GENERAL SALES AND DELIVERY CONDITIONS OF OMNITRON GRIESE GMBH
1. Scope of Application/ General Information
1.1 These Sales and Delivery Conditions of Omnitron Griese GmbH (hereinafter referred to as “User”) shall apply to all - including future - contracts, offers, deliveries and other services between the User and his business partners (hereinafter referred to as “Customers”), with the exception of deliveries of goods to the United States of America (USA).
1.2 Customers pursuant to these General Terms and Conditions are exclusively companies and legal entities under public law.
1.3 The following General Terms and Conditions are binding for all services, deliveries and offers as well as for the conclusion of contracts between the User and his Customers. Counter-confirmations on the part of the Customer, even if they are enclosed, are hereby expressly not recognised, provided that they contradict the following provisions. Deviating conditions therefore require the express written consent of the User.
2. Offers and conclusion of contracts
2.1 All offers of the User are initially subject to confirmation and are non-binding. A contract is only concluded after written confirmation by the User (usually through an order confirmation).
2.2 Until the acceptance of offers and the conclusion of a contract by the Customer, the User can revoke all offers at any time.
2.3 Orders of the Customer are only binding for the User if they are confirmed in writing within a period of 2 weeks.
2.4 Verbal collateral agreements which contradict and/or go beyond the written offer shall not be valid. A written confirmation by the User is required in this respect.
3. Prices and payment terms
3.1 In principle, the price negotiated and confirmed in writing at the time of contract conclusion shall apply. In case of doubt, the valid price list of the User at the time of contract conclusion shall apply. This price is ex works, plus the statutory value-added tax and the valid disposal fees of GRS (Stiftung Gemeinsames Rücknahmesystem Batterien). For customers who have their place of business abroad and/or on presentation of a correspondingly valid contract with a return system, no disposal fees will be charged.
3.2 The prices according to the offer are valid for the time stated in the offer; in the absence of a corresponding declaration, for a period of 1 month from the conclusion of the contract. Contract prices are initially valid for an unlimited period. Should events occur after the conclusion of the contract, which lead to a change in the contract price, these shall be asserted irrespective of a deadline. In the event of a longer delivery period for which the User is not responsible, the then valid price list or the renegotiated price shall apply. If the price increase then amounts to more than 5%, the Customer may withdraw from this contract by written declaration within one week of receipt.
3.3 The User shall be entitled, in spite of any conditions of the Customer to the contrary, to initially set off payments against older liabilities of the Customer with the User. If interest or other costs have already been incurred, the User shall be entitled to set off the payment first against the costs, then against the interest and then against the principal performance.
3.4 Even in the case of the current terms and conditions, each individual order, each offer and each order shall be deemed a separate contractual relationship between the Customer and the User.
3.5 Orders with a net value of less than € 100.00 are subject to a minimum quantity surcharge of € 25.00 per order.
3.6 All deliveries are made exclusive of transport and insurance costs.
3.7 A discount deduction requires a written agreement between the Customer and the User.
3.8 In principle, the payment terms stated in the invoice and the cash discount deduction stated in the invoice shall apply. If the invoice does not state a payment term, a payment term of 30 days from the invoice date shall apply without deduction.
3.9 Payment shall only be deemed to have been made upon receipt of the amount - in the case of cheques, only upon encashment.
3.10 In the event of default in payment, the User shall be entitled to demand default interest to the amount of 8% above the respective base interest rate. Any further assertion of maturity interest in accordance with the German Commercial Code remains unaffected by this.
3.11 Payments by bill of exchange are generally not possible. This requires the prior written consent of the User.
3.12 Set-offs, reductions and retention of goods ordered by the User from the Customer shall only be entitled to counterclaims which have become res judicata.
3.13 Deliveries to countries within the European Union shall only be made without value added tax if the value added tax identification number has been provided in the order.
4. Delivery and delivery periods
4.1 Delivery periods and delivery dates shall only apply if agreed in writing in accordance with the offer or contract. The User shall only be in default if he is responsible for the delay, the service is due and the Customer has unsuccessfully set a reasonable grace period.
4.2 The User shall not be in default of delivery due to force majeure (strike, lockout, natural disasters) or due to default of delivery by the subcontractor. Liability on these grounds is therefore excluded. The User reserves the right to correct and punctual self-delivery. The User may withdraw from the contract without compensation if a delay in delivery caused by an event pursuant to 4.2 lasts longer than 6 weeks.
