GTC

Company Zunhammer GmbH
Biebing 19
83301 Traunreut

§ 1 Scope of application – subject matter of the contract

1.1 Our General Terms and Conditions of Sale and Delivery apply to the delivery of movable goods, services and all machines, devices and other products produced and/or sold in accordance with the contract concluded between us and the customer.

1.2 Our General Terms and Conditions of Sale and Delivery apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions of Sale and Delivery unless we have expressly agreed to their validity in writing. Our General Terms and Conditions of Sale and Delivery shall also apply if we carry out the delivery without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our General Terms and Conditions of Sale and Delivery.

1.3 Our General Terms and Conditions of Sale and Delivery only apply to companies within the meaning of Section 310 (1) of the German Civil Code (BGB).

 

§ 2 Offer – Conclusion of contract – Offer documents

2.1.1 All our offers are non-binding and subject to change.

2.1.2 The buyer is bound to his order (six weeks). A contract shall be deemed to have been concluded when the Buyer has received our order confirmation sent to him by us in writing or by telex. All agreements made between us and the Buyer, including collateral agreements, supplements or amendments, must be made in writing. Our written or telex confirmation shall be exclusively valid for the scope of delivery as well as the quality and dimensions of the delivery item.

2.1.3 Other performance data, weights, drawings, dimensions and illustrations are only binding if they are expressly agreed in writing.

2.1.4 Our employees are not authorized to make verbal collateral agreements or give verbal assurances that go beyond the content of the written contract.

2.1.5 Any transfer of rights and obligations of the Buyer under the contract to third parties shall require our written consent.

2.2 We reserve the right to make design or shape changes during the delivery period which are due to improvements in technology or changes in legal requirements, provided that the delivery item is not significantly changed and the changes are reasonable for the customer.

2.3 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.

2.4 The information, illustrations, drawings, technical data, weight, dimension and performance descriptions contained in brochures, catalogs, circulars, advertisements, price lists or in the documents belonging to the offer or order confirmation are non-binding, unless they are expressly designated as binding in the order confirmation.

2.5 Tank containers are not suitable as measuring containers as their contents are non-binding
. Deviations of +/-10% are within the manufacturing tolerance.

2.6 If the customer withdraws from a placed order without justification, we may demand 15% of the sales price for processing the order, costs incurred and loss of profit, without prejudice to the possibility of claiming actual higher damages

 

§ 3 Prices and terms of payment

3.1 Unless otherwise stated in the order confirmation, our prices are “ex works” excluding packaging and transportation, which will be invoiced separately.

3.2 Statutory VAT is not included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.

3.3 The deduction of a cash discount requires a special written agreement.

3.4 The contractually agreed price shall apply. If the price has increased at the time the service is provided due to a change in the market price or an increase in the fees charged by third parties involved in the provision of the service, the higher price shall apply. If this is 15% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be asserted immediately – at the latest within 7 calendar days – after notification of the increased price.

3.5 Unless otherwise stated in the order confirmation, the total remuneration shall be due for payment net (without deduction) including the charges for ancillary services (such as shipping and transfer costs, postage, packaging and insurance) upon receipt of the goods without deduction of discount. Checks shall not be considered payment until they have been cashed and finally credited to our business account. If the purchaser is in default of payment, we shall be entitled to demand interest of 5 percentage points above the respective base interest rate as compensation for damages from this point in time if the customer is a consumer, or interest of 8 percentage points above the respective base interest rate as compensation for damages if the customer is an entrepreneur. Otherwise, the statutory provisions regarding the consequences of default of payment shall apply.

3.6 The customer shall only be entitled to set-off and reduction rights if his counterclaims have been legally established, are undisputed or have been recognized by us. The customer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

 

§ 4 Delivery time

4.1 Delivery dates and delivery periods, which may be agreed as binding or non-binding, must be in writing.

4.2 The start of the delivery period stated by us presupposes that all technical questions have been clarified.

4.3 The delivery period is fulfilled as soon as the goods are ready for collection or the carrier has taken delivery of the goods.

4.4 Compliance with our delivery obligation also presupposes the timely and proper fulfillment of the customer’s obligation. We reserve the right to plead non-performance of the contract.

4.5 If binding delivery deadlines have been specified by us and made the basis for placing the order, such deadlines shall be extended in the event of strikes, delivery backlogs, material procurement and cases of force majeure, for the duration of the delay. This entitles us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled. The same applies if the customer does not fulfill any obligations to cooperate. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.

