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General Terms and Conditions of Otto Zimmermann, Maschinen- und Apparatebaugesellschaft mit beschränkter Haftung

1. Scope

1.1 Our following terms and conditions of sale shall apply exclusively to all contracts, deliveries and offers. Our Terms and Conditions of Sale shall only apply vis-à-vis a legal entity under public law or a special fund under public law or entrepreneurs (hereinafter referred to as Buyer). Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction with us, act in the exercise of their commercial or independent professional activity within the meaning of § 14 BGB (German Civil Code).

1.2 The General Terms and Conditions shall apply in particular to contracts for the sale and delivery of movable goods (hereinafter referred to as Goods), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers. Unless otherwise agreed, the General Terms and Conditions shall apply in the version valid at the time of the Buyer‘s order or, in any case, in the version last notified to the Buyer in text form by way of a framework agreement also governing similar future contracts without our having to refer to them again in each individual case.

1.3 We are not bound by the general terms and conditions of the Buyer. We hereby expressly object to the general terms and conditions of the Buyer. These shall not be binding upon us unless we have expressly accepted in writing the validity of the Buyer‘s general terms and conditions.

1.4 Our Terms and Conditions of Sale shall also apply if we carry out the delivery without reservation in the knowledge that the Buyer‘s terms and conditions conflict with or deviate from our terms and conditions of sale.

1.5 Our General Terms and Conditions shall also apply to all future business relationships with the Buyer.

 

2. Conclusion of contract

2.1 Our quotes are non-binding unless they are expressly designated as binding in written quote. The contract shall not come into effect unless we have confirmed the order in writing. Our written order confirmation shall determine content and scope of the contract.

2.2 We reserve ownership of and copyright in cost estimates, illustrations, drawings and other documents; Buyer shall treat said documents confidentially and may not disclose them to third parties.

2.3 We may make changes in the design of the ordered goods, unless such changes modify the critical functions of such goods, or unless Buyer furnishes evidence that such change is intolerable.

2.4 No guarantee is provided for the quality or durability of an item, unless expressly guaranteed in our order confirmation or advertisements.

 

3. Delivery time, delay and partial deliveries

3.1 The start of the delivery time stated by us is subject to the clarification of all technical questions.

3.2Compliance with our delivery obligation is further subject to the timely and proper fulfillment of the Buyer’s obligation. We reserve the right to plead non-performance of the contract. Furthermore, compliance with the delivery date is subject to the requirement that the Buyer has duly and punctually fulfilled its obligations to perform in advance and/or its obligations to cooperate.

3.3 If a delivery period specified by the Buyer is exceeded for reasons for which we are responsible, the delay shall only occur after the expiry to no avail of a reasonable grace period set by the Buyer.

3.4 Events unforeseeable and unavoidable at the time of the conclusion of the contract, which have an external effect and for which we are not responsible and which could not have been foreseen and prevented even by exercising the utmost reasonable care (force majeure) entitle us to extend the delivery period for the duration of the impediment. We shall inform the Buyer immediately upon becoming aware of such events and of the expected duration of the impediment to performance. If the aforementioned events, without any fault on our part, lead not only to a temporary impediment to performance, but to the impossibility of performance, both we and the Buyer shall be entitled to withdraw from the contract.

The Buyer will be informed of such events immediately after they have come to our attention. In the event of withdrawal, we shall immediately refund to the Buyer any payments already received. Claims for damages are excluded in this case.

3.5 If the Buyer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.

3.6 If the prerequisites of paragraph (3.6.) are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the Buyer at the point in time at which the Buyer is in default of acceptance or enters a situation of debtor’s default.

3.7 Partial deliveries are permissible insofar as this is reasonable for the Buyer.

 

4. Transfer of risk, transport, packaging and packaging costs

4.1 Unless otherwise stated in the order confirmation, delivery shall be "ex works", which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we alone shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging).

4.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass when the goods are delivered to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If an acceptance procedure been agreed upon, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.

Reusable packaging, pallets and containers shall remain our property and shall be returned to us by the Buyer without delay and free of charge. Other transport packaging and any other packaging in accordance with the packaging regulations will not be taken back. The Buyer is obliged to dispose of the packaging at its own expense.

4.3 If the Buyer so desires, we will arrange for transport insurance for the delivery; the costs incurred in this respect shall be borne by the Buyer.

4.4 The Buyer is obliged to insure the goods sufficiently as long as our retention of title applies. Nevertheless we may – but shall not be obliged to do so – arrange for transportation insurance for goods to be shipped to Buyer, and charge Buyer with the costs incurred.

 

5. Prices and terms of payment

5.1 Unless otherwise stated in the order confirmation, our prices valid on the day of conclusion of the contract shall apply "ex works" excluding packaging, customs duties, insurance and transport costs; these items will be invoiced separately.

