General Terms and Conditions of Business of Krä Eistechnik Süd-West GmbH

January 2021 version

Download PDF file here

 

Preamble:

The following General Terms and Conditions (GTC) apply to all contracts concluded between us and the customer - Kaufleute, legal entities under public law or special funds under public law. The version valid at the time of the conclusion of the contract shall be authoritative in each case.

1. general

1.1 Our GTC apply exclusively. They shall also apply to all future transactions with the customer, even if they are not separately agreed again.

1.2 Terms and conditions of the customer or third parties shall not apply unless we have expressly agreed to their validity in writing.

1.3 Our GTC shall apply to buyers, legal entities under public law or special funds under public law.

2. offer and acceptance, offer documents

2.1 Our offers are subject to change and non-binding. A contract shall only be concluded with our written confirmation or by delivery.

2.2 Information on dimensions, weights or other performance data as well as representations and illustrations, in particular on our Internet pages or in catalogues, brochures, etc., are also non-binding unless their binding nature is expressly agreed.

2.3 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. The customer must obtain our express written consent before passing them on to third parties. Drawings or other documents belonging to our offers must be returned to us immediately upon our request in the event that the order is not placed.

3. prices and payments

3.1 All prices quoted are in EURO and are understood to be "ex warehouse" subject to special agreement; they are net prices, the respective statutory value added tax will be charged separately.

3.2 If the delivery date is more than 4 months after the conclusion of the contract, we are entitled to increase the price appropriately and to adjust it to changed price bases. The price valid at that time shall then apply. If this exceeds the initially agreed price by more than 10%, the customer may withdraw from the contract.

3.3 Unless otherwise agreed, invoices shall be paid within 10 days without deduction. The deduction of a discount requires a special written agreement. In individual cases, we reserve the right to carry out a credit check and to change the terms of payment.

3.4 The customer is not permitted to set off or exercise a right of retention against our claims unless the counterclaims are undisputed or have been legally established.

4. delivery time, delivery

4.1 Unless otherwise stated in the order confirmation, delivery "ex warehouse" shall be deemed agreed.

4.2 Our delivery times are approximate unless we have promised a binding delivery time in writing. The start of a binding delivery time stated by us requires the clarification of all technical and commercial questions. Compliance with our delivery obligation also requires the timely and proper fulfilment of the customer's obligations, in particular the provision of any documents to be provided by the customer as well as the receipt of an agreed down payment.

4.3 We shall not be liable for disruptions to delivery and performance insofar as these are caused by force majeure or by other unforeseeable events for which we are not responsible, such as, in particular, strikes, lockouts or untimely self-supply. If such events significantly impede the delivery or performance or make it impossible and if the impediment is not only of temporary duration, we are entitled to withdraw from the contract; in this case we are obliged to inform the customer immediately and to reimburse counter-performances of the customer immediately. In the event of hindrances of only temporary duration, the delivery or performance deadlines shall be extended by the period of the hindrance.

4.4 If we are in default of delivery, we shall be liable within the framework of a lump-sum compensation for default in the amount of 3% of the invoice value of the delayed delivery/service for each full week of default, but in total in the amount of a maximum of 15%. Any further claims of the customer are excluded, unless the delay in delivery is due at least to gross negligence. The right of the customer to withdraw from the contract in the event of a delay in delivery after the fruitless expiry of a grace period set remains unaffected.

4.5 We shall be liable in accordance with the statutory provisions if the underlying transaction is a commercial transaction for delivery by a fixed date.

5 Transfer of risk, storage costs

5.1 Unless otherwise agreed, the purchased goods to be delivered to the customer shall be packed by us at our own expense in a manner suitable for transport. However, the customer shall be responsible for the disposal of the packaging material at his own expense.

5.2 If the customer so wishes, we shall cover the delivery by transport insurance; the customer shall bear the costs incurred thereby.

5.3 In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the purchased item shall pass to the customer as soon as the purchased item has been handed over to the person carrying out the transport. In the event of collection by the customer, the risk of accidental loss and accidental deterioration of the purchased item shall pass to the customer upon handover of the purchased item to the customer or to a person appointed by the customer to collect the item.

5.4 If dispatch or handover is delayed for reasons for which the customer is responsible, the risk of accidental loss and accidental deterioration of the object of sale shall pass to the customer at the time at which we were ready for dispatch and notified the customer of this or the object of sale was ready for collection and we notified the customer of this.

5.5 Storage costs resulting from a delay pursuant to 5.4 shall be borne by the customer. In the case of external storage (manufacturer, forwarder), we are entitled to pass on the storage costs invoiced to us in full to the customer. If the storage is carried out by us, the storage costs shall amount to a flat rate of 0.25% of the invoice value per expired week. We reserve the right to assert and prove higher or lower storage costs.

