§ 1 Scope and formal requirement
(1) These General Terms and Conditions of Sale and Delivery (“AVL”) apply to all our business relationships with our customers, provided these are entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law (hereinafter: “Customer” ).
(2) Our AVL apply in particular to contracts for the sale and delivery of movable items ("products"), regardless of whether we buy the products from suppliers or manufacture them ourselves (§§ 433, 651 BGB). Our AVL in their current version also apply as a framework agreement for future contracts for our products with the same customer, without us having to refer to them again in each individual case; In this case, we will inform the customer immediately about changes to our AVL.
(3) Our AVL apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer only become part of the contract if and to the extent that we have expressly agreed to their validity. This approval requirement applies in any case, for example even if we carry out the delivery to the customer without reservation, knowing the general terms and conditions of the customer.
(4) Individual agreements made with the customer in individual cases always take precedence over our AVL.
(5) Unilateral declarations and notifications that are to be submitted to us by the buyer after the conclusion of the contract (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must at least be in text form to be effective.
(6) References to the validity of legal regulations are only of clarifying importance. Even without such a clarification, the statutory provisions apply unless they are directly modified or excluded in these AVL.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding.
(2) The order by the customer is considered a binding contract offer. The acceptance of these offers can be declared by us either expressly (e.g. by order confirmation) or impliedly (e.g. by delivery of the products to the customer).
§ 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually.
(2) The occurrence of the delay in delivery is determined by the statutory provisions. A reminder by the purchaser is required, except in exceptional legal cases.
§ 4 Delivery, Passing of Risk and Default of Acceptance
(1) Partial deliveries are permitted if they are reasonable for the customer.
(2) The delivery takes place from our warehouse in 53797 Lohmar as the place of performance (Incoterms® 2010: EXW).
(3) At the request and expense of the customer, the products will be shipped to a location other than the place of performance (sales by mail). We determine the type of shipment (particularly transport company, shipping route, packaging) at our discretion, taking into account reasonable instructions from the customer.
(4) Taking out insurance, particularly transport insurance, is the responsibility of the customer. At the request and expense of the customer, we insure the products against damage in transit.
(5) The risk of accidental loss and accidental deterioration of the products passes to the customer when we have made the products available for collection. In the case of mail-order sales, the risk of accidental loss and accidental deterioration of the products as well as the risk of delay only passes when the products are delivered to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment. The handover is the same if the customer is in default with the acceptance.
(6) If the customer is in default of acceptance, fails to cooperate or if our performance is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).
§ 5 Prices and ancillary costs
(1) Unless otherwise agreed in individual cases, the prices stated in the valid price lists at the time the contract is concluded apply from the place of performance (Incoterms® 2010: EXW), plus VAT at the statutory rate.
(2) In the case of mail-order sales (§ 4 Para. 3), the customer bears the transport costs from the place of performance and the costs of any transport insurance requested by the customer.
(3) If transport and all other packaging is not expressly included in the agreed price in accordance with the Packaging Ordinance, we will charge for this at cost price. We do not take back packaging; these become the property of the customer.
§ 6 Terms of payment, delay in payment, offsetting, retention and withdrawal in the event of the customer's inability to pay
(1) The purchase price is due and payable within the individually agreed payment period from delivery of the products. Receipt of payment on our account is decisive for timely payment. Any agreements on advance payments in individual cases must be observed.
(2) With the expiry of the above payment period, the customer is in default. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. In addition, we
In the event of default, the assertion of a lump sum of EUR 40.00 in accordance with Section 288 (5) BGB. We reserve the right to assert further damage caused by delay.
(3) Apart from that, legal claims to which we are entitled due to default in payment, in particular the possibility of withdrawing from the contract in accordance with the statutory provisions, remain unaffected.
(4) Agreed discount payments require that all previous invoices due have been settled.
(5) The customer is only entitled to set-off or retention rights insofar as his claim has been legally established, is undisputed or has been recognized by us. In addition, he is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(6) If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk due to the customer's inability to pay (e.g. due to an application for the opening of insolvency proceedings), we are entitled to refuse performance and to withdraw from the contract in accordance with the statutory provisions § 321 BGB entitled.
