General Sales Terms and Conditions
of Franz Ziener GmbH & Co. KG
Version of: 01.04.2016
§ 1 General – Sphere of Validity
1.1. These General Sales Terms and Conditions ("GTC") shall be valid for all our business relationships with our customers (hereafter: "Buyer"). The GTC shall be valid only if the Buyer is an entrepreneur (§ 14 BGB [German Civil Code]), a juridical person under public law or a special foundation under public law.
1.2. The GTC shall be valid particularly for contractual agreements for the sale and/or delivery of movable goods (hereafter also referred to as: "Goods") without taking into consideration whether we produce the goods ourselves or buy them from our own suppliers (§§ 433, 651 BGB). Provided nothing to the contrary be agreed, The GTC shall also be valid in the most recent version at the time of the Buyer's placing the order, and/or at all events in the most recent version communicated to the Buyer, as the Framework Agreement for future contractual agreements of a similar nature without our having to make reference to these terms and conditions again in each individual case.
1.3. Our GTC shall be valid exclusively. Any deviating, opposing or supplemental General Business Terms and Conditions of the Buyer shall only then and insofar become a contractual component if we have expressly approved their validity. This approval requirement shall in each case be valid, e.g. even if we unconditionally make delivery to it while being aware of the Buyer's General Business Terms and Conditions.
1.4. Any individual agreements concluded in the individual case with the Buyer (including any ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. A written agreement and/or our written confirmation shall be prevailing for the content of such contractual agreements.
1.5. Any legally valid declarations and notifications, which are rendered by the Buyer to us after the contractual agreement has been concluded (e.g. the setting of deadlines, notifications of defects, declarations of rescission or reductions of the purchase price), must be in writing in order to be effective.
1.6. References to the validity of the statutory directives shall only be for clarification purposes. Thus, even without such a clarification, the statutory directives shall be valid insofar as they have not been directly amended or expressly excluded in these GTC.
§ 2 Conclusion of the Contractual Agreement
2.1. Our offers are non-binding and without obligation. This shall also be valid if we have provided the Buyer with catalogues, technical documentation (e.g. technical drawings, plans, computations, calculations, references to DIN standards etc.), other product descriptions or documents – including in electronic form – to which we reserve the rights of ownership and copyrights.
2.2. The ordering of the Goods by the Buyer shall be considered to be a binding contractual offer. In the case of a pre-order (pre-season order), insofar as nothing to the contrary is specified on the order, we shall be entitled to accept this contractual offer within 8 weeks after we receive it. In the event of a subsequent order (in-season order), we shall be entitled to promptly accept the order. In this regard, reference is made to § 2, Sub- Clause 2.3.
2.3. The acceptance may be declared either in writing (e.g. by means of an order confirmation), electronically (e.g. by means of an order confirmation via e-mail) or by delivering the Goods to the Buyer. It shall always be made subject to the proviso of a positive credit check of the customer's creditworthiness and timely and proper delivery being made to us by our own suppliers.
§ 3 Delivery Timeframe and Delivery Default
3.1. The delivery timeframe shall be individually agreed and/or announced by us when we accept the order.
3.2. Insofar as we cannot meet binding delivery timeframes owing to reasons for which we are not responsible (e.g. non-availability of the Goods), we shall promptly notify the Buyer of this and, at the same time, announce a new anticipated delivery timeframe. If the Goods will also not be available for delivery within the new delivery timeframe, we shall be entitled to, in whole or in part, withdraw from the agreement; we shall promptly return any counter-performance that has already been provided by the Buyer. A case of the non-availability of the Goods in this sense shall be considered to exist particularly if we have not been promptly supplied by our own suppliers when we have concluded a congruent covering transaction, neither we nor our supplier may be held culpable or we are not obliged to procure the Goods in question in the individual case.
3.3. Any instance of delivery default upon our part shall be handled in accordance with the statutory directives. However, in each case, a warning letter must be sent by the Buyer. If we fall into delivery arrears, the Buyer may call for a one-off payment as indemnification of the damages resulting. This one-off indemnification payment shall come to 0.5% of the net price (delivery value) for each complete calendar week of arrears, not however to exceed a maximum of 5% of the delivery value of the delayed Goods. We reserve the right to demonstrate that no damage or lesser damage than the above one-off sum has been incurred by the Buyer.
