General terms and conditions of business

 

of the company 

Heinrich Klenk GmbH & Co. KG

Aschenhof 35

D-97525 Schwebheim

Commercial register number: District Court of Schweinfurt HRA 075

Personally liable partner: Klenk Verwaltungsgesellschaft mbH 

 

• Seller -

 

 

§ 1 Validity

 

(1) All deliveries, services and offers from the seller based on orders from contractual partners – hereinafter also referred to as “customer” – are made exclusively on the basis of these General Terms and Conditions. These General Terms and Conditions are part of all contracts that the seller concludes with its customers regarding the deliveries and services it offers. These general terms and conditions also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.

 

(2) The seller's product range is aimed exclusively at entrepreneurs within the meaning of § 14 BGB. Accordingly, an entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding the contract, acts in the exercise of their commercial or independent professional activity.

 

(3) Terms and conditions of the customer or third parties do not apply, even if the seller does not specifically object to their validity in individual cases. Even if the seller refers to a letter, email and/or fax that contains or refers to the terms and conditions of the client or a third party, this does not constitute agreement with the validity of such terms and conditions. Conflicting terms and conditions only apply if their validity is expressly agreed to in writing by the seller.

 

 

§ 2 Offer and conclusion of contract

 

(1) All offers from the seller are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period.

 

(2) When placing an order with the seller by filling out and sending the online form, by email, fax, telephone or post, the customer makes a binding offer to purchase the (desired) product to the seller. The customer is bound to the offer by the seller until the end of the tenth working day following the day the offer is received by the seller.

 

(3) The customer's offer is only considered accepted by the seller when the seller declares acceptance to the customer by email or fax or sends the ordered goods. The purchase contract with the customer is only concluded when the seller declares acceptance or when the goods are sent.

 

 

§ 3 Prices and payment

 

(1) All of the seller's prices quoted do not include the applicable statutory VAT, if applicable, insurance costs, packaging and shipping costs at the time of the order. The customer must bear customs duties and similar taxes as well as other public, private taxes and license fees.

 

(2) Depending on the agreement between the customer and the seller, payments are made by cash on delivery, by advance payment, by bank debit or by invoice.

 

(3) If delivery by invoice has been agreed, the seller's invoice is due for payment immediately upon receipt of the goods and the invoice by the customer.

 

(4) If cash on delivery delivery has been agreed, separate cash on delivery fees will also apply.

 

(5) The customer has no right of offsetting or retention unless the counterclaim is undisputed or legally 

established.

 

(6) Invoice amounts, if the invoice was received by the customer before delivery of the goods, must be paid within thirty days of receipt without any deductions, unless otherwise agreed in writing (including by fax and email). The date of payment is determined by receipt by the seller. If the customer does not pay when due, interest will be charged on the outstanding amounts from the due date at 8% points p.a. above the respective base interest rate; The assertion of higher interest and further damages in the event of default remain unaffected.

 

(7) If the agreed prices are based on the seller's list prices and the delivery is only to take place more than four months after conclusion of the contract, the seller's list prices valid at the time of delivery apply (in each case less an agreed percentage or fixed discount).

 

(8) The seller is entitled to carry out or provide (still outstanding) deliveries or services only against advance payment or security if, after placing the order, it becomes aware of circumstances which are likely to significantly reduce the customer's creditworthiness and which prevent payment of the goods outstanding claims of the seller are jeopardized by the customer from the respective (preliminary) contractual relationship or if these are new customers.

 

 

§ 4 Delivery conditions

 

(1) Deliveries are made from the seller’s warehouse in Schwebheim, unless otherwise agreed in writing.

 

(2) The availability of the goods and the delivery time result from the respective information provided by the seller. The deadlines and dates promised there by the seller for deliveries and services are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, the delivery times and delivery dates refer to the times from handover to the freight forwarder, freight carrier or other third party commissioned with the transport.

 

(3) If the customer does not fulfill his contractual obligations towards the seller, the delivery and service deadlines will be extended for the seller - without prejudice to his rights arising from default - or the delivery and service dates will be postponed by the period in which the customer fulfills his contractual obligations does not fulfill its obligations towards the seller.

 

(4) The seller is not liable for an impossibility of delivery or for delays in delivery if these are due to force majeure or other events that were not foreseeable at the time the contract was concluded, in particular operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes timely or incorrect delivery by the supplier, for which the seller is not responsible. If such events make delivery or service significantly more difficult or impossible for the seller and the hindrance is not only temporary, the seller is entitled to withdraw from the contract. In the event of temporary obstacles, the delivery and service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot be expected to accept the delivery or service due to the delay for which he is not responsible, he can withdraw from the contract by immediately making a written declaration (including by fax and email) to the seller.

 

(5) The seller is entitled to make partial deliveries ifa) the partial delivery can be used by the customer within the scope of the contractual intended purpose; b) delivery of the remaining ordered goods is ensured and c) this does not incur any significant additional effort or costs for the customer (unless the seller agrees to cover these costs).

 

(6) If the seller defaults on a delivery or service or if a delivery or service becomes impossible for him, regardless of the reason, the seller's liability is limited to compensation in accordance with Section 8 of these General Terms and Conditions.

 

 

§ 5 Place of performance, shipping, packaging, transfer of risk

 

(1) The place of fulfillment for all obligations arising from the contractual relationship is Schwebheim, unless 

otherwise specified.

