General Sales Conditions
Actiforce Europe GmbH, Rudolf-Diesel-Straße 29-31, 31582 Nienburg
§ 1 General information – scope of application
Our General Sales and Delivery Conditions apply exclusively. We do not accept opposing conditions or those deviating from our General Terms and Conditions of the Customer unless we have expressly agreed to their application in writing. Our General Terms and Conditions apply also if we execute the delivery to the Customer without reservations in the knowledge of the Customer’s opposing conditions or conditions deviating from our General Terms and Conditions.
All agreements made between us and the Customer for the purpose of the execution of this Agreement are documented in writing in this Agreement.
Our General Sales Conditions apply only for business persons in terms of Section 310 (1) BGB (German Civil Code).
§ 2 Offer – offer documentation
If the order is to be qualified as offer according to Section 145 BGB, we are entitled to accept it within two weeks.
We reserve ownership and copyrights to illustrations, drawings, calculations and other documents. This also applies for such written documentation which is labelled “confidential”. The Customer requires our express written permission prior to their transmission to third parties.
§ 3 Prices – terms of payment
Our prices are determined based on the precise details and information of the Customer. These details and information form the basis for our price offer. Unless stipulated otherwise in the order confirmation, our prices apply “ex works” and include packaging.
If the use of rented packaging is required for the transport (e.g. euro-pallets / wire crates), we charge an additional rental fee if an exchange of equal value at the Customer is not possible. We reserve the right to adjust prices appropriately if cost increases occur after the conclusion of the contract, particularly based on tariff agreements or price changes for material or currency fluctuations. We are obligated to proceed likewise in case of cost reductions. Upon request, we shall verify both cost reductions and cost increases as soon as and to the extent that they have occurred, and shall take them into account in the form of cost increases and cost reductions.
Statutory Value Added Tax is not included in our prices; it is specified in the invoice at its legal amount on the day of invoicing.
The deduction of a discount is only permissible upon special written agreement.
Unless stated otherwise in the order confirmation, the purchase price is due and payable net (without deductions) within 14 days from date of invoice. The statutory regulations apply regarding the consequences of default of payment.
The Customer is only entitled to off-setting if his counter claims were legally determined, are uncontested or accepted by us. He is furthermore entitled to a right of retention in as far as his counter claim is based on the same contractual relationship.
§ 4 Delivery withdrawal – delivery time
The commencement of delivery times stipulated by us implies that all technical issues have been clarified.
Compliance with our delivery obligation furthermore implies the on-time and proper fulfilment of the Customer’s obligations. The plea of the unfulfilled contract remains reserved.
If we do not receive deliveries even though we have placed congruent orders at reliable suppliers, we are exempt from our duty to perform and can withdraw from the Agreement. We are obligated to inform the Purchaser of the unavailability of the service immediately and shall reimburse any consideration previously paid by the Purchaser without undue delay.
If the Purchaser is in default of acceptance or if he culpably violates other obligations to participate, we are entitled to demand compensation for incurred damages including any additional expenses. Further claims or rights remain reserved.
If the conditions mentioned in paragraph (4) exist, the risk of accidental destruction or deterioration of the merchandise is transferred to the Customer at the moment he is in default of acceptance or payment.
We are liable according to statutory regulations if the underlying purchasing agreement is a fixed-date transaction in terms of Section 286 (2) No. 4 BGB or Section 376 HGB (German Commercial Code). We are also liable according to statutory regulations if – as a consequence of delay in delivery attributable to us – the Customer is entitled to assert that his interest in the further fulfilment of the Agreement has ceased.
We are furthermore liable according to statutory regulations if the default is based on intentional or gross negligent breach of contract attributable to us; we are responsible for the culpability of our vicarious agents. If the default is based on a gross negligent breach of contract attributable to us, our liability for compensation is limited to the foreseeable, typical damage.
We are also liable according to statutory regulations if the default attributable to us is based on the culpable break of an essential contractual obligation; however, in this case, the liability for compensation is limited to the foreseeable, typical damage.
Further statutory claims and rights of the Customer remain reserved.
§ 5 Transfer of risk – packaging costs
Unless stipulated otherwise in the order confirmation, the delivery is agreed “ex works”.
Special agreements apply for the return of packaging.
If the Customer so desires, we shall cover the delivery with transport insurance; the Customer is responsible for any incurred costs.
§ 6 Liability for defects
Warranty claims of the Customer imply that he has properly complied with his obligations regarding inspection and requirement to give notice of defects in accordance with Section 377 HGB.
Warranty claims do not exist in case of mere insignificant deviations from the agreed quality, immaterial impairment of usefulness, natural wear and tear as well as damages occurred after the transfer of risk due to faulty or negligent treatment, excessive load, unsuitable consumables, inadequate construction work, unsuitable construction surface or special external influences which are not stipulated according to the agreement. If the Purchaser or a third party performs improper repairs or changes, these and any resulting consequences are also excluded from warranty claims.
If the merchandise exhibits a defect, the Customer is entitled to subsequent fulfilment in form of a remedy or to supply a new defect-free item at his discretion.
