AVB
AVB
1. The following General Terms and Conditions of Sale (AVB) apply to all our business relationships with our customers ("buyers"). The AVB apply only if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law.
2. The AVB specifically apply to contracts for the sale and/or delivery of movable items ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB) and, if agreed, additionally perform the assembly/installation of the goods.
3. Our AVB apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the buyer only become part of the contract if we have expressly agreed to their validity. This consent requirement applies in all cases, for example, even if we execute the delivery unconditionally in knowledge of the buyer's terms.
4. Individually negotiated agreements with the buyer (including ancillary agreements, supplements, and changes) take precedence over these AVB in every case. The content of such agreements is, subject to proof to the contrary, determined by a written contract or our written confirmation.
5. Legally significant declarations and notifications from the buyer regarding the contract (e.g., setting deadlines, notifying defects, withdrawal, or reduction) must be made in writing, i.e., in written or text form (e.g., letter, email, fax). Legal form requirements and further proof, particularly in cases of doubt regarding the identity of the declarant, remain unaffected.
6. References to the applicability of statutory provisions have only a clarifying function. Therefore, even without such clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these AVB.
1. Legally significant declarations and notifications from the buyer regarding the contract (e.g., setting deadlines, notifying defects, withdrawal, or reduction) must be made in writing, i.e., in written or text form (e.g., letter, email, fax). Legal form requirements and further proof, particularly in cases of doubt regarding the identity of the declarant, remain unaffected.
2. Our offers are either marked as "non-binding and unverifiable offer" or as "offer".
3. For our "non-binding and unverifiable offer": An offer is also non-binding and unverifiable if we have provided the buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), other product descriptions, or documents – even in electronic form – to which we reserve ownership and copyright.
The buyer’s order of the goods is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 4 weeks of its receipt.
The acceptance may be declared either in writing (e.g., by order confirmation) or by delivering the goods to the buyer.
4. For our "offer": The offer is binding. We are bound by the offer for ... days unless otherwise stated in the offer. The contract is concluded by the buyer's written acceptance of the offer, but at the latest by the delivery of the goods to the buyer.
1. The delivery period is individually agreed upon or indicated by us upon acceptance of the order.
2. If we cannot meet binding delivery periods for reasons for which we are not responsible (non-availability of the service), we will inform the buyer immediately and at the same time provide the estimated new delivery period. If the service is also unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any counter-performance already provided by the buyer will be refunded immediately. A case of non-availability of the service in this sense includes, in particular, the failure to deliver on time by our supplier, if we have entered into a congruent covering transaction, if neither we nor our supplier is at fault, or if we are not obliged to procure in the individual case.
3. The occurrence of our delivery delay is determined according to statutory provisions. In any case, a reminder from the buyer is necessary. If we are in delay of delivery, the buyer can demand a flat-rate compensation for the delay damage. The flat-rate compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but a maximum of 5% of the delivery value of the delayed goods. We reserve the right to prove that the buyer has incurred no damage or only a significantly lower damage than the aforementioned flat rate.
4. The rights of the buyer under § 8 of these AVB and our statutory rights, particularly in the event of exclusion of the performance obligation (e.g., due to impossibility or unreasonable nature of the performance and/or supplementary performance), remain unaffected.
1. Delivery occurs, unless otherwise agreed, EXW (Ex Works, Incoterms 2010) Thyssenstraße 7, 49744 Geeste, Germany, where the place of performance for the delivery and any supplementary performance is also located. At the buyer's request and at their expense, the goods will be shipped to another destination (shipping purchase). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, the carrier, shipping route, packaging) ourselves.
2. The risk of accidental loss and accidental deterioration of the goods passes to the buyer at the latest upon handover. In the case of a shipping purchase, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes already upon delivery of the goods to the carrier, the freight forwarder, or the person or institution designated for the execution of the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. The same applies in other respects to an agreed acceptance according to the statutory provisions of the law of contracts for work and services. Handover or acceptance is also considered to have occurred if the buyer is in default of acceptance.
3. If the buyer is in default of acceptance, neglects a cooperative action, or our delivery is delayed for other reasons attributable to the buyer, we are entitled to demand compensation for the damage resulting therefrom, including additional expenses (e.g., storage costs). For this, we charge a flat-rate compensation of 0.5% of the net price (delivery value) per completed calendar week, but a maximum of 5% of the delivery value, starting from the delivery period or – in the absence of a delivery period – from the notification of the readiness for shipment of the goods.
The proof of a higher damage and our statutory claims (particularly compensation for additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is to be offset against further monetary claims. The buyer is permitted to prove that we have incurred no damage at all or only a significantly lower damage than the aforementioned flat rate.
1. Unless otherwise agreed in individual cases, our current prices at the time of the conclusion of the contract apply, namely EXW (Ex Works, Incoterms 2010) Thyssenstraße 7, 49744 Geeste, Germany, plus statutory VAT.
2. In the case of a shipping purchase (§ 4 para. 1), the buyer bears the transportation costs from the warehouse and the costs of any transport insurance desired by the buyer. Any customs duties, fees, taxes, and other public charges are borne by the buyer.
