BlitzRotary GmbH General Terms and Conditions
§ 1 General, Scope of Application
(1) 1 The present General Terms and Conditions (the “Ts & Cs“) apply for all deliveries, services and offers of Blitz Rotary GmbH (hereinafter, the „Seller“) to our customers (hereinafter: the “Purchaser(s)“). 2 These Ts & Cs apply only if the Purchaser is a commercial party within the meaning of §14 German Civil Code, a legal entity under public law or a separate fund existing under public law.
(2) 1 These Ts & Cs apply especially for contracts for the sale and/delivery of moveables (hereinafter also referred to as “goods”) without regard to whether the Seller itself manufactures the goods or procures them from suppliers (§§433, 651 BGB). 2 These Ts & Cs apply in their respective version as a general agreement also for future contracts with the same Purchaser on the sale and/or delivery of moveables without the Seller having to again refer to them in each specific case.
(3) 1 Exclusively these Ts & Cs of the Seller apply. 2 Different, contrary or supplemental general terms and conditions of the Purchaser only become a part of the contract if and to the extent that we have expressly agreed to their applicability. 3 This requirement for consent applies in all situations, for example, also if the Seller carries out the delivery to the Purchaser without reservation and having knowledge of the Purchaser’s Ts & Cs.
(4) Individual agreements of the Seller with the Purchaser reached in a specific case have priority over these Ts & Cs. A written contract or the written confirmation by the Seller is determinative for the content of such agreements.
(5) Declarations and notices having legal relevance which are to be given by the Purchaser to the Seller after conclusion of the contract (e.g. setting deadlines, notice of defects, declaration of withdrawal or reduction of price) require written form in order to be valid.
(6) References to the applicability of statutory provisions are only relevant as clarifications. Therefore, the statutory provisions apply even without such clarification to the extent that these statutory provisions are not directly modified or expressly excluded under these Ts & Cs.
§ 2 Offers and Conclusion of the Contract
(1) 1 All offers of the Seller are free and non-binding unless they have been expressly designated as binding or contain a specific deadline for acceptance. 2 The Seller can accept orders or contracts within 14 days after receipt.
(2) 1 The purchase agreement concluded in writing, including these General Terms and Conditions for Delivery, are sole determinative for the legal relationships between the Seller and the Purchaser. 2 The purchase contract completely reflects all arrangements between the contracting parties concerning the subject matter of the contract. 3 Oral commitments of the Seller prior to conclusion of this contract are not legally binding, unless such arrangements expressly provide that they will continue to be binding.
(3) 1 Supplements and modifications to the agreements which have been reached, including, these General Terms and Conditions of Delivery, require written form in order be valid. 2 Except for managing directors or holders of registered signing authority, the employees of the Seller are not authorized to make different, oral arrangements. 3 Transmission by telefax is sufficient to satisfy written form; aside from this, transmission by telecommunications, especially by email, is not sufficient.
(4) 1 Statements by the Seller about the subject of the delivery or services (e.g. weights, measurements, useable values, load baring capacity, tolerances and technical data) as well as our descriptions of the same (e.g. drawings and illustrations) are only determinative as approximations unless the ability to be used for the contractually contemplated purpose requires exact consistency. 2 Such information does not constitute guarantied features and are instead descriptions or designations for the delivery or services. 3 Deviations which are common in the business and deviations which occur due to legal provisions or which represent technical improvements, as well as the replacement of components with equivalent parts, are permissible to the extent that they do not adversely affect the ability to be used for the contractually intended purpose.
(5) 1 The Seller reserves the title or copyright to all offers and cost estimates issued by the Seller and to all drawings, illustrations, calculations, prospectuses, catalogues, models, tools and other documents and aides provided to the Customer. 2 The Purchaser cannot use these items as such or disclose the contents of them to third parties, make them public knowledge, use them by itself or reproduce them or permit third parties to do so without the express consent of the Seller. 3 The Purchaser must return these items completely to the Seller upon request and destroy any copies which might have been made if the Purchaser no longer needs these items in the ordinary course of business or if negotiation do not lead to conclusion of a contract.