§ 7 Retention of title
(1) We reserve ownership of the products sold until all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The products subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer must inform us immediately in writing if and to the extent that third parties access the products subject to our retention of title.
(3) In the event of breach of contract by the customer, in particular non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the products on the basis of the retention of title.
(4) The customer is authorized to dispose of the products subject to our retention of title in the ordinary course of business. In this case, the following also apply
(a) In the case of resale of the products, the customer assigns all claims against third parties to us as a security. We accept the assignment. The obligations of the customer specified in Section 7 (2) also apply with regard to the assigned claims.
(b) The customer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, does not default on payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(c) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the customer.
§ 8 Quality of the products, notification of defects, inspection of defects, customer claims for defects and return of defect-free products
(1) The statutory provisions shall apply to the rights of the customer in the event of defects in quality and title, unless otherwise specified below. In all cases, the special statutory provisions for the final delivery of the products to a consumer (supplier recourse in accordance with §§ 478, 479 BGB) remain unaffected, unless they are expressly mandatory.
(2) The basis of our liability for defects are the properties and features as well as the intended use of the products according to the product description provided by us, which is the subject of our contract with the customer. Unless otherwise agreed in individual cases, all information about dimensions, weights, descriptions and illustrations in prospectuses, catalogs or price lists that are associated with the products or our offers are neither a statement of quality, a guarantee of a quality or property nor a to understand giving a guarantee. Customary or technically unavoidable minor deviations from the product description in terms of range, quality, color, width, weight, equipment or design of the products that do not affect the agreed purpose do not constitute a defect.
(3) The customer must report obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, with the timely dispatch of the notification being sufficient to meet the deadline. If the customer fails to carry out the proper inspection and/or notification of defects, our liability for the non-notified defect is excluded. In addition, the customer's claims for defects in commercial legal transactions presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB).
(4) The customer is obliged to only open transport, outer and product packaging to the extent necessary to inspect the goods after delivery. If the customer complains about a defect, he must make the products available to us for inspection purposes. The customer is not authorized to send back to us unsolicited products that have been the subject of a complaint. Rather, we shall collect them at our risk and expense within a reasonable period of time after the complaint has been made. The goods must be made available in an appropriate manner, if possible in the original packaging. We are entitled to examine the complaint raised on site. In the event that these are wrongly collected
our obligation to take back does not apply. Travel expenses are to be reimbursed. If, after taking back the products, it emerges from our examination that the notice of defects is unjustified, we will return the products to the customer at the risk and expense of the customer. We are entitled to demand payment of the transport costs incurred for the return, the costs of the new delivery and the costs incurred for checking and processing the complaint prior to the return delivery. This does not affect our claim to payment of the purchase price. If the customer sends the products back to us without being asked, we are entitled to refuse acceptance of the products. If we accept the products for inspection purposes and it turns out that the notice of defects is unjustified, we will return the products to the customer at the customer's risk and expense. We are entitled to demand the costs of the renewed delivery as well as the costs incurred for checking and processing the complaint. This does not affect our claim to payment of the purchase price.
(5) If, as an exception, we take back products that are free of defects without acknowledging a legal obligation, we can claim restocking fees as follows:
a) for full packaging units of goods ready for sale: 10% of the net value of the goods, at least EUR 20.00,
b) for opened quantities of goods ready for sale: 20% of the net value of the goods, at least EUR 30.00,
c) for goods that are not ready for sale: 50% of the net value of the goods plus reasonable costs for restoring the readiness for sale. If the products are already with us for testing purposes, the customer has the option of requesting a return delivery in accordance with Section 7, Paragraph 4.
(6) If our product is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (rectification) or by delivering an item free of defects (replacement delivery).
(7) We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
(8) If the supplementary performance has failed or if a reasonable period of time to be set by the customer for supplementary performance has expired without success or is unnecessary according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions.
(9) Claims by the customer for damages or reimbursement of futile expenses exist only in accordance with § 10 of these AVL and are otherwise excluded.