4.3 If the Customer does not provide the necessary cooperation obligations (delivery of documents, materials for provision, other services, etc.), the User shall not be liable for delays resulting therefrom. The burden of proof lies with the customer. The delivery period may be extended by this period until complete fulfilment.
4.4 Partial deliveries and partial services are possible for the User.
4.5 The User has the right to make technical changes if these do not impair technical properties/functions for the Customer. The User shall inform the Customer about this on request.
4.6 The receipt of the goods by the Customer is not decisive for compliance with the delivery time, unless expressly agreed otherwise in writing between the User and the Customer. Otherwise, the delivery period shall be deemed to have been observed if the goods have left the User's works by the end of the delivery period or if the User has made the goods available for collection by the Customer on the agreed date and has notified the Customer in writing that the goods are ready for dispatch or collection.
4.7 In the event that a subcontractor is unable to deliver, the User shall be entitled to withdraw from the contract without compensation.
5. Transfer of risk and dispatch
5.1 In principle, the transfer of risk (also in the case of “carriage paid delivery”) shall take place when the goods are handed over to the forwarder/transporter, but at the latest when the goods leave the User's premises (also in the case of “carriage paid” delivery). Deviations must be agreed in writing between the User and the Customer.
5.2 In the case of dispatch with company vehicles, the transfer of risk shall take place at the time of loading, deviating from the statutory regulations. If the Customer arranges dispatch himself and/or picks up the goods, the transfer of risk takes place with the provision of the goods on the premises of the User.
6. Default of acceptance
6.1 If the User has made the goods available for collection by the Customer as described under points 5.1 and 5.2, and if collection or acceptance of the goods is delayed for reasons for which the Customer is responsible, the Customer shall be in default of acceptance at the latest upon receipt of this written notification.
6.2 The Customer shall be in default of acceptance if the goods have been made available on the agreed date, if he has been notified of this in writing and if he does not accept the goods despite an express request to do so. Otherwise, the statutory provisions on default of acceptance shall apply.
6.3 The User is entitled to demand 1% of the order amount per month from the Customer as storage costs. A further claim for the reimbursement of additional expenses, in particular transport and offer costs as well as claims for damages shall remain unaffected by this.
6.4 If the User is entitled to claims for damages due to the Customer's failure to accept the goods, the User may claim 30% of the order value from the Customer as damages.
6.5 A verifiable claim for damages beyond the lump sums according to points 6.3 and 6.4 remains unaffected.
7. Notice of defects, material defects and transport defects
7.1 The Customer is obliged to report all defects to the User in writing with a detailed damage report including pictures immediately, at the latest however after 5 working days. Clearly visible transport defects must be reported immediately to the transport company as well as to the User. Hidden defects must be reported to the User in writing immediately or one week after discovery, but no later than six months after transfer of risk. Verbal notices of defects will not be accepted.
7.2 The User decides about the exact handling of a complaint after clarification of all facts. If a return should be necessary, then this can take place only after consultation with the User. Returns without consultation with/order from the User will not be accepted by the User and therefore no costs will be assumed. Type and time of the return is to be determined exclusively by the User.
7.3 In the case of declassified goods or 2nd grade goods, the Customer's defect rights for such defects that were known at the time of contract conclusion are excluded, irrespective of the fact that the User has specifically informed of this. Complaints for customised products which are outside the functional capability and the warranted quality are not admissible.
7.4 In principle, the User is initially entitled to decide for himself whether to repair the goods or provide a replacement delivery. The User alone decides on the method of regulation. If the manner of rectification fails, the Customer shall only be entitled to withdraw from the contract or to demand a reduction of the purchase price after 3 attempts by the User to rectify the defect. In the event of a minor material defect, withdrawal from the contract is excluded. Further or other claims based on a material defect are excluded.
7.5 Claims for material defects become statute-barred one year after the transfer of risk.
7.6 Warranty claims for material defects are excluded: - In the event of improper handling or overuse - which do not correspond to the specified properties - by the Customer or his customer. The User is not liable for the behaviour of the Customer's customer. - If the product/goods were built on the basis of the Customer's specifications (in particular according to the Customer's drawing) and the defect is due to the Customer's faulty specifications. - If the goods have not been stored as intended or incorrectly, or have not been charged/used in accordance with the specifications (in particular: incorrect current values or voltage). - After repair work, structural changes, further processing, maintenance work or other changes made by the Customer or third parties as well as storage not carried out in accordance with the User's specifications. Anything else applies only if the Customer provides proof that the changes to the User's product are not the cause of the defect complained about. - If the defect lies only in an insignificant deviation from the agreed quality or in an insignificant impairment of usability. - If the defect is due to lightning, fire, explosion, or network overvoltage or moisture. - If the article or serial number or similar identification have been damaged, made illegible or changed.
