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General Terms and Conditions of Sale and Delivery of ARMINIUS Schleifmittel GmbH
for exclusive use vis-à-vis entrepreneurs, legal entities under public law and special funds under public law
These General Terms and Conditions of Sale and Delivery (GTC) apply to all our deliveries, services and offers. These GTC are an integral part of all contracts that we conclude with our customers for our deliveries and services.
These GCI shall also apply to all future deliveries, services and offers to the customer, even if they are not agreed upon again separately.
Unilateral amendments to these GTC by us shall be notified to the customer in writing within the framework of existing contracts. They shall be deemed to have been approved if the customer does not object in text form. The objection must reach us within six weeks after the customer has received the adaptation notification.
Conditions of the customer or third parties that deviate from these GTC or supplement them shall not apply and shall only become an integral part of the contract if and to the extent that we have agreed to their validity in text form. This shall also apply if we carry out deliveries and services without reservation in the knowledge of contradictory or deviating terms and conditions of business of the customer or third parties or if we refer to letters from the customer which contain or refer to such terms and conditions of business of the customer or third parties.
Amendments and/or changes to the contracts concluded between us and the customer on the basis of these GTC as well as these GTC itself require text form in order to be valid. With the exception of managing directors and authorised signatories, our employees are not entitled to make any verbal agreements deviating from this.
Legally relevant declarations and notifications made to us by the customer after conclusion of the contract or to be submitted to us require text form in order to be valid.
Any verbal promises given by us prior to the conclusion of the contract and/or agreements made by the parties prior to the conclusion of the contract shall be replaced by the agreement made on the basis of these GTC, unless it is expressly stated from them that they shall in any case remain binding.
II. Conclusion of contract
Our offers are subject to confirmation and non-binding.
Orders placed by the customer are binding and the customer is bound to his offer for a period of 14 days from receipt of the order. During this period, we can accept the customer’s order by means of an order confirmation in text form or by delivery of the goods.
Our product descriptions, drawings and representations of the goods and products, information on technical data as well as other information from us on the goods or on products and services are only indicative values and approximately authoritative, unless the usability of the goods or services for the purpose of the contract does not presuppose exact agreement. These statements and representations are descriptions of the goods or services, but not warranted characteristics of quality. Insofar as this does not impair the contractual usability of the goods or services, customary deviations as well as deviations due to legal regulations or technical improvements are permissible. It is also permissible to replace certain components with other, equivalent parts.
We reserve ownership, property rights, industrial property rights and copyrights to all samples, calculations, models, offers, cost estimates and similar information of a physical and immaterial nature – also in electronic form. The customer is not entitled to make this information available to third parties without our prior written consent and must return it free of charge to us or, at our discretion, destroy it if the contract is not concluded.
Our prices are quoted ex works plus value added tax, in the case of delivery plus packaging, transport and freight. Any customs duties and/or other charges incurred shall be borne by the customer.
Unless otherwise agreed, payments are due within 14 days of receipt of our invoice by the customer and delivery or acceptance of the goods or other contractual due dates. The unreserved credit to our bank account is decisive for the timeliness of payment.
The customer shall be deemed to be in default with the expiry of the payment period described above. During the period of delay, the invoice amount affected by the default shall be subject to interest according to the statutory default interest rate. However, we reserve the right to assert further claims for damages caused by delay, even the claim for interest on arrears according to § 353 HGB (German Commercial Code) remains unaffected.
We are entitled to make a delivery partly or completely dependent on payment in advance; if we do so, we shall declare the corresponding reservation at the latest with our order confirmation.
The customer shall only be entitled to rights of retention and set-off insofar as his counterclaims are undisputed or have been legally established.
We shall be entitled to charge appropriate installments for completed partial performances/partial deliveries. If the customer does not pay on a partial invoice or does not do so within the stipulated period, we are entitled to make further fulfilment of the contract dependent on payment of the partial invoice. If the customer does not pay on a partial invoice or does not pay on time, we shall also be entitled to withdraw from the contract if we have previously requested payment from the customer in writing within a reasonable period of time. The assertion of claims for expenses and damages shall remain unaffected.
