GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
ESZ Wilfried Becker GmbH
§ 1 General, scope of application
(1) Our following General Terms and Conditions shall apply exclusively to all current and future transactions with the customer. Any deviating terms and conditions or counter-confirmations of the customer, which are hereby contradicted, shall only be binding on us if and to the extent that we expressly agree to them in writing. Silence shall not be deemed to be consent.
(2) Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
Our terms and conditions of sale shall only apply to entrepreneurs within the meaning of § 310 I BGB.
§ 2 Offer, conclusion of contract, official approvals
1. Our offers are subject to change and non-binding. Quantities, weights, prices, dimensions, technical and other information in the offer and on enclosed documents, such as illustrations, drawings and other correspondence, etc., are to be regarded as approximate only, unless they have been expressly designated as binding in writing. The offer documents, illustrations and
We reserve the property rights and copyrights to all drawings etc.. They may not be made accessible to third parties.
2. The contract is concluded by our written order confirmation or when we have executed the contract.
3. If there are more than four months between the conclusion of the contract and the agreed delivery date, our prices valid at the time of delivery and provision shall apply, provided that the relevant prices have changed after confirmation of the order.
Kostenfaktoren, insbesondere unsere Einkaufspreise, geändert haben.
4. We are not responsible for the granting of official permits.
§ 3 Returnable pallets, reusable pallets, mesh pallets
Returnable pallets are not included in the price. The rental fee will be charged separately. The packaging must be returned freight paid by the customer. For reusable pallets and lattice boxes we charge an exchange fee.
§ 4 Delivery Periods, Contractual Disruptions, Withdrawal
1. Delivery deadlines are determined to the best of our knowledge. We shall endeavor to meet the agreed dates. Otherwise, the stated delivery dates are non-binding unless they are expressly confirmed by us in writing as binding.
2. In the event of a justified interest, we shall be entitled to make partial deliveries within the scope of what is reasonable for the customer.
3. We reserve the right to withdraw from the contract in whole or in part if we ourselves are not supplied properly or on time by our suppliers for reasons for which we are not responsible.
4 .If compliance with the agreed delivery period is not possible due to force majeure, the customer shall be notified immediately of the impeding circumstances. The delivery period shall be extended to the extent reasonable for the customer. Force majeure shall be circumstances for which we are not responsible, which are not foreseeable and which cannot be remedied by reasonable expenditure. A claim of the customer for compensation is excluded.
5. Limitation of liability due to delay in delivery
The manufacturer shall be liable for delay in performance in cases of intent or gross negligence on the part of the Manufacturer or a representative or vicarious agent as well as in cases of culpably caused injury to life, limb or health in accordance with the statutory provisions. However, in cases of gross negligence, the liability of the Manufacturer shall be limited to the foreseeable damage typical for the contract. Outside the cases of sentences 1 and 2, the liability of the Contractor due to delay for damages in addition to performance shall be limited to a total of 3% and for damages in lieu of performance (including the reimbursement of futile expenses) to a total of 10% of the value of the delivery. Further claims of the customer are excluded - even after expiry of a deadline for performance set to the manufacturer. The limitation shall not apply in the event of culpable violation of essential contractual obligations. However, the claim for damages for the culpable breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another case according to sentence 1 is given at the same time. The right of the customer to withdraw from the contract in accordance with other provisions of these General Terms and Conditions shall remain unaffected. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
Limited liability in case of impossibility
The contractor shall be liable in the event of impossibility of delivery in cases of intent or gross negligence on the part of the Contractor or a representative or vicarious agent as well as in the event of a
culpably caused injury to life, body or health in accordance with the statutory provisions. However, in cases of gross negligence, the Contractor's liability shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 applies at the same time. Outside the cases of sentence 1 and sentence 2, the Contractor's liability for impossibility of performance shall be limited to damages and compensation for futile expenses.
Expenses shall be limited to a total of 10 % of the value of the delivery. Further claims of the Customer due to impossibility of delivery shall be excluded - even after expiry of any deadline set for the Contractor to perform. The Customer's right to withdraw from the contract in accordance with other provisions of these General Terms and Conditions shall remain unaffected. A change in the burden of proof to the disadvantage of the Customer is not associated with the above provisions.