The Seller can refuse the kind of subsequent fulfilment elected by the Purchaser notwithstanding Section 275 (2) and … BGB if it is only possible with disproportionate costs. In the process, particularly the value of the object in defect-free condition, the significance of the defect and the question whether the different type of subsequent fulfilment could be considered without significant disadvantages for the Customer. In this case, the Purchaser’s claim is limited to the different type of subsequent fulfilment; the Seller’s right to refuse also this type under the prerequisites of sentence 1 remains unaffected.
In the event of a remedy of defect or replacement delivery, we are responsible for the costs required for the subsequent fulfilment, particularly transport, shipping, labour and material costs unless they increase because the merchandise was shipped to a location other than that of the place of fulfilment.
If the subsequent fulfilment fails, the Customer is entitled to withdrawal or reduction at his discretion.
We are liable according to the statutory regulations if the Customer asserts compensation claims based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents. If we are not guilty of intentional violation of contract, the liability for compensation is limited to the foreseeable, typical damage.
We are liable according to the statutory regulations if we have culpably violated an essential contractual obligation; however, also in this case the liability for compensation is limited to the foreseeable, typical damage.
If – due to negligent breach of duty – the Customer is entitled to claim compensation for the damage instead of performance, our liability is limited to the compensation of the foreseeable, typical damage.
Liability based on culpable violation of life, body or health remains unaffected; this also applies to the mandatory liability according to the Product Liability Act.
Unless stated otherwise above, liability is excluded.
The statute of limitation for warranty claims is 12 months, calculated from the date of transfer of risk. This does not apply if the merchandise is typically used for a construction and has caused the defect.
The statute of limitations in case of delivery recourse according to Sections 478, 479 BGB remains unaffected; it amounts to five years calculated from the date of delivery of the defect item.
§ 7 Total liability
Further liability for compensation as provided for in § 6 is excluded without consideration for the legal nature of the asserted claim. This particularly applies for compensation claims based on fault at the formation of an agreement, other breaches of duty or tortuous compensation claims for property damages according to § 823 BGB.
The limitation according to (1) also applies if the Customer, instead of a claim for compensation of the damage, demands the substitution of useless expenditures instead of performance.
If our liability for compensation is excluded or limited, this also applies in terms of personal liability for compensation with respect to our employees, representatives and vicarious agents.
§ 8 Security of reservation of title
We reserve ownership of the merchandise until the receipt of all payments from the delivery contract. In the event of the Customer’s conduct contrary to the agreement, particularly in case of default of payment, we are entitled to retrieve the merchandise. The retrieval of the merchandise by us constitutes a withdrawal from the agreement. Upon retrieval of the merchandise, we are entitled to its utilisation; the revenue from the utilisation is off-set against the Customer’s obligations – less reasonable utilisation expenses.
The Customer is obligated to treat the merchandise carefully; he is particularly obligated to insure the merchandise against fire, water and theft at his own expense. If maintenance and inspection works have to be carried out, the Customer has to implement those at his expense in due time.
The Customer is obligated to immediately inform us in writing in the event of levies of execution or other interventions by third parties to enable us to file a petition according to Section 771 ZPO (Code of Civil Procedure). If the third party is not able to reimburse us for the judicial and extra-judicial costs of a successful petition according to § 771 ZPO (Code of Civil Procedure), the Customer is liable for the damage we incurred.
The Customer is entitled to on-sell the merchandise in the course of proper business; however, he hereby assigns to us all claims in the amount of the invoice (including VAT) which he accrues from his Purchasers or third parties based on the on-selling, regardless whether the merchandise was on-sold with or without processing. The Customer is entitled to collect these claims also following the assignation. Our authorisation to collect the claim ourselves remains unaffected. However, we shall not collect the claim as long as the Customer complies with his payment obligations from the collected revenue, is not in default of payment and has particularly not applied for the commencement of composition or insolvency procedures or has suspended payment. If this is the case, we can demand that the Customer discloses the assigned claims and their debtors, provides all details necessary for the collection, supplies the respective documentation and informs the debtors (third parties) of the assignation.
The processing or reconstruction of the merchandise by the Customer is always performed on our behalf. If the merchandise is processed with other objects not belonging to us, we obtain co-ownership in the new object at the ratio of the objective value of the merchandise (invoice amount including VAT) to the other processed objects at the time of processing. For the remainder, the same conditions apply for the items created by the processing as in case of merchandise delivered under reservation.
If the merchandise is inseparably amalgamated with other merchandise not belonging to us, we obtain co-ownership in the new object at the ratio of the objective value of the merchandise (invoice amount including VAT) to the other amalgamated objects at the time of amalgamation. If the intermingling occurs in the manner that the object of the Customer is considered the main object, it is agreed that the Customer assigns to us proportional ownership. The Customer preserves the thus created sole ownership or co-ownership for us.
To secure our claims against the Customer, the Customer assigns to us also such claims, which he accrues based on the intermingling of the merchandise with a property against a third party.
Upon demand by the Purchaser, we are obligated to release the securities owed to the extent as the realisable value of the securities exceeds the claims of our security by more than 10 %; the choice of the securities to be released is at our discretion.
§ 9 Place of jurisdiction – place of fulfilment
If the Customer is a merchant, our registered business address is the place of jurisdiction; however, we are entitled to also sue the Customer at the court of competent jurisdiction for his residential address.
The laws of the Federal Republic of Germany apply.
Place of fulfilment is our registered office unless otherwise determined in the order confirmation.
Nienburg, 01.02.2017 — Actiforce Europe Gm