General Terms and Conditions of ZAPP-Zimmermann GmbH
§ 1 General/Scope
- These General Terms and Conditions are an integral part of all contracts concluded by the seller with his contract partners (hereinafter also: “customer” or “purchaser”) for his offered deliveries or services. They also apply to all future deliveries, services or offers to the customer, even if not separately stipulated again.
- Terms and conditions of the customer that deviate from the General Terms and Conditions of the seller will not be accepted, unless the seller has expressly agreed to their validity. The terms and conditions of the seller apply also if he performs the delivery to the customer without reservation even though the seller is aware of terms and conditions of the customer that deviate from the terms and conditions of the seller.
- These Terms and Conditions apply only vis-a-vis merchants pursuant to §310, paragraph 1 of the German Civil Code.
§ 2 Offers and contracts
- All offers of the seller are subject to change without notice and non-binding, unless they are expressly designated as binding or contain a specific time limit for acceptance. The seller can accept orders or contracts within 14 days of receipt.
- The legal relationship between the seller and customer is governed exclusively by the written sale and purchase agreement, including these General Terms and Conditions. The sale and purchase agreement represents the entire agreement between the contract parties for the subject matter of the contract. Additions and amendments to the agreements made, including these General Terms and Conditions, must be in writing in order to be valid. The written form requirement is deemed fulfilled if sent by fax; sending by means of telecommunications, in particular by e-mail, is not sufficient.
- Information provided by the seller on the subject of the deliveries or services (such as weights, dimensions, performance values, load capacity, tolerances and technical data) as well as depictions provided by the seller (e.g. drawings and illustrations) are only approximately relevant, unless the usability for the contractually intended purpose requires an exact correspondence. They are not deemed warranted characteristics, but rather descriptions or designations of the delivery or service. Deviations as a result of legal regulations or technical improvements, as well as the substitution of components by equivalent parts are permissible, as long as this does not impair the usability for the contractually intended purpose.
- The seller reserves the ownership or the copyright on all offers made by him as well as drawings, illustrations, calculations, brochures, catalogues and other documents and auxiliary materials made available to the customer. Without the express permission of the seller the customer may not make these materials available to third parties as such or with regard to their content, nor may he disclose them or use or reproduce them himself or through third parties. At the request of the seller he will return these materials in their entirety and destroy any copies made if he no longer needs them for regular business transactions or if negotiations do not result in conclusion of a contract.
§ 3 Prices
- The prices apply for the scope of service and delivery stated in the order confirmations. Additional or special services will be charged separately. The prices are in euros ex factory or loading point plus packaging, statutory VAT and, in the case of export deliveries, customs fees and other official charges.
- If the agreed prices are based on the seller’s list prices and the delivery is to take place more than 4 months after conclusion of the contract, the seller’s list prices at the time of delivery apply.
- The return of packaging is regulated by special agreements.
- If the customer so desires, the seller will take out transport insurance for the delivery; the customer will bear the costs of the insurance.
§ 4 Delivery and delivery times
- Goods are delivered ex works. Goods are delivered to the location agreed upon with the customer; in case of a change in the location, the customer will bear the additional costs.
- Deadlines and dates of delivery and service provided by the seller are always deemed approximate, unless a fixed deadline or a fixed date is expressly promised or agreed. If dispatch has been stipulated, delivery periods and delivery dates refer to the time of transfer to the shipping agent, carrier or other third parties commissioned with the transport. The start of the delivery period stated by the seller assumes that all technical issues have been clarified.
- The seller can – notwithstanding his rights due to default on the part of the customer – request an extension of delivery and service periods or a delay of delivery and service dates by the period in which the customer has culpably neglected his contractual obligations vis-a-vis the seller. Defence based on non-performance of the contract and the right to claim damages incurred by the seller in this respect, including compensation of any additional expenses and the assertion of other claims or rights are not affected by this clause. If the requirements pursuant to the preceding paragraph are fulfilled, the risk of accidental loss or accidental damage of the goods is transferred to the purchaser at the time he is in default of acceptance or payment.
- The seller is not liable for the impossibility of delivery or for delayed delivery if they are caused by force majeure or other circumstances that were unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all types, difficulties obtaining materials or energy, transport delays, strikes, legal lockouts, shortage of manpower, energy or raw materials, difficulties obtaining the necessary governmental approvals, governmental measures or default or delayed delivery or incorrect delivery by suppliers), which are beyond the control of the seller. If such circumstances substantially hinder or prevent the seller from carrying out deliveries or services and the hindrance is not only of temporary duration, the seller is entitled to cancel the contract. In the event of hindrances of temporary duration the delivery or service periods are postponed by the duration of the hindrance plus an appropriate lead time. If acceptance of the delivery or service by the customer is unreasonable as a result of the delay, he can cancel the contract by notifying the seller promptly in writing.
- The seller is entitled to perform partial deliveries and partial services at any time, unless the purchaser can prove that the partial delivery or partial service is not in his interest.
- If the seller is in delay of performing a delivery or service or if he is unable for any reason whatsoever to perform a delivery or service, then his liability for damages is limited pursuant to § 7 of these Terms and Conditions of Delivery and Payment.
§ 5 Payment
- Invoice amounts are due within 30 days with no deduction, unless otherwise agreed in writing. The date of receipt by the seller is relevant as the date of payment. Checks are deemed payment only after redemption.
- If the purchaser does not pay the invoice by the due date, then interest will be charged on the outstanding amounts starting on the due date based on a rate of 9% p.a.; claims for higher interest and other damages in the event of default are not affected by this clause.
- Offsetting with counter-claims of the purchaser or the retention of payments due to such claims is permissible only if the counter-claims are undisputed or non-appealable. In addition, the purchaser is entitled to exercise a right of retention only if his counter-claim is based on the same contractual relationship.
- The seller is entitled to carry out or perform outstanding deliveries or services only in return for advance payment or payment of securities if after conclusion of the contract he becomes aware of circumstances that are suited to significantly diminish the purchaser’s credit rating and by which payment of the seller’s outstanding receivables from the respective contractual relationship by the purchaser is jeopardised.
§ 6 Warranty and defects
- The warranty period is 1 year from the date of delivery or, if an acceptance inspection is required, from the date of the acceptance inspection. This does not apply if the goods are normally used for construction and caused the defect. In this case the warranty period is 5 years from the date of delivery or acceptance inspection.
- The delivered goods must be carefully examined immediately after delivery to the customer or to a designated third party. They are deemed accepted if the seller does not receive – within 7 work days after delivery of the goods or otherwise within 7 days of discovery of the defect – a written notification of defects with regard to obvious defects or other defects that were detected during an immediate, careful examination. At the request of the seller the defective goods will be returned carriage paid. If the notice of defects is justified the seller will reimburse the costs of the least expensive means of transport.
- In the event of defects of quality in the delivered goods the seller is obligated and entitled at his option, to be made within a suitable period, to rectification of the defects or replacement. In the event of failure, i.e. the impossibility, unconscionability, refusal or unreasonable delay of rectification or replacement, the purchaser can cancel the contract or lower the purchase price appropriately.
- If a defect is due to negligence on the part of the seller, the customer can request compensation for damages under the conditions defined in § 7.
- If operating or installation instructions of the seller are not followed, modifications are made to the products or expendable materials are used that do not meet the original specifications, this will void the purchaser’s warranty entitlements.
- A reference to DIN standards generally contains only the specific description of goods and does not constitute a guarantee by the seller, unless a guarantee was expressly agreed with the purchaser.
§ 7 Liability for damages due to negligence
- The liability of the seller for damages, regardless of the legal basis, especially due to impossibility, delay, defective or incorrect delivery, infringement of contract, infringement of duties with respect to contract negotiations and unauthorised action, is, to the extent that the issue involves negligence, limited in accordance with the following stipulations.
- The seller is not liable in the event of minor negligence on the part of his bodies, legal representatives, employees or other assistants in performance, as long as it not a matter of infringement of essential contractual duties. Essential contractual duties are those that are intended to enable timely delivery and installation of the goods in a condition of being free of substantial defects in order to allow the customer use of the goods in accordance with the contract or to protect the life and limb of the customer’s personnel or to protect his property against substantial damage.
- If the seller is liable for damages in accordance with the preceding paragraph, this liability is limited to damages that the seller anticipated as the potential consequence of an infringement of the contract at the time of conclusion of the contract, or that he would have had to anticipate if he had exercised due diligence. In addition, indirect damages and consequential damages that are the result of defects in the goods will be compensated only if such damages can be typically expected when the goods are used as intended.
- In the event of liability for minor negligence the seller’s liability to pay for material damages and additional resulting consequential damages is limited to an amount of 5,000,000 euros for personal injuries and material damages and to an amount of 50,000 euros for pecuniary losses for each claim, also in the event of infringement of essential contractual duties.
- The preceding exclusions and limitations of liability apply to the same extent for the benefit of the bodies, legal representatives, employees and other assistants in performance of the seller.
- If the seller provides technical information or consultation and this information or consultation is not part of the scope of services owed by him and stipulated by the contract, they are provided free of charge and to the exclusion of any liability whatsoever.
- The limitations of the preceding stipulations do not apply for the seller’s liability as a result of intentional behaviour, for guaranteed quality characteristics, due to injury of life, limb or health or in accordance with the imperative provisions of the Product Liability Act.
