1 General regulations, scope
- These General Conditions of Sale (“Terms and Conditions”) of Franz Josef Bauer GmbH scale factory (“Supplier”) apply to the business relationship with the customer of the supplier (“Customer”), as far as the customer is an entrepreneur (§ 14 BGB), a legal Person under public law or a special fund under public law. The subject of the business relationship is in particular the sale and delivery of products (“products”).
- Unless otherwise agreed, the GTC shall apply in the version valid at the time of the order – at least in the version last communicated to the customer in text form – as a framework agreement also for similar future contracts, without the supplier returning to them in each individual case would have to point out.
- The terms and conditions apply exclusively. Divergent, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent that the supplier has expressly agreed to their validity in writing. This consent requirement applies in any case, e.g. even if the supplier carries out the delivery without reservation in knowledge of the customer’s terms and conditions.
- Individual agreements made with the customer in individual cases, including collateral agreements, additions and / or changes, are in any case prior to these terms and conditions. The content of such agreements shall be governed by written agreement or written confirmation from the supplier, subject to proof to the contrary.
- Legally relevant declarations and advertisements of the customer with respect to the contract (for example, deadlines, notice of defects) are in writing, i. in written or textual form (eg letter, e-mail, fax).
- Offers by the supplier are non-binding. This also applies if the supplier has provided the customer with catalogs, technical documentation such as drawings, plans, calculations, references to DIN standards, other product descriptions or documents in which the supplier reserves the proprietary rights and copyrights.
- The order by the customer is considered a binding contract offer. Acceptance of the order requires written confirmation from the supplier (eg order confirmation). The acceptance can also be made by delivery of the products.
- If the customer wishes to refine products within the scope of his order, the supplier will first clarify the details with the customer. Following this, the customer shall receive a corresponding written offer from the supplier, which requires the written acceptance by the customer.
- With the acceptance, a contract is concluded between the supplier and the customer.
3 Delivery, transfer of risk, default of acceptance
- Unless otherwise agreed or otherwise regulated, the delivery of the products shall take place at the place of destination specified by the customer in the order. The supplier is entitled to determine the type of shipment (in particular transport company, shipping route, packaging). The delivery is effected as soon as the supplier has delivered the products to the transport person, ie has handed them over. The supplier invoices the customer for the costs of transport.
- The risk of accidental loss and accidental deterioration of the products passes to the customer with their delivery (see § 3 clause 1 of these GTC).3. If the customer defaults on acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the customer is responsible, the supplier is entitled to reimbursement of the resulting damage, including additional expenses (eg storage costs, transport costs ) to demand.
4 Delivery time, delivery delay
- The agreement of possible delivery times is made individually and is only binding if the supplier confirms the respective delivery time upon acceptance of the order in writing. In the case of refinement gem. § 2 para. 3 of these GTC, the respective delivery period is only binding if it has been submitted by the supplier in his written offer and has been accepted in writing by the customer.
- If the supplier can not comply with binding delivery deadlines for reasons for which he is not responsible (non-availability of the service), the supplier shall inform the customer immediately and at the same time notify the expected new delivery deadline. If the service is not available within the new delivery period, the supplier is entitled to withdraw from the contract in whole or in part; The supplier will immediately reimburse the customer for any consideration already provided. As a case of non-availability of the service in this sense applies in particular the non-timely self-supply by the supplier of the supplier, if the supplier has a congruent hedging transaction, neither the supplier nor the supplier is at fault or the supplier in an individual case for procurement is not required is.
- The occurrence of the delivery delay of the supplier is determined by the statutory provisions. In any case, however, a reminder by the customer is required.
- The rights of the customer acc. § 8 of these GTC (“Liability”) and the legal rights of the supplier, in particular in the case of an exclusion of the obligation to perform (for example due to impossibility or unreasonableness of the service and / or subsequent performance), remain unaffected.
- The supplier is entitled to partial deliveries, as far as this is reasonable for the customer.
5 Overproduction, transmission
- As far as a refinement of the products acc. § 2 para. 3 terms and conditions, it can come for production technical reasons to overproduction.
- In such a case, the supplier reserves a delivery of up to 10% of the agreed quantity.
- If an overproduction of more than 10% of the agreed quantity has taken place, the supplier will inform the customer about this. The customer has the right to refuse the overproduction, which goes beyond the 10% limit. In this case, the supplier is entitled to resell the products rejected by the customer as special items to third parties, even though the customer’s data are deposited on these products.
6 Prices, terms of payment
- Unless otherwise agreed in individual cases, the current prices of the supplier valid at the time of the conclusion of the contract shall apply plus VAT, if any, plus the costs of transport. The cost of packaging required for transport is included in the prices, provided that this is standard packaging. If a special packaging is required, the costs for this are not included in the prices and will be billed separately to the customer.
- Unless otherwise agreed in individual cases, the purchase price is due and paid in full within thirty (30) days – and with a 2% discount within ten (10) days – from the date of invoice and delivery of the products.
- Upon expiry of the above payment period, the customer is in default. The purchase price shall be payable during the default at the applicable statutory default interest rate. The Supplier reserves the right to assert further damages caused by the delay. The claim of the supplier to the commercial maturity interest (§ 353 HGB) remains unaffected to merchants.
- If after conclusion of the contract recognizable (eg by application for opening of insolvency proceedings) that the claim of the supplier to the purchase price is jeopardized by lack of capacity of the customer, the supplier is in accordance with statutory provisions to refuse performance and – possibly after Deadline – entitled to withdraw from the contract (§ 321 BGB). This also applies if the customer is in default with a substantial part of the payment obligations towards the supplier. Further legal rights to assert damages instead of performance or reimbursement of expenses remain unaffected.
- The customer is entitled to set-off or retention rights only insofar as his claim is legally established or undisputed. In case of deficiencies of the delivery, the opposing rights of the customer, in particular in accordance with. § 7 of these Terms and Conditions (“Warranty Rights”), unaffected.
7 warranty rights
- For the rights of the customer in case of material and legal defects, the statutory provisions, unless otherwise stated below.
- The basis of the supplier’s liability for defects is above all the agreement made on the nature of the products. Insofar as the condition has not been agreed upon, it shall be judged according to the legal regulation whether a defect is present (§ 434 para. 1 p. 2 and p. 3 BGB).
- The warranty claims of the customer presuppose that he has complied with his legal obligation to investigate and to notify (§§ 377, 381 HGB). For this purpose, the customer will examine the delivered products immediately after delivery. If the inspection reveals a defect, the customer will immediately notify the supplier of this defect in writing. Hidden defects will be reported to the supplier in writing immediately after discovery of the hidden defect. For timely delivery of the timely dispatch of the complaint is sufficient. If the customer fails to report the defect or if the defect is reported late, the products are deemed to have been approved. The liability of the supplier for the defect that is not or not promptly notified is excluded according to the legal regulations.
- If the delivered products are defective, the supplier can first of all choose whether to perform supplementary performance by rectification of the defect (rectification) or by delivery of a defect-free product (replacement delivery). The supplier’s right to refuse supplementary performance under statutory conditions remains unaffected.
- The expenses necessary for the purpose of the examination and supplementary performance, in particular transport, travel, labor and material costs, are borne / refunded by the supplier, if there is actually a defect. However, if a customer’s defect removal request turns out to be unjustified, the supplier may demand that the costs incurred by the customer be replaced by the customer, unless the lack of manageability was not recognizable to the customer.
- If the subsequent performance has failed or if a reasonable deadline to be set by the customer for the subsequent performance has expired without success or is dispensable in accordance with the statutory provisions, the customer may withdraw from the contract or reduce the purchase price. Claims of the customer for damages and / or compensation for futile expenses exist only in accordance with § 8 of these terms and conditions (“liability”) and are otherwise excluded.
- Insofar as nothing to the contrary arises from these General Terms and Conditions, including the following provisions, the Supplier shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
- The supplier is liable for damages – for whatever legal reason – in the case of intent and gross negligence. In case of ordinary negligence, the supplier is only liable – subject to a milder liability according to legal regulations
a) for damage resulting from injury to life, body or health,
b) for damages resulting from the breach of material contractual obligations, i. an obligation the fulfillment of which enables the proper execution of the contract in the first place and on the compliance of which the contracting party regularly trusts and may trust. In this case, however, the liability of the supplier shall be limited to compensation for foreseeable, typically occurring damage.
- The liability restrictions resulting from para. 2 of this regulation also apply to breaches of duty by persons whose fault the supplier is responsible for according to legal regulations. They do not apply insofar as the supplier fraudulently concealed a defect or assumed a guarantee for the condition of the goods. The limitations of liability also do not apply to claims of the customer under the Product Liability Act and other mandatory provisions.
9 Retention of title
- The delivered products remain the property of the supplier (“reserved goods”) until the complete fulfillment of all present and future claims and claims (including any balance claims from current account) of the supplier against the customer from the contract and the current business relationship. This applies insofar as this is permitted under the law of the country in whose territory the reserved goods are in accordance with the contract. If this right does not permit the retention of title to the delivered products, but permits the retention of similar rights, the supplier is entitled to assert these rights. The customer undertakes to support all measures for the protection of the property or the security interests in the delivered products.
- The reserved goods may not be pledged to third parties or transferred as collateral before complete payment of the secured claims. The customer must immediately inform the supplier in writing, if and in so far as an application for the opening of insolvency proceedings is made or if third parties (eg garnishments) access the reserved goods.
- The customer is – until revoked gem. Para. 3 c) of this regulation – authorized to resell and / or process the reserved goods in the ordinary course of business. This authorization for resale / further processing is excluded if the internal relationship between the customer and his customers is a prohibition on the assignment of the customer’s claims. In the case of resale / further processing, the following additionally applies:
- a) The retention of title extends to the full value of the product resulting from the processing, mixing or combination of the goods subject to retention of title, whereby the supplier is deemed to be the manufacturer. If the right of ownership remains with the processing, mixing or combination with goods of third parties, the supplier acquires co-ownership in proportion to the invoice values of the processed, mixed or linked (reserved) goods. Incidentally, the same applies to the resulting product as to the goods subject to retention of title.
- b) The bestseller hereby assigns in full the claims arising from the resale of the reserved goods or the product against third parties or, in the case of co-ownership, to the supplier in the amount of any co-ownership of the supplier in accordance with the preceding paragraph , The supplier accepts the assignment. The in no. 2 obligations of the customer mentioned in this regulation also apply with regard to the assigned claims.
- c) The customer remains authorized to collect the claims in addition to the supplier. The supplier undertakes not to collect the claim as long as the customer meets his payment obligations towards the supplier, he does not default on payment, no application for opening of insolvency proceedings is made, no other defect of his efficiency exists and the supplier owns -tumreserves not by exercising a right acc. Para. 4 of that legislation. Upon the occurrence of one of the above-mentioned events, the customer’s collection authorization expires without any explicit revocation. The supplier can then demand that the customer notifies the supplier of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the third party of the assignment. Furthermore, in such a case, the supplier is entitled to revoke the customer’s authorization to resell and further process the reserved goods.
- In the event of breach of contract by the customer, in particular in the event of non-payment of the purchase price, the supplier is entitled to withdraw from the contract in accordance with the statutory provisions and / or to demand the reserved goods on the basis of the retention of title. The request for release does not include the declaration of withdrawal; on the contrary, the supplier is entitled to demand only the reserved goods and to reserve the right of withdrawal. If the customer does not pay the due purchase price, the supplier may only assert these rights if he has unsuccessfully set a reasonable deadline for payment to the customer or if such a deadline according to the statutory provisions is not required.
- If the realizable value of the securities exceeds the claims of the supplier by more than 10%, the supplier shall, at the written request of the customer, release securities at his own discretion.
- Deviating from § 438 Abs. 1 Nr. 3 BGB (German Civil Code) the general limitation period for claims arising from material and legal defects is one (1) year from delivery.
- The abovementioned reduction of limitation does not apply to special statutory limitation periods, for example in the case of buildings (§ 438 para. 1 no. 2 BGB), for claims for surrender by third parties (§ 438 para. 1 no. 1 BGB), in case of malice of the supplier (§ 438 para. 3 BGB), for claims in Supplier recourse on final delivery to a consumer (§ 479 BGB).
- The preceding statutory periods of limitation shall also apply to contractual and non-contractual claims for damages of the customer, which are based on a defect of the products, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead in individual cases to a shorter prescription.
- For damage claims of the customer gem. § 8 para. 2 p. 1 and p. 2 a) of these General Terms and Conditions (“Liability”) as well as the Product Liability Act apply exclusively to the statutory limitation periods.
11 Jurisdiction, choice of law
- For all disputes arising directly or indirectly from or in connection with the contract, the exclusive place of jurisdiction, even international, is the district court Munich I, insofar as the customer is merchant i.S.d. Commercial Code, legal entity under public law or a special fund under public law. The same applies if the customer is an entrepreneur i.S.v. § 14 BGB is. However, the supplier is also entitled to bring an action at the general court of jurisdiction of the customer. Priority laws, especially exclusive jurisdictions, remain unaffected.
- For these terms and conditions and the business relationship between the supplier and the customer, the law of the Federal Republic of Germany. The UN Sales Convention (CISG) is expressly excluded.
12 Severability clause
- Should individual provisions of these Terms and Conditions be wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby.
- Insofar as individual provisions have not become part of the contract, are ineffective or null and void, the statutory provisions shall apply. In the absence of a corresponding statutory provision, in place of the provision which has not become part of the contract, is ineffective or void, a provision which the parties would have made had they considered this point from the outset; In doing so, mutual economic interests must be taken into account in an appropriate, justifiable manner. The previous sentence shall apply accordingly in the event of loopholes.
Franz Josef Bauer GmbH scale factory
As of July 2018