§ 3 Prices and Payment Terms
(1) 1 The prices apply for the scope of services and deliveries set forth in the order confirmations. 2 The Seller’s current prices pursuant to the Seller’s respectively binding EUR price list as of the time of concluding the contract apply ex works Bräunlingen/Baden. 3 Additional or separate work will be charged separately. 4 The prices are in EUR ex works, plus packaging, statutory value added tax, customs duties in the case of exports and fees and other public levies. 5 Packaging will be charged at the own costs, and return will not be accepted. 6 To the extent that the agreed prices are based on the Seller’s list prices and the delivery is only supposed occur after conclusion of the contract, the Seller’s list prices applicable upon delivery (in each case minus any agreed percentage or fixed amount discount) apply. If the list prices after conclusion of the contract and prior to delivery are increased by more than 15%, the Purchaser has a right to withdraw.
(2) Unless otherwise agreed to in writing, the following terms are applicable: 1 All invoices are due immediately after receipt of invoice and must be paid without any deductions. 2 If the parties agreed to different payment terms, then the date to calculate the payment terms is based on the invoice date. Checks constitute payment only after they have been honored. 3 If the Purchaser does not pay when due, the outstanding amounts bear interest at an annual rate of 5% commencing as of the due date; the assertion of higher interest and further damages in the case of default remains unaffected.
(3) 1 A set-off with counterclaims of the Purchaser or the retention of payments due to such claims is only permissible to the extent the counterclaims are undisputed or have been finally adjudication.
(4) The Seller is entitled to carry out outstanding deliveries or render outstanding services only for advance payment or upon posting security if the Seller becomes aware of circumstances after conclusion of the contract which have the capability of materially reducing the credit worthiness of the Purchaser and which endanger the payment of outstanding claims of the Seller by the Purchaser under the respective contractual relationship (including under other individual contracts for which the same general agreement applies).
§ 4 Delivery and Time of Delivery
(1) Deliveries are ex works.
(2) 1 Any periods and dates for deliveries and services indicated by the Seller constitute only approximations unless a firm deadline or a firm date has been expressly promised or agreed. 2 If shipment has been agreed, the delivery periods and delivery dates refer to the date of handing over the shipment to the freight forwarder, the shipper or other third party retained for transportation, and aside from this, upon notice from the Seller that the goods are ready for shipment.
(3) 1 Notwithstanding the Seller’s rights in the case of default on the part of the Purchaser, the Seller can demand from the Purchaser an extension of periods for delivery and services or a shift in the dates for delivery and services corresponding to a period of time in which the Purchaser does not comply with its contractual obligations owed to the Seller.
(4) 1 The Seller is not liable for impossibility of delivery or for delays in delivery to the extent that the impossibility or delays have been caused by force majeure or other events which could not be foreseen at the time the contract was concluded for which the Seller is not responsible (e.g. disruption to operations of all kinds, difficulties in procuring materials or energy, delays in transportation, strike, legal lock-outs, shortage of available employees, energy or raw materials, difficulties in procuring necessary public permits, measures by public authorities or incorrect or delayed delivery or lack of delivery by suppliers). 2 If such events render the delivery or the services materially more difficult or impossible for the Seller and if the hindrance is not only of a temporary nature, the Seller is entitled to withdraw from the contract at the latest after the expiration of 6 months. 3 In the case of hindrances of a temporary nature, the periods of time for delivery or services are extended or the dates for delivery or services are moved corresponding to the duration of the hindrance plus a reasonable period for start-up. 4 To the extent that the Purchaser can not be reasonably expected to accept the delivery or services as a result of the delay, the Purchaser can withdraw from the contract by reasonable declaration issued to the Seller without undo delay.