3.4. We shall be entitled to make partial deliveries insofar as this is reasonable for the customer while weighing our interests and the interests of the customer. In this case, we shall also be entitled to bill for such partial deliveries.
3.5. Our statutory rights of withdrawal and rescission, as well as any statutory provisions relating to the fulfilment of the contract in a case where the obligation to provide a service is excluded (e.g. where the service and/or subsequent fulfilment is impossible or cannot reasonably be expected), remain unaffected thereby. Likewise unaffected are the Buyer's rights of withdrawal and rescission as defined by § 8 of these GTC.
§ 4 Delivery, Transfer of Risk, Delivery Acceptance, Delivery Acceptance Default
4.1. Insofar as nothing to the contrary is stated in our written specifications, delivery ex warehouse (Oberammergau) shall apply (= place of performance for the delivery and any subsequent fulfilment that may be required).
4.2. Upon the request and at the expense of the Buyer, the Goods shall be sent to another delivery destination (dispatching purchase). Insofar as nothing to the contrary has been agreed, we shall be entitled to, at our own discretion, select the type of shipment (particularly the transport company, shipping method, and packaging).
4.3. The risk of the accidental destruction and the accidental deterioration of the Goods shall be transferred to the Buyer by no later than when the Goods are surrendered to the Buyer. However, for a dispatching purchase, the risk of the accidental destruction and the accidental deterioration of the Goods as well as the delay risk shall already be transferred when the Goods are surrendered to the carrier, the freighter or any other person or institution who has been designated to make the shipment. Insofar as delivery acceptance has been agreed, this shall be prevailing for the transfer of risk. Furthermore, the statutory directives related to the law on contracts for work and services shall also accordingly be valid for any agreed delivery acceptance. It shall equate to a surrendering and/or a delivery acceptance of the Goods if the Buyer enters into delivery acceptance default.
4.4 If the Buyer enters into delivery acceptance default, fails to fulfil any of its cooperation obligations or our delivery is delayed for any other reasons for which the Buyer is responsible, then we shall be entitled to demand compensation for any resulting damages including additional expenses (e.g. warehousing costs).
§ 5 Prices and Payment Terms and Conditions
5.1. Insofar as nothing to the contrary has been agreed in the individual case, our prices that are respectively valid at the point in time that the contractual agreement is concluded shall be valid and indeed ex warehouse plus the statutory VAT.
5.2. If nothing to the contrary has been agreed, the Buyer shall assume the transport costs ex warehouse in all cases specified in § 4. Insofar as we do not bill the transport costs actually incurred in the individual case, a lump-sum transport cost in the amount of 4.35 EUR net per package shall be considered as agreed. Any customs duties, fees, taxes and other public levies shall be assumed by the Buyer. We shall not take back transport packaging and all other packaging in accordance with the packaging directives. They shall become the Buyer's property; pallets shall be the exception to this policy.
5.3. When the Buyer has not expressly requested invoices in paper form, invoicing shall be by electronic means. To this end the Buyer shall let us have a suitable e-mail address and shall check his mails on a daily basis. The communication of this e-mail address shall be considered as constituting consent in the sense of § 14, section 1, sentence 7 of the UStG [the German VAT Act]. This consent may be revoked at any time with immediate effect for the future.
5.4. When nothing to the contrary has been agreed, the purchase price shall fall due for payment within 14 days from the invoicing and delivery and/or acceptance inspection of the Goods. In case a creditworthiness check should come to a negative result, we shall be entitled at any time, even in the context of the current business relationship, to carry out a whole or partial delivery only subject to payment in advance, and in this case to call for an advance payment to the amount of 50% of the purchase price. The advance payment shall be payable immediately.