Our deliveries are made ex works.
Insofar as we state deadlines or dates for the delivery, these are non-binding guide values if these deadlines or periods are not expressly designated as binding or agreed as binding.
If the dispatch of the goods to the customer has been agreed, the time of handover of the goods to the freight forwarder, carrier or any other third party commissioned with the transport is decisive for the observance of the delivery periods or delivery dates. In all other respects, the time at which we have notified the customer that the goods are ready for dispatch shall be decisive for adherence to delivery periods or delivery dates; to the extent that acceptance is required, this shall be the time at which we notify the customer of our readiness for acceptance.
All delivery dates and delivery periods shall apply subject to proper and timely self-delivery, provided that we are not responsible for the delay or inaccuracy of the self-delivery. We will inform the customer immediately if delays in delivery dates or delivery periods are threatened due to improper or untimely delivery to us.
We shall be entitled to make partial deliveries, insofar as this is reasonable for the customer, provided that the partial delivery does not entail a considerable additional expense or additional costs which we do not bear, that the delivery of the remaining part of the goods is guaranteed and that a partial delivery can be used by the customer taking into account the purpose of the contract.
We shall not be liable for delays in delivery or the impossibility of delivery caused by force majeure or other events not foreseeable and not attributable to us at the time of conclusion of the contract (e. g. industrial action, shortage of raw materials, breakdowns through no fault of our own). If delivery is made impossible or – by taking into account the value of the goods – unreasonably difficult for us due to such events or force majeure we shall be entitled to withdraw from the contract. If we are only temporarily prevented from delivering by such events or force majeure, the delivery dates or delivery periods shall be postponed by the period during which the impediment to performance exists, but plus a start-up period of one week. In this case, the customer is entitled to withdraw from the contract if the delayed delivery cannot reasonably be expected of him and he informs us immediately in writing after we have informed him of an obstacle to performance, for which we are obliged to do immediately after becoming aware of the obstacle to performance. The customer’s right to withdraw from the contract in the event of impossibility of performance under the statutory conditions shall remain unaffected.
The statutory provisions shall apply to the existence of a delay in delivery on our part, however, the occurrence of a delay in delivery shall in any case require a reminder by the customer in text form, unless we have seriously and definitively refused delivery.
If our delivery is delayed for reasons for which the customer is responsible (for example, if the customer fails to cooperate or is late in performing a cooperation act owed by him or if the customer is in default of acceptance, we shall be entitled to demand compensation from the customer for expenses and/or damages incurred by us as a result. We are therefore entitled to demand a flat-rate compensation of 0.25% of the value of the goods per calendar day from the customer, beginning with the day following the agreed delivery date or the notification of readiness for dispatch or acceptance by us, provided that no delivery date has been agreed, but not exceeding a total of 5% of the value of the goods. This flat-rate compensation does not apply, however, if the customer proves that we have actually suffered a considerably lower or no damage at all. Our further-reaching statutory rights as well as the proof of a higher damage remain unaffected. In any case, the lump-sum compensation is to be set off against our further claims.
If an acceptance has to take place, this must take place immediately on the date of acceptance, if such a date has not been agreed upon or if an agreed acceptance date cannot be met, the acceptance must take place immediately after our notification of readiness for acceptance. The customer is not entitled to refuse acceptance in the case of a minor defect.
Unless otherwise agreed, the goods or services shall be deemed to have been accepted at the latest if
the delivery or service (including assembly or installation, if owed) has been completed,
we have informed the customer about the completion of the delivery or service, asked him for acceptance and pointed out the acceptance fiction according to this regulation of the GTC,
10 working days have elapsed since completion of the delivery or service or, if the customer has already used the delivery or service (for example, by putting it into operation), 5 working days since completion of the delivery or service and
the customer has not refused acceptance during this period due to a material defect of the goods.
