General terms and conditions
§ 1 Validity
(1) These General Terms and Conditions of Sale shall apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 para. 1 BGB (German Civil Code).
(2) The legal relationship between R. Alfred Zimmermann KG – hereinafter referred to as RAZ KG – and its clients mentioned in para. 1 in connection with the deliveries and/or services of RAZ KG is exclusively subject to these General Terms and Conditions of Sale.
(3) General terms and conditions of the customer will only apply to the extent that RAZ KG has expressly agreed to them in writing.
(4) These conditions of sale will also apply to all future transactions with the customer, as far as legal transactions of a related kind are concerned.
§ 2 Offer and conclusion of contract
(1) The offers of RAZ KG are subject to change and non-binding. An offer within the meaning of these provisions represents an invitation to submit an offer by the customer. Orders, declarations of acceptance and all orders placed by the customer on the basis of the offer of RAZ KG will only become binding upon written confirmation by RAZ KG, unless expressly agreed otherwise.
(2) The statements, information about weights, dimensions, performance, capacity, prices and the like contained in declarations of offer, catalogues, brochures, illustrations, price lists and similar documents are not considered as agreed upon quality and are not binding.
§ 3 Prices
(1) Unless otherwise indicated or agreed in writing, RAZ KG will be bound by the prices contained in its offers for 90 days from the date of the offer. Otherwise, the prices stated in the order confirmation of RAZ KG, plus the respective statutory value added tax, are authoritative.
(2) Unless otherwise agreed upon in writing, the price list of RAZ KG valid at the time of the confirmation of the order will apply.
(3) Unless otherwise agreed in writing, the prices are ex warehouse, excluding packaging and plus value added tax at the respective applicable rate. Costs of packaging and shipment will be invoiced separately.
(4) Unless a fixed price agreement has been made, appropriate price changes due to changed wage, material, procurement and distribution costs for deliveries that take place three months or later after conclusion of the contract are reserved.
§ 4 Payments
(1) Unless otherwise agreed, the invoice amount shall be payable within 30 days of the invoice date without deduction. The deduction of a discount is only permissible if specifically agreed in writing.
(2) If RAZ KG becomes aware of circumstances which call into question the creditworthiness of the customer, e.g. if a cheque has not been cashed or if the client suspends payments, RAZ KG is entitled to make the entire remaining debt immediately due and payable. Furthermore, RAZ KG is entitled to execute outstanding deliveries and services only against advance payment or provision of security.
(3) Special additional work exceeding the services included in the contract and excluded in the purchase price, such as assembly work, is due for payment at the latest on the day of acceptance.
§ 5 Offsetting, retention
(1) The customer is only entitled to offsetting if his counterclaims have been legally established or are undisputed. The customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(2) The customer shall not be entitled to assert claims and rights due to defects if he has not made due payments and the amount due is in reasonable proportion to the value of the – defective – delivery.
§ 6 Retention of title
(1) The delivery item remains the property of RAZ KG until all claims to which RAZ KG is entitled against the customer arising from the business relationship have been satisfied. This also applies to all future deliveries, even if RAZ KG does not always expressly refer to this.
(2) During the existence of the reservation of title, the customer is not permitted to pledge or transfer by way of security. In the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must inform RAZ KG immediately.
(3) Resale is only permitted to resellers in the ordinary course of business. The claims of the customer arising from the resale of the reserved goods are hereby assigned by the customer to RAZ KG in the amount of the price agreed with us (including value added tax). The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, RAZ KG will not collect the claim as long as the customer fulfils his payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
§ 7 Delivery time
(1) Delivery times are only binding if they have been confirmed by RAZ KG in writing as binding.
(2) The commencement of a delivery time that has been bindingly promised presupposes the timely and proper fulfilment of the obligations of the customer. The objection of non-performance of the contract remains reserved.
(3) Unless otherwise agreed upon, the delivery time will be deemed to have been fullfilled if the object of performance has left the company premises of RAZ KG or the company premises of the manufacturer commissioned by RAZ KG with the execution of the delivery by the end of the delivery time.
(4) We reserve all rights with respect to correct and timely self-delivery.
(5) Notwithstanding bindingly agreed delivery time, RAZ KG is not responsible for delays in performance due to force majeure and other events, which make the delivery substantially more difficult or impossible for RAZ KG – these include, in particular, strikes, lock-outs, official orders, etc., even if they occur at suppliers of RAZ KG and their sub-suppliers.
Delays in performance occurring due to such circumstances entitle RAZ KG to postpone the performance for the duration of the hindrance plus a reasonable start-up time. Customer claims for damages cannot be derived from this.
(6) RAZ KG is entitled to render partial services at any time, unless a uniform performance of services has been agreed upon.
