General Terms and Conditions of Business of Franz Ziel GmbH
§ 1 Validity of the General Terms and Conditions of Business
1.1 These General Terms and Conditions of Business apply exclusively to companies, legal entities established under public law or special assets established under public law.
1.2 These General Terms and Conditions of Business apply to all acts of legal significance which we transact with the above-mentioned groups as set out in 1.1.
1.3 We only recognise contradictory General Terms and Conditions of Business and restrictions to these General Terms and Conditions of Business if we have given our prior written consent to them.
1.4 These General Terms and Conditions of Business also apply to any future transactions in so far as they are acts of legal significance of a related nature.
§ 2 Offers and contract conclusion
2.1 Declarations of intent with regard to the conclusion of a contract must be made by letter, fax or email.
2.2 We retain our property rights and copyright to all documents we make available to customers whether in hard copy or electronic form. These documents may not be made accessible to unauthorised third parties.
2.3 In so far as customers send us offers, we are entitled to accept these within a reasonable period of six weeks.
§ 3 Duty to review documents provided
3.1 In so far as we supply the customer with equipment, planning or other services, the customer is obliged to review our offer carefully for completeness.
3.2 If the customer should have misgivings about our offer, the customer is obliged to indicate this immediately in writing.
§ 4 The customer's duty of cooperation
4.1 In so far as we send drawings or other statements of a technical nature to the customer for approval, the customer is obliged to indicate his approval to us without delay so that we can maintain our delivery dates.
4.2 If the customer should refuse to give appropriate approvals in spite of being urged to do so, any firm delivery date which has been agreed is postponed accordingly.
§ 5 The customer's requests for amendments
5.1 If the customer should require amendments or additional services or supplies after the conclusion of the contract, he must inform us without delay in writing about what is to be amended or which additional goods or services he requires.
5.2 After receipt of these requests we are obligated to examine whether implementation of such requests is technically feasible and what are the financial and scheduling effects of the requests for amendments. We further undertake to send a corresponding supplementary offer to the customer which the latter must, in turn, promptly accept or decline.
§ 6 Prices and payment
6.1 Our sales prices apply ex works excluding packing and transportation; Value Added Tax at the rate applicable at the time must be added. Packing and transport costs will be shown separately in the invoice.
6.2 In so far as we purchase from the customer, the agreed prices apply. All goods must be delivered to our works without additional transport and packing costs unless we have agreed otherwise at the time of the conclusion of the contract.
6.3 In the event of delay, we will invoice 9 percentage points over the base interest rate from the 30th day after receipt of the invoice. We reserve the right to assert a claim for higher damages arising from lateness.
§ 7 Offsetting and retention
The customer is entitled to offset and/or have recourse to his right of retention if his counter-claims are not contested or have been judged to be final and absolute.
§ 8 Transfer of risk
If the goods are despatched at the customer's request, the risk of accidental loss, damage or deterioration passes at the time the goods leave the works. This applies irrespective of whether we organise the despatch or not and irrespective of who bears the cost of transportation.
§ 9 Formal acceptances
9.1 After completion of our services we are entitled but not obligated to require a formal acceptance of the goods.
9.2 Only major defects entitle the customer to refuse acceptance.
§ 10 Retention of title
10.1 We retain title to the goods we have delivered until payment has been received in full for all debts arising from the supply contract. This also applies to all future deliveries even if we have not always expressly invoked this clause.
10.2 So long as title has not yet passed to the purchaser, the latter is obliged to treat with due care the goods which have been purchased. He is particularly obliged to insure these adequately for their replacement value against damage by fire and water and against theft at his own expense. If maintenance and inspection work has to be undertaken, the purchaser must undertake these in good time and at his own expense. In so far as title has not passed, the purchaser must inform us in writing without delay if the goods which have been delivered have been pledged or are subject to other interference by third parties. In so far as the third party is not able to reimburse us for the judicial and extra-judicial costs of litigation in accordance with § 771 of the German Code of Civil Procedure (Zivilprozessordnung), the purchaser is liable for the loss we have suffered.