5.5. Upon the lapsing of the aforementioned payment timeframe, the Buyer shall enter into payment default. The purchase price shall incur interest during the payment default at the respectively valid statutory default interest rate. We reserve the right to assert more substantial payment default damage compensation claims. In dealings with entrepreneurs, our claim to the commercial due date interest (§ 353 HGB [German Commercial Code]) shall remain unaffected.
5.6. The Buyer shall be entitled to rights of offsetting or withholding of payments only if its claim has been legally upheld or is undisputed. For defects related to the delivery, § 7 Para. 6 shall remain unaffected.
5.7. If, after concluding the contract, it becomes recognisable that our claim to the purchase price has been put at risk owing to the Buyer's unsatisfactory solvency (e.g. through the filing of a petition for the opening of bankruptcy proceedings), then we shall be entitled, in accordance with the statutory directives, to refuse to render performance and – where applicable, after the setting of a notice period – to rescind the contractual agreement (§ 321 BGB). In the case of contractual agreements regarding the production of unique Goods (tailor-made Goods), we may immediately declare our rescission; the statutory directives regarding the right to waive the notice period requirement shall remain unaffected.
§ 6 Reservation of Ownership
6.1. Until payment in full is made of all our current and future payment claims from the Purchasing Agreement and our ongoing business relationship (secured payment claims), we reserve ownership to the sold Goods.
6.2. Before payment in full is made of the secured payment claims, the Goods that are subject to the reservation of ownership may neither be pledged to third parties nor be provided as security. The Buyer must promptly notify us in writing if a petition has been filed for the opening of insolvency proceedings or insofar as third parties assert claims to the Goods (e.g. in the form of seizure) still belonging to us.
6.3. In the event that the Buyer commits a contractual violation, particularly in the event that it fails to pay the purchase price that has come due, we shall, in accordance with the statutory directives, be entitled to withdraw from the contractual agreement and to demand the return of the Goods owing to the reservation of ownership and the rescission of the contractual agreement. If the Buyer fails to pay the purchase price that has come due, we may assert these rights only if we have set an appropriate notice period in advance which lapses fruitlessly or such a setting of a notice period is not required in accordance with the statutory directives.
6.4. The Buyer shall be authorised until revocation in accordance with § 6 Para. 6.4.3 below to resell and/or process the Goods that are subject to the reservation of ownership in its ordinary business dealings. In this case, the following provisions shall be valid upon a supplemental basis.
6.4.1. The reservation of ownership shall extend to the products, which are created through the processing, mixing or combining with our Goods, at their full value whereby we shall be considered to be the manufacturer. If our Goods are processed, mixed or combined with third-party goods and such third parties continue to hold their valid ownership rights to them, then we shall acquire coownership based upon the proportional value of the invoiced amounts for the processed, mixed or combined goods. Otherwise, the same shall be valid for the created product as well as for the Goods which are supplied subject to the reservation of ownership.
6.4.2. The Buyer shall already now assign to us the payment claims for security purposes, as a whole or in the amount of our co-ownership percentage in accordance with the aforementioned paragraph, that are held against third parties which are created from the resale of the Goods or the product. We hereby accept such assignment. The Buyer's obligations specified in Paragraph 2 shall also be valid with regards to the assigned payment claims.
6.4.3. The Buyer shall be entitled to collect the respective payment claim whereby we shall also be entitled to collect such payment claim. However, we shall be obliged to not collect the payment claim as long as the Buyer fulfils its payment obligations which are owed to us, it does not enter into payment default, no petition is filed for the opening of bankruptcy proceedings for its assets, no other defect in its solvency exists and we do not assert our right of ownership by exercising a right in accordance with § 6 Para. 6.3. However, if this is indeed the case, we may demand that the Buyer disclose to us the assigned payment claims and their debtors, provide all information required for the collection of such payment claims, surrender any related documents and notify the (thirdparty) debtors of such assignment. Moreover in this case we shall be entitled to revoke the Buyer's authorisation to resell and further process the Goods subject to our retention of title.
6.4.4. If the realisable value of the security for our payment claims increases by more than 10%, we shall release the security of our choice upon the Buyer's request to do so.
