General Terms and Conditions of sale Te So Ten Elsen GmbH & Co. KG for the delivery of commercial goods and/or the construction of stables and stable equipment
§ 1 Applicability, form
(1) Unless otherwise agreed, these General Terms and Conditions of Sale (GTCS) in the version valid at the time of the Buyer’s order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case if the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law.
(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB) as well as for assembly work.
3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the buyer without reservation in the knowledge of the buyer’s GTC.
(4) Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of deadlines, notice of defects, contract cancellation or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, remain unaffected.
6) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form. We reserve the title or copyright to all offers and quotes submitted by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the principal. The buyer may not make these items available to third parties, disclose them, use them himself or through third parties or reproduce those without our express consent, neither as such nor in terms of content. At our request, he shall return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of usual data backup is excluded from this.
(2) Information provided by us on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not compromise the usability for the contractually intended purpose.
(3) The order of the goods by the buyer shall be considered as a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt by us.
4) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to
§ 3 Delivery period and delay in delivery
(1) Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(2) We may – without prejudice to our rights arising from default on the part of the buyer – demand from the buyer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the buyer fails to meet its contractual obligations towards us.
(3) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the failure to deliver correctly or on time, (e.g. due to the failure of suppliers to deliver correctly or on time, epidemics, pandemics, in particular due to the coronavirus (SARS-CoV-2) or the effects of comparable infectious agents as well as quarantine entry bans from abroad) or other official measures for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, we shall be entitled to cancel the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. If the buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may terminate the contract by immediately notifying us in writing.
(4) We are entitled to effect partial deliveries if
– the partial delivery is usable for the buyer within the scope of the contractual purpose,
– the delivery of the remaining ordered goods is ensured and
– the buyer does not incur any significant additional expenses or costs as a result (unless we agree to take).
(5) If we are in delay with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
(6) For the execution of assembly work, deadlines shall apply under the following conditions:
– the freedom of construction by the client or other executing companies is guaranteed;
– the principal has to obtain the public law approvals and permits required for the execution of the work by us (in
particular according to building law, road traffic law, water law, trade law) and to present them upon request; the
risk of obtaining, obtaining and maintaining such approvals shall be borne by the buyer.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex works, which is also the place of performance for the delivery and any subsequent performance. At the buyer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer or the forwarder (whereby the beginning of the loading process shall be decisive) at the latest upon handover.
In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other cases, the legal requirements of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
(4) We shall only insure the consignment against theft, damage due to breakage, transport, fire and water or other insurable risks at the express request of the customer and at the customer’s expense.
(5) Insofar as acceptance is to take place, the subject matter of the contract shall be considered accepted when
– the delivery and, if the Seller is also responsible for the installation, the installation has been completed and
– we have notified the Principal thereof with reference to the deemed acceptance in accordance with this § 4(6) and
have requested the Principal to accept the goods;
– 12 working days have passed since delivery or installation or the principal has started to use the object of
purchase/the subject matter of the contract (e.g. has put the delivered system into operation) and in this case 10
working days have passed since delivery or installation, and
– the client has failed to take delivery within this period for a reason other than a defect notified to us which makes
the use of the object of purchase impossible or significantly impairs it.
(6) Insofar as we have also undertaken the electrical installation as part of the installation work, this shall not include
the connection of the system to the local power supply. This must be carried out by a specialised electrical company commissioned by the buyer.
§ 5 Prices and terms of payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are quoted in EUR ex works plus packaging, the applicable statutory value added tax, customs duties for export deliveries as well as fees and other public charges.
(2) Insofar as the agreed prices are based on our list prices and the delivery is to take place more than four months after the conclusion of the contract, our list prices of the seller valid at the time of delivery shall apply (in each case less any agreed percentage or fixed discount).
(3) Unless expressly agreed otherwise, the purchase price is payable and due within 14 days of receipt of the invoice by the buyer and delivery or acceptance of the goods. In the case of a cash sale, payment of the purchase price is payable and due immediately.
