General Conditions of Sale
§ 1 General - Scope
(1) The following Terms and Conditions of Sale shall apply to all business relations between the Supplier - Airbend GmbH - and its Customers. These Terms and Conditions of Sale shall generally apply only to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). This means that "Customers" within the meaning of the Terms and Conditions of Sale are exclusively natural persons or legal entities, or partnerships with legal capacity, who act in the exercise of a commercial or independent professional activity.
(2) The Terms and Conditions of Sale shall be exclusively valid. They shall also apply to future orders of the Customer. The version of the Terms and Conditions of Sale valid at the time of conclusion of the contract shall be authoritative. Any terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions of Sale shall not be recognized unless the Supplier expressly agrees to their validity in writing. These Terms and Conditions of Sale shall also apply if the Supplier performs its services to the Customer without reservation in the knowledge of Terms and Conditions of the Customer that conflict with or deviate from these Terms and Conditions of Sale.
§ 2 Offer, Conclusion of Contract
(1) Offers of the Supplier are always subject to change and non-binding. This shall also apply to the technical information, illustrations, dimensions, standard schemes and weights contained in documents of the supplier as the basis of offers. or by delivery. Technical information and drawings are only binding with written confirmation by the Supplier and are not subject to a continuous change service. A binding contract shall only be concluded upon written confirmation by the Supplier and is subject to the condition precedent of a down payment of 75% of the total price. The receipt of the money on the account of the Supplier is decisive.
(2) The Customer's order/the Customer's order, on the other hand, shall be binding. The Supplier shall be entitled to reject the Customer's contractual offer contained in the binding order within two weeks of receipt.
(3) The Customer shall inform the Supplier about the functional conditions of the investment system if these deviate from the general recommendations of the Supplier.
§ 3 Prices - Terms of Payment
(1) The offer contained in the Customer's binding order/in the order with regard to the prices for the required machines shall be binding. This shall not affect offers made by the Supplier in the context of which the Supplier has only provided a preliminary estimate of the costs for assembly to be carried out by the Supplier. Unless otherwise agreed, the prices shall be net "ex works" plus product packaging costs, transport and customs costs.
(2) The Supplier shall not take back transport and all other part-specific packaging materials in accordance with the respective packaging specifications. Pallets and skeleton containers in circulation are excluded from this. The Customer shall be obliged to dispose of the packaging at its own expense, unless the Supplier's obligation to take back the packaging is prescribed by law.
(3) If the Customer so desires, the delivery shall be covered by appropriate transport insurance. The costs incurred in this respect shall be borne by the Customer.
(4) The Supplier reserves the right to change the prices appropriately if, after conclusion of the contract, cost reductions or cost increases occur for which the Supplier is not responsible, in particular due to collective wage agreements or changes in the price of materials. The Supplier shall prove these to the Customer upon request.
(5) The statutory value added tax is not included in the prices. It shall be shown separately on the invoice at the statutory rate.
(6) The deduction of cash discount requires special agreement.
(7) Payments shall be made in accordance with the separately agreed Terms of Payment. Unless another payment term has been agreed, the Supplier's remuneration shall be due for payment without deduction immediately upon receipt of the invoice. Payment shall be deemed to be on time if the Supplier can dispose of the amount within the agreed period. If the payment deadline is exceeded, the Supplier shall be entitled to charge interest on the due date to merchants (§ 353 HGB). The statutory rules shall apply in the event of default in payment.
(8) The Supplier shall be entitled to set off payments against other outstanding due claims. This shall affect the amount of any interest on arrears.
(9) Checks shall only be accepted upon prior written agreement and on account of performance.
(10) The Customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by the Supplier. He shall be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
(11) The Supplier shall be entitled to assign its Claims for Payment.
§ 4 Intellectual Property
(1) The Supplier reserves the property rights, industrial property rights and copyrights to its illustrations, drawings, calculations and other documents made known to the Customer. These may only be used within the framework specified by the supplier and may not be made accessible to third parties without the Supplier's express consent.
(2) The Customer shall be responsible for ensuring that the execution of the order does not infringe the rights of third parties, in particular their intellectual property rights and industrial property rights and copyrights. The Customer shall fully indemnify the Supplier against all claims of third parties asserted against the Supplier in this context due to the execution of an order of the Customer.
