General Terms and Conditions
§ 1 General
(1) The following terms and conditions apply for all deliveries and other services by ZAGRO Bahn- und Baumaschinen GmbH (hereinafter referred to as the “Supplier”). They only apply vis-à-vis companies in the sense of § 310 Para. 1 in connection with § 14 BGB [German Civil Code] (hereinafter referred to as the “Customer”).
(2) Terms and conditions of the Customer which differ from or are in addition to these terms and conditions, and which the Supplier has not expressly recognised in writing, are not binding and will not become part of the Contract. This also applies if the Supplier does not expressly object to these terms and conditions.
(3) The comprehension and interpretation of these terms and conditions, and also the conclusion and interpretation of legal transactions with the Customer himself, are regulated exclusively according to the law of the Federal Republic of Germany. The provisions of the UN CISG do not apply.
(4) Changes to the terms and conditions will be communicated to the Customer in the case of continuing obligations, in each case in writing stating the provisions which have been changed, and are considered agreed if the Customer continues the continuing obligation or does not object within a period of two weeks after being informed.
(5) These terms and conditions also apply for future transactions with the Customer. The terms and conditions will not be expressly repeatedly included until cancellation. The cancellation is to be made in writing and must be delivered to the Supplier before the order confirmation of the corresponding transaction. A later cancellation only effects future transactions.
§ 2 Offers, scope of service and conclusion of contract
(1) Contract offers from the Supplier are subject to change. Orders by the Customer are binding for him and are considered accepted if they have been confirmed in writing by the Supplier or the delivery or respectively the service has been carried out.
(2) With regard to the scope of the contractually owed service, only the order confirmation from the Supplier is authoritative. Information about features contained in public statements by the Supplier, such as in catalogues, advertisements, price lists and the like, are then only owed if they have become an element of the contract.
(3) The Supplier also reserves the right to change in particular the construction, the choice of material, the specification and the type of construction also after sending an order confirmation, provided that these changes contradict neither the order confirmation nor the Customer’s specifications. The Customer will furthermore consent to changes suggested by the Supplier going beyond this, insofar as these are reasonable for the Customer.
(4) Part deliveries, part services and allocation of sub-contracts are permitted.
(5) The documents forming the basis of the offer or the order confirmation from the Supplier, such as illustrations, drawings, dimensions and weight information are as a rule only approximate values, provided that they are not expressly described as binding. The Supplier reserves the rights of ownership, patent and copyrights in all documents handed over to the Customer, in particular data carriers, documentation, illustrations, drawings and calculations. The documents may not be used for purposes other than those stated in the contract, or made accessible to third parties.
§ 3 Prices and terms and conditions of payment
(1) The prices are ex works excluding packaging and other shipping and transport costs, and plus the particular valid statutory value-added tax. The packaging will be charged according to the actual expenditure and only taken back if the Supplier is obligated to do so by law, or this has been agreed in writing.
(2) If there are more than 4 months between the conclusion of the contract and the delivery without the Supplier being responsible for the delay in delivery, the Supplier can proportionately increase the price, taking into consideration the material, wage and other ancillary costs incurred which are to be carried by the Supplier. If the purchase price increases by more than 20 %, the Customer is entitled to rescind the contract.
(3) Insofar as no other written agreements have been made, the price is due without deductions as follows: 100 % immediately before delivery.
(4) If the Customer cancels the order in accordance with § 649 BGB [German Civil Code] before the supplier has begun to carry out the service, a lump sum payment amounting to 5 % of the agreed total payment is owed and is due to be paid upon invoicing.
(5) If the payment deadlines are exceeded, interest amounting to 8 % above the particular applicable base rate of interest is due, subject to making further claims and without separate reminders. The implementation of an order can be suspended until full payment of amounts from the particular contract, but also other contracts, already due. If there is doubt about the Customer’s ability to pay, the Supplier is entitled to make further processing of the order dependent on advance payment or payment of an appropriate security.
§ 4 Offsetting and retention
(1) Offsetting and retention are excluded unless the claim is undisputed or legally established.
(2) Rights of retention are also excluded insofar as they are not based on the same contractual relationship.
(3) It is not possible to assign claims against the Supplier. This does not apply in the area of application of § 354 a HGB [German Commercial Code].