(5) The Seller is only entitled to make partial deliveries if
- the partial delivery is usable for the customer in context of the contractually intended purpose,
- the delivery of the remaining ordered goods is secured, and
- the Purchaser does not incur any material increased expense or additional costs as a result (unless the Seller declares that it is willing to assume these costs).
(6) If the Seller is in default with a delivery or services or if it becomes impossible for the Seller to make a delivery or render services, regardless of the reason, the liability of the Seller is limited to damages in accordance with §8 of these General Terms and Conditions.
§ 5 Place of Performance, Passage of Risk, Acceptance
(1) 1 Place of performance for all obligations under the contractual relationship is Bräunlingen/Baden unless provided otherwise. 2 If the Seller also owes installation, place of performance is the location where the installation must occur.
(2) The method of shipment and the packaging is subject to the reasonable discretion of the Seller.
(3) 1 The risk passes to the Purchaser at the latest when the subject of the delivery is handed over to the freight forwarder, the shipper or the third party otherwise intended for shipping, and the commencement of the loading process is determinative for this. 2 This also applies if partial deliveries are made or if the Seller has assumed other services (e.g. shipping or installation). 3 If the dispatching of the goods or the handing them over is delayed as a result of circumstances for which the Purchaser is responsible, the risk passes to the Purchaser commencing as of the date on which the Seller is ready to ship and has notified the Purchaser about this.
(4) 1 The Purchaser bears the storage costs after the passing of risk. 2 In the case of storage by the Seller, the storage costs are 0.5 % of the amount of the invoice of the items intended for delivery which must be stored for each commenced month. 3 The assertion and proof of further or lower storage costs is reserved.
(5) The shipment will be insured by the Seller against theft, breakage, damage in transport, fire and water damage or other insurable risks only at the express request of the customer and at its costs.
(6) The Purchaser must accept delivery of items even if they have immaterial defects, notwithstanding the rights of the Purchaser under § 6 of the General Terms and Conditions.
(7) To the extent that an acceptance must take place, the goods are deemed to be accepted if
- the delivery and, if the Seller also owes installation, the installation has been concluded,
- the Seller has notified this to the Purchaser and referred to the deemed acceptance under this § 5 (7) and has called upon the Purchaser to declare acceptance,
- [twelve] workdays have passed since delivery or installation or the Purchaser has started using the purchased item (e.g. has commissioned the delivered equipment) and [six] workdays have passed in this situation since delivery or installation, and
- the Purchaser has failed to declare acceptance within this period of time for reasons other than a defect notified to the Seller which renders use of the purchased item impossible or materially adversely affects the use.
§ 6 Reservation of Title
(1) The following agreed reservation of title serves to secure all respectively existing current and future claims of the Seller against the Purchaser under the supplier relationship existing between the contracting parties for all delivered goods, including claims from balances under a current account relationship limited to the supplier relationship.
(2) 1 The goods delivered by the Seller to the Purchaser remain the property of the Seller until complete payment of all secured claims. 2 The goods as well as the goods covered by reservation of title which take their place under this clause are referred to hereinafter as the retained goods.
(3) The Purchaser holds the retained goods free of charge for the Seller.
(4) 1 The Purchaser is entitled to process and sell the retained goods until an instance of realization occurs (§ 9) in the ordinary course of business. 2 Pledges and transfers of title for purposes of security are not permitted.
(5) 1 If the retained goods are processed by the Purchaser, it is agreed that the processing occurs in the name and for the account of the Seller as the manufacturer and that the Seller acquires the title or, if the processing occurs with materials from different owners or if the value of the processed item is higher than the value of the retained goods, co-ownership (proportionate ownership) in the newly created item proportionately according to the value of the retained goods compared to the value of the newly created item. 2 In the event that no such acquisition of title at the Seller was supposed to take place, the Purchaser already now transfers its future title or co-ownership (in the above mentioned proportion) in the newly created item to the Seller as security. 3 If the retained goods are combined with other items to a single item or if the retained goods are inseparably mixed and if one of the other items is considered to be the primary item, the Purchaser transfers to the Seller proportionately the co-ownership in the single item in the proportion set forth in sentence 1 to the extent that the main item belongs to the Purchaser.
