General Terms and Conditions of Exomission Umwelttechnik GmbH
§ 1 General information, scope
(1) These General Terms and Conditions (AGB) apply to all our business relationships with our customers (“Buyer” in the following): The General Terms and Conditions only apply when the Buyer is a company (Sec. 14, BGB (German Civil Code)), a legal entity established under public law or a public separate asset.
(2) The General Terms and Conditions apply in particular to contracts regarding the sale and/or delivery of moveables (also “goods” in the following), irrespective of whether we produce the goods ourselves or purchase them from suppliers (Sections 433, 651, BGB). The General Terms and Conditions, in their respective version, also apply as a master agreement for future contracts regarding the purchase and/or delivery of moveables with the same Buyer without specific reference in every individual case; we will inform the Buyer immediately of any changes to our General Terms and Conditions in this case.
(3) Our General Terms and Conditions apply exclusively. Any deviating, contradicting or supplementary General Terms and Conditions of the Buyer are not included in the contract unless and to the extent with which we expressly agree to their validity. This consent requirement applies in all cases, for example even if we carry out the delivery without reservation while being aware of the Buyer’s General Terms and Conditions.
(4) Individual agreements with the Buyer that are made in individual cases (including ancillary agreements, additions and changes) always have priority over these General Terms and Conditions. A written contract or our written confirmation is decisive for the content of agreements of this type.
(5) Legally relevant declarations and notifications that are to be given to us by the Buyer after the Contract is concluded (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction) must be made in writing.
(6) References to the validity of statutory regulations shall only have clarifying significance. Even without such clarification, the legal provisions shall therefore apply unless directly amended or expressly excluded in these General Terms and Conditions.
2 Contract conclusion
(1) Our offers are subject to change and non-binding. This also applies if we have given the Buyer catalogues, technical documents (e.g. drawings, plans, calculations, cost estimations, references to DIN standards), other product specifications or documents, including in electronic form, to which we reserve the right of property and copyright.
(2) The order of the goods by the Buyer is valid as a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer within two weeks after receipt.
(3) Acceptance can either be expressed in writing (e.g. in the form of an order confirmation) or by delivering the goods to the Buyer.
3 Delivery period and delivery delay
(1) The delivery period is agreed on an individual basis or specified by us upon acceptance of the order.
(2) Insofar as we cannot observe binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer hereof immediately and at the same time inform it of the expected, new delivery deadline. If the service remains unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we shall immediately reimburse the customer for any counter-performance already realised. The unavailability of goods or services in this sense particularly includes our suppliers failing to deliver in good time if we have entered into a congruent covering transaction, neither we nor our suppliers are at fault or we are not committed to purchasing in individual cases.
(3) The occurrence of a delay in delivery is determined in accordance with legal provisions. In each case, however, a reminder is required from the Buyer. Should we be late with delivery, the Buyer can demand flat-rate compensations for damages caused by the delay. The damage flat rate is 0.5% of the net price (delivery value) for each completed calendar week of the delay, however no more than a total of 5% of the delivery value of the late delivered goods. We retain the right to prove that the Buyer has not been subject to damage, or only to a significantly lower damage than the existing flat rate.
(4) This does not affect the rights of the Buyer according to Sec. 8 of these General Terms and Conditions or our legal rights, particularly in the event of the exclusion of the obligation to perform (e.g. if the performance and/or subsequent performance is impossible or unreasonable).
4 Delivery, transfer of risk, acceptance, acceptance delay
(1) The delivery takes place from the warehouse, which is also where the place of performance is. The goods are dispatched to another destination on request by and at the cost of the Buyer (sale to destination according to Buyer’s instructions). As long as no other agreement is in place, we have the right to determine the method of dispatch ourselves (particularly the transport company, dispatch route, packaging).
(2) The risk of accidental loss and/or of deterioration of the goods shall pass to the Buyer on transfer at the latest. For sales by delivery to a place other than the place of performance, however, the risk of accidental loss and/or deterioration of the goods and the risk of delay are passed on to the forwarder, carrier or person or organisation appointed to handle the consignment when the goods are handed over. If an acceptance procedure has been agreed on, this is decisive for the passing on of risk. The statutory provisions of the law on contracts for services shall apply in the same manner in other respects to an agreed acceptance. Default of acceptance by the Buyer shall be equivalent to delivery or acceptance.
(3) If the Buyer is in default of acceptance or if he fails to perform an act of cooperation or if the delivery is delayed for other reasons, for which the Buyer is responsible, we shall be entitled to demand compensation for any loss thereby incurred, including any additional costs (e.g. storage costs). We calculate a flat-rate compensation per calendar day for this, starting with the delivery deadline or, if there is no delivery deadline, with the notification that the goods are ready for dispatch. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is however to be offset against further monetary claims. The Buyer retains the right to prove that we have not been subject to any damage, or only to a significantly lower damage than the existing flat rate.
5 Prices and payment conditions
(1) As long as no other agreements are made in individual cases, our current prices at the time of contract conclusion apply in all cases, on the basis of ex warehouse and subject to VAT at the statutory rate.
