TERMS AND CONDITIONS
§1 – Scope, form
(1) These General Terms of Contract (GTC) apply to all our business relations with our customers ( buyers ). The GBC 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 GCSD apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GCSD in the version valid at the time of the Buyer’s order or, in any case, in the version most recently communicated to him in text form, shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) Our AVB apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This
Requirement of consent applies in any case, for example even if we carry out the delivery to the buyer without reservation in knowledge of the buyer’s general terms and conditions.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications of the Buyer in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements
and further evidence, especially in case of doubts about the legitimacy of the person making the declaration, remain unaffected.
(6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
§2 – Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we provide the purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or
documents – also in electronic form – to which we reserve ownership and copyright. Compared to the illustrations, descriptions, drawings, weight and dimensional data from our brochures, manuals, price lists, catalogues and our offer, we reserve the right to make changes, provided that the delivery item is not substantially changed or its quality improved as a result and the changes are reasonable for the customer.
(2) The order of the goods by the customer is considered a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the purchaser.
§3 – Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us when accepting the order. If this is not the case, the delivery period shall be approx. 12 weeks from conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the purchaser of this immediately and at the same time state the expected new delivery deadline.
If the service is not available even within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall reimburse without delay any consideration already paid by the purchaser. As case of unavailability
of the performance in this sense, in particular the untimely self-delivery by our supplier shall apply, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault, or if we have in individual cases
are not obliged to procure.
If in such a case it is not foreseeable that we will be able to render our performance within a reasonable period of time, but at the latest within four months, we and the customer may withdraw from the contract. The same shall apply accordingly if the impediments still exist after the expiry of four months from our notification. If the impediments are already apparent to us at the time of conclusion of the contract, we are not entitled to withdraw from the contract.
(3) The occurrence of our delay in delivery shall be determined by the statutory provisions. In any case, however, a reminder from the purchaser is required.
(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 ex works or warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the request and expense of the purchaser, the goods shall be shipped to another destination (sale to destination). Unless something
is agreed otherwise, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Furthermore, partial deliveries and services are permissible.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. In the case of mail order purchases, however, 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. Insofar as acceptance has been agreed, this shall be binding for the
Transfer of risk is decisive. The statutory provisions of the law on contracts for work and services also apply accordingly to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(3) If the buyer is in default of acceptance, if he 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 we charge a lump-sum compensation of 10 EUR per calendar day, beginning with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for dispatch.
The proof of a higher damage and our legal claims (in particular compensation for additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The buyer shall be entitled to prove that we have incurred no damage at all or only a significantly lower damage than the above lump sum.
§5 – Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, and
ex warehouse, plus statutory turnover tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 Para. 1), the buyer shall bear the packaging and 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) The purchase price is due and payable within 10 days of invoicing and delivery or acceptance of the goods. We
are, however, also within the scope of an ongoing business relationship, entitled at any time to make a delivery in whole or in part only against
Prepayment to be made. We declare a corresponding reservation at the latest with the order confirmation.
(4) The purchaser shall be in default upon expiry of the above payment period. 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 damages caused by default.
Our claim to the commercial due date interest (§ 353 HGB) against merchants remains unaffected.
(5) The purchaser shall only be entitled to rights of set-off or retention insofar as 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, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
(6) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the Buyer’s lack of ability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unacceptable items (custom-made products), we can declare withdrawal immediately; the legal regulations regarding the dispensability of setting a deadline remain unaffected.
§6 – Retention of title
(1) We reserve title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(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 buyer must inform us immediately in writing if an application insolvency proceedings have been initiated or if third parties have access (e.g. seizure) to the goods belonging to us.
(3) If the buyer acts in breach of contract, in particular if the purchase price due is not paid, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. The
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. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
(4) Until revocation according to (c) below, the buyer is 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.
- (a) Retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If processing, mixing or combination with If goods of third parties whose right of ownership exists, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods subject to retention of title.
- (b) The purchaser hereby assigns to us as security all claims against third parties arising from the resale of the goods or product, either in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the Assignment to. The obligations of the buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
- (c) In addition to us, the buyer remains authorised to collect the claim. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, there is no defect in his ability to pay and we do not assert the retention of title by exercising a right according to paragraph 3. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides us with all information necessary for collection and informs us of the debtors information, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the buyer’s authority to further sell and process the goods subject to retention of title goods to be revoked.