The risk of accidental loss and/or accidental deterioration of the goods shall pass to the customer upon execution of the delivery or service. If the dispatch of the goods has been agreed upon, the risk of accidental loss and/or accidental deterioration shall pass to the customer at the moment the goods, are handed over to the freight forwarder, carrier or any other person designated to carry out the dispatch. This shall also apply if partial deliveries are made or if we owe further services (e. g. commissioning or installation). Insofar as acceptance is required, the time of acceptance shall be decisive for the passing of risk. If the dispatch or handover of the goods or acceptance is delayed due to circumstances caused by the customer, the risk shall pass to the customer after we have informed the customer that the goods or services are ready for dispatch or handover or acceptance.
We are entitled to commission subcontractors with the fulfilment of our existing contractual obligations vis-à-vis the customer.
V. Retention of title
The goods shall remain our property until all our claims against the customer arising from the contract on which the delivery is based have been fulfilled in full.
The customer is obliged to treat the goods delivered to him under retention of title with care and to insure them at his own expense against fire and water damage as well as against theft at replacement value.
The customer may not pledge the goods delivered under retention of title to third parties or use them as security, as long as our claim secured by the retention of title has not been settled. If third parties seize the goods delivered under retention of title or if other third parties access these goods, the customer is obliged to inform this third party of our ownership and to inform us immediately in writing. Necessary costs which we have to bear in the context of the extrajudicial and judicial assertion of our property rights vis-à-vis the third party shall be reimbursed to us by the customer, insofar as these are not reimbursed by the third party.
We shall be entitled to take back the goods delivered under retention of title after we have set the customer a reasonable deadline for performance and this deadline has expired fruitlessly if the customer fails to meet his payment obligations or does not pay on time. In this case, the customer shall bear the transport costs incurred for the return. If we take back goods delivered under retention of title, this shall constitute a withdrawal from the contract; this shall also apply if we seize the goods delivered under retention of title.
The customer may use, resell and/or process the goods delivered under retention of title in the ordinary course of business. The following shall apply in addition to this:
The customer assigns to us already now the claim resulting from the resale of the goods delivered under retention of title as well as those claims in relation to the goods delivered under retention of title which he is entitled to for other reasons against his customer or other third parties or which he will be entitled to in the future (e. g. claims from insurance benefits or unauthorized action), and we accept this assignment.
The customer himself remains authorised to collect the aforementioned claims and we undertake not to collect these claims ourselves as long as the customer fulfils his contractual obligations towards us, in particular as long as he is not in default of payment, no application for insolvency proceedings is filed against the customer’s assets and there are no other deficiencies in his ability to pay which endanger our claim for payment. If such a case arises, however, the customer is obliged to inform his debtors of the assignment and to name his debtors as well as to provide us with all information necessary for the collection of these assigned claims and to hand over the corresponding documents to us.
Processing or transformation of the goods delivered to the customer under retention of title shall always be carried out on our behalf. If the goods delivered under retention of title are processed further with items that are not our property, we shall acquire co-ownership of the newly created item in the ratio of the value of the goods delivered to the customer under retention of title (invoice amount including value added tax) to the other processed items at the time of processing. The same shall apply to the new item resulting from processing as to the goods delivered to the customer under retention of title.
In the event of an inseparable connection or mixing of the goods delivered to the customer under retention of title with items that are not our property, we shall acquire co-ownership of the new item created by combining or mixing in the ratio of the value of the goods delivered under retention of title (invoice amount including value added tax) to the other combined or mixed items at the time of combining or mixing. If the connection or mixing is carried out in such a way that the object not owned by us is to be regarded as the main object, the customer already now transfers to us the proportionate co-ownership of the newly created object and we accept this transfer.
If we acquire co-ownership or sole ownership of a new item, the customer shall keep this for us. At the customer’s request, we shall release securities of our choice if the realisable value of the securities exceeds our claims by more than 10%.
The warranty period is 12 months.