§ 5 Delivery Conditions
(1) The Customer shall be responsible for obtaining the necessary official permits. The Contractor shall not assume any liability for permits not applied for or granted. In particular, the non-existence of such permits shall not constitute a reason for withdrawal from the contract and shall not be deemed to be a discontinuation of the basis of the contract.
(2) An expected delivery period shall be agreed in writing between the Customer and the Supplier. However, delivery can only take place if the Customer has created the corresponding operational prerequisites and has confirmed this to the Supplier in writing.
(3) The delivery period shall be deemed to have been complied with if the goods have left the factory within the period. If the period cannot be complied with due to force majeure, it shall be extended accordingly. The delay as well as its expected end shall be notified to the Customer without undue delay.
(4) Compliance with the delivery obligation further requires the timely and proper fulfillment of the Customer's obligations. The defense of non-performance of the contract remains reserved.
(5) If the Customer is in default of acceptance or culpably violates other duties to cooperate, the Supplier shall be entitled to demand compensation for the damage incurred by it in this respect, including any additional expenses. Further claims shall remain reserved.
(6) Deliveries ordered on call shall be accepted within fourteen days of the Supplier's request.
(7) Each order of the Customer is subject to the correct and timely self-delivery of the Supplier by its Supplier. The reservation shall only apply in the event that the Supplier is not responsible for the non-delivery, i.e. in particular if it has concluded a congruent covering transaction with the manufacturer and has nevertheless not been supplied itself. In this case the Supplier has to inform the Customer immediately about the non-availability and is entitled to withdraw from the contract according to the legal regulations. All consideration received by the Customer up to that point shall be refunded to the Customer without delay.
§ 6 Transfer of Risk
(1) If a sale by delivery to a place other than the place of performance has been agreed, the risk of accidental loss and accidental deterioration of the goods shall pass to the Customer upon delivery of the goods to the forwarding agent, the carrier or any other person designated to perform the shipment.
(2) The handover is equal if the Customer is in default of acceptance.
(3) If assembly of the delivery item by the Supplier at the Customer's premises has been agreed, the risk shall pass to the Customer upon completion of the assembly and acceptance by the Customer. Acceptance shall be effected by signing the acceptance protocol.
§ 7 Rights of the Customer in case of Defects and Warranty
(1) The Customer's rights in respect of defects shall require that the Customer has given the Supplier the notice of defect required to safeguard claims for defects in accordance with Section 377 of the German Commercial Code (HGB). The Customer shall bear the full burden of proof for all prerequisites for claims, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
(2) Insofar as there is a defect in the delivery item, the Supplier shall initially be entitled, at the Customer's discretion, to subsequent performance in the form of rectification of the defect (subsequent improvement) or to manufacture and deliver a new item free of defects (replacement delivery). The Supplier is obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the delivery item was taken to a place other than the place of performance. The Supplier may refuse the replacement delivery if it is associated with disproportionately high costs. The significance of the defect in relation to the value of the item in a defect-free condition shall be decisive in this respect.
(3) In the absence of any other agreement, the place of performance of the supplementary performance shall be the place to which the Supplier has delivered the delivery item or put it into operation. If the Customer moves the delivery item to a place other than the original place of delivery, it shall bear the costs incurred for the transport to the place of performance of the subsequent performance itself.
(4) If it turns out that the delivery item was not actually defective, the Customer shall reimburse the Supplier for all costs incurred in connection with the subsequent performance.
(5) If the supplementary performance fails, the Customer may, at its option, demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) as well as damages. In this respect, the statutory provisions shall apply. If the Customer chooses compensation for damages, the liability limitations of § 8 shall apply.
(6) The limitation period for defect rights shall be one year from the passing of risk in accordance with § 6; this shall not apply to claims for compensation for damage to life, limb or health due to a defect for which the Supplier is responsible or due to gross negligence on the part of the Supplier or its vicarious agents. In this respect, the statutory limitation period shall apply. The period for the limitation in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected.
(7) The Customer does not receive any guarantees in the legal sense. Any manufacturer's warranties shall remain unaffected.