§ 5 Performance, delivery, transfer of risk
(1) The contract is performed if the object of the contract is completed and is ready to deliver, and the Customer has been informed about this. The place of performance is the Supplier’s registered seat. If the object of the order is not collected by the Customer within 1 week and the shipment is delayed at the Customer’s request, the Supplier is entitled to charge the costs incurred for storage.
(2) If the shipping is agreed, the choice of packaging, the type of shipping and the choice of shipping company is at the Supplier’s discretion. Transport insurance will only be concluded following express agreement. The transport and insurance company will be commissioned in the name of and to the account of the Customer.
(3) The risk of destruction or deterioration is transferred to the Customer with the notification according to § 5 (1) of these terms and conditions, but at the latest with the handing over of the object of the contract to the person, company or institution commissioned with the shipping. This also applies if the Supplier carries out shipment himself.
(4) If a delivery period has been agreed, this begins with the order confirmation and ends with the notification according to § 5 (1) of these terms and conditions. It is extended appropriately if the Customer or third parties attributed to him default or omit to collaborate where required or agreed. The same applies in the case of measures within the framework of labour disputes, in particular strikes and lock-outs, as well as in the case of unforeseen obstacles which are outside the Supplier’s will, e.g. delay in delivery from an upstream supplier, traffic disruptions and interruptions in operations, lack of tools or energy etc. Changes to the delivered goods arranged for by the Customer also lead to a reasonable extension of the delivery period.
§ 6 Retention of ownership
(1) The objects of the delivery remain the property of the Supplier up until full repayment of the debt, including interest and costs in the case of existing liabilities from several services up until repayment of the entire debt, insofar as nothing else is determined below. The retention of ownership therefore continues if the claim is recorded in a running account and the balance is drawn and recognised. The extended retention of ownership below (Paragraphs 5-7) also applies for the security of a total debt.
(2) If the Customer’s payment obligations are not fulfilled, the Supplier is entitled to demand the return of the goods subject to retention of ownership as security of the claims, and to satisfy this by means of enforcement or sale by private contract. The costs for the enforcement and use, in particular also repair costs, are carried by the Supplier.
(3) While the retention of ownership is in effect, the goods subject to retention are, on request from the Supplier, to be insured by the Customer against fire, water, break-in and machinery breakage, with the condition that the Supplier is entitled to the rights arising from the insurance and the insurance certificate is handed over to the Supplier. The Customer is obligated to keep the goods subject to retention in proper condition and to have repairs which become necessary carried out, for the duration of the retention of ownership.
(4) The Customer is not permitted to either pawn or agree as security the goods subject to retention of ownership. In the case of seizures, requisition or other disposal by third parties, he is to inform the Supplier about this immediately. The costs of remedying such measures shall be carried by the Customer.
(5) So long as the Supplier retains ownership, resale or transfer based on other legal bases is only permitted to one purchaser in the normal course of business, also if the state is altered, and only with the condition that the claims against third parties from the resale are considered assigned to the Supplier to the amount of the invoice value of the first sale of the goods subject to retention from the Supplier to the Customer, plus 20 %, without requiring a special declaration of assignment in the individual case. If the goods subject to retention of ownership are sold by the Customer together with other goods not belonging to the Supplier, the assignment of the claim to the purchase price amounting to the invoice amount of the first sale of the goods subject to retention, plus 20 %, applies.
(6) If goods subject to retention of ownership are processed by the Customer to make a new moveable thing, the process is carried out for the Supplier, without obligations arising for the Supplier from this; the new thing shall become the Supplier’s property. In the case of processing together with goods not belonging to the Supplier, the Supplier acquires co-ownership in the new thing relative to the value of the goods subject to retention of ownership compared to the other goods at the time of the processing. If goods subject to retention of ownership are combined, mixed or mingled with goods not belonging to the Supplier according to §§ 947, 948 BGB [German Civil Code], the Supplier becomes co-owner according to the statutory provisions. If the Customer acquires sole ownership through combining, mixing or mingling, he transfers to the Supplier from now co-ownership according to the proportion of the value of the goods subject to the retention of ownership relative to the other goods at the time of the combining, mixing or mingling. In these cases the Customer is to look after the thing which the Supplier has ownership or co-ownership of, which is also considered goods subject to retention of ownership in the sense of the following provisions, free of charge.