§ 7 Buyer's Claims for Defects
7.1. The statutory directives shall be valid for the Buyer's rights that are related to material and legal defects (including incorrect or incomplete deliveries) insofar as nothing to the contrary is prescribed in the following. In all cases, the special statutory directives for final delivery of goods to the consumer (seeking recourse with the supplier in accordance with §§ 478, 479 BGB) shall remain unaffected.
7.2. The basis for our liability for defects is above all the contractual agreement that has been concluded regarding the quality features of the Goods. Such an agreement regarding the quality features of the Goods shall be considered to be the product descriptions that have been designated as such (including from the manufacturer) which have been provided to the Buyer before it makes its order or have been incorporated into the contractual agreement in a similar manner as these GTC have been.
7.3. Insofar as quality features have not been agreed, then an assessment must be made in accordance with the statutory directives as to whether a defect exists or not (§ 434 Para. 1 Clauses 2 and 3 BGB). However, we shall assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising claims).
7.4. The Buyer's claims for defects shall require that it has fulfilled its legal obligations to inspect and make notification of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or thereafter, then the Buyer must promptly make notification in writing to us. The notification shall be considered to have been promptly made if it is made within five days whereby the prompt sending of the notification shall be prevailing for the fulfilment of this deadline requirement. Notwithstanding these obligations to inspect and make notification of defects, the Buyer must make written notification of any obvious defects (including incorrect or incomplete deliveries) within two weeks after delivery is made whereby the prompt sending of the notification shall fulfil this deadline requirement. If the Buyer fails to make a proper inspection and/or notification of defects, then our liability for the defects that have not been reported shall be excluded. Furthermore, any transport damage or incomplete deliveries which are recognisable when delivery is made must be recorded on the carrier's receipt of confirmation in accordance with § 438 HGB.
7.5. If the delivered Goods are defective, then the Buyer may initially demand, at its own choice, either the elimination of the defect (rectification) or the delivery of flawless goods (replacement delivery). If the Buyer does not declare its choice in this regard, then we may set an appropriate notice period requesting that it announce a choice in this regard. However, if the Buyer fails to announce a choice within this notice period, then when this notice period lapses, we shall be entitled to choose on our own.
7.6. We shall be entitled to make the subsequent performance that is owed dependent upon the condition that the Buyer has paid the purchase price that has become payable. However, the Buyer shall be entitled to withhold an appropriate portion of the purchase price based upon the defect.
7.7. The Buyer must provide us with the time and opportunity that are required for us to render the subsequent performance that is owed, particularly to surrender to us the Goods about which a notification of defects has been made so that we can examine them. In the event that a replacement delivery is made, the Buyer must return the defective Goods to us in accordance with the statutory directives.
7.8. We shall assume the expenditures that are required for examination and subsequent performance purposes, particularly transport, infrastructure, labour and materials costs, if indeed a defect exists. Otherwise we shall be entitled to call for indemnification by the Buyer of the costs arising (e.g. testing and transport costs) from the unjustified request that a defect be remedied.
7.9. In urgent cases, e.g. in the event that operational safety is endangered or in order to ward off disproportionate damages, the Buyer shall have the right to eliminate the defects on its own and to demand that we reimburse it for the expenditures which it has incurred in this regard. However, we must promptly be notified in the event that the Buyer undertakes such an elimination of the defects on its own-if possible, it must notify us of this in advance. The Buyer's right to eliminate the defects on its own shall not be valid if we would be entitled to refuse to make corresponding subsequent performance in accordance with the statutory directives.
7.10. f subsequent performance has been unsuccessful or a notice period that has been set by the Buyer for the rendering of subsequent performance has lapsed fruitlessly or is not required in accordance with the statutory directives, then the Buyer may withdraw from the Purchasing Agreement or reduce the purchase price. However, no right to rescind the agreement shall be valid for a minor defect.
7.11. Moreover, claims on the part of the Buyer to damage compensation and/or the reimbursement of expenditures in vain shall be valid even in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Miscellaneous Liability
8.1. Insofar as nothing to the contrary is prescribed in these GTC including the following provisions, then we shall be liable for a violation of contractual and non-contractual obligations in accordance with the relevant statutory directives.