(8) The Supplier warrants that the goods are free from defects in accordance with the respective state of the art at the time of conclusion of the contract. A prerequisite for the warranty is that all work has been carried out by a specialist or a specialist company in accordance with the VDE/DVGW guidelines, unless the work was not the cause of the defect.
(9) If the maintenance is carried out by a third party, the Supplier shall not be liable for defective maintenance services of the third party.
§ 8 Limitations of Liability
(1) The Supplier shall be liable to Customers in the event of grossly negligent and intentional breaches of duty by itself, its legal representatives and vicarious agents. In the event of slight negligence, the Supplier shall only be liable if it, its legal representatives or vicarious agents violate an essential contractual obligation ("cardinal obligation"). In the event of a breach of an immaterial contractual obligation, the Supplier shall not be liable in the case of slight negligence. The above limitations of liability shall not apply to claims under the Product Liability Act. Furthermore, they shall not apply in the event of damage to life, limb or health attributable to the Supplier.
(2) Insofar as liability towards the Supplier is excluded or limited, this shall also apply with regard to the personal liability of its employees, legal representatives and vicarious agents.
§ 9 Retention of Title
(1) The Supplier shall retain title to the delivery item until receipt of all payments from the respective order. In the event of conduct by the Customer in breach of contract, in particular in the event of default in payment, the Supplier shall be entitled to take back the delivery item after setting a reasonable deadline. In the taking back the goods shall constitute a withdrawal from the contract. After taking back the object of sale, the Supplier shall be entitled to its The proceeds of the sale shall be credited against the Customer's liabilities, less reasonable costs of sale.
(2) The Customer is obliged to treat the delivery item with care. If maintenance and inspection work is required, the Customer must carry this out in good time at its own expense, unless a separate maintenance contract has been concluded with the Supplier.
(3) In the event of seizures or other interventions by third parties, the Customer shall notify the Supplier without undue delay so that the Supplier can bring an action pursuant to § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse the Supplier for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Customer shall be liable for the loss incurred by the Supplier.
(4) The Customer shall be entitled to resell the delivery item in the ordinary course of business; however, it hereby assigns to the Supplier all claims in the amount of the invoiced final amount (including statutory VAT) of the Supplier's claims accruing to it against its Customers or third parties from the resale, irrespective of whether the delivery item has been resold without or after processing. The Supplier accepts the assignment. The Customer shall remain authorized to collect this claim even after the assignment. The authority of the Supplier to collect the claim himself remains unaffected. The Supplier reserves the right to collect the claim himself as soon as the entrepreneur does not properly meet his payment obligations and is in default of payment. If this is the case, the Supplier may demand that the Customer informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the delivery item by the Customer shall always be carried out for the Supplier. If the delivery item is processed with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in the ratio of the value of the delivery item (invoiced final amount including statutory VAT) to the other processed products at the time of processing. In all other respects, the same shall apply to the item created by processing as to the delivery item delivered under reservation.
(6) If the delivery item is inseparably mixed with other items not belonging to the Supplier, the Supplier shall acquire ownership of the new item in the ratio of the value of the delivery item (final invoiced amount including statutory value added tax) to the other mixed items. If the mixing takes place in such a way that the object of the Customer is to be regarded as the main item, it shall be deemed to be agreed that the Customer shall pay the Supplier pro rata co-ownership to the Customer. The Customer shall hold the sole ownership or co-ownership thus created in safe custody for the Suppliers.
(7) The Customer shall also assign to the Supplier by way of security the claims against a third party arising from the connection of the delivery item with a property.
(8) The Supplier undertakes to release the securities to which it is entitled at the Customer's request to the extent that the realizable value of its securities exceeds the claims to be secured by more than 10%; the Supplier shall be entitled to select the securities to be released.
§ 10 Applicable Law - Place of Jurisdiction - Place of Performance
(1) The law of the Federal Republic of Germany shall apply with the exception of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, it is agreed in accordance with Section 38 of the German Code of Civil Procedure that the place of jurisdiction for all disputes between the Customer and the Supplier shall be the Supplier's place of business in Waldkirchen. The same shall apply if the Customer has no general place of jurisdiction in Germany.
(3) Subject to deviating provisions, the Supplier's place of business shall be the place of performance.
Airbend GmbH - 2020/02