GENERAL TERMS AND CONDITIONS OF PAYMENT AND DELIVERY

§1

General

1.1The following terms and conditions apply to all our offers, sales, deliveries and services and become part of the contract. They do not apply if our contractual partner is a private person and does not act professionally or commercially. They shall also apply to all future business relations, even if they are not expressly agreed again.
1.2We hereby expressly object to any deviating or supplementary general terms and conditions of the buyer. They shall not apply even if the buyer has based his order or other declaration on them.

§2

Offers and orders

2.1Our offers are subject to change with a binding period of 30 days, unless they are designated as binding in writing. An effective contract is therefore only concluded through our order confirmation or the delivery of the goods. If we require a counter-signature by the customer, the contract shall only be concluded with this.
2.2Dimensions, weights, illustrations, drawings and other documents that are part of our non-binding offers remain our property and are only approximate. They can only become a binding part of the contract if expressly confirmed by us in writing.

§3

Doubtful solvency

3.1If, after conclusion of the contract, we become aware of circumstances that give rise to doubts about the buyer's ability to pay, we may make further deliveries dependent on advance payment of the goods by the buyer. We may set the buyer a reasonable deadline for the advance payment of the goods and withdraw from the contract if the advance payment is not received by us within the deadline; the buyer may provide security in the form of a bank guarantee instead of the advance payment. If we have already delivered the goods, the purchase price shall be due immediately without deduction, irrespective of any agreed payment periods.
3.2Doubts about the solvency of the buyer are justified, among other things, if an application has been made to open insolvency proceedings against his assets or if he does not make payments to us or third parties on time.

§4

Prices

4.1Our prices are strictly net "ex works", unless otherwise agreed with the buyer. The costs for packaging, freight, insurance, export and import costs, fees, customs duties and certifications are not included in the price and shall be borne by the purchaser.
4.2Statutory value added tax is not included in our prices and will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.
4.3If there are more than 4 months between the date of conclusion of the contract and the date of delivery,
without this being due to a delay in delivery for which we are responsible, and if our valid price list has changed during
this period, we may demand the list price valid on the date of delivery instead of the agreed
purchase price.

§5

Delivery time

5.1All stated delivery dates are non-binding and shall be deemed to have been agreed only approximately, unless they have been expressly designated by us as binding. In the case of non-binding delivery dates, a delivery within 7 days of the stated delivery time shall in any case still be deemed to be on time.
5.2If we are culpably unable to meet an expressly agreed deadline or are in default for other reasons, the buyer shall grant us a reasonable grace period, which shall commence upon expiry of §5.1. After the fruitless expiry of this period of grace, the buyer is entitled to withdraw from the contract.
5.3If performance becomes temporarily impossible or considerably more difficult for us due to force majeure or other extraordinary circumstances for which we are not responsible, in whole or in part, the agreed delivery period shall be extended by the duration of the impediment to performance. The same applies to a statutory deadline or a deadline set by the buyer for the performance of the service, in particular for grace periods in the event of default.
5.4Before the expiry of the delivery period or performance period extended in accordance with paragraph 3, the purchaser is neither entitled to withdraw from the contract nor to claim damages. If the impediment to performance lasts longer than 4 weeks, both the buyer and we shall be entitled to rescind the contract insofar as the contract has not yet been performed. If the buyer is contractually or legally entitled to withdraw (e.g. due to loss of interest) without setting a grace period, this right shall remain unaffected.
5.5In the event of any delay in delivery, insofar as it is not due to intent or gross negligence, claims for damages of any kind are excluded.

§6

Shipping

6.1Shipment shall be made for the account of the buyer. The risk shall pass to the buyer upon loading of the goods, even if carriage paid delivery has been agreed and/or the shipment is made with our own vehicles. We are not obliged to provide transport insurance.
6.2Unless expressly agreed otherwise in writing, we shall be entitled to make partial deliveries to a reasonable extent, which shall be invoiced individually.

§7

Payment

7.1Our invoices are payable within 14 days of the invoice date without deduction.
7.2The buyer shall be in default even without a reminder from us if he does not pay the purchase price within 14 days after the due date and receipt of the invoice or an equivalent payment schedule.
7.3If the buyer defaults on a payment, all his payment obligations arising from the business relationship with us - including those for which bills of exchange have been given - shall become due immediately. In this case, we shall be entitled to demand interest from the relevant point in time at the legally stipulated rate. The seller reserves the right to prove higher damages.
7.4Bills of exchange shall only be accepted on account of performance after prior agreement and in case of discountability without granting a discount. Payments by cheque/bill of exchange are also only accepted on account of performance. The claim to the purchase price shall not expire until the bill of exchange has been honoured in full. Bill of exchange and discount charges shall be charged separately and are payable immediately without deduction.
7.5The buyer is only entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognised by the seller or are undisputed. The buyer is only entitled to exercise a right of retention if his counterclaim is based on the same purchase contract.