(2) In case of sale by delivery to a place other than the place of performance at the Buyer’s request (Sec. 4, para. 1), the costs of transport from the warehouse and of any transport insurance requested by the Buyer shall be borne by the Buyer. Any customs, fees, taxes and other public charges shall be borne be the Buyer. Transport packaging and all other packaging in accordance with the German Packaging Ordinance (Verpackungsverordnung) is non-returnable and becomes the Buyer's property, with the exception of pallets.
(3) The purchase price is due and must be paid within 14 days after invoicing and delivery or acceptance of the goods. We are, however, within our rights to request an advance payment. The advance payment is due and must be paid within 14 days after an invoice is issued.
(4) With the expiry of the above-mentioned term of payment, the Buyer will be in default. Interest is to be paid on the purchase price at the respective applicable interest rate for default during the default. We reserve the right to assert claims for higher damages as a consequence of the default. Our entitlement to commercial maturity interest (Sec. 353, Handelsgesetzbuch/HGB (German Commercial Code)) remains unaffected with respect to merchants.
(5) The Buyer is only entitled to withholding and offsetting rights to the extent which its claim is legally established or undisputed. In the event of defects in the delivery, the counter-rights of the Buyer remain unaffected, particularly in accordance with Sec. 7, para. 6, sentence 2 of these General Terms and Conditions.
(6) If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the Buyer to pay (e.g. by an application for opening of insolvency proceedings) then according to the statutory regulations we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract (Sec. 321, BGB). In the case of contracts for the manufacture of single items (custom-made products), we may withdraw from the contract immediately; the statutory provisions concerning the dispensability of deadlines shall remain unaffected.
6 Reservation of ownership
(1) Goods sold remain our property until the complete payment of all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) is carried out.
(2) The goods subject to reservation of ownership may neither be pledged to third parties nor assigned as collateral before the full payment of the secured claims. The Buyer must inform us immediately in writing if and to the extent which third parties access the goods that belong to us.
(3) In the event that the Buyer acts in breach of contract, in particular in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory regulations and demand that the goods be returned on the basis of the reservation of ownership and the withdrawal. If the Buyer does not pay the purchase price due, we may assert these rights only if we have first set the Buyer an appropriate time limit for payment without result or if setting a time limit may be dispensed with according to the legal provisions.
(4) The Buyer shall be permitted to resell and/or further process any goods subject to the reservation of ownership in the ordinary course of business. In this case, the following conditions will also apply.
(a) The reservation of ownership covers the products that are produced by processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. In the event that the ownership right of third parties shall prevail in the case of the processing, mixing or combination with their goods, we shall acquire the co-ownership right, at the ratio of the invoiced values of such processed goods. Furthermore, the same applies for the resulting product as for the supplied goods that are subject to the reservation of ownership.
(b) The Buyer hereby now already assigns the claims against third parties that are established from the resale of the goods or product in total or in the amount of our possible co-ownership share to us as collateral according to the aforementioned paragraph. We accept the assignment. The Buyer’s duties specified in paragraph 2 shall also apply in view of the assigned claims.
(c) In addition to ourselves, the Buyer remains authorized to collect claims. We undertake not to collect the claims as long as the Buyer meets his payment obligations, does not fall into arrears, and in particular provided that no request for the opening of bankruptcy proceedings has been filed, and there is no other fault in ability to pay. If this is the case, however, we can demand that the Buyer makes its accrued claims and its debtors known to us, reports all necessary information for collection, hands over the corresponding documentation and informs the debtors (third parties) of the surrender.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release an appropriate share of the securities at the Buyer’s request; we have the right to select the securities for release.
7 Buyer’s defect claims
(1) Unless stated otherwise in the following provisions, the statutory provisions shall apply for the Buyer's rights in case of material defects and defects in title (including wrong performance, underperformance and incorrect or incomplete assembly instructions). The special legal provisions in the case of ultimate delivery of the goods to a consumer (suppliers’ recourse according to Sections 478, 479, BGB) shall be unaffected in all cases.
(2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. Such a specification of goods shall be considered to have been agreed where product descriptions which are referred to as such (including from the manufacturer) have been provided to the Buyer prior to its purchase order or have been incorporated in the agreement in the same way as these General Terms and Conditions.
(3) If no specification was agreed, the presence or absence of a defect shall be determined based on the statutory regulations (Sec. 434, para. 1, sentences 2 and 3, BGB). We do not assume any liability for public statements by the manufacturer or other third parties (e.g. advertisements).
(4) Claims for defects by the Buyer shall require that he has properly complied with his duties to inspect and report any complaints (Sections 377, 381, HGB). In the event that a defect is revealed during the inspection or at a later date, the supplier must be notified without delay. A notification shall be deemed immediate if it is made within two weeks, with the sending date of the notification being used to determine compliance with the deadline. Irrespective of the abovementioned duties of examination and notification, the Buyer shall notify us of obvious defects (including incorrect delivery and shortfall in delivery) in writing within two weeks from delivery; the time shall be deemed observed if the notification is sent in time. If the Buyer fails to carry out a proper examination and/or issue notification of defects, our liability for the undisclosed defects is excluded.