The customer is obliged to examine the goods carefully immediately after delivery and to report defects immediately after discovery in text form. The goods shall be deemed to have been accepted by the customer with regard to obvious defects or such defects which would have been recognisable in the event of an immediate and careful examination, if he does not complain to us in text form about these defects within 5 working days after the passing of risk. With regard to other defects, the goods shall be deemed to have been approved by the customer if the customer does not notify the defect to us in text form within 5 working days after discovery of the defect. However, if the defect was already recognisable to the customer at an earlier point in time during normal use of the goods, this earlier point in time shall be decisive for the commencement of the complaint period.
If the goods or service is defective, we can choose the type of supplementary performance. The right to refuse subsequent performance in accordance with the statutory requirements shall remain unaffected. The subsequent performance owed by us does not include the removal of the defective or the re-installation of a defect-free item, if we were not obliged to install it originally.
We are entitled to make subsequent performance dependent on payment of the purchase price. However, the customer is entitled to retain a reasonable part of the price in relation to the defect.
If the goods or services are defective, we shall bear the costs of subsequent performance. If the customer’s request for rectification of defects subsequently turns out to be unjustified, we can demand compensation from the customer for the costs incurred due to the unjustified rectification of defects.
If and insofar as the customer modifies the goods without our consent or has them modified by third parties and the remedy of defects is made impossible or unreasonably difficult for us, the customer’s warranty rights shall lapse. If such changes of the goods lead to additional costs for the removal of defects, the customer must reimburse us for these additional costs.
If the defectiveness of a component used by us from another manufacturer leads to the defectiveness of our goods or service and if we are unable to remedy this deficiency for legal and/or actual reasons, we can assign to the customer the warranty claims to which we are entitled against the third party manufacturer; in this case, the customer’s warranty claims against us shall only exist in this case and only insofar if and to the extent that the judicial enforcement of the warranty claims against the third party which have been assigned to the customer is legally unenforceable or futile. The statute of limitations for warranty claims of the customer against us shall be suspended for the duration of the third party manufacturer’s claims against us.
The customer is obliged to inform us immediately if third parties assert claims against him in respect of our goods or services due to the infringement of property rights or copyrights. If the goods infringe an industrial property right or copyright of a third party and if the customer is not responsible for this (for example, because we have manufactured the goods in accordance with his specifications), we shall, at our discretion, either modify the goods or exchange them in such a way that the rights of third parties are no longer infringed, the goods nevertheless continue to conform to the contractually agreed quality, or provide the customer with the right of use. If we are unable to do so within a reasonable period of time, both the customer and we shall be entitled to withdraw from the contract.
If the products are manufactured according to the customer’s drawing, we shall only be liable for compliance with the drawing.
In all other respects, the customer’s warranty claims shall be determined in accordance with the statutory provisions.
We shall only be liable for damages – irrespective of the legal basis – in the event of intent and gross negligence. In the case of slight negligence we are liable only for
for damages resulting from injury to life, limb or health,
for damages resulting from the breach of an essential contractual obligation (obligations whose fulfilment make the proper execution of the contract possible at all and on whose fulfilment the customer relies and may rely regularly), whereby liability in this case is limited to the compensation of the foreseeable, typically occurring damage.
The aforementioned limitation of liability does not apply to the customer’s claims under the Product Liability Act and insofar as we are legally compulsorily liable or have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods.
The customer’s right to terminate the contract (especially in accordance with §§ 651,649 BGB) is excluded. The customer may only rescind or terminate the contract due to a breach of duty on our part, which does not consist of a defect, if we are responsible for this breach of duty.
VIII. Applicable law and place of jurisdiction
The legal relations between us and the customer are subject to the law of the Federal Republic of Germany, which applies to the legal relations between domestic contractual partners within the Federal Republic of Germany. The Convention on the International Sale of Goods (UN Sales Convention) is excluded.
Exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship between us and the customer is Detmold, Germany. Mandatory legal provisions regarding exclusive jurisdiction remain unaffected.
IX. Protection of privacy
The data required for the processing of business transactions are stored centrally by us.
Advice in accordance with the German Act on alternative dispute resolution in consumer matters
We are not obliged, nor are we prepared, to participate in dispute settlement proceedings before a consumer conciliation body. We therefore do not participate in dispute settlement proceedings before a consumer conciliation body.
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