6. insofar as no deadlines have been agreed for call orders, the entire quantity must be called and accepted no later than six months after conclusion of the contract. Otherwise, we shall be entitled, after issuing a reminder, to ship them at our discretion at the expense and risk of the customer or to store them at our discretion
und sofort zu berechnen.
§ 5 Shipping, transfer of risk, returns
1. The risk shall pass to the customer when the goods are handed over to the customer, the forwarding agent, the carrier or the railroad, at the latest, however, when the goods leave our warehouse or delivery plant. This shall also apply if the delivery item is delivered in individual parts or if we have accepted the delivery, as well as in the case of carriage paid, free, FOB or CIF deliveries. In the absence of special instructions from the customer, we shall select the means of transport and the transport route to the exclusion of any liability. If shipment is delayed at the request of the customer or for other reasons caused by the customer, the risk shall pass to the customer upon notification of readiness for shipment.
2. The transport is insured only in case of special order.
If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the purchaser is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In this case, we shall calculate compensation based on the circumstances of the individual case, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for shipment. The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected. The customer shall be entitled to prove that we have suffered no damage at all or only significantly less damage.
§ 6 Prices, packaging
1. Quoted prices are ex our warehouse excluding the costs of shipping/freight and any transport insurance, unless otherwise expressly agreed in writing, and plus the statutory value added tax.
2. Packaging is included in the price, unless otherwise agreed in writing.
§ 7 Terms of payment, discount, provision of security, set-off
1. Unless otherwise expressly agreed in writing, our invoices for goods are payable within ten days of the invoice date in cash less 2% discount, or within thirty days of the invoice date in cash without deduction. Our assembly invoices are payable within fourteen days of the invoice date in cash without deduction.
2. If we become aware of facts which, according to commercial judgment, give rise to justified doubts as to the customer's solvency, we may declare all claims arising from the business relationship, including those which have been deferred or for which we have accepted bills of exchange on account of performance, immediately due and payable. Furthermore, in this case we shall be entitled to perform our deliveries or services only against advance payment or provision of security. If an advance payment or security is not provided upon request, we shall be entitled to withdraw from the contract or to claim damages for non-performance after setting a reasonable grace period.
3. After the due date of the claim, we shall be entitled to charge interest at a rate of 8 percentage points above the base interest rate of the European Central Bank applicable at the time. Further claims arising from default shall not be affected by this.
4. The customer is only entitled to set-off and retention if the counterclaims are undisputed and due or have been legally established.
5. We are entitled to offset our own claims against claims of the customer, even if these are not yet due, or to withhold our services, even if these are limited in time or conditional.
§ 8 Prohibition of assignment
The customer may assign claims arising from this contract only with the consent of the Manufacturer.
§ 9 Reservation of ownership
1.The delivered goods, including the packaging, shall remain our property (reserved goods) until all claims arising from the business relationship with the customer have been settled in full. In the case of a current account, the reserved property shall be deemed to be security for our balance claim.
2. The pledging or transfer by way of security of goods subject to retention of title to third parties is excluded. In the event of seizure, confiscation and other impairments of our rights by third parties, the customer must expressly point out the reservation of title and notify us immediately.
3. The treatment and processing of goods subject to retention of title shall be carried out for us as manufacturer within the meaning of §950 BGB without obligating us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of these terms and conditions. The material used for further processing shall also remain our property in accordance with this clause. If the reserved goods are processed or combined with other goods by customers, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires due to combination or processing, the customer already now transfers to us the ownership rights to which he is entitled in the new stock or the new item to the extent of the invoice value of the reserved goods. He shall store them for us free of charge. The co-ownership rights existing hereunder shall be deemed to be reserved goods within the meaning of this section.
4. The customer shall only be entitled to resell or otherwise dispose of the goods subject to retention of title if the resale takes place in the course of his normal business and as long as he is not in default vis-à-vis us. The customer hereby assigns to us all claims arising from the resale, including any securities, in the amount of the purchase price claim. In the event that the goods subject to retention of title are sold together with other goods not belonging to us, the assignment of the claims from the resale shall be made in the amount of the invoice value of the goods subject to retention of title. In the event that the customer sells goods subject to retention of title which have been processed together with other goods not belonging to us, the assignment shall be in the amount of the value of our co-ownership share.