10.3 In the normal course of his business the purchaser is entitled to sell the goods which are the subject of retention of title. The purchaser hereby assigns to us the receivables from the onward sale of the goods subject to retention of title in the amount of the grand total of the invoice agreed with us (including Value Added Tax). This assignment applies irrespective of whether the goods which were purchased are sold to others without or after processing. The purchaser remains authorised to collect the debt even after the assignment. Our authority to collect the debt ourselves remains unaffected thereby. However, we will not collect the debt so long as the purchaser complies with his payment obligations from the funds he has collected, is not in default of payment and, in particular no application for the commencement of insolvency proceedings has been filed or payments have ceased.
10.4 The goods which have been purchased are always processed, treated or converted by the purchaser in our name and on our behalf. In this case the purchaser's expectant right to the goods which have been purchased extends to the goods after their conversion. In so far as the goods which have been purchased are processed with items which do not belong to us, we acquire joint ownership to the new item pro rata to the objective value of our goods to the other processed goods at the time of their processing. The same applies in the event of blending. In so far as the blending occurs in such a way that the purchaser's goods can be considered as the main item, it is deemed to be agreed that the purchaser assigns joint ownership to us pro rata and the purchaser protects the sole ownership or joint ownership which arises in this way for us. In order to act as collateral for the debt owed to us by the purchaser, the latter also assigns such receivables to us as arise to him from the connection of the goods subject to retention of title with a plot of land or a building; we hereby accept this assignment.
10.5 If so requested by the purchaser, we undertake to release the collateral to which we are entitled in so far as the value of the collateral exceeds the debts subject to collateral by more than 20%.
§ 11 Warranty
11.1 The customer is obliged to assert warranty rights under § 377 of the German Commercial Code (Handelsgesetzbuch) without delay.
11.2 We offer a warranty for a period of 12 months (except for wearing parts) after delivery to our customer. The above provision does not apply in so far as the law pursuant to § 438, Paragraph 1, Number 2 of the German Civil Code (structures and items for structures), § 479, Paragraph 1 of the German Civil Code (right of recourse) and § 634 a), Paragraph 1 of the German Civil Code (construction defects) requires longer mandatory periods. In these cases the statutory provisions apply.
11.3 In the event that the items we supply exhibit a defect, we are entitled to rectify the defect or to supply replacement goods at our option. In so far as the customer sets a period of time for the rectification of defects, these must be reasonable after considering the delivery times.
11.4 If our subsequent performance should miscarry although we had the opportunity on two occasions to rectify the defects within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the payment. Withdrawal by reason of defects which are non-material is excluded.
11.5 We are not liable for such defects as arose from defective use by the customer of the goods we supplied, if the customer used unsuitable operating equipment or infringed his maintenance and inspection obligations. We are also not liable for wearing parts. The customer warrants that no third party will undertake warranty work on the items we supplied unless we have given our prior written consent.
11.6 For every case in which recourse is made to our warranty, the customer will grant us unrestricted access to the goods we have delivered on site and will provide power, water, light and any other necessary support by the provision of transport equipment, staff for auxiliary activities etc.
§ 12 General provisions
12.1 German law applies exclusively but with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
12.2 The place of performance and exclusive place of jurisdiction for all disputes is our registered office.
12.3 Amendments of and additions to these General Terms and Conditions of Business must be made in writing.
12.4 Franz Ziel GmbH does not participate in consumer arbitration proceedings in accordance with the Consumer Dispute Settlement Act.
Disputes on the contract concluded and its execution may be pleaded before the conciliation body of the Chamber of Handicrafts Münster, Bismarckallee 1, 48151 Münster, Germany / www.hwk-muenster.de.
12.5 If individual provisions of these General Terms and Conditions of Business should be or become invalid, this does not affect the validity of the other provisions. In the place of the invalid provisions the parties undertake to agree such a provision which comes closest to the purpose of the contract. This also applies in the event of an omission.