General Terms and Conditions
Last updated 31.05.2019
§1 Scope, form
(1) Our following General Terms and Conditions (GTC) shall apply to all our business relations with our customers (Buyer). The GTC shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable items or goods, irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GTC shall apply in the version valid at the time of the Buyer´s order or, in any case, in the version last communicated to him in text form as a framework agreement also for similar future contracts, without reference being made to them again in each individual case.
(3) Our General Terms and Conditions 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), in particular certain assurances of properties or recommendations for the use of our goods as well as information on repair periods and deadlines, shall require our express written confirmation in order to be legally effective. As a matter of principle, an order shall not be deemed accepted until it has been confirmed in writing by our company.
(5) Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall 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 declaring party, shall remain unaffected.
(6) The statutory provisions shall always apply unless they are directly amended or expressly excluded in these GTC.
§2 Contract conclusion
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations), other descriptions or documents - also in electronic form - to which we reserve property rights and copyrights; they may not be reproduced and additionally not be made accessible to third parties without our express written consent.
(2) The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two (2) weeks of its receipt by us. Orders are generally binding.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§3 Delivery period and delay in delivery
(1) Delivery and/or unloading times stated by us are always non-binding unless otherwise agreed in writing. The start of the delivery period shall be subject to the receipt of all documents to be supplied by the Purchaser, such as required permits, releases, clarification and approval of plans, other obligations as well as agreement on all technical issues, the clarification of which the parties reserved the right to make upon conclusion of the contract. If these preconditions are not fulfilled in time, the delivery period shall be reasonably extended.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer of this without delay and notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer shall be required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance for delivery and possible subsequent performance. At the request and expense of the Buyer, the goods shall be shipped to another destination. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Transport insurance will only be taken out at the express request of the purchaser. Any costs arising from this shall be borne solely by the Buyer.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. However, 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 goods as well as the risk of delay shall pass to the Buyer 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 respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis 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). For this purpose, we shall charge a lump-sum compensation in the amount of 0.5% of the net price (delivery value) per calendar day, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for shipment. The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The purchaser shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the above lump sum.
§5 Insurance cover for transport boxes owned by the customer
(1) Insofar as the transfer of risk or acceptance has taken place in accordance with §4 of these GTCs, extended insurance cover shall apply to the delivered crate as such for the product segment Reusable BOX, Long Goods BOX and Classic BOX.
(2) The insurance cover shall apply exclusively to transports of the crates by means of carriers (forwarding agents, freight carriers) for which corresponding transport documents can also be presented, whereby transport-related interim storage with carriers is also insured up to a total of 60 days. Other stays, such as ordered storage, stays with customers, recipients or other companies, are not covered by the insurance.
(3) The scope of insurance coverage pursuant to the preceding item (2) is defined as follows:
(a) Insurance coverage is provided exclusively for total damage. Total damage exists if the crate is so damaged by damage occurring during transport that it can no longer fulfill its function and cannot be repaired.
b) The insurance does not cover transport damage caused by wear and tear, material fatigue (e.g. worn or worn-out fasteners and other components of the crate) or exceeding the permissible weight or overstacking or other use not intended for the crate in question.
c) Damage to paint, scratches, scratches, bending and denting are excluded from the insurance coverage, as well as damage that can be repaired (e.g. replacement of lid or side panel, etc.).
d) If the owner of the crate has an insurance policy that covers damage to the crate (e.g. goods transport general policy), this policy shall take precedence and the insurance cover provided shall be considered subsidiary.
e) Not insured is the respective content of the crate, which was in the crate at the time of damage. To cover this risk, the Buyer shall take out its own goods transport insurance or adequately cover it via the carrier.
(4) Subject to the conditions set out in the preceding clause (2), the following types of crates shall be covered in accordance with the preceding clause (3) of the relevant product class after acceptance/delivery or transfer of risk analogous to §4 of the GTCs as follows:
a) Reusable Box Premium-Plus for 10 months
b) Reusable Box Premium for 8 months
c) returnable long-goods BOX for 5 months
d) Long-goods-BOX Premium-Plus for 3 months
e) Classic-BOX Premium for 3 months
(5) In the event of damage, the Purchaser must submit all freight documents including write-offs upon receipt, the carrier´s liability, photos of the damage, and a written description of the damage.
§6 Prices and Payment Terms
(1) Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax. These prices do not include installation, commissioning and assembly costs (see special assembly conditions) as well as packaging, freight, postage and insurance costs. They are calculated on the basis of the wage, material and other costs applicable on the date of our offer. If additional or increased charges - in particular customs duties, levies, currency compensation - are incurred between the conclusion of the contract and delivery due to changes in the law, we shall be entitled to increase the agreed purchase price accordingly.
(2) When the goods are shipped to the Buyer (pursuant to § 4 para. 1 of these GTC), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) Unless otherwise agreed in writing, the purchase price shall be due and payable within 14 days of invoicing and delivery. We reserve the right to deviating conditions (advance payment, payment in thirds, letter of credit or similar) in individual cases. In the case of foreign deliveries, we may require the opening of an irrevocable and confirmed letter of credit, payable at a bank specified by us, or other equivalent security. We send our invoices either by post or electronically by e-mail. However, we are entitled at any time, even within the framework 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.
(5) Upon expiration 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 statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(6) The Buyer shall only be entitled to rights of set-off or retention to the extent that 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.
§7 Reservation of ownership
(1) Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title and also extended title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser must notify 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 withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods on the basis of the extended reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal.
(4) Until revoked in accordance with (c) below, the Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
§8 Claims for defects of the buyer
(1) The statutory provisions shall apply to the Buyer´s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract or which have been made public by us shall be deemed to be an agreement on the quality of the goods.
(3) The Buyer´s claims for defects shall be subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects shall be notified to us in writing within five (5) working days of delivery and defects not apparent upon inspection shall be notified to us within the same period of time after discovery. If the Buyer fails to duly inspect the goods and/or give notice 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 provisions.
(4) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(5) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions.
(6) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), if there is actually a defect. Otherwise, we shall be entitled to demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or if a reasonable period to be set by the Buyer for the subsequent 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.
(11) 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 shall otherwise be excluded.
§9 Other liability
(1) Insofar as nothing to the contrary arises from these GTC 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) In the event of damages, we shall be liable - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to a milder standard of liability, in accordance with statutory provisions (e.g. for diligence in our own affairs) only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the not inconsiderable breach of a material contractual obligation (obligation the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or for the benefit of persons for whose fault we are responsible in accordance with statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination on the part of the Buyer (in particular pursuant to §§ 651, 649 BGB) shall be excluded. Otherwise, the statutory requirements and legal consequences shall apply.
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The above limitation periods of the law on sales 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 the individual case. However, claims for damages of the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§11 Final provisions
(1) The law of the Federal Republic of Germany shall apply to these GTC 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.
(2) 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 Nebringen-Gäufelden. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions 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.
(3) Transfer of contractual rights and obligations to third parties by the Buyer shall only be possible with our written consent.
(4) The invalidity of individual provisions of these General Terms and Conditions of Sale shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions that are suitable to realize the economic purpose of the omitted provision as far as possible.