6. default of acceptance, non-acceptance

6.1 If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the resulting damage.

6.2 If the customer does not accept the purchased goods or if the contract is not performed due to another circumstance for which the customer is responsible, we shall be entitled to claim damages at a flat rate of 25% of the invoice amount without proof. We reserve the right to assert and prove higher damages. The customer shall be entitled to prove that no damage has been incurred at all or that the damage is significantly lower than this lump sum.

7 Warranty, guarantee, liability

7.1 Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

7.2 The devices sold by us are empfindable and require special maintenance, cleaning and pflege. Claims for defects or claims under guarantees given by us therefore further require that the purchased item is set up and put into operation professionally and that the customer uses it properly, in particular carries out the maintenance and cleaning measures prescribed in the operating instructions and that the products used are suitable for operation in the purchased item. Proper function of the equipment requires that it be used for its intended purpose. In case of doubt, please consult your authorised specialist dealer.

7.3 Insofar as we issue guarantee declarations, these are generally manufacturer's guarantees; we shall pass these on to the customer in full in each case. We shall only issue warranties covering ourselves (dealer warranty) in special cases and shall in any case require our express written consent.

7.4 In the event of a defect in the purchased goods, we shall be entitled, at our discretion, to remedy the defect or to deliver a replacement.

7.5 If the supplementary performance fails, the customer is entitled to withdraw from the contract or to reduce the price appropriately at his discretion.

7.6 The delivery of used goods shall be made to the exclusion of any warranty, unless otherwise expressly agreed in writing in the individual case and the defect has not been fraudulently concealed.

7.7 The limitation period for claims for defects shall be 12 months for newly manufactured items and 6 months for used items - unless the warranty is excluded by way of exception - in each case from the date of delivery.

7.8 Liability for damages to legal assets other than life, limb or health is excluded unless the damages are based on intentional or grossly negligent conduct and the conduct does not constitute a breach of essential contractual obligations. Material contractual obligations are those obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner may regularly rely. If we culpably breach such a material contractual obligation, we shall be liable in accordance with the statutory provisions; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.

7.9 Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

7.10 Any further liability for damages than provided for under 7.8 and 7.9 is excluded. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of obligations or claims in tort pursuant to Section 823 of the German Civil Code (BGB), as well as for damage that did not occur to the purchased item itself (consequential harm caused by a defect); in particular, we shall not be liable for loss of profit or other financial losses of the customer.

7.11 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to personal liability for damages on the part of our employees, representatives and vicarious agents.

8. retention of title

8.1 The object of sale remains our property until payment has been made in full.

8.2 The customer is obliged, as long as the ownership of the object of sale has not yet passed, to treat it in a pfleaceful manner; in particular, in the case of high-priced objects of sale, he is obliged to insure them adequately against theft, breakage, fire, water and other damage at his own expense.

8.3 Any processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed or mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the value of the other processed objects at the time of processing or mixing. The same shall apply to the object created by processing or mixing as to the object of sale delivered under reservation. In the event that the customer's item created by processing or mixing is to be regarded as the main item, it shall be deemed agreed that the customer transfers proportional co-ownership to us.

8.4 The customer is entitled to resell the object of sale in the ordinary course of business; however, he already assigns to us all claims in the amount of our claim (including VAT) which accrue to him from the resale against his customer, irrespective of whether the object of sale has been resold without or after processing. We already accept the assignment now. The same shall apply to other claims against third parties which take the place of the object of sale or otherwise arise with regard to the object of sale, such as insurance claims or claims in tort in the event of loss or destruction. The customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we shall not be obliged to collect the claim as long as the customer is not in default of payment and no application for the opening of insolvency proceedings has been filed. However, if one of these cases occurs, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the (third-party) debtors of the assignment.

8.5 As long as ownership has not yet been transferred, the customer shall, in the event of seizures or other interventions by third parties, a) immediately inform us thereof in order to enable us to enforce our ownership rights and b) immediately inform the third party of our existing ownership.

8.6 To secure our claims against the customer, the customer also assigns to us the claims against a third party arising from the connection of the object of sale with a plot of land or building. We already accept the assignment now.

8.7 We shall release the object of sale or the items or claims replacing it at the customer's request and at the customer's discretion, insofar as their value exceeds the claims to be secured by more than 10%.

9. final provisions

9.1 The legal relations between the customer and us shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods.

9.2 The place of performance for our contractual obligations and the place of jurisdiction for all disputes arising from the business relationship is D-94315 Straubing. However, we are entitled to sue the customer - merchants, legal entities under public law or special funds under public law - also at his place of residence.