General conditions of sale of Warnwürfel GmbH
“We thank you for your order which we hereby confirm subject to exclusive application of our general conditions of sale.”
§ 1 Applicability of these conditions of sale
(1) These conditions of sale shall only apply vis-à-vis companies within the meaning of section 310 (1) German Civil Code (BGB).
(2) These conditions of sale shall apply exclusively. We shall not recognise conditions of the customer contrary to or deviating from these conditions of sale unless we expressly consent to their applicability in writing.
(3) These conditions of sale shall also apply even if we unconditionally deliver to the customer in the knowledge of the customer’s contrary terms or terms differing from these conditions of sale.
(4) These conditions of sale shall also apply for all future transactions with our customer.
§ 2 Offer and conclusion of agreement
(1) All our offers are subject to change and without obligation, unless they are expressly designated as binding or include a specified period for acceptance.
(2) If the order of a customer constitutes an offer to conclude a contract (section 145 BGB), we shall be able to accept the offer within 2 weeks.
(3) For the legal relationships between us and the customer, the written agreement as well as these conditions of delivery shall be applicable. These shall constitute all agreements made between us and the customer. Our oral statements made before conclusion of the agreement are non-binding and oral agreements shall be replaced by the written agreement, unless otherwise expressly agreed in the oral agreement that such oral agreement shall continue to apply.
(4) Our statements concerning the purchase item (e.g. weight, size, technical data, utility values, resilience and tolerance) as well as our images of the item of purchase (e.g. drawings, illustrations) are only approximately applicable unless the use of the purchase item requires precise conformity for the purpose intended. These are not guaranteed quality features but descriptions and markings of the purchase item. Deviations customary in the trade and those based on legal specifications or technical improvements as well as component replacements of the purchase item by equivalent parts are permissible, insofar as the usability of the purchase item does not require precise conformity for the purpose intended.
§ 3 Offer documentation
We reserve our right to title and copyrights in the images, drawings, calculations and any other documents. This shall also apply for such documents in writing that are specified as “confidential”. Before passing on such documents to third parties, the customer requires our express written approval.
§ 4 Prices – Terms of payment
(1) The prices apply for the services included in the order confirmation. Additional services and special services thereof shall be separately billed.
(2) Unless otherwise agreed in our order confirmation, the prices shall apply ex works, excluding packaging. The packaging costs shall be billed separately.
(3) Our prices do not contain the statutory VAT. The statutory VAT shall be shown separately on the invoice.
(4) The deduction of cash discounts is subject to a special written agreement.
(5) Unless otherwise agreed in our order confirmation, the purchase price shall be due and payable without deduction 14 days as of the invoice date. If the customer is in default of payment, the statutory provisions shall apply.
(6) The customer shall only be entitled to set off claims if his counterclaims have been declared legally binding, undisputed or accepted by us. Furthermore, the customer shall only be entitled to exercise his right of retention if his counterclaim is based on the same contractual relationship.
§ 5 Delivery period
(1) The compliance with our delivery obligation is subject to the punctual and orderly fulfilment of the customer’s obligations. We shall reserve the right to object to unfulfilled contracts.
(2) If the customer is in default of acceptance or culpably infringes other duties of cooperation, we shall be entitled to demand compensation for such damage incurred, including eventual additional expenses. We reserve the right to assert further claims or rights.
(3) If the customer is in default of acceptance or culpably infringes other duties of cooperation, the risk of accidental loss or accidental deterioration of the purchase item shall pass to the customer at the point in time at which the customer falls into default of acceptance or payment.
(4) We shall be liable pursuant to statutory provisions provided the contract is a transaction for delivery at a fixed date (section 286 (2) no. 4 German Civil Code (BGB) or section 376 German Commercial Code (HGB)). We shall also be liable pursuant to statutory provisions if the customer is in default of acceptance as a result of a delay in delivery for which we are responsible or the customer culpably infringes any other duties of cooperation and is able to legitimately claim that his interest in further fulfilment of the contract no longer exists.
(5) We shall also be liable pursuant to statutory provisions, insofar as the delay in delivery is based on a deliberate or grossly negligent breach of contract which is attributed to us; a fault of our representatives or persons we employ shall be attributed to us.
If the delay in delivery is based on a grossly negligent breach of contract attributed to us, the damage of the customer shall be limited to the foreseeable damage typically occurring.
(7) In addition, we shall be liable pursuant to statutory provisions, insofar as the delay in delivery attributed to us is based on the culpable breach of a material contractual obligation, whereas the claim for damages by the customer shall be limited to the foreseeable damage typically occurring.
(8) In other respects, in the event of a delay in delivery, we shall be liable for each full week of delay within the context of lump-sum damages, to an amount limited to 0.5% of the delivery value of the goods not delivered or not delivered on time, but not exceeding 5% of the delivery value of the goods not delivered or not delivered on time.
Further legal claims and rights of the customer shall remain unaffected hereof.
§ 6 Passing of risk – Packaging costs
(1) Unless otherwise specified in our order confirmation, delivery “ex works” shall be agreed.
(2) The return of packaging material is subject to special agreements.
(3) The transport insurance and related costs thereto shall be borne by Warnwürfel GmbH.
§ 7 Liability for defects – Statute of limitations
(1) The customer’s claim for defects require that the customer has duly complied with his legal obligations owed under section 377 HGB to examine and make notification of any complaints.
