General Terms and Conditions of Sale (AGB) of actovent GmbH
Daimlerstrasse 1, 71384 Weinstadt
(hereinafter referred to as actovent)
§ 1 General – Scope
(1) The terms and conditions of sale shall apply to all present and future business relations. Offers, conclusion of contracts and deliveries shall be made exclusively on the basis of our following terms and conditions of sale.
2 Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract even if they are known. Anything to the contrary shall only apply if we have expressly agreed to their validity in writing. Deviating terms and conditions of the buyer shall not apply to the offer or the contract even if the offerer or seller has not objected to them after sending the terms and conditions.
§ 2 Conclusion of contract
1. offers and price lists are subject to change and non-binding. The goods are expressly subject to prior sale. Drawings, illustrations, tables, samples etc. are subject to legal protection and may not be reproduced or made available to third parties for their own use without our permission. We must reserve the right to deviations and design changes within the scope of what is reasonable.
2 The contract shall be concluded subject to the proviso that we ourselves are supplied on time and correctly by our suppliers. This shall only apply if we are not responsible for the non-delivery. Especially when concluding a congruent hedging transaction. We inform the customer immediately about the unavailability of the service. Any consideration paid by the customer will be refunded immediately.
§ 3 Delivery time
We shall endeavour to comply with agreed delivery times. However, non-compliance with the agreed delivery time does not entitle the buyer to withdraw from the contract. Strikes, operational disruptions, force majeure, shortages of materials or labour on our part or on the part of our suppliers, as well as breaches of contract on the part of the purchaser shall release us from the obligation to deliver on time and shall entitle us to withdraw from the order in whole or in part. Claims for damages of any kind cannot be asserted.
§ 4 Shipping
1. the dispatch takes place on guarantee of the buyer, even if freight-free delivery is agreed upon. In the absence of instructions from the purchaser, the choice of transport route and means of transport shall be made at our best discretion without liability for the cheapest or fastest shipment. No guarantee can be given for the simultaneous dispatch of several quantities or their simultaneous arrival at the destination. Transport insurance is the responsibility of the buyer. The routes to the respective warehouse of the companies to be supplied or to the construction site are to be arranged by the buyer in such a way that no damage can occur to the means of transport. If the access roads are not passable, the sender has the right to refuse the delivery, at the expense of the orderer/buyer.
§ 5 Price
1 Our prices are quoted ex warehouse Stuttgart, excluding packaging, unless expressly stated otherwise. Our prices are subject to change. Value added tax is generally not included, but will be charged additionally by us at the applicable rate and shown separately. Our prices are only binding if certain minimum order values are adhered to. In the case of orders at values below this, we must therefore reserve the right to charge a shortage surcharge to cover our order processing costs.
The amount of the return fee for goods must generally be agreed with actovent in advance. (The fee is determined in the first instance by actovent).
§ 6 Terms of payment
1. the purchase price is payable net within 30 days of the invoice date. Counterclaims shall only entitle the purchaser to offset or withhold due payments if these have been acknowledged by us in writing. Even the assertion of notices of defects does not release the buyer from the timely payment of the invoice.
2. if payment is made after the due date, interest on arrears shall be charged at a rate of 8% above the base rate applicable at the time. In the event of non-fulfilment of agreed terms of payment, the Seller shall not be obliged to make further deliveries under concluded contracts. In this case, the Seller may, in deviation from the agreed terms of payment, demand cash payment upon delivery of the goods for outstanding deliveries.
The customer shall only have a right of set-off if his counterclaims have been legally established or acknowledged by us. The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
§ 7 Liability for defects
(1) We shall initially provide warranty for defects of the goods at our discretion by rectification or replacement delivery.
If the supplementary performance fails, the buyer may, at his discretion, demand a reduction of the purchase price or rescission of the contract. The customer shall not be entitled to withdraw from the contract in the event of only a minor breach of contract, in particular in the event of only minor defects.
If the purchaser chooses to withdraw from the contract after subsequent performance has failed, he shall not be entitled to any additional claim for damages on account of the defect. If the purchaser decides to claim damages after a failed supplementary performance, the goods shall remain with him, provided this is reasonable. The compensation is limited to the difference between the purchase price and the value of the defective item. This does not apply in the case of fraudulent breach of contract by us.
4 Notification of defects due to recognisable defects, in particular due to weight, number of pieces, dimensions, shapes and external condition of the goods must be made in writing within 14 days of receipt of the goods. This also applies to non-obvious defects. Otherwise the assertion of the warranty claim is excluded. Timely dispatch is sufficient to meet the deadline.
The purchaser shall bear the full burden of proof for all prerequisites for a claim, in particular for the defects themselves, for the time of discovery of the defect and for the timeliness of the submission of the notice of defect. A complaint about the physical condition and chemical composition can only be taken into account if it is received by us in writing within 30 days of receipt of the goods. After further dispatch of the goods by the buyer or after processing, notices of defects are no longer admissible.
