General conditions of purchase, sale and delivery of OTC Siebenhandl GmbH
Date: Mai 2011
1.01. These General Conditions of Purchase, Sales and Delivery (hereinafter: GTC) apply to all contracts, purchases, deliveries and other services (including consulting services) of OTC Siebenhandl GmbH.
1.02. Divergent and/or conflicting (and supplementary) terms and conditions of the contracting party (hereinafter: partners) are expressly excluded. Also in the unconditional order, delivery and/or performance of the service by us is no acknowledgment of deviating from our terms or these supplementary terms and conditions. If the partner is a prudent businessman, these terms and conditions automatically apply to all future contracts, even if these terms and conditions are not agreed again as in the first business.
If the partner accepts our order and/or service and/or delivery without reservation, the acknowledgment of our terms and conditions by the partner is also accepted.
2. Offer and conclusion of contracts
2.01. Offers are always non-binding and without obligation; all orders are considered accepted if they are either confirmed by us in writing or executed immediately after receipting of the order. Then the delivery note or the invoice is considered as order confirmation. For orders by phone call, the entire specified quantity has to be accepted within the agreed deadline.
As far as we deliver on the basis of manufacturer price lists, our prices - unless otherwise expressly agreed - always refer to the current manufacturer price list.
Promises of special prices refer only to the respective order and have no precedent for subsequent contracts.
2.02. Insofar as our sales employees arrange verbal agreements or give assurances that go beyond the written contract, they always require written confirmation in order to be valid.
Obvious errors, typographical, printing and arithmetic errors are not binding for us. The documents belonging to the offer such as illustrations, drawings, calculations, weights and measurements are, unless otherwise agreed in writing, only approximately authoritative. Such statements, in particular also regarding the performance and usability of the delivered products as well as DIN standards, shall only be considered as agreed quality if we expressly declare this in writing.
2.03. If after the conclusion of the contract we become aware of facts, in particular default of payment with respect to previous deliveries, which lead to a material deterioration of the business, we shall be entitled to demand payment in advance or appropriate securities and, in the event of refusal, to withdraw from the contract, whereby partial deliveries already made are due immediately.
2.04. In the case of contracts with a partner, in particular with regard to representation, the contract shall also be deemed concluded in the case of an oral agreement between the partners. The textualization or the signatures are given promptly after oral conclusion.
3. Delivery times and delayed sales
3.01. Unless there is a written commitment expressly designated as binding, specified delivery times and dates are not binding. A binding delivery period commences on the day of clarification of all technical and other details of the order and the provision of any documents required. It is extended by the period in which the customer with his contractual obligations - within an ongoing business relationship.
3.02. Partial deliveries are permitted to a reasonable extent.
3.03. Proper and timely self-delivery is reserved in any case.
3.04. The delivery period is extended - even within a delay - appropriately in case of force majeure and all unforeseen obstacles that arise after conclusion of the contract, which we are not responsible for (in particular also breakdowns, strikes, lockouts or disturbances of the traffic routes), insofar as such obstacles can be proved to our performance or delivery of significant influence. This also applies if these circumstances occur with our suppliers and their subcontractors. We will inform the customer of the beginning and end of such obstacles as soon as possible. The customer may ask us for a declaration as to whether we wish to withdraw or deliver within a reasonable period of time. If we do not explain immediately, the buyer can resign.
3.05. The right of the customer to withdraw after fruitless expiry of a reasonable period of grace set to us remains unaffected.
4. Shipping, transfer of risk, packaging
4.01.Shipping route and kind of shipping are - without a written agreement to the contrary - left to our choice. The same applies to the packaging, which takes place according to transport and safety as well as environmental aspects.
4.02. If the shipment is delayed on request or for the fault of the buyer, the goods are stored at the expense and risk of the buyer. In this case, the display of readiness for shipment is the same as the shipping. With storage the goods invoice is due immediately.
4.03. Furthermore, the risk passes to the transfer of the goods to a freight forwarder or carrier, at the latest, however, with the departure of the delivery warehouse to the buyer, even if the delivery is carried out with its own truck.
4.04. Gases are delivered in rental bottles, which are to be returned to us after consumption of the gas. If you do not return - at least similar gas cylinders - we are entitled to charge the buyer for the costs charged to us by our suppliers for the bottles.