(5) In the case that the delivered item is faulty, then the Buyer may choose to demand either repair of the fault (rectification) or delivery of a flawless item (replacement). Should the Buyer fail to state which of these two rights he requires, then we reserve the right to set him a fair time limit. If the Buyer does not make the choice within the time limit, the right to choose is passed on to us when the time limit expires.
(6) We are entitled to make the owed subsequent performance dependent on whether the Buyer pays the due purchase price. However, the Buyer is entitled to retain a share of the purchase price appropriate to the defect.
(7) The Buyer shall allow us the necessary time and opportunity for due subsequent performance and shall in particular hand over the goods concerned for inspection. In the case of a replacement delivery, the Buyer shall return the rejected goods according to the statutory provisions. The subsequent performance includes neither the removal of the defective item nor the new installation if we were not originally committed to the installation.
(8) The expenses that are necessary for the purpose of inspection and subsequent performance, in particular transport, route, work and material costs shall be borne by us if there is actually a defect. However, if it is determined that a request for remedy of a defect by the Buyer is unjustified, we can request reimbursement of the costs incurred as a result from the Buyer.
(9) In urgent cases, e.g. if operational safety is at risk and/or to prevent disproportionately greater damages, the Buyer shall have the right to remedy the defect itself and to demand compensation from us for the expense objectively needed for this. We must be advised without delay, if possible beforehand, of self-remedy of this kind. The right to self-action does not exist if, according to legal stipulations, we would have been entitled to refuse supplementary performance.
(10) If the subsequent performance has failed or a reasonable deadline which is to be set by the Buyer for the subsequent performance has expired unsuccessfully or it is dispensable according to the statutory regulations, the Buyer can cancel the purchase contract or reduce the purchase price. This right of withdrawal does not exist with an insignificant defect.
(11) The Buyer shall have a claim to damages or to the reimbursement of expenses incurred in vain only in accordance with Sec. 8; this is excluded in all other respects.
8 Other liability
(1) Unless otherwise stated in these General Terms and Conditions including the provisions set out below, we are liable in case of any breach of contractual or non-contractual duties in compliance with the relevant legal provisions.
(2) We are only liable for damages – irrespective of the legal ground – in the case of intent and gross negligence. In cases of minor negligence, we are only liable
(a) for damage resulting from death, physical injury or harm to human health,
(b) for damage resulting from the breach of an essential contractual obligation (an obligation whose proper fulfilment makes fulfilment of the agreement possible at all and on whose observance the contractual partner regularly relies and may rely); in this case, our liability is restricted to foreseeable and typically occurring damage.
(3) The limitations of liability arising from para.2 do not apply if we fraudulently conceal a defect or warrant the quality of the goods. The same applies to claims by the Buyer under the German Product Liability Act (Produkthaftungsgesetz).
(4) The Buyer can only withdraw from the contract or cancel the contract due to a breach of duty which does not consist in a defect if we are responsible for the breach of duty. A free right of cancellation for the Buyer (particularly in accordance with Sections 651, 649, BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
9 Statute of limitations
(1) Contrary to Sec. 438, para. 1, no. 3, BGB, the general statute of limitations for claims from material defects and defects in title is one year from delivery. If acceptance has been agreed, the limitation period begins with the acceptance.
(2) However, if the commodity is a building or an object used for a building in accordance with its customary mode of use and has caused its defectiveness (building material), the statute of limitation, according to the statutory regulation, shall be five years from delivery (Sec. 438, para. 1, no. 2, BGB). Statutory special regulations for in rem claims to return of third parties (Sec. 438, para. 1, no. 1, BGB), wilful deceit of the vendor (Sec. 438, para. 3, BGB) and for claims of recourse against the supplier in final supply to a consumer (Sec. 479, BGB) shall also be unaffected.
(3) The above-mentioned statutes of limitations shall also apply to the Buyer's contractual and extracontractual compensation claims based on defective goods, except if the application of the standard legal limitation period (Sections 195, 199, BGB) results in a shorter limitation period in individual cases. The statutes of limitations of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected in any case. Otherwise, any claims for damages by the Buyer under Sec. 8 shall be governed exclusively by the statutes of limitations.
10 Applicable law and place of jurisdiction
(1) These General Terms and Conditions and all legal relationships between us and the Buyer are subject to the law of the Federal Republic of Germany, to the exclusion of international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods. However, conditions and consequences of the reservation of ownership in accordance with Sec. 6 are subject to the law of the country where the item is stored, insofar as this states that the choice of German law is inadmissible or invalid.
(2) If the Buyer is a merchant as defined by the German Commercial Code (HGB), a legal person under public law or a public separate asset, the place of jurisdiction for all (including international) disputes which arise during the fulfilment of this contractual relationship is Troisdorf, Germany. However, we are also entitled to take action at the general legal venue of the Buyer.