(4) Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to charge further damage caused by default. With respect to merchants, our claim to the commercial interest on overdue payments (§ 353 HGB) shall remain unaffected.
(5) However, we are entitled at any time, also within the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(6) The buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 of these GTCS.
(7) We shall be entitled to perform or effect outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and as a result of which payment of the outstanding claims by the buyer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is at risk.
(8) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price/remuneration is threatened by the buyer’s lack of ability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to cancel the contract (§ 321 BGB).
In the case of contracts for the manufacture of indefensible items (individual productions), we may declare cancellation immediately; the legal regulations on the dispensability of setting a deadline remain unaffected.
(9) Unless otherwise expressly agreed in the contract, we shall be entitled to issue partial invoices at reasonable intervals according to the progress of the assembly work. Invoices shall be issued at least once a month. We are also entitled to issue invoices at shorter intervals (every 2 weeks).
(10) No discount shall be granted to the buyer.
(11) The execution of a modified or additional service by us shall generally require our consent. Upon our request, the Client shall be obliged to conclude a written agreement with us prior to commencement of the work. If the parties are unable to reach an agreement prior to the execution of the work in which the additional remuneration and the effect on the execution deadlines are determined, we shall have a right to refuse performance or a right of retention. In this case, we can refuse the additional or modified services as well as stop the work on the main order.
(12) If a service not provided for in the contract is required, we shall be entitled to special remuneration. This shall also apply if the parties have agreed on a fixed price.
§ 6 Retention of title
(1) Until full payment of all our present and future claims arising from the contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
(2) The goods subject to retention of title may neither be transferred by way of security nor transferred to third parties until the secured claims have been paid in total. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to cancel the contract in accordance with the statutory provisions or/and to demand handover of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of cancellation; we are rather entitled to demand only the return of the goods and to reserve the right of cancellation. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until further notice, the Buyer is authorised in accordance with (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following conditions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are to be considered as the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the latter’s right of ownership remains in force, we shall acquire co-owner-ship in proportion to the invoice values of the processed, mixed or combined goods. In all other cases, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply with regard to the assigned claims.
(c) The buyer remains authorised to collect the claim in addition to us. We commit ourselves not to collect the claim as long as the buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right according to paragraph 3. If this is the case, however, we may demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to recall the buyer’s authorisation to further sell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer’s request.
§ 7 Claims for defects of the buyer
(1) The statutory provisions shall apply to the purchaser’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as incorrect assembly or defective assembly instructions), unless otherwise determined below. Claims from supplier regress are excluded if the defective goods have been further processed by the buyer or another contractor, e.g. by installation in another product.
2) As a matter of principle, we shall not be liable for defects of which the buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the buyer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be notified to us in writing within 4 working days of delivery and defects which are not recognisable during the inspection must be notified to us within the same period of time after discovery. If the buyer fails to carry out the proper inspection and/or notify us of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory regulations.
(3) In the event of defects in components of other manufacturers which we cannot eliminate for licensing or factual reasons, we shall, at our choice, assert our warranty claims against the manufacturers and suppliers for the account of the buyer or assign them to the buyer. In the event of such defects, warranty claims against us shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is unpromising, e.g. due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the buyer against us shall be suspended.
(4) The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without our consent and the rectification of the defect becomes impossible or unreasonably difficult as a result. In any case, the client shall pay the additional costs of remedying the defect resulting from the modification.
(5) A defect shall not be considered to exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or which occurs due to special external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors,
external influences which are not assumed under the contract, as well as in the case of non-reproducible software errors.
(6) Any delivery of used items agreed with the Client in individual cases shall be made to the exclusion of any warranty for material defects.
(7) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the legal conditions remains unaffected.
(8) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(9) The buyer shall allow us to examine a notified defect on site and grant us access at any time. The buyer must give us the time and opportunity necessary for the subsequent performance owed, in particular he must hand over the goods complained about to us for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the renewed installation if we were not originally obliged to install it.
(10) If the supplementary performance has failed or a reasonable deadline to be set by the buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal. At our request, a rejected delivery item shall be returned to us carriage paid.
(11) The parties agree that the place of subsequent performance shall be the Seller’s registered office in Sonsbeck.
(12) Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
(1) Insofar as nothing to the contrary arises from these GTCS including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages – irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and torts, insofar as culpability is relevant in each case – within the scope of culpability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), in the following cases:
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of an essential contractual obligation (obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage. We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects that impair its functionality or usability more than insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the client to use the delivery item in accordance with the contract or are intended to protect the life and limb of the client’s personnel or to protect the client’s property from significant damage.
3) Insofar as we are liable on the merits for damages in accordance with § 8 (2), this liability is limited to damages which we anticipated as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have anticipated by exercising due care. Indirect damage and consequential damage which
furthermore indirect damage and consequential damage resulting from defects in the delivery item shall only be compensable insofar as such damage is typically to be expected when the delivery item is used as intended.
(4) The above exclusions and limitations of liability shall apply to the same extent in favour of our organs, legal representatives, employees and other vicarious agents.
They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.
(5) Due to a breach of duty that does not consist of a defect, the buyer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(6) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
§ 9 Limitation period
(1) Unless expressly agreed otherwise, the warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Client arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
Furthermore, this period shall not apply if the law, for example in §§ 438 I No. 2, 479 I or 634a of the German Civil Code (BGB), prescribes longer periods or in the case of claims under the Product Liability Act. The statutory provisions on suspension of expiry, suspension and recommencement of time limits shall remain unaffected.
(2) The above limitation periods shall also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer pursuant to § 8 paragraph 2 (a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.
§ 10 Duties of Cooperation of the Client
(1) The following services shall be provided to us by the client free of charge and in good time during installation work:
– Providing of mechanical transport on the construction site for loading and unloading as well as transporting the materials to the installation site (cranes, lifting equipment, forklift trucks, lift trucks, forklift machines including operating personnel, etc.);
– Provision of scaffolding and auxiliary equipment, such as protective structures, safety devices;
– Provision of a waste collection site incl. corresponding waste containers etc. The removal of the rubbish containers and disposal is the responsibility of the client, we do not bear any costs for this.
– Free supply of the construction site with water, energy, electricity and sufficient lighting. The client shall also provide us free of charge with the following for our use: necessary storage areas and workplaces on the construction site, access roads, connections for water and energy, lines for water and energy (cables, tubes), as well as electricity distribution boxes in sufficient numbers.
– the Client shall take all measures to secure the construction site, such as barriers, signage, lighting, alarm system, and shall maintain them until completion of the work by us.
– The client shall ensure that the temperature in the houses does not fall below 5°C during the winter months.
(2) The acceptance of own work by the buyer requires our prior written consent.
(3) In the case of assembly work continuing for several days, the customer shall – unless otherwise agreed in the contract – provide free of charge accommodation for the mechanics.
(4) If the assembly is managed by a supervisor sent by us, all assembly work is to be carried out by the buyer on his own responsibility. For this purpose, the buyer shall provide, free of charge, sufficiently qualified personnel for the entire duration of the assembly as well as all equipment, scaffolding, materials, transport aids, cranes, tools, etc. required for the assembly.
§ 11 Property rights
(1) Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it for infringement of industrial property rights or copyright.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Client by concluding a licence agreement with the third party. If we do not succeed in doing so within a reasonable period of time, the client shall be entitled to cancel the contract or to reduce the purchase price appropriately. Any claims for damages by the client are subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers supplied by us, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the client or assign them to the client. In such cases, claims against us shall only exist if the legal enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or is futile, e.g. due to insolvency.
§ 12 Choice of law and place of jurisdiction
(1) The legal relationship between us and the client shall be governed solely by the contract concluded, including these General Terms and Conditions of Delivery. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises on our part prior to the conclusion of this contract are legally non-binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
(2) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing in order to be effective. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(3) The law of the Federal Republic of Germany shall apply to these GTCS and the contractual relationship between us and the Buyer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(4) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Sonsbeck. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
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