(7) If goods subject to retention of ownership are combined with other objects in accordance with § 947 BGB [German Civil Code], then § 947 BGB applies. If goods subject to retention of ownership are combined with a primary thing which the Customer owns in accordance with § 947 Paragraph 2 BGB, the Customer hereby grants the Supplier co-ownership in the whole thing according to the proportion of the values of the goods subject to retention of ownership in the whole thing, and looks after the whole thing for the Supplier free of charge.
(8) If the value of the securities existing for the Supplier exceeds the claims by more than a total of 20 %, the Supplier is obligated to release securities selected by him, on request from the Customer.
§ 7 Warranty for defects
(1) The Customer is to inspect the object of the contract immediately after receipt, insofar as this is feasible according to the ordinary course of business, and, if there are defects, to inform the Supplier immediately. If the Customer fails to notify the Supplier or begins to use the object, the object of the contract is considered accepted and free of defects. This does not apply if it concerns a defect which was not recognisable when making the inspection. Moreover, §§ 377 et. seq. HGB [German Commercial Code] applies.
(2) In the case of justified, immediate reports of defects, the Supplier has the discretion to remedy the defect or to deliver a thing free of defects (subsequent performance). In the case of failures or refusal of subsequent performance, the Customer can reduce the price or rescind from the contract after setting and unsuccessful completion of a suitable deadline. If the defect is not significant, he is only entitled to the right to reduce.
(3) Further claims by the Customer are excluded, insofar as they do not result from an acceptance of a guarantee. This does not apply in the case of intent, gross negligence or breach of material contract duties by the Supplier.
(4) The claims for defects prescribe in one year from performance in accordance with § 5 (1) of these terms and conditions.
§ 8 Liability
(1) In the case of unintentional or grossly negligent default on delivery, the Supplier’s liability is limited to 1 % of the delivery value, but a maximum of no more than 5 % of the delivery value, for each completed week of delay, within the framework of a lump-sum compensation for delay.
(2) Expenses in connection with subsequent performance are only to be carried by the Supplier as they are reasonable in the individual case, in particular in relation to the price of the object of the contract. Expenses which arise as a result of the object of the contract having been brought to a place other than the registered seat or branch of the Customer, are not to be compensated.
(3) The Supplier – including his managing employees and other persons assisting in the performance of obligations - is only liable on the basis of the breach of contractual and non-contractual obligations, in particular on the basis of impossibility, default, fault upon commencement of negotiations and prohibited action, and is only liable in cases of intent and gross negligence, limited to damages typical to the contract foreseeable at the time of the conclusion of the contract. These limitations do not apply in the case of culpable breach of material contract duties, insofar as the achievement of the purpose of the contract is put at risk, in cases of mandatory liability according to the “Produkthaftungsgesetz” [German law on product liability], in the case of injury to life, body or health and also not if and insofar as defects have been fraudulently concealed or their non-existence has been guaranteed.
(4) Insofar as nothing else has been agreed, contractual claims which arise for the Customer against the Supplier for reason of or in connection with the delivery of the object of the contract, prescribe one year after the transfer of risk according to § 5 (1) of these terms and conditions. This period also applies for such contractual objects which have been used according to their common method of use for a construction and this caused its defectiveness, unless this method of use has been agreed in writing. Liability from culpable and grossly negligent breaches of duties as well as the prescription of statutory claims to recourse remain unaffected by this. In cases of subsequent performance, the prescription period does not begin to run anew.
§ 9 Other
(1) The ineffectiveness of individual provisions of this contract or its parts does not affect the effectiveness of the remaining provisions. The contract partners are obligated within the framework of what is reasonable according to good faith to replace the ineffective provision with an effective provision which comes to the same economic result, provided that this does not lead to any material change in the content of the contract. The same applies if a matter in need of regulation is not expressly regulated.
The place of performance and court of jurisdiction for all obligations and claims produced directly and indirectly from this contract is the Supplier’s company seat.
Zagro Bahn- und Baumaschinen GmbH Mühlstr. 11-15 74906 Bad Rappenau Germany
Telefon +49 7266 9168-0 email@example.com www.zagro.de