4.6 Insofar as the requirements of Section 4.3. are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time at which the customer is in default of acceptance or debtor’s delay.

4.7 We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased to exist.

4.8 We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.

4.9 We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.

 

§ 5 Transfer of risk – packaging costs

Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.

5.1 Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back, with the exception of pallets. The customer is obliged to dispose of the packaging at his own expense.

5.2 If the customer so wishes, we shall take out transport insurance for the delivery; the customer shall bear the costs incurred in this respect.

 

§ 6 Liability for defects

6.1 Date of transfer of risk:

For vehicles with registration:	Date of delivery/collection
For vehicles without registration (25km):	Delivery/collection date
For additional devices:	Date of delivery/collection
For used vehicles:	Date of delivery/collection

6.2 Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with §377 HGB (German Commercial Code).

6.3 If there is a defect in the purchased item, we reserve the right to choose subsequent performance in the form of rectification of the defect or delivery of a new defect-free item. In the event of rectification of the defect, we are obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.

6.4 If the subsequent performance fails, the customer shall be entitled, at his discretion, to demand withdrawal or a reduction in price.

6.5 We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.

6.6 We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.

6.7 Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

6.8 Unless otherwise agreed above, liability is excluded.

6.9 The limitation period for claims for defects is twelve months, calculated from the transfer of risk, for slurry pumps this period is 6 months. If the equipment is used in shift operation, this period is reduced by 50%.

6.10 The limitation period in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected.

6.11 The warranty period for used vehicles is reduced to six months.

6.12 No guarantee is given for wearing parts. E.g.: pistons, tires, brake pads, brake shoes, cutting blades, etc.

6.13 The customer is obliged to properly carry out the care and maintenance instructions listed in the operating instructions. No liability is accepted for damage caused by a lack of maintenance and care.

6.14 We are not obliged to bear the costs of repair measures that are necessary due to external influences or incorrect handling.

6.15 The costs of modifications due to individual circumstances or the customer’s wishes shall not be assumed. This also applies to software adaptations.

6.16 We do not assume any warranty for work that is not carried out by our company. This also applies to all conversions, repairs or attachments of additional equipment.

6.17 Unauthorized modifications, adaptations or the use of third-party attachments not approved by us shall result in the forfeiture of any liability for the entire product.

6.18 Follow-up costs, e.g. downtime costs, are not covered.

6.19 In the event of delivery in the winter months, the customer is obliged to wash the delivery item immediately after delivery in order to avoid corrosion damage, especially in the case of galvanized parts caused by road salt. Any claims for damages arising from this are due to improper handling of the delivery item and are excluded. During galvanizing, thermal expansion in the zinc bath may occasionally cause deformation of parts, resulting in a rough surface. This does not impair the function and quality. Claims for damages in this respect are excluded.

6.20 Warranty claims against the seller are only available to the direct buyer and are not transferable.

6.21 Costs for the repair of damage caused by continued use of the vehicle after a defect has occurred are not covered.

 

§ 7 Joint and several liability

7.1 Any further liability for damages other than that provided for in §6 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage in accordance with § 823 BGB.

7.2 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

 

§ 8 Retention of title

8.1 We reserve title to the purchased item until all claims against the customer have been settled, even if the specific purchased item has already been paid for. If the customer acts in breach of contract, in particular in the event of default of payment, we shall be entitled to take back the purchased item. If we take back the purchased item, this shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the purchased item by us shall always constitute a withdrawal from the contract. After taking back the purchased item, we are authorized to sell it. The proceeds of the sale shall be set off against the customer’s liabilities – less reasonable costs of sale.

8.2 The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

8.3 In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.

8.4 The customer shall be entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we may demand that the customer informs us 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.

8.5 The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.

8.6 If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership of the co-ownership for us.

8.7 We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.

 

§ 9 Miscellaneous

9.1 Legally relevant declarations and notifications that the customer must make to us or a third party must be made in writing.

9.2 Amendments to this written form clause must also be made in writing.

9.3 Should a provision be or become null and void, all other provisions shall remain unaffected.

 

§ 10 Place of performance – choice of law – place of jurisdiction

10.1 If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.

10.2 This contract is governed by the law of the Federal Republic of Germany; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

10.3 Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.

 

Status March 2015