8.2. We shall be liable to pay damage compensation – regardless of the legal grounds – on grounds of fault-based liability in cases of intentional wrongdoing and gross negligence. We shall be liable for simple negligence (subject to reservation in respect of a more lenient standard of liability based on statutory provisions, e.g. for due care in connection with one's own affairs) only
8.2.1. For damages resulting from the loss of life, physical injury or damage to health,
8.2.2. For damages arising from the not trivial violation of a major contractual obligation (obligation whose fulfilment only then makes possible the proper implementation of the contractual agreement and upon whose fulfilment the contractual partnerregularly relies and may rely); however, in this case, our liability shall be limited to providing compensation for foreseeable, typically occurring damages.
8.3. The liability limits specified in § 8, Para. 8.2 shall likewise apply in case of violations of obligation by and/or in favour of persons for whose acts we may be held responsible based on statutory provisions. They shall not be valid insofar as we have maliciously concealed a defect or have provided a warranty for the quality features of the Goods. The same shall be valid for the Buyer's claims in accordance with the German Product Liability Act.
8.4. As the result of a contractual violation which does not involve a defect, the Buyer may only then withdraw from or terminate the contractual agreement if we are responsible for the contractual violation. Any free right of termination upon the part of the Buyer (particularly in accordance with §§ 651, 649 BGB) shall be excluded. Otherwise, the statutory requirements and legal ramifications shall be valid.
§ 9 Statute of Limitations
9.1. In deviation from § 438 Para. 1 No. 3 BGB, the general statute of limitations period for claims arising from material and legal defects shall be one year after delivery is made. Insofar as delivery acceptance has been agreed, the statute of limitations period shall begin to run when delivery acceptance is made.
9.2. The aforementioned statute of limitations period under purchasing law shall also be valid for contractual and non-contractual damage compensation claims of the Buyer which are based upon a defect of the Goods unless the application of the standard statute of limitations period (§§ 195, 199 BGB) would result in a shorter statute of limitations period in the individual case. Indemnification claims of the Buyer in accordance with § 8 and based on the German Product Liability Act shall however be exclusively subject to the statute of limitations periods dictated by statutory provisions.
§ 10 Choice of Laws, Legal Venue, Severability Clause
10.1. The law of the Federal Republic of Germany shall be valid for these GTC and for the contractual relationship between us and the Buyer, subject to the exclusion of all international and supra-international (contractual) legal directives and the provisions of uniform law, particularly those of the United Nations Convention on Contracts for the International Sale of Goods. However, the requirements for and ramifications of the reservation of ownership prescribed in § 6 shall be subject to the law of the respective location of the Goods insofar as the affected choice of laws is impermissible or ineffective to the benefit of German law.
10.2. If the Buyer is a businessperson in accordance with the German Commercial Code, a juridical person under public law or a special foundation under public law, the exclusive – including international – legal venue for all disputes arising directly or indirectly from the contractual relationship shall be that of our head office in Oberammergau. The same shall apply if the Buyer is an entrepreneur in accordance with § 14 BGB. We shall be entitled notwithstanding in all cases to take legal action against the Buyer at the place of fulfilment in connection with the obligation to deliver in accordance with these GTC and/or any individual agreement that may have been made, or at the Buyer's general place of jurisdiction. Statutory provisions that take precedence over this, especially such as have implications for exclusive competence, remain unaffected thereby.
10.3. In the event that a provision of these Sales Terms and Conditions should be or become invalid or unenforceable or a gap or an omission should be discovered, then the validity of the remaining provisions of these Sales Terms and Conditions shall not be affected. The parties agree that this continued validity provision of the Sales Terms and Conditions shall constitute no mere reversal of the burden of proof, but rather that a partial invalidity of the Sales Terms and Conditions shall not exist even without the invalid provision. In this case, the parties shall be obliged to replace the invalid or unenforceable provision with a valid and enforceable provision which most closely corresponds to the commercial intent of the invalid or unenforceable provision and/or to eliminate a gap or an omission with a provision which they would have agreed, based upon their commercial goals, if they had taken this point requiring regulation into consideration.