§ 9 Product information, further processing of the products and recall campaigns
(1) We inform the customer about our products within the scope of our legal information obligations. In addition, the customer will receive all information available to us on request
about the products we sell. In particular, we provide the customer with comprehensive information on the suitability and intended use of our products upon request.
(2) Our products are basically only intended for professional use (commercial or industrial). If the customer would like to sell these products himself or via retail to end consumers, he must find out from us in advance whether the products can be used by end consumers without restrictions.
(3) Further processing of our products is only permitted within the scope of their suitability and taking into account their intended use. This applies in particular to body protection and occupational safety products that comply with certain standards, certifications or other technical specifications that also apply to further processing of the products. If in doubt, the customer is obliged to contact us to find out whether the intended further processing is permissible. Otherwise, we are not liable if our products no longer correspond to the agreed quality due to further processing, a specific standard, certification, other technical specifications or in any other way. For clarification purposes, we would also like to point out that the customer is excluded from all rights relating to defects if he begins or continues to process the products further despite a defect for which he is obliged to give notice of defects in accordance with Section 8 (3) of these AVL. In this respect, we are not liable in particular for useless further processing costs incurred by the customer. The statutory provisions on contributory negligence remain unaffected.
(4) In the case of recall campaigns for reasons of product safety, the customer supports us to an appropriate and reasonable extent.
Section 10 Liability
(1) Unless otherwise stated in these AVL, including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall have unlimited liability for damages – for whatever legal reason – in the event of intent and gross negligence. We are only liable for simple negligence
a) for damage resulting from injury to life, limb or health,
b) for damages resulting from the breach of a material contractual obligation (obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitation of liability resulting from § 10 paragraph 2 does not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the products. The same applies to customer claims under the Product Liability Act.
§ 11 Statute of limitations
(1) Contrary to Section 438 Paragraph 1 No. 3 BGB, the general limitation period for claims based on material defects and defects of title – for whatever legal reason – is one year from delivery; this does not apply to claims
a) in the event of intent or gross negligence,
b) from injury to life, limb or health and
c) from the violation of an essential contractual obligation within the meaning of § 10 Para. 2 b) of this GTC.
(2) Furthermore, the statutory regulations for third-party claims for restitution in rem (§ 438 Para. 1 No. 1), in the case of fraudulent intent (§ 438 Para. 3 BGB) and for claims in supplier recourse in the case of final delivery to a consumer (§ 479 BGB) as well as the statute of limitations of the Product Liability Act.
§ 12 Advertising and copyrights
(1) In the event that the customer resells our products, he undertakes to only advertise the products in an appropriate form. The customer is advised that incorrect, property-related advertising may, under certain circumstances, trigger third-party warranty claims against us. The customer hereby undertakes to indemnify us from the consequences of such advertising and to compensate us for the damage that we incur as a result of violating this obligation.
(2) The above obligation does not apply if images or texts provided by us are used for advertising with our express prior consent.
(3) We are entitled to the copyright or right of use to the advertising material we have provided, as well as to our catalog or parts thereof (in particular illustrations). The customer is only entitled to use these sources with our express prior consent, without being entitled to any independent rights to them. The consent can be revoked at any time. If the revocation is not based on a breach of duty by the customer, the revocation is only effective for the future.
§ 13 Data storage
The customer expressly agrees that we store and process his data electronically, insofar as this is necessary for business and permissible within the framework of the Federal Data Protection Act.
§ 14 Choice of law, place of jurisdiction and place of performance
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, our place of business is the place of jurisdiction for all disputes arising from or in connection with this contractual relationship; however, we are entitled to sue the customer at his place of residence.
(2) The law of the Federal Republic of Germany applies; the validity of the UN sales law is excluded.
(3) Unless otherwise stated in the order confirmation, our place of business is the place of performance.
§ 15 Copyright
Further use of the catalog or parts of it (images) for your own purposes (advertising) is only permitted with the written consent of DS SafetyWear Arbeitsschutzprodukte GmbH, 53797 Lohmar.
Photo credits: Fotolia.com: Sergej Seemann, Lianem, Roman Kmitta, Christian Jung, Franz Pfluegl, Frank Oppermann, Enisu, Stephan Morrosch, TheGame, Blickfang, Narcis Parfenti, Fritz
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