(6) 1 In the case of a further sale of the retained goods, the Purchaser already now assigns to the Seller the resulting claim against the acquiring party, in the case of co-ownership of the Seller in the retained goods proportionately in accordance with the co-ownership share. 2 The Seller accepts the assignment. 3 This also applies for other claims which take the place of the retained goods or otherwise arise with regard to the retained goods, for example, insurance claims or claims under tort in the case of loss or destruction. 4 The Seller authorizes the Purchaser, subject to revocation, to collect the claims assigned to the Seller in the Purchaser’s own name. 5 The Seller can only revoke this authorization to collect in an instance of realization.
(7) 1 If third parties have an impact on the retained goods, especially by way of attachment, the Purchaser will inform them about the Seller’s title without undue delay and inform the Seller accordingly in order to enable the Seller to enforce its title. 2 If the third party is not able to compensate the Seller for the court costs or out of court costs in this regard, the Purchaser is liable to the Seller for such costs.
(8) The Seller will release the retained goods and the items or claims taking their place at its election upon request to the extent that the value of the retained goods exceeds the secured claims by more than 50 %.
(9) If the Seller withdraws from the contract in the case of breach of contract by the Purchaser, especially in the case of default in payment (enforcement event), the Seller is entitled to demand surrender of the retained goods.
(10) 1 If the Purchaser acts in breach of contract, especially if the Purchaser is in default with payment of a claim for compensation, we can demand from the Purchaser that it inform us about the assigned claims and the respective obligors and notify the respective obligors about the assignment and hand over to us all records and provide all information we require in order to assert the claim. 2 The Purchaser is especially required to provide the Seller with an exact list of the claims belonging to the Seller, stating the names and addresses of the customers, the amount of the individual claims, the date of invoice, etc. 3 The Seller can demand that the Purchaser permit the Seller to examine the status of the assigned claims by agents of the Seller on the basis of the Purchaser’s bookkeeping.
§ 7 Warranty, Defects in the Substance
(1) 1 The delivered items must be carefully examined without undue delay after delivery to the Purchaser or to the third party designated by the Purchaser. 2 The goods are deemed to have been approved if the Seller has not received a written complaint in the manner set forth in § 2 (2) (sentence 6) concerning obvious defects or other defects which are recognizable upon careful examination without undue delay within seven workdays after delivery of the delivered item or otherwise within seven workdays after discovery of the defect or any earlier point in time in which the defect was recognizable for the Purchaser under normal use of the delivered item without any closer examination. 3 Upon request of the Seller, the delivered item about which a complaint has been made must be returned to the Seller freight free. 4 In the case of a justified complaint, the Seller will reimburse the costs for the most cost efficient means of shipment; this does not apply to the extent that the costs increase because the delivered item is located at a location which is different than the location for the intended use.
(2) 1 In the case of defects in the substance of the delivered items, the Seller is required and entitled to, at its election to be made within a reasonable period of time, to initially correct the defect or make replacement delivery. 2 In the case of failure, e.g. impossibility, unreasonableness, refusal or unreasonable delay in correcting the defect or a replacement delivery, the customer can withdraw from the contract or reasonably reduce the purchase price. 3 In the case of an immaterial defects, however, there is no right of withdrawal.
(3) Claims of the Purchaser for damages or compensation of expenses made in vain exist only in accordance with §8 and are otherwise excluded.
(4) 1 The Seller is entitled to make the owed follow-up performance dependent on the Purchaser having paid the due purchase price. 2 However, the Purchaser is entitled to withhold a reasonable portion of the purchase price reflecting the defect.
(5) 1 The Purchaser must give the Seller the time and opportunity required for the owed follow-up performance, and the Purchaser must especially hand over the goods about which complaints were made for purposes of examination. 2 In the case of replacement delivery, the Purchaser must return to the Seller the defective item in accordance with the statutory provisions.
(6) 1 The expenses made for the purpose of examination and follow-up performance, including transportation costs, transit costs, costs for labor and materials, are borne by the Seller if a defect actually exists. 2 However, if it turns out that the demand by the Purchaser for correction of a defect was unjustified, the Seller can demand from the Purchaser compensation for the costs incurred as a result.
(7) 1 In urgent situations, e.g. in the case of danger to operating safety or in order to avoid disproportionate harm, the Purchaser has the right to itself correct the defect and demand from the Seller compensation for the expenditures objectively required for this purpose. 2 The Seller must be informed about such action by the Purchaser itself without undo delay, if possible in advance. 3 The right to take action by the Purchaser itself does not exist if the Seller is entitled to refuse corresponding follow-up performance in accordance with the statutory provisions.
(8) 1 In the case of defects in components from other manufacturers which the Seller cannot correct due to reasons under the law of licenses or due to factual reasons, the Seller, at its election, will assign its warranty claims against the manufacturers and suppliers for the account of the Purchaser or assign them to the customer. 2 Warranty claims against the Seller exist in the case of such defects under the other prerequisites and in accordance with these General Terms and Conditions only if the enforcement of the above mentioned claims against manufacturer and supplier before the courts was unsuccessful or without any chance of success, for example, due to insolvency. 3 During the course of the litigation, the time bar period for the relevant warranty claims of the customer against the Seller is suspended.
(9) 1 The warranty does not apply if the Purchaser modifies the delivered item or permits third parties to do so without the consent of the Seller and the correction of the defect is rendered impossible or unreasonably rendered more difficult as a result. 2 No warranty is assumed especially for damages based on the inappropriate or improper use, incorrect assembly or commissioning by the customer or third parties, natural wear and tear, incorrect or negligent treatment, inappropriate consumables, exchanged materials, defective construction work, inappropriate ground for construction, chemical, electro-chemical or electrical influences and not on any culpable conduct on the part of the Seller. 3 In any event, the Purchaser must bear the increased costs for correcting the defect resulting from the change.
(10) Any delivery of used items agreed with the Purchaser in a specific case is made subject to exclusion of all warranties for defects in the substance of the item.
§ 8 Other Liability
(1) To the extent not provided otherwise in these General Terms and Conditions, including the following provisions, the Seller is liable under applicable statutory provisions for breaching contractual duties or duties owed outside of the contract.
(2) The liability of the Seller for damages, regardless of the legal basis, especially due to impossibility, default, defective or false delivery, breach of contract, breach of duties when negotiating the contract and tort, is limited in accordance with this §6 to the extent that the liability depends on culpable conduct.
(3) The Seller is not liable in the case of simple negligence of its corporate bodies, statutory representatives, employees or other agents for purposes of performance unless a breach of duties essential to the contract is involved. Duties essential to the contract consist of the obligation to timely delivery and install the subject of the delivery free material defects and duties to advice and protect which are supposed to enable the Purchaser to use the delivered item in accordance with the contract or which are intended to protect the live and health of the Purchaser’s personnel or protect the Purchaser’s property against material harm.
(4) 1 To the extent that the Seller is liable in principle for damages under § 8 (3), this liability is limited to damages which the Seller foresaw as a possible consequence of a breach of contract when concluding the contract or which the Seller could have foreseen upon exercising the standard of care common in business. 2 Indirect damages and consequential damages resulting as a consequence of defects in the delivered item are also only subject to compensation to the extent that such damages are typically to be expected in the case of using the delivered item for its intended purpose.
(5) In the case of liability for simple negligence, the duty of the Seller to compensate for property damage and resulting further damages is limited to an amount of EUR 1 million for each event of harm, even of a breach of essential contractual duties is involved.
(6) The above exclusions and limits on liability apply in the same scope for the benefit of the corporate bodies, statutory representatives, employees and other agents of the Seller for the purpose of performance.
(7) To the extent that the Seller provides technical information or is active in an advising capacity and the information or advice is not part of the scope of the contractually agreed performance owed by the Seller, such activities occur free of charge and subject to exclusion of all liability.
(8) The limits in this § 8 do not apply for the liability of the Seller due to intentional misconduct, for guaranteed features, for injury to life, physical integrity or health, under the German Product Liability Act or to the extent that the Seller has fraudulently failed to disclose a defect.
(9) The Purchaser can only withdraw from the contract or give notice of termination based on a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A free right of the Purchaser to terminate (especially pursuant to §§651, 649 BGB) is excluded. Aside from this, the statutory prerequisites and legal consequences apply.
§ 9 Time Bar
(1) 1 Contrary to §438 para 1 no. 3 BGB, the general time bar period for claims based on defects in the substance of an item and defects in title is one year after delivery. 2 To the extent that acceptance has been agreed, the time bar period begins upon acceptance.
(2) 1 However, if the goods constitute construction work or an item which has been used for construction in accordance with its normal type of use and if this has caused the defect (building materials), the time bar period is 5 years commencing with delivery in accordance with the statutory provision (§438 para 1 no. 2 BGB). 2 Special statutory provisions for claims of third parties under property law for surrender of an item (§438 para 1 no. 1 BGB), in the case of fraud on the part of the Seller (§438 para 3 BGB) and for claims under recourse against suppliers in the case of final delivery to a consumer (§479 BGB) remain unaffected.
(3) 1 The above time bar periods in the law on purchase contracts apply also for contractual claims of the Purchaser for damages and those claims outside of the contract which are based on a defect in the goods unless the application of the normal statutory time bar period (§§195, 199 BGB) would lead to a shorter time bar period in the specific case. 2 The time bar periods under the German Product Liability Act remain unaffected in any event. 3 Aside from this, the statutory time bar periods apply exclusively for claims of the Purchaser for damages under §8 of these General Terms and Conditions.
§ 10 Intellectual Property Rights
(1) 1 The Seller assumes responsibility in accordance with this §10 that the delivered item is free of intellectual property rights or copyrights of third parties. 2 Each contracting party will inform the other contracting party in writing without undo delay if claims are asserted against the first contracting party based on infringement of such rights.
(2) 1 In the event that the delivered item infringes an intellectual property right or copyright of a third party, the Seller, at its election and costs, will modify or exchange the delivered item in such a manner that no rights of third parties are violated any longer, while the delivered item continues to fulfill the contractually agreed functions, or procure for the customer the right of use by concluding a license agreement. 2 If the Seller does not succeed in doing this within a reasonable period of time, the Purchaser is entitled to withdraw from this Agreement or reasonably reduce purchase price. 3 Any claims for damages on the part of the customer are subject to the restrictions in §8 of this General Terms and Conditions.
(3) 1 In the case of infringement of rights by products from other manufacturers delivered by the Seller, the Seller, at its election, will assert its claims against the manufacturers and suppliers for the account of the Purchaser or assign such claims to the Purchaser. 2 Claims against the Seller exist in these situations in accordance with this § 10 only if the enforcement of the above mentioned claims against the manufacturers and suppliers before the courts was without success or has no chances of success, for example, due to an insolvency.
§ 11 Choice of Law and Jurisdiction
(1) 1 The law of the Federal Republic of Germany, excluding all international and supranational (treaty) systems of law, especially the UN law on the sale of goods, apply to these General Terms and Conditions and all legal relationships between us and the Purchaser. 2 The prerequisites and effects of the reservation of title under §6 of these General Terms and Conditions, however, are subject to the law at the respective location where the item is stored to the extent that the agreed choice of German law is impermissible or invalid.
(2) Exclusive jurisdiction, including international jurisdiction for all disputes directly or indirectly resulting under the contractual relationship is our registered office at 78199 Bräunlingen/Germany. However we are also entitled to file a complaint at the court having general jurisdiction over the Purchaser.