- (d) If the realisable value of the securities exceeds our claims by more than 10%, we shall, at the buyer’s request, demand that the securities be
release securities at our discretion.
§7 – Claims for defects of the buyer
(1) For the rights of the buyer in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly or faulty assembly instructions) the statutory provisions shall apply, unless otherwise provided for in the following.
In all cases, the statutory special provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse according to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by installation in another product.
(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 approved by us are deemed to be an agreement on the quality of the goods. (especially in catalogues or on our Internet homepage) have been made public.
(3) Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect is present or not (§ 434 para. 1 p. 2 and 3 BGB). However, we assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The Buyer’s claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during delivery, inspection or at any later time, the customer shall be entitled to claim damages. to notify us of this in writing without delay. In any case, obvious defects must be reported in writing within 3 working days of delivery and defects not detectable during inspection within the same period from the time of their discovery.
If the buyer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in time or not properly is excluded according to the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether we provide subsequent performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the purchaser paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The buyer shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses necessary for the purpose of testing and subsequent performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs in accordance with the statutory provisions if there is indeed a defect. Otherwise, we can demand reimbursement from the purchaser for the costs incurred from the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defect was not recognizable for the buyer.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the purchaser has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We are to be informed immediately, if possible beforehand, of any such self-remedy. The right of self-remedy does not exist 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 a reasonable deadline to be set by the purchaser for subsequent performance has expired without success or is dispensable according to the statutory provisions, the purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.
(11) Claims of the purchaser for damages or compensation for futile expenditure shall exist only in accordance with § 8, even in the case of defects, and shall otherwise be excluded.
§8 – Other liability
(1) Unless otherwise provided for in 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) We shall be liable for damages – irrespective of the legal grounds – within the scope of liability for culpability in the case of intent and gross negligence. In the case of simple negligence, we shall be liable subject to a milder scale of liability in accordance with statutory provisions.
(e.g. for care in own affairs) only
(a) for damages resulting from injury to life, body or health
(b) for damages resulting from a not insignificant breach of an essential contractual obligation (an obligation whose fulfilment is essential for the proper execution of the contract and whose fulfilment the contracting party must regularly check to ensure that it is observed)
and may trust); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or in favour of persons,
whose fault we are responsible for according to legal regulations. They shall not apply if 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) Due to a breach of duty which does not consist of a defect, the buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is
excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(5) Insofar as we give technical advice and recommendations, these are based on careful examination; however, any liability for this is excluded. The examination whether the goods ordered or the goods suggested by us are suitable for the customer’s is solely incumbent on the customer.
§Article 9 – Limitation period
(1) Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If, however, the goods are a building or an object that has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material), the period of limitation shall be one year from the date of acceptance.
legal regulation 5 years from delivery (§ 438 para. 1 no. 2 BGB). Other statutory special regulations on the statute of limitations (in particular § 438 Para. 1 No. 1, Para. 3, §§ 444, 445 b BGB) remain unaffected.
(3) The aforementioned limitation periods of the law of sale shall also apply to contractual and non-contractual claims for damages of the buyer which are 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 individual cases. Claims for damages of the buyer according to § 8 para. 2 sentence 1 and sentence 2(a) as well as according to the product liability law are, however, subject to the statutory limitation period.
§ 10 Copyright and property rights; confidentiality
(1) We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions, technical documents, data carriers with or without software and other documents.
Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known or we have given our prior written consent to the disclosure or disclosure to third parties. The buyer shall impose corresponding obligations on his employees and agents.
(2) The above provision applies accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as
for tools, templates, samples and other items which we provide to the seller for production. Such objects are – as long as they are not processed – to be stored separately at the expense of the seller and insured to an appropriate extent against destruction and loss.
§11 – Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and the contractual relationship between us and the Buyer, excluding 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 Norderstedt. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these AVB or a prior individual agreement or at the general place of jurisdiction of the buyer. Priority statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.
(3) Should any of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions. In the event that a clause is invalid, the parties undertake to agree on a provision whose
success corresponds as far as possible to the economic success of the invalid one.
PANDA PRODUCTS Barcode-Systeme GmbH, Oststr. 104a, 22844 Norderstedt