5. claims arising from any defects in the delivery can only relate to the individual pieces. In this respect, the supplies shall be deemed to be divisible supplies.
6. warranty can only be given for written assurances within the scope of customary tolerances. Flexible hoses, in particular coiled hoses, are measured in a straight, stretched condition, whereby excess or short lengths of 10 % are reserved.
We do not assume any warranty for the function of systems in which the goods delivered by us are installed. We shall be released from any warranty for the properties and technical data of our goods if sufficient consideration is not given to the specific nature of the goods in the construction of systems in which our goods are installed. Verbal agreements, recommendations, suggestions about qualities, as well as constructions for the installation in, or the construction of plants and other technical information are non-binding. We assume no liability for this.
8. if parts are manufactured according to the buyer’s specifications or drawings, the buyer shall be liable for ensuring that no patent or industrial property rights of third parties are infringed thereby and shall indemnify us in the event of any claims for damages. Moulds or tools made by us for the production of parts remain our property even if the buyer has contributed a part of the costs.
9. the tolerance can be +/- 5% for spiral wound tubes and parts that are manufactured.
10. we do not assume any liability or guarantee for tenders processed by us. The purchaser of these must check the tender itself for correctness, especially for equipment and motor parts. Tenders are usually valid for 30 days. In the case of an order, the purchaser has to make sure with the supplier that what is offered is currently X available. The supplier has the right to rectify defects even if they were not checked by the customer but found later. The additional costs shall be borne by the purchaser of the invitation to tender, since the purchaser had sufficient time to check the correctness of the invitation to tender before it was issued.
11. actovent shall in no case assume liability in the case of tenders, not even if disadvantages are to be assumed towards the customer. The customer hereby declares that he agrees to this.
§ 8 Liability
1. in the case of slightly negligent breaches of duty, our liability is limited to the foreseeable, contract-typical damage, direct average damage, according to the type of goods. The same applies to slightly negligent breaches of duty by our legal representatives or vicarious agents.
2 We shall not be liable for the slightly negligent breach of immaterial contractual obligations.
The above limitation of liability shall not apply to claims arising from product liability. Furthermore, the limitation of liability shall not apply in the event of bodily injury or damage to health if this is attributable to us or in the event of loss of life of the purchaser.
4. the buyer’s claims for damages due to a defect become time-barred one year after delivery of the goods. This shall not apply in the case of fraudulent intent for which we are responsible. Otherwise, the statutory provisions shall apply.
§ 9 Retention of title
(1) The goods shall remain the property of the seller until full payment of all claims of the seller against the buyer arising from the mutual business relationship, including claims arising in the future. In the case of a current account, the retention of title shall serve as security for the seller’s respective balance claims.
2. the treatment or processing of the goods remaining in the property of the seller is always carried out in the name of and on behalf of us, without any liabilities arising from this. We shall acquire ownership of the new item created by processing or machining. In the event of processing with other goods not belonging to the buyer, we shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other processed goods at the time of processing. In the event that the goods delivered by us are mixed or combined with other items, the same shall apply. This provision shall apply mutatis mutandis to the installation of the goods delivered by the Seller.
The buyer is authorized to resell the goods owned by the seller in the ordinary course of business subject to retention of title. The pledging or transfer of ownership by way of security is prohibited. All customer claims, including all ancillary rights, to which the buyer is entitled from the resale, regardless of whether the resale takes place before or after processing, mixing or installation, are hereby assigned by the buyer to the seller. In the event that the goods are only co-owned by the Seller or are sold by the Buyer together with other goods not belonging to the Seller, irrespective of their condition, at a total price, the assignment of the purchase price claim, which has already been executed, shall only take place to the extent of the amount charged by the Seller to the Buyer for the part of the goods in question.
4 The buyer is authorized to collect the assigned claims until revoked. In the event of default in payment by the Buyer, the Buyer shall, at the Seller’s request, provide all information requested, notify its customers of the transfer of claims and transfer any customer bills of exchange in this respect to the Seller. The Buyer shall notify the Seller immediately of any access by third parties to the goods owned or co-owned by the Seller or to the assigned claims. The Seller shall, at the Buyer’s request, release his securities at his discretion to the extent that their value exceeds the claims to be secured by more than 20 %.
§ 10 Arbitration, Place of Performance and Jurisdiction
(1) The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
2. in the event of disputes arising from specifications or contracts, if an agreement cannot be reached, the ordinary court of law shall be seized at the seller’s discretion.
The invalidity of individual provisions shall not affect the validity of the remaining conditions.
Place of performance and jurisdiction is Stuttgart.
Status: October 2008