5.2 Statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.

5.3 Unless otherwise stated in the order confirmation, the purchase price is due for payment immediately upon receipt of the invoice and delivery or acceptance. We grant a 2 % discount if payment is received within two weeks; such a discount, however, will only be granted if all prior invoices have been paid.

5.4 We may charge a processing surcharge for order quantities that do not reach the minimum quantities and/or the minimum order value specified in our respective valid price list.

5.5 Insofar as we are obligated to advance performance, we shall be entitled to refuse our performance if it becomes apparent to us after conclusion of the contract that our claim to counter-performance is jeopardized by the Buyer’s lack of ability to perform. In this case, we may set the Buyer a reasonable period of time within which it shall, at it sees fit, either pay the purchase price concurrently with performance or furnish security equal to the amount of the purchase price. Following the fruitless expiry of the deadline, we shall be entitled to withdraw from the contract and to demand damages in lieu of performance.

5.6 The Buyer is not entitled to assign claims against us to third parties. It shall not be entitled to set off any claims other than those which are undisputed or have become res judicata or to assert a right of retention deriving therefrom. The Buyer’s right to assert claims based on unjust enrichment by way of a lawsuit shall remain unaffected by these provisions.

 

6. Retention of title

6.1 We retain title to the purchased item until receipt of all payments arising from the ­business relationship with the Buyer. In the case of current invoices, this shall also expressly apply to the claim deriving from the respective surplus.

6.2 The Buyer shall be entitled to resell the purchased item, to collect the purchase proceeds from the resale, use/processing of the purchased item or the incorporation of the purchased item into an object only in the ordinary course of business and only in accordance with the following provisions:

6.2.1 The Buyer shall assign to us all claims in the amount of the invoice amount of the purchased item (including VAT) from the resale of the purchased item or processing of the purchased item, irrespective of whether the item purchased and delivered has been resold without or after processing. We accept the assignment. If for legal or factual reasons a transfer of the claim to us is not possible, the Buyer shall not be entitled to resell the goods.

6.2.2 The Buyer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected by this. However, we shall not collect the claim ourselves as long as the Buyer meets its payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and/or the authorization for the Buyer to collect the assigned claims has not expired of its own accord in accordance with clause 6.8. or if we revoke the authorization to collect for other reasons. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors and provides all information required for their collection, hands over the associated documents and discloses the assignment to the debtors (third parties).

6.3 The processing or transformation of the object of sale by the Buyer shall always be ­carried out on our behalf. ­If the object of sale is ­processed together with other ­objects ­not ­belonging to­ us­, we shall acquire co-ownership of the new ­object in proportion to the value of the object of sale with respect to the other processed ­objects at the time of processing. The value of the object of sale shall correspond to the invoice amount including value added tax. In ­all other respects, the same shall apply to the item ­created ­by ­processing as to the item purchased and delivered ­subject to retention of title­.

At our request, the Buyer is obliged to inform the purchaser of the goods subject to retention of title about our ownership rights.

6.4 If the item purchased and delivered is ­inseparably ­mixed with other movable ­objects not belonging to us­, we shall acquire co-ownership of the new object in proportion to the value of the object of sale with respect to the other ­mixed objects at the time of mixing. The value of the item purchased shall correspond to the invoice amount including value added tax. If the mixing is carried out in ­such a way that the Buyer’s item must be regarded as the main object, it shall be deemed agreed that the Buyer ­transfers ­co-ownership to us on a pro-rata basis.­ The co-ownership share to be transferred must correspond to the invoice amount including value-added tax. The inseparable mixing of ­the item purchased shall be deemed equivalent to its combination. The Buyer shall safeguard the sole ownership or co-ownership rights thus created on our behalf.

6.5 If the goods purchased are sold by the Buyer alone or together with goods not belonging to us, the Buyer hereby assigns to us on a priority basis the claims arising from the resale in the amount of the invoice value of the goods purchased (including value-added tax). We accept the assignment. If the purchase item resold is co-owned by us, the assignment of the claim shall extend to the amount corresponding to the proportionate value of our co-ownership. The value of the purchase item shall be the invoice amount including value-added tax. If the purchase item is installed by the customer in an object belonging to a third party, the Buyer hereby assigns to us on a priority basis the assignable claims arising against the third party or the party to whom it relates in the amount of the invoice value of the purchase item (including value-added tax). We accept the assignment.

6.6 The Buyer shall also assign to us any claims in the amount of the invoice amount of the item purchased including value-added tax which accrue to it against a third party as a result of the connection of the item purchased with a piece of real estate.

6.7 The Buyer is authorized to collect the claims from the resale, without prejudice to our own right to collect. Provided the Buyer duly meets its payment obligations, we shall not assert the claim ourselves. At our request, the Buyer shall inform us of the debtors of the assigned claims and notify them of the assignment. This shall not affect our right to notify the third party debtors of the assignment ourselves. The Buyer is prohibited from assigning the claim against the third-party debtors to third parties or from agreeing on a prohibition of assignment with the third-party debtors.