4.05. Insofar as we agree with the buyer that he refrains from granting a bonus to his right of return, he is obliged to hand over the used packaging to a recognized waste management company, which ensures proper disposal in accordance with the provisions of Art. the provisions of the packaging ordinance.
5. Prices and payment, offsetting
5.01. Our prices are in EURO plus VAT.
5.02. Invoice is due for payment immediately. For direct debit you receive 1.5% discount.
5.03. Payments in the check-bill procedure always require a special agreement.
Gutschriften über Wechsel und Schecks erfolgen abzüglich der Auslagen mit Wertstellung des Tages, an dem wir über den Gegenwert verfügen.
5.04. Credits for bills of exchange and checks will be deducted from expenses with the value date of the day on which we have the equivalent value.
5.05. In cases of paragraphs 5.05. and if the customer is in default of payment or does not pay a bill on the due date, we may revoke the direct debit authorization (paragraph 6.04.) and demand advance payment for outstanding deliveries. However, the customer can avert these legal consequences by providing security in the amount of our payment claim.
5.06. Offsetting against our claims is only permitted with undisputed or legally established counterclaims. A right of retention arising from previous or other transactions in the current business relationship can not be asserted, unless the right to withhold the retention is undisputed or established by a court. One-sided invoices, e.g. for the disposal of packaging materials are not allowed.
6. Retention of title sale
6.01. The objects of the deliveries (reserved goods) remain our property until fulfillment of all claims against the customer arising from the business relationship. Insofar as the value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 10%, we shall release a corresponding part of the security rights at the customer's request; we are entitled to choose between different security interests.
6.02. During the existence of the retention of title, the customer is prohibited from pledging or assigning ownership and reselling only resellers in the ordinary course of business and only on the condition that the reseller of his customer receives payment or makes the reservation that the ownership of the customer first passes, if he has fulfilled his payment obligations.
6.03. In the event that the customer resells reserved goods, he already now assigns his future claims from the resale against his customers with all ancillary rights - including any balance claims - to us as a precaution, without further special explanations being required. If the goods subject to retention of title are resold together with other objects without a single price having been agreed for the reserved goods, the customer shall assign to us that part of the total price claim which corresponds to the price of the reserved goods invoiced by us.
6.04. The customer is allowed to process the reserved goods or to mix or connect them with other objects. The processing is done for us. The customer keeps the resulting new thing for us with the care of a proper businessman. The new item is regarded as reserved goods.
6.05. The customer and we are already now agreed that in case of combination or mixing with other, not belonging to us objects in each case co-ownership of the new thing in the amount of the share is entitled, which is the ratio of the value of the connected or mixed reserved goods to the value of the remaining product at the time of joining or mixing. The new item is considered as reserved goods.
6.06. The regulation on the assignment of claims under paragraph 3 also applies to the new case. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed reserved goods invoiced by us.
6.07. If the customer combines the reserved goods with land or movable property, he shall, without further special declarations, also assign his claim, which he is entitled to as remuneration for the connection, with all ancillary rights as a security to the amount of the value of the associated reserved goods the other goods connected to us at the time of the connection.
6.08. Until revoked, the customer is authorized to collect assigned claims from the resale. If there is an important reason, in particular default of payment, cessation of payment, opening of insolvency proceedings, bill of exchange protest or justified indications of over-indebtedness or impending insolvency, we are entitled to revoke the direct debit authorization existing in favor of the customer. In addition, we may disclose the assignment of security, utilize the assigned claims and demand the disclosure of the assignment by the customer to its customer, subject to a reasonable period of notice.
6.09. In the event of seizures, distrains or other dispositions or interventions by third parties, you have to inform us immediately. If you have a legitimate interest, you have to provide us with the information necessary to assert our rights against the customer and hand over the necessary documents.
6.10. In the event of breaches of duty by the customer, in particular in the event of default in payment, we shall be entitled to rescind the contract after the unsuccessful expiry of a reasonable period of time set for the customer in addition to the return; the statutory provisions on the dispensability of a deadline remain unaffected. The customer is obliged to surrender. In the withdrawal or the assertion of the retention of title or seizure of the reserved goods by us is not a withdrawal from the contract, unless we have explicitly stated.
7. Defects and warranty, statute of limitations
7.01. All obvious and / or recognized defects, shortages or wrong deliveries has to be reported in writing within 7 days at the latest, but in any case prior to use or processing. Further obligations of the merchant acc. Sections 337, 378 HGB stay unaffected.
7.02. In the case of justified complaints, we will repair defective goods, replacement delivery.
7.03. In order correction of defects, the customer has to grant us the time and opportunity required in its reasonable discretion, in particular to make available the rejected object or samples thereof. If there are any doubts about the legitimacy of the notification of defects, we may first obtain an expert opinion from our subcontractor.
7.04. If we allow a reasonable period of grace to expire without remedying the defect or providing replacement, or if the repair or replacement is impossible or refused by us or is unacceptable to the customer or fails for any other reason, the customer shall right of withdrawal or reduction and damages.
7.05. In particular, no guarantee is assumed for damages that have arisen for the following reasons:
- unsuitable or improper use of the goods
- Non-compliance with operating instructions, recommendations or user instructions of the manufacturer
- incorrect, and / or not performed by us assembly, commissioning, maintenance, modification or repair
- unsuitable equipment
- incorrect storage or transport or other improper handling by the buyer or third parties
- natural wear.
7.06. Any warranty claims become statute-barred one year after the transfer of risk.
8. General limitation of liability
8.01. Claims for damages of the customer, for whatever legal reason, are excluded.
8.02. This does not apply if we are liable for example, under the product liability act and also not in cases of intent, gross negligence, injury to life, limb or health or because of breach of essential contractual obligations. The claim for damages for the breach of essential contractual obligations, however, is limited to the contractually typical, foreseeable damage, unless there is intent or gross negligence or liability for injury to life, limb or health. A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.
8.03. Insofar as you are entitled to claims for damages, these shall become time-barred upon expiry of the period specified in Section 7.06. applicable limitation period. The same applies to your claims in connection with damage prevention measures (eg recall campaigns). In the case of claims for damages according to the Product Liability Act, the statutory limitation provisions apply.
9. Returns / exchanges / sales and purchases
9.01. A return or exchange outside the warranty is only possible after prior written agreement, otherwise the acceptance is refused. Broken-off packages and goods that are no longer marketable are generally excluded outside of the guarantee of return or exchange. In exceptional cases, a return or an exchange can take place, but only after presentation of our general travel regulation.
9.02. The returns are processed on the basis of the returns regulation. This is considered accepted upon conclusion of the contract or placement of an order or a request for service.
10. Billing and returns
Insofar as we, as an authorized dealer, sell and / or ship goods in our own name and on our own account, our written returns regulations in relation to our customers are also valid in the relationship between the partner and us at the same time. This means that we can invoice all returns during the contract period and for a period of one year thereafter to the partner and he is obliged to pay accordingly. For returns that are expected in line with market conditions, we are entitled to the returns provisions amounting to up to 17% of the sales volume, which will be released after 12 months have elapsed after deduction of the actual returns and paid out to the contractual partner.
11. Reparaturen (außerhalb der Gewährleistung)
11.01. Debugging can often be tedious; Repair deadlines are therefore to be understood only as approximate, unless we have given an expressly declared commitment for a specific date in writing.
11.02. If the submission of a cost estimate is requested before carrying out repairs, this has to be stated explicitly. The cost of the estimate has to be remunerated, even if the repair is not commissioned.
11.03. Whether repairs are carried out in our own or another's workshop is at our discretion.
11.04. The provisions of Sections 7 and 8 apply mutatis mutandis to our warranty for repairs.
12. Data protection
The customer is hereby informed that we use the personal data obtained in the context of the business relationship in accordance with. the provisions of the Federal Data Protection Act.
13. Place of Performance, Jurisdiction, Applicable Law
13.01. Place of fulfillment for deliveries and payments (including check and bill of exchange claims) is Ulm. The exclusive place of jurisdiction for all disputes arising from the contractual relationship is as far as the purchaser is a registered trader, a legal entity under public law or a special fund under public law, Munich has been agreed. , However, we are entitled, at our discretion, to assert claims against the Partner at the place of his place of jurisdiction.
13.02. For these terms and conditions, our contracts, services and supplies, the law of the Federal Republic of Germany, excluding the UN Sales Convention and the conflict of laws rules of private international law, in particular the Rome I Regulation.
14. Severability clause
Should individual provisions of these terms and conditions be or become wholly or partially invalid, the validity of the remaining terms and conditions shall remain unaffected.
OTC Siebenhandl GmbH, Ulm.