(2) Provided the purchase item has a defect, the customer shall be entitled at his choice to demand subsequent fulfilment in the form of elimination of the defect or delivery of a new, defect-free item. In the case of elimination of the defect or substitute delivery, we are under obligation to assume all necessary expenses for the purpose of subsequent fulfilment, in particular transport, and travel costs, labour and material costs, insofar as these do not increase due to the item of purchase being transferred to another place other than the place of performance.
(3) If our subsequent fulfilment fails, the customer may at his discretion choose to rescind the contract or demand a reduction in price.
(4) We shall be liable pursuant to statutory provisions insofar as the customer asserts claims for damages, which are based on intentional or gross negligence (including intentional or gross negligence of our representatives and persons employed in performing our obligations). Provided we are not accused of a wilful breach of contract, liability for claims for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable pursuant to statutory provisions insofar as we culpably infringe a material contractual obligation. Our liability for claims for damages shall be limited to the foreseeable, typically occurring damage. A material contractual obligation exists if the breach of duty refers to an obligation on whose fulfilment the customer has relied and could be expected to rely on.
(6) Apart from this, insofar as the customer is entitled to claims for damages in lieu of performance, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(7) Liability for culpable injury to life, limb and health shall remain unaffected thereof; this shall also apply for mandatory liability pursuant to the product liability law.
(8) To the extent we provide technical information or advice to our customers, and the information and advice are not part of the services we owe, this shall be provided free of charge and under exclusion of any liability.
(9) Insofar as no other agreement differing from the above has been reached, liability on our part shall be precluded.
(10) The limitation period for claims for defects is 12 months, calculated from the time of passing of risk. This shall not apply if it involves the sale of an item which is normally used for a building and has caused the respective defect.
(11) The statutory limitation period in the case of delivery recourse under section 478 and 479 BGB shall remain unaffected; the period is 5 years calculated from the time of delivery of the defective object.
§ 8 Overall liability
(1) Any further liability for damages on our part (other than regulated in section 7) shall be excluded, irrespective of the legal nature of the claim asserted. This shall apply particularly to claims for damages for negligence when entering into a contract, any other neglect of duty or tortious claims for damage pursuant to section 823 BGB.
(2) This limitation (pursuant to paragraph 1) shall also apply, insofar as the customer demands reimbursement of useless expenditures instead of claiming compensation for damages in lieu of performance.
(3) Insofar as the liability for damages against us is excluded or limited, the same shall apply for the personal liability for damages of our salaried employees, workers, staff, representatives and vicarious agents employed in the performance of the obligations under the contract.
§ 9 Reservation of title
(1) We shall reserve the right of title in the purchase item until all payments of the customer arising from this contract have been made.
If the customer is in breach of contract, in particular default of payment, we shall be entitled to reclaim the purchase item. The recovery of the purchase item by us shall constitute a withdrawal from the contract. After recovery of the purchase item, we shall be entitled to its exploitation; the proceeds of the exploitation are to be offset against the liabilities of the customer, less appropriate exploitation costs.
(3) The customer undertakes to treat the purchase item with care, in particular to insure the item against fire, and water damage and theft sufficiently in the amount equivalent to its replacement value.
(4) In the case of seizure of the goods or other interventions of third parties with regard to the purchase item, the customer must inform us immediately in writing so that we can file an action pursuant to section 771 Code of Civil Procedure (ZPO). To the extent that the third party is not able to reimburse us with the judicial and extrajudicial costs of a legal action pursuant to section 771 ZPO, the customer shall assume liability for the loss incurred by us.
(5) The customer is entitled to resell the purchase item in the ordinary course of business; he hereby assigns to us all claims in the amount of the final invoice total (including VAT), which accrue to him through further disposal against his customers or third parties. The customer shall remain entitled to collect on such claims after the assignment. Our entitlement to collect the claim ourselves remains unaffected hereof. We undertake not to collect the claim as long as the customer meets his payment obligations from the obtained proceeds, is not in default of payment and, in particular, has not made application to initiate composition or insolvency proceedings or ceased to make payments. In these cases, we may request the customer to notify us of the assigned claims and their debtors, to make all necessary statements required for the collection, to forward the appropriate documents, and to inform the debtors (third parties) of the assignment.
(6) The processing or conversion of the purchase item by the customer shall always be carried out on our behalf. If the purchase item is processed with other items that are not our property, we shall acquire co-ownership in the new item in the ratio of the value of the purchase item (final invoice total including VAT) to the other processed items at the time of the processing. In other respects, the object created by such processing shall be subject to the same provisions as the purchase item delivered under reservation of title.
(7) If the purchase item is processed with other items that are not our property, we shall acquire co-ownership in the new object in the ratio of the value of the purchase item (final invoice total including VAT) to the other processed items at the time of the processing. If the mixing is performed in such a way that the item of the customer is regarded as being the main item, then it is deemed agreed that the customer shall transfer a proportionate share in the co-ownership to us. The customer shall retain the resulting title to sole ownership or co-ownership on our behalf.
(8) We undertake to release the securities we are entitled to at the request of the customer insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%. The choice of the securities to be released is incumbent upon us.
§ 10 Place of jurisdiction – Place of performance
(1) If the customer is a merchant, the place of jurisdiction shall be our registered office. We shall be entitled to file legal action against the customer at the court of his place of residence.
(2) This contract shall be governed by the law of the Federal Republic of Germany.
(3) The applicability of the UN Convention on International Sale of Goods shall be excluded.
(4) Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.