 

(2) The shipping method and packaging are subject to the due discretion of the seller.

 

(3) The risk is transferred to the customer at the latest when the delivered goods are handed over to the freight forwarder, freight carrier or other third party designated to carry out the shipment.

If shipping or handover is delayed due to a circumstance caused by the customer, the risk passes to the customer from the day on which the delivered goods are ready for shipment and the seller has informed the customer of this. The customer bears the costs of storage. If shipping of the ordered goods is agreed, the customer bears the risk of loss or deterioration even if the ordered goods are shipped directly to the customer from a subcontractor's warehouse according to instructions.

 

 

§ 6 Retention of title

 

(1) The seller reserves ownership of the goods delivered until receipt of full payment of the purchase price (including VAT and other costs in accordance with Section 1 Paragraph 1) for the goods in question.

 

(2) If the delivered goods are processed or transformed by the customer, it is agreed that the processing or transformation of the delivered goods is carried out in the name and for the account of the seller and the seller has direct ownership or - if the processing takes place from materials belonging to several owners or the value of the processed item is higher than the value of the delivered goods - acquires a corresponding co-ownership share in the newly created item.

 

(3) If the delivered goods are resold, the customer assigns the resulting claims against third parties to the seller as security.

 

(4) If third parties access the delivered goods, in particular through seizure, the customer will immediately point out the seller's ownership and inform the seller of this in order to enable her to enforce her property rights. If the third party is unable to reimburse the seller for the resulting costs, the customer is liable to the seller.

 

 

§ 7 Warranty

 

(1) The warranty period is one year from delivery or, if acceptance is necessary, from acceptance.

 

(2) (a) The delivered goods must be carefully examined immediately after delivery to the customer or to a third party designated by the customer. It is considered approved if the seller does not receive a written notice of defects (also by fax or email) regarding obvious defects or other defects that were recognizable during an immediate, careful inspection within fifteen working days after delivery of the delivery item or otherwise within five working days after discovery of the defect or at any earlier point in time at which the defect was recognizable to the customer during normal use of the delivery item without further inspection. (b) At the seller's request, the delivered defective goods must be returned to the seller freight paid. If the complaint about defects is justified, the seller will reimburse the customer for the cost of the cheapest shipping route; This does not apply if the costs increase because the delivered goods are at a third location after delivery to the customer.

 

(3) If the goods have a material defect and the requirements of Section 7 Paragraph 2 a are met, the seller is initially obliged and entitled to repair the goods or to deliver a replacement, according to her choice to be made within a reasonable period of time. In the event of subsequent performance failing, i.e. in the event of impossibility, unreasonableness, refusal or unreasonable delay of repair or replacement delivery, the customer may withdraw from the contract after setting a reasonable deadline or reduce the purchase price appropriately.

 

(4) If the defect is due to the fault of the seller, the customer can demand compensation under the conditions specified in Section 8.

 

(5) The warranty is void if the customer modifies the delivered goods without the consent of the seller or has them modified by third parties and this makes rectifying the defect impossible or unreasonably difficult. In any case, the customer must bear the additional costs of correcting the defect resulting from the change.

 

 

§ 8 Liability

 

(1) The seller's liability for damages, regardless of the legal basis, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tortious acts, is in accordance with this, insofar as fault is involved Paragraphs restricted.

 

(2) The seller is not liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this involves a violation of essential contractual obligations. Essential to the contract are the obligation to deliver goods in a timely manner that are free of significant defects, as well as advice, protection and care obligations that are intended to enable the customer to use the delivered goods in accordance with the contract and to protect life or limb, the customer's personnel or the protection of their employees The purpose is to protect property from significant damage.

 

(3) To the extent that the seller is fundamentally liable for damages in accordance with Section 8 (2), this liability is limited to damages that the seller foresaw as a possible consequence of a breach of contract when concluding the contract or that it should have foreseen if it exercised normal care. Indirect damage and consequential damage resulting from defects in the delivered goods are only eligible for compensation if such damage is typically to be expected when the delivered goods are used as intended.

 

(4) The restrictions in § 8 do not apply to the seller's liability for intentional behavior, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

 

 

§ 9 Rights of withdrawal

 

(1) If the customer refuses to accept the goods, the seller is entitled to withdraw from the purchase contract and demand compensation from the customer.

 

(2) If the seller demands compensation, this is a flat rate of 10% of the sales price including the applicable statutory VAT, insurance costs, packaging and shipping costs at the time of the order, if these have been incurred. The compensation is to be set lower if the customer proves that the damage was less. The customer has the opportunity to prove that the seller suffered no damage at all. If the seller proves higher damages, she may also demand higher damages.

 

 

§10 Final provisions

 

(1) The place of jurisdiction for all possible disputes arising from the business relationship between the seller and the customer is, at the seller's discretion, Schweinfurt or the customer's registered office. Schweinfurt is the exclusive place of jurisdiction for lawsuits against the seller. Mandatory legal provisions regarding exclusive places of jurisdiction remain unaffected by this provision.

 

(2) The relationships between the seller and the customer are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods of April 11, 1980 (CISG) does not apply unless expressly agreed.

 

(3) To the extent that the contract and these General Terms and Conditions contain gaps in the regulations, the legally effective regulations that the contractual partners would have agreed on in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions are deemed to be agreed to fill these gaps if they had recognized the gap in the regulations.