§ 8 Transfer of risk in case of shipment
If the goods are shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or whoever bears the freight costs.
(1) Warranty rights of the purchaser require that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
(2) Warranty claims become statute-barred 12 months after delivery to the customer. The warranty period is excluded for used goods. The above provisions shall not apply if the law according to § 438 para. 1 No. 2 BGB, § 479 para. 1 BGB and § 634a para. 1 BGB prescribes longer periods. Our consent must be obtained prior to the return of any goods.
(3) If, despite all the care taken, the delivered goods should show a defect which already existed at the time of the transfer of risk, RAZ KG will, subject to timely notification of defects, either repair the goods or deliver replacement goods at the discretion of RAZ KG. RAZ KG must always be given the opportunity for subsequent remedy within a reasonable period of time. Recourse claims remain unaffected by the above provision without restriction.
(4) If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
(5) Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or wear and tear as well as in the case of damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials or due to special external influences that are not provided for under the contract. If improper repair work or modifications are carried out by the customer or third parties, no claims for defects shall exist for these and the consequences thereof.
(6) Claims of the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded, insofar as the expenses increase because the goods delivered by RAZ KG have subsequently been taken to a place other than the branch office of the customer, unless the transfer corresponds to their intended use.
(7) Claims of recourse of the customer against RAZ KG will only exist insofar as the customer has not made any agreements with his buyer exceeding the legally binding claims for defects. Furthermore, para. 6 applies accordingly to the extent of the customer’s right of recourse against the supplier.
§ 10 Limitation of liability
(1) RAZ KG is liable in cases of intent or gross negligence on its own part, on the part of a representative or a vicarious agent in accordance with the statutory provisions. Otherwise, RAZ KG is only liable according to the Product Liability Act, for injury to life, body or health or for the culpable violation of essential contractual obligations. The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or 2 of this par. 1 exists at the same time. Even in cases of gross negligence, the liability of RAZ KG is limited to the foreseeable damage typical for this type of contract, unless another of the exceptional cases listed in sentence 2 of this para. 1 also applies.
(2) The provisions of the above para. 1 apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), regardless of the legal grounds, in particular due to defects, the violation of duties arising from the contractual obligation or from unlawful acts. They also apply to the claim for reimbursement of futile expenses. However, liability for delay shall be determined in accordance with § 11, liability for possibility in accordance with § 12 of these Terms of Sale.
(3) A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
§ 11 Limitation of liability for delay
RAZ KG is liable for delay in performance in cases of intent or gross negligence by itself, a representative or vicarious agent in accordance with the statutory provisions. However, in cases of gross negligence, liability is limited to the foreseeable damage typical for the contract. Outside of the cases of sentence 1, the liability of RAZ KG due to delay in performance for compensation in addition to performance and for compensation in lieu of performance is limited to a total of 10% of the value of that part of the delivery which was delivered with delay; further claims of the customer are excluded – even after the expiration of a deadline for performance possibly set by RAZ KG. The aforementioned limitations do not apply in the case of liability due to injury to life, body or health. A change of the burden of proof to the disadvantage of the customer is not connected with the above provisions. The above provisions shall also apply to the claim for reimbursement of futile expenses.
§ 12 Limitation of liability in case of impossibility
RAZ KG is liable for impossibility of delivery/service in cases of intent or gross negligence on the part of itself, a representative or vicarious agent in accordance with the statutory provisions. However, in cases of gross negligence, liability is limited to the foreseeable damage typical for the contract. Outside the cases of sentence 1, liability for impossibility of performance shall be limited to damages and to compensation for wasted expenditure to a total of 10% of the value of that part of the delivery which could not be put into useful operation due to the impossibility of performance. Further claims of the customer due to impossibility of delivery are excluded. The above limitations shall not apply in the event of liability for injury to life, body or health. The right of the customer to withdraw from the contract remains unaffected. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.
§ 13 Returns / Taking back
The supplier is not obliged to take back incorrect deliveries caused by the customer. If the supplier nevertheless takes back such goods in individual cases, this is done as a gesture of goodwill. In this case, the customer shall bear all costs of the supplier. In addition, the supplier can claim a flat-rate processing fee of 10% of the value of the goods, but at least EUR 20 plus VAT, from the purchaser for processing.
§ 14 Place of jurisdiction and applicable law
(1) If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of RAZ KG. However, RAZ KG is also entitled to file suit at the place of business of the customer.
(2) This contract and the entire legal relations of the parties are subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 15 Consumer dispute resolution
The company R.A. Zimmermann KG / PVZ-Group does not participate in consumer dispute resolution proceedings under the Consumer Dispute Resolution Act.
§ 16 Final provisions
Should individual provisions of these terms and conditions be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision respectively fills this gap.
Version: January 23rd, 2020