§8

Warranty/Liability

8.1The buyer must inspect the received goods for completeness, transport damage, obvious defects, condition and their properties. The buyer must notify us in writing of any obvious defects within 2 weeks of delivery of the subject matter of the contract.
8.2We are not obliged to provide a warranty if the buyer has not notified us in writing of an obvious defect in good time. Insofar as there is a defect in the goods for which we are responsible and which was notified by the buyer in writing in good time, we are obliged to provide subsequent performance - to the exclusion of the buyer's rights to withdraw from the contract or to reduce the purchase price - unless we are entitled to refuse subsequent performance on the basis of the statutory regulation. The buyer shall grant us a reasonable period of time for subsequent performance for each individual defect.
8.3Subsequent performance may be effected at the buyer's discretion by remedying the defect or by delivery of new goods. We are entitled to refuse the type of subsequent performance chosen by the buyer if it is only associated with disproportionate costs. During the supplementary performance, the reduction of the purchase price or the withdrawal from the contract by the buyer are excluded. A subsequent improvement shall be deemed to have failed after the second unsuccessful attempt. If the supplementary performance has failed or if the seller has refused the supplementary performance altogether, the buyer may, at his discretion, demand a reduction of the purchase price or declare his withdrawal from the contract.
8.4The buyer may only assert claims for damages under the following conditions due to the defect if subsequent performance has failed or we refuse subsequent performance. The buyer's right to assert further claims for damages under the following conditions remains unaffected.
8.5We shall be liable without limitation in accordance with the statutory provisions for intentional or grossly negligent breaches of duty and for damage arising from injury to life, limb or health. Otherwise, we shall only be liable if the breached contractual obligation is recognisably essential for achieving the purpose of the contract, and only limited to the amount of the typically foreseeable damage.
8.6The limitation of liability pursuant to paragraph 5 shall apply accordingly to claims for damages other than contractual claims, in particular claims in tort, with the exception of claims under the Product Liability Act. Furthermore, it shall also apply in favour of our employees, workers, representatives and vicarious agents.
8.7Insofar as we have given a quality and/or durability guarantee with regard to the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage based on the lack of the guaranteed quality or durability, but which does not occur directly to the goods, if the risk of such damage is obviously covered by the quality and durability guarantee.
8.8We shall also be liable for damage caused by simple negligence insofar as this negligence concerns the breach of such contractual obligations, compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. We shall not be liable for simple negligent breaches of ancillary obligations that are not essential to the contract. The limitations of liability contained in §7 shall also apply insofar as the liability for the legal representatives, executive employees and other vicarious agents of the seller is concerned.
8.9Any further liability is excluded regardless of the legal nature of the asserted claim. Insofar as the Seller's liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives and vicarious agents.

§9

Retention of title

9.1We retain ownership of the goods (goods subject to retention of title) until receipt of all payments under the purchase contract. The delivered goods shall only become the property of the buyer when he has fulfilled all his obligations from the business relationship, including ancillary claims, claims for damages and encashment of cheques and bills of exchange. In the case of the cheque/bill of exchange procedure, the retention of title in all its forms listed here does not expire with the payment of the cheque, but only with the encashment of the bill of exchange.
9.2The buyer must inform us immediately in writing of all access by third parties, in particular of enforcement measures and other impairments of his property. The buyer shall compensate us for all damages and costs arising from a breach of this obligation and from necessary measures to protect against access by third parties.
9.3If the buyer does not meet his payment obligation despite a reminder from us, we can demand the surrender of the goods subject to retention of title still owned by him without setting a deadline beforehand. The transport costs incurred shall be borne by the buyer. The seizure of the reserved goods by us shall always constitute a withdrawal from the contract. After retention of the reserved goods, we shall be entitled to realise them. The proceeds of realisation shall be set off against our outstanding claims.

§10

Place of performance

 The place of performance for payments is Breitenworbis, for our deliveries of goods the place of dispatch.

§11

Data processing

 The buyer agrees that we may process, in particular store or transmit to a credit protection organisation, the data received about the buyer in connection with the business relationship in compliance with the Federal Data Protection Act for the fulfilment of our own business purposes, insofar as this is done within the scope of the purpose of the contract or is necessary to safeguard our legitimate interests and there is no reason to assume that the buyer's interest worthy of protection in the exclusion of the processing, in particular the transmission, of this data prevails.

§12

Severability clause

 Amendments or supplements to the contract or these General Terms and Conditions of Business must be made in writing to be effective. Should any provision of these General Terms and Conditions of Delivery and Payment be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of the General Terms and Conditions of Delivery and Payment.

§13

Jurisdiction and applicable law

13.1The contractual relationship between the buyer and us shall be governed exclusively by the law of the Federal Republic of Germany, even if the buyer's place of residence or business is abroad. The application of the Uniform Law on the International Sale of Goods and the Law on the Formation of Contracts for the International Sale of Goods is excluded.
13.2The buyer is not entitled to assign claims arising from the purchase contract without the seller's consent.
13.3If the buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties - also for actions on bills of exchange and cheques - shall be the Heilbad Heiligenstadt Local Court. However, we are also entitled to sue the buyer at his general place of jurisdiction.

 

04.01.2012

Systemservice Kühn GmbH
Gutstraße 23
37339 Breitenworbis
Ceo: Michael Kühn, Sascha Nörthemann
Local court Jena, HRB 502336

EN
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