7.7 The User does not issue any guarantees to the Customer.
8. Property rights and retention of title
8.1 The User reserves all property rights and copyrights to all illustrations, cost estimates, offers, drawings, goods, products and other services provided by him. Documents may not be made accessible to third parties or used commercially without the prior written consent of the User. All documents must be handed to the User immediately upon request.
8.2 All goods, services and products of the User shall remain the property of the User until full payment has been made by the Customer. In the event of default in payment, the User reserves the right to demand the return of the goods/items purchased.
8.3 The processing or transformation of reserved goods by the Customer shall not give rise to any liability on the part of the User. If the goods are processed by the Customer with other objects not belonging to the User, the User acquires co-ownership of the new object in the ratio of the value of the goods to the other processed objects at the time of processing. In the event that reserved goods are connected, mixed or blended with the Customer's movable property in such a way that the Customer's property can be regarded as the main property, the Customer hereby irrevocably transfers his ownership of the property to the User in the proportion of the value of the reserved goods to the value of the other connected, mixed or blended property. If reserved goods are combined, mixed or blended with movable items of a third party in such a way that the item of the third party can be regarded as the main item, the Customer hereby assigns to the User the remuneration claim he is entitled to against the third party in the amount corresponding to the final invoice amount attributable to the reserved goods.
8.4 The Customer shall be entitled to resell the goods (reserved goods or new goods) in the normal course of business subject to retention of title. The Customer is obliged to ensure that the claims from the resale transactions can be transferred to the User. Other dispositions are not permitted.
8.5 The Customer is obliged to inform the User immediately of any seizure or any other legal or actual impairment of the endangerment of the goods or of the securities existing for the user.
8.6 The Customer undertakes towards the User to sufficiently insure the goods against all risks (e.g. fire, water, theft) at replacement value. Claims against insurance companies arising from these insurance contracts shall be assigned to the User upon conclusion of the contract.
9. Claims for damages
9.1 The User is not liable for damages or claims for expenses of the Customer, regardless of the legal basis. In particular, the User shall not be liable for loss of profit, consequential damage and loss of production as well as financial losses incurred in connection with the failure of a system, product or other service of the User of the safety technology. The same applies to data losses. Excluded from this are the mandatory liability of the User on the basis of the Product Liability Act, in particular in the case of intent, gross negligence and injury to life and health.
9.2 Any claims for damages determined shall become statute-barred upon expiry of the limitation periods applicable to material defects.
9.3 In the case of damage caused by the User through slight negligence, liability shall be limited to foreseeable direct average damage typical for the nature of the goods.
9.4 In case of gross negligence the liability of the User is limited to the period of the conclusion of the contract.
9.5 The maximum sum for damages for which the User is responsible is limited to the sum insured under the business and product liability insurance taken out by the User. In individual cases this can be transmitted to the customer on request. Deviating agreements, also with regard to the amount of liability, must be made in writing. If the Customer regards the maximum sum specified in the contract as insufficient, the Customer may demand a higher sum insured at his own expense. This requires the written consent of the User and his insurance company.
9.6 The aforementioned conditions do not apply to deliveries to the United States of America (USA). Any warranty for liability for deliveries to the United States of America (USA) is excluded. Separate agreements shall be made for deliveries to the United States of America (USA). If such have not been made in writing, any warranty claim on the part of the Customer vis à vis the User shall lapse.
10. Place of jurisdiction and performance
10.1 The place of performance for all deliveries shall be the premises of the User from which the goods have been made available for dispatch/collection. The place of performance for payment shall be the place from which the invoice was issued.
10.2 The law of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods is applicable. The application of international law (CISG) is also excluded.
10.3 The legal jurisdiction is Wiesbaden. The User is also entitled to initiate proceedings at the general place of jurisdiction of the Customer.
11. Severability clause
Should any of these terms and conditions be wholly or partially invalid, the validity of the remaining provisions shall not be affected.