6.8 In the event of cessation of payments, application for or initiation of insolvency proceedings, execution of out-of-court debt settlement proceedings and if a check or bill of exchange is protested, the authorization to collect the assigned claims as well as the right to resell and collect the assigned purchase proceeds and to use or install the purchase item shall expire automatically without our having to expressly revoke the authorization to collect, the resale or the right to install and use the purchase item.

6.9 The Buyer is prohibited from pledging the goods purchased and delivered subject to retention of title or transferring ownership by way of security. In the event of seizure or other interventions by third parties, the Buyer shall ­notify us immediately in ­writing ­so that we ­can bring an ­action pursuant to § 771 of the German Code of Civil Procedure (ZPO). ­If the third party is not in a position to ­reimburse ­us for the judicial and extrajudicial ­costs of such an action, the Buyer shall be liable for the loss incurred.

6.10 We undertake to release the securities to which we are entitled at the request of the Buyer to the extent that the realizable value of our securities exceeds the claims secured by more than 10%; the selection of the securities to be released shall be incumbent upon us.

 

7. Liability for defects

7.1 Our liability for defects presupposes that the Buyer has properly fulfilled its obligations to inspect and give notice of defects in individual cases in accordance with § 377 of the German Commercial Code (HGB). In the case of goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. Obvious defects must be reported in writing without delay, at the latest, however, within a period of 10 working days following the delivery of the item purchased to the Buyer. Concealed defects shall be notified in writing within 10 working days of discovery of the defect at the latest. The above obligation to notify a defect shall also apply to the Buyer in relation to obvious defects if there is no obligation to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB), with the proviso that obvious defects must be notified in writing no later than 14 working days following delivery of the item purchased to the Buyer.

7.2 We shall initially be liable, at our discretion, within the framework of subsequent performance for the elimination of the defect or for the delivery of a defect-free item (replacement delivery). If we are not prepared or not in a position to remedy the defect or deliver a replacement, in particular if this is delayed beyond a reasonable period of time or if the remedy of the defect/replacement delivery fails in any other way, the Buyer shall be entitled to demand rescission or a reduction in the purchase price and/or damages at it sees fit. The Buyer may only claim damages within the scope of the provisions of clause 9 (Joint and several liability).

7.3 The Buyer shall afford us the time and opportunity required for the subsequent performance to which it is entitled, in particular to hand over the goods in respect of which the complaint has been lodged for inspection. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install the item.

7.4 We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance in accordance with statutory provisions if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.

7.5 If the Buyer receives defective assembly instructions, we shall only be obliged to deliver assembly instructions free of defects and only if the defect in the assembly instructions prevents proper assembly.

7.6 We do not accept liability for defects due to natural wear and tear, improper operation and improper or a lack of maintenance and defects attributable to the use of unsuitable operating materials.

7.7 No liability will be accepted for the suitability of our purchased goods for a specific purpose if the concrete possibility of use cannot be inferred from written instructions enclosed with the goods purchased or if the suitability for a specific purpose has not been expressly affirmed by us in writing. In any case, the Buyer shall be obliged to examine in detail the suitability of our purchased goods for the intended use in advance.

7.8 In the absence of our consent, the defective purchase item may not be modified and may not be put into use.

 

8. Statute of limitation

8.1 The limitation period for claims for defects is 12 months, as calculated from the date of delivery of the item purchased to the Buyer. If acceptance has been agreed upon, the limitation period shall commence upon acceptance.

8.2 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages asserted by the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in any individual case.

8.3 The above limitation period shall not apply insofar as the law pursuant to sections 438 (1), no. 2, 634a (1), no. 2 of the German Civil Code (BGB) and sections 445 a, 445 b of the German Civil Code (BGB) provides for longer limitation periods. Likewise, it shall not apply in the case of claims arising from a guarantee or on the basis of injury to life, limb or health caused by us, including injury to life, limb or health caused by an intentional or negligent breach of duty by a legal representative or vicarious agent of ours.

Likewise, the limitation shall not apply in the event of liability for other damage resulting from an intentional or grossly negligent breach of duty by us, including liability for other damage resulting from an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of ours. Furthermore, the statute of limitation constraint shall not apply in the event of the fraudulent concealment of a defect. Likewise, the statute of limitation constraint shall not apply in the event of claims under the Product Liability Act and insofar as we culpably violate an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and whose observance the contractual partner is regularly entitled to expect.

This shall not affect the provisions on suspension of expiry, suspension and recommencement of limitation periods in accordance with statutory provisions.

 

9. Joint and several liability

9.1 Unless otherwise stipulated below, liability for further damage not specifically caused to the defective purchase item shall be excluded.

This shall apply in particular to claims for damages arising from culpa in contrahendo in relation to other breaches of duty or for compensation for property damage arising from tort pursuant to section 823 of the German Civil Code (BGB). This shall also apply insofar as the Buyer, instