General Terms of Delivery
Flanschenwerk Thal GmbH is a specialist for special flanges and as such offers individually adapted flanges on the world market.
§ 1 Generalb>
For all business relations between us and the customer, the following General Terms and Conditions shall apply in the version valid at the time of conclusion of the contract. Customers within the meaning of these Terms and Conditions are exclusively legal entities under public law and entrepreneurs. (§ 14 BGB).
§ 2 Offer – offer documents
(1) Our offers are – in particular with regard to quantity, price and delivery time – always subject to change. The order signed by the customer is a binding offer. Orders of the customer shall only be deemed to be accepted when we have confirmed them in writing (order confirmation); at the latest when we commence performance of the service. If our order confirmation contains changes to the customer’s order, these shall be deemed accepted if the customer does not object in writing within 14 days of receipt of the order confirmation.
(2) We reserve the right of ownership to illustrations, drawings, calculations and other documents. Furthermore, the customer shall only be granted a simple right of use, subject to the condition precedent of full payment of the remuneration. This applies in particular to such written documents which are designated as “confidential”. The customer must obtain our express written consent before passing them on to third parties.
(3) The right of termination according to § 648 BGB is excluded.
§ 3 Prices – terms of payment
(1) Unless otherwise stated in the order confirmation, our prices are “ex works” plus the respective statutory value added tax and packaging costs.
(2) In special cases, such as changes in the legal situation, supreme court rulings or market conditions – for example, increases in the cost of materials, personnel, electricity or gas – we are entitled to unilaterally change our prices in accordance with the principles of equity. In this context, a price increase will only compensate for the increased costs and will not generate any additional profit for us. We will provide evidence of this to the customer upon request. Upon announcement of a price increase, the customer shall have an extraordinary right of termination vis-à-vis us.
(3) The deduction of a cash discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days from the invoice date. The statutory default rules shall apply.
(5) If the customer’s business is no longer conducted in an orderly manner, in particular if the customer is seized or payments are delayed or even suspended, or if the customer files for judicial or out-of-court composition proceedings or bankruptcy proceedings affecting the customer, or if proceedings under the German Insolvency Code are filed, we shall be entitled to declare all our claims arising from the business relationship immediately due and payable. The same shall apply if the customer defaults on his payments to us or if other circumstances become known which make his creditworthiness appear doubtful. Furthermore, in such a case we shall be entitled to demand advance payments or the provision of security or to withdraw from the contract.
§ 4 Delivery time
(1) The start of the delivery time stated by us presupposes the clarification of all technical questions.
(2) Compliance with our delivery obligation further requires the timely and proper fulfillment of the customer’s cooperation obligations. We reserve the right to plead non-performance of the contract.
(3) Our delivery obligation is always subject to timely and proper delivery by our own suppliers.
(4) Impediments to delivery due to force majeure or due to unforeseen events for which we are not responsible, such as operational disruptions, strikes, lockouts, official directives, subsequent discontinuation of export or import possibilities, as well as our own reservation of supply in accordance with the above paragraph (3) shall release us from the obligation to comply with any agreed delivery or unloading times for the duration and to the extent of their effects. They also entitle us to withdraw from the contract without the purchaser being entitled to damages or other claims as a result.
(5) Partial deliveries are permissible insofar as they are reasonable for the customer and can be invoiced separately by us.
(6) 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. Further claims or rights remain reserved.
(7) If the conditions of paragraph (6) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(8) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that its interest in the further performance of the contract has ceased to exist.
(9) Furthermore, we shall 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 due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(10) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(11) Furthermore, in the event of a delay in delivery, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 0.5% of the delivery value, but not more than 5% of the delivery value.
§ 5 Transfer of risk – packaging costs
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) Separate agreements apply to the return of packaging.
(3) If the customer so desires, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the customer.
§ 6 Obligation to examine and give notice of defects – Liability for defects
(1) With regard to liability for defects, § 377 HGB shall apply.
(2) The following forms must be observed by the customer when notifying any defects:
a) The notice of defect must be received by us in writing, by electronic means or by fax within the statutory deadlines. A notice of defects by telephone is not sufficient. Notices of defects to commercial representatives, brokers or agents are irrelevant.
b) The type and extent of the alleged defect must be clearly evident from the complaint.
c) The customer shall be obliged to keep the goods complained about available at the place of inspection for inspection by us, our supplier or experts commissioned by us.
(3) Insofar as the purchased item is defective, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item was taken to a place other than the place of performance.
(4) 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.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, too, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
(7 Unless otherwise stipulated above, liability is excluded. This shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
(8) The statutory limitation period for claims for defects shall apply, calculated from the transfer of risk.
§ 7 Reservation of ownership
(1) We retain title to the purchased item until receipt of all payments arising from the business relationship with the customer. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the purchased goods shall constitute a rescission of the contract. After taking back the object of sale, we shall be entitled to dispose of it; the proceeds of such disposal shall be set off against the customer’s liabilities – less reasonable costs of disposal.
(2) The customer shall be obliged to treat the object of sale with care; in particular, he shall be obliged to insure it adequately at his own expense against damage by fire, water and theft at its replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale 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 accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
(6) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co- ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co- ownership thus created in safe custody for us.
(7) The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the combination of the object of sale with a property.
(8) 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%; the selection of the securities to be released shall be incumbent on us.
§ 8 Final clauses
(1) If the customer is a merchant, Erfurt shall be the place of jurisdiction.
(2) The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.
(4) The invalidity of individual provisions of these General Terms and Conditions shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions as are suitable to realize the economic purpose of the omitted provision as far as possible.
(5) We comply with the rules of data protection. We shall ensure that our employees and vicarious agents also comply with these provisions; in particular, we shall oblige them to maintain data secrecy before commencing their activities.