§ 8 Reservation of title
- The delivered goods remain the reserved property of the seller until payment of the purchase price and all claims from the business relationship, as well as any claims that arise in connection with the goods. In the case of delayed payment on the part of the purchaser the seller is entitled to take back and the purchaser is obligated to surrender the reserved goods.
- If the reserved goods are processed by the purchaser to form a new movable item, the processing is done for the seller, without the latter entering into obligations as a result of this; the new item becomes the property of the seller. In the case of the processing of the reserved goods with goods not belonging to the seller, the seller will attain co-ownership of the new item in proportion to the value of the reserved goods to the other goods at the time of processing. If reserved goods are connected, mixed or combined with goods not belonging to the seller pursuant to §§ 947, 948 of the German Civil Code, the seller will attain co-ownership in accordance with the statutory regulations. If the purchaser attains sole ownership through connection, mixing or combining, then he hereby assigns to the seller co-ownership based on the ratio of the value of the reserved goods to the other goods at the time of connection, mixing or combining. In such cases the purchaser must safeguard, free of charge, the goods owned or co-owned by the seller, which likewise are deemed reserved goods in accordance with the following provisions.
- If reserved goods are sold by the purchaser together with goods not belonging to the seller, then the purchaser hereby assigns to the seller the claims resulting from the resale for the amount of the value of the retained goods with all ancillary rights and with first priority; the seller accepts the assignment. The value of the reserved goods is the seller’s invoice amount including value added tax plus a security surcharge of 10%, which however will be left out of account if opposed by third-party rights. If the resold reserved goods are co-owned by the seller, then the assignment of the claims extends to the amount corresponding to the seller’s proportionate co-owned value. Paragraph 1, sentence 2 applies accordingly for the extended reservation of title; the assignment of future claims pursuant to paragraph 3, sentences 1 and 3 also extends to the balance of account.
- If reserved goods are installed by the purchaser as a substantial component in the property of a third party, then the purchaser hereby assigns the resulting claims against the third party or other concerned party for remuneration totalling the value of the reserved goods with all ancillary rights including such a right of granting a claim-securing mortgage with first priority; the seller accepts the assignment. Paragraph 3, sentences 2 and 3 apply accordingly.
- If reserved goods are installed by the purchaser as a substantial component in the property of the purchaser, then the purchaser hereby assigns the claims resulting from the commercial sale of the property or property rights totalling the value of the reserved goods with all ancillary rights and with first priority. The seller accepts this assignment. Paragraph 3, sentences 2 and 3 apply accordingly.
- The seller is entitled and authorised to resell, to utilise or to install the reserved goods only in the normal, proper course of business and only subject to the proviso that the claims in accordance with paragraph 3, 4 and 5 actually are assigned to the seller. The purchaser is not entitled to any other disposal of the reserved goods, in particular assignment by way of pledge or security.
- The seller authorises the purchaser, subject to revocation, to collect the claims assigned in accordance with paragraph 3, 4 and 5. The seller will not make use of his own authorisation to collect as long as the purchaser fulfils his payment obligations, also vis-a-vis third parties. At the request of the seller the purchaser must name the parties liable for the assigned claims, provide all information necessary for collection, hand over the necessary documents and notify the liable parties (third parties) of the assignment. The seller is also authorised to notify the liable parties of the assignment himself.
- In case of debt enforcements by third parties with respect to the reserved goods or the assigned claims, the purchaser will inform the seller without delay and will submit the documents necessary for intervention.
- Upon stay of payments, application for or initiation of insolvency proceedings concerning the assets of the purchaser the following rights are voided: the right of resale, the right to utilise or to install the reserved goods and the authorisation to collect the assigned claims; in the event of a protest of a check or bill of exchange, the collection authorisation is also voided.
- If the value of the granted securities exceeds the claims by more than 20%, the purchaser is obligated to reassignment or release at his choice in this respect. Upon payment of all claims of the seller from the business relationship the ownership of the reserved goods and the assigned claims is transferred to the purchaser.
§ 9 Final provisions
- Place of jurisdiction for any disputes in connection with the business relationship between the seller and the purchaser is Cologne or the purchaser’s domicile, at the choice of the seller. Cologne is the sole place of jurisdiction for legal action against the seller. Imperative statutory regulations concerning exclusive places of jurisdiction are not affected by this provision.
- The business relations between the purchaser and the seller are governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 does not apply.
- If any provision of these Terms and Conditions or any provision within the framework of other agreements should be or become invalid, this will not affect the validity of all other provisions or agreements. If the contract between the seller and the purchaser or these General Terms and Conditions contain gaps, the gaps will be deemed filled by legally valid stipulations which the contract parties would have agreed upon based on the business objectives of the contract and the purpose of these General Terms and Conditions if they had recognised the gap.
The purchaser is aware that the seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data collection and reserves the right to pass on this data to third parties (e.g. insurance company) to the extent necessary for fulfilment of the contract.