchaser for damages or compensation for fruitless expenditure are only allowable if provided for in Section 8 and are otherwise ruled out.
Section 8: Other liability
(1) Provided there is nothing providing otherwise in these terms and conditions of sale, including the following conditions, we only assume liability in cases of violation of contractual and non-contractual obligations based on relevant statutory regulations.
(2) We are only liable for compensation in cases of intentional misconduct and gross negligence, irrespective of the legal grounds. In cases of simple carelessness, we are only liable for:
a) losses arising from the violation of life, limb or health
b) losses arising from the violation of a core contractual obligation (an obligation that must be fulfilled so that the contract can be duly executed in the first place and an obligation that the contract party can and does usually expect to have fulfilled); in this case, however, our liability is limited to compensation for foreseeable losses that typically occur
(3) The limitations of liability set forth in (2) do not apply if we deceitfully keep a defect secret or if we have provided a guarantee of the quality of the goods. The same applies to claims of the Purchaser on the basis of the ProdHaftG (Produkthaftungsgesetz, Product Liability Act).
(4) The Purchaser cannot withdraw from or cancel the contract on account of a breach of duty not consisting in a defect if we are responsible for the breach. A free right of cancellation for the Purchaser is ruled out. Other statutory requirements and legal consequences also continue to apply.
Section 9: Expiry of claims
(1) Notwithstanding BGB Section 438(1)(3), claims based on material and legal deficiencies generally expire one year after delivery.
(2) Special statutory regulations for cases of deceit by the seller (BGB Section 438(3)) and for claims in supplier’s redress in cases of end delivery to a consumer (BGB Section 479) continue to apply.
(3) The above expiry dates provided under sales law also apply to the Purchaser’s contractual and non-contractual claims for compensation based on a defect in the goods, unless the application of the regular statutory expiry date (BGB Sections 195 and 199) would lead to a reduced period of time in any given situation. The expiry dates set by the ProdHaftG continue to apply unchanged in any case. Apart from that, only the statutory expiry dates apply to compensation claims from the Purchaser per Section 8.
Section 10: Choice of law and jurisdiction
(1) The law of the Federal Republic of Germany, to the exclusion of all international and supranational contract regulations and jurisdictions, including UN sales law, applies to these terms and conditions of sale and all legal relations between the Purchaser and ourselves. The requirements and effects of the retention of title in Section 6, on the other hand, are subject to the law of the place of storage for the respective object if the decision in favour of German law is legally impermissible or unenforceable.
(2) Should one or more of the provisions of this contract or its annexes be or become unenforceable or void or contain a gap, the enforceability of the remaining contents of this contract will remain unaffected. The parties shall agree on an enforceable provision to replace the unenforceable or void provision, and this provision will come closest in purpose to what was intended by the parties with the unenforceable or void provision.
(3) If the Purchaser is a merchant for the purposes of the HGB, a legal entity under public law or a special fund under public law, the exclusive and international place of jurisdiction for all disputes resulting directly or indirectly from the contract relationship is our place of business in Neu Wulmsdorf. However, we are also entitled to file suits at the general place of jurisdiction for the Purchaser.
Current as of: October 2017