5. The customer is entitled to collect claims from the resale until our revocation at any time. The customer shall not be authorized to assign the claims to third parties under any circumstances. At our request, he shall be obliged to inform his customers of the assignment made in our favor and to provide us with the information and documents required for collection. In addition, we ourselves shall be entitled to disclose the assignment to the customer's customer at the customer's expense. The assertion of the reservation of title shall only be deemed to be a withdrawal from the contract if we expressly declare this in writing, unless otherwise prescribed by law.
6. The customer shall immediately inform us in writing of any claims asserted by third parties with regard to the goods subject to retention of title or the claims assigned to the seller. If the retention of title is not effective under the laws of a country to which the goods have been delivered by us, the security corresponding to the retention of title or the assignment under the laws of that country shall be deemed agreed. If the customer's cooperation is required in this respect, the customer shall be obliged to take all measures necessary to establish and maintain such rights.
7. The customer hereby irrevocably grants us access to its business and manufacturing premises as well as to its warehouses at any time for the purpose of ascertaining and physically taking possession of the goods owned by us.
8. If the value of the securities existing for us in accordance with the above provisions exceeds the secured claims by a total of 20%, we shall release securities of our choice to this extent at the customer's request.
Pledging or transfer of ownership by way of security to third parties is excluded.
§ 10 Warranty
1. The customer shall inspect the delivered goods immediately upon receipt and notify us in writing of any defects and incompleteness within two weeks of receipt at the latest. Otherwise, the goods shall be deemed to have been approved. Defects in the goods which arise during carriage by an independent carrier must also be reported immediately to the carrier in accordance with the conditions of carriage applicable to the carriage.
2. The manufacturer shall in any case have the right to choose between rectification of defects and new delivery. The customer's request for subsequent performance must be made in writing. The manufacturer shall be granted a period of six weeks for subsequent performance. If the delivery is to be rectified, the rectification shall only be deemed to have failed after the second unsuccessful attempt. If the subsequent performance fails, the Customer shall be entitled to reduce the price or - if a construction work is not the subject of the liability for defects - to withdraw from the contract at its discretion. The statutory cases of dispensability of setting a deadline shall remain unaffected. The application of § 478, 479 BGB (right of recourse of the contractor) remains unaffected.
3.No warranty is given in particular for damage caused by improper or faulty transport, assembly, use, treatment, maintenance and natural wear and tear.
4. We shall be liable for further claims of the customer, in particular claims for damages due to defects or consequential damage caused by defects, exclusively in accordance with the following provisions in §§ 11 and 12.
5. Exclusion of minor defects: Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality or only insignificant impairment of usability.
§ 11 Passing on of expenses for supplementary performance/costs of unjustified notice of defect
1. The expenses necessary for the purpose of subsequent performance shall be borne by the Customer insofar as they are increased by the fact that the Supplies are brought to another location than the Manufacturer's branch office, unless doing so complies with the intended use of the Supplies. The application of § 478 (right of recourse of the Contractor) shall remain unaffected. Without prejudice to any further claims of the Contractor, the Customer shall, in the event of an unjustified notice of defect, reimburse the Contractor for the expenses incurred in inspecting and - if so requested - remedying the defect.
2. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality or in the case of only insignificant impairment of the usability.
§ 12 Disclaimer (without delivery delay/impossibility)
1. The manufacturer is liable in cases of intent or gross negligence of the manufacturer or a representative or vicarious agent as well as in cases of culpably caused injury to life, body or health according to the statutory provisions. In cases of gross negligence, however, the Manufacturer's liability shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentences 1 or 3 of this paragraph applies at the same time. Apart from that, the Manufacturer shall only be liable in accordance with the Product Liability Act, due to culpable violation of essential contractual obligations or insofar as the Manufacturer has fraudulently concealed the defect or has assumed a guarantee for the quality of the delivery item. The claim for damages for the violation of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph applies at the same time.
2. The provisions of paragraph 1 above shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, breach of duties arising from the contractual obligation or tort. They shall also apply to the claim for compensation for futile expenses. However, liability for delay shall be determined in accordance with Section 4 No. 5 of these Terms and Conditions, liability for impossibility in accordance with Section 4 No. 5 of these Terms and Conditions.
§ 13 Statute of Limitations
1. Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
2. If, however, the goods are a building structure or an item which has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB) shall also remain unaffected.
3. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, the Buyer's claims for damages under the liability provisions of § 309 No. lit. a and b of the German Civil Code and under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
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