3. The purchase price is due and payable within 21 days from invoicing and delivery or acceptance of the goods. However, we are also entitled, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We will make a corresponding reservation at the latest with the order confirmation.
4. Upon expiration of the aforementioned payment period, the buyer is in default. The purchase price is subject to the applicable statutory default interest rate during the period of default. We reserve the right to assert further default damage. The claim for commercial default interest (§ 353 HGB) remains unaffected for merchants.
5. The buyer has the right to set off or withhold rights only to the extent that his claim is legally established or undisputed. In the case of defects in the delivery, the buyer's counter-rights, particularly according to § 7 para. 6 sentence 2 of these AVB, remain unaffected.
6. If it becomes apparent after the conclusion of the contract (e.g., through an application for the opening of insolvency proceedings) that our claim for the purchase price is endangered due to the buyer's lack of ability to perform, we are entitled to refuse performance and, if necessary after setting a deadline, to withdraw from the contract (§ 321 BGB). In contracts for the manufacture of non-representable items (custom-made), we can declare withdrawal immediately; the statutory regulations regarding the dispensability of setting a deadline remain unaffected.
1. Until full payment of all our present and future claims from the purchase contract and an ongoing business relationship (secured claims), we retain ownership of the sold goods.
2. The buyer is obliged to treat the goods with care; in particular, he is obliged to insure them at his own expense against fire, water, and theft damage to their new value. If maintenance and inspection work is necessary, the buyer must carry this out at his own expense in good time.
3. The goods subject to retention of title may not be pledged or assigned as security to third parties before full payment of the secured claims. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is made or if third-party access (e.g., seizures) to the goods belonging to us occurs.
4. In the event of a breach of contract by the buyer, particularly in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract according to the statutory provisions and/or demand the return of the goods based on the retention of title.
5. The request for the return of the goods does not constitute a withdrawal from the contract, unless we have expressly stated this in writing.
a. If the buyer processes or transforms the goods, this is done for us. If the goods subject to retention of title are processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items at the time of processing.
b. If the goods subject to retention of title are combined with other movable items to form a single item or if they are inseparably mixed with other movable items, and if one of the other items is to be regarded as the main item, we transfer to the buyer co-ownership of the single item in the ratio specified in sentence 1. The buyer holds the co-ownership for us.
c. The buyer is entitled to resell the goods in the ordinary course of business. He assigns to us already now all claims in the amount of the final invoice amount (including VAT) that arise from the resale against his buyers or third parties, regardless of whether the goods have been sold without or after processing. The buyer remains entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected; however, we will not collect the claim as long as the buyer meets his payment obligations from the proceeds collected, is not in default of payment, and in particular, no application for the opening of insolvency proceedings has been made.
d. If the value of the securities granted to us exceeds our claims by more than 10%, we will release securities at our discretion at the request of the buyer.
1. The buyer's claims for defects are based on statutory provisions, unless otherwise stipulated below.
2. The goods delivered by us must be inspected immediately after delivery to the buyer or to a third party designated by him. The delivered goods are considered approved if the buyer does not notify us about a defect in writing within seven working days after delivery or, in the case of hidden defects, within seven working days after discovery of the defect.
3. In the case of a defect, we are entitled to choose between subsequent performance (rectification or replacement) and are obliged to bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, unless these expenses increase because the goods delivered by us have been moved to a location other than the buyer's place of business.
4. If the subsequent performance fails, the buyer can choose to withdraw from the contract or reduce the purchase price.
5. The buyer has no claims for defects in the case of only minor deviations from the agreed quality, only minor impairments of usability, natural wear, or damage occurring after the transfer of risk due to improper handling, excessive use, or due to special external influences that are not provided for in the contract.
6. Claims for defects do not exist if the buyer modifies the goods or has them modified by a third party without our consent, unless the buyer proves that the modification has no effect on the defect.
1. In cases of intent or gross negligence, we are liable for any damage caused by us, our legal representatives, or vicarious agents.
2. In cases of slight negligence, we are liable only for the violation of essential contractual obligations (cardinal obligations). In the latter case, however, our liability is limited to the typical damage foreseeable at the time of the conclusion of the contract.
3. Our liability for personal injury remains unaffected.
4. The liability under the Product Liability Act remains unaffected.
5. The buyer's rights to withdraw or terminate the contract due to breaches of duty other than defects remain unaffected.
1. The limitation period for claims due to defects in the goods is one year from the transfer of risk. This limitation period does not apply to claims based on intentional conduct, fraudulent concealment of a defect, or to claims under the Product Liability Act.
2. In the case of a contract for the construction of a work, the statutory limitation period of five years applies.
· If assembly/installation is agreed, the following conditions apply:
· The buyer must provide the necessary access and conditions for assembly/installation, including electricity and water, as well as any tools required for the assembly. The assembly must be performed during normal working hours unless otherwise agreed.
· The buyer must ensure that the delivery and installation site is accessible and free from any obstacles.
· The buyer must notify us immediately of any changes or issues that could affect the assembly/installation.
1. For all legal relationships between us and the buyer, the law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
2. If the buyer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from contractual relationships is Geeste, Germany. We are also entitled to sue the buyer at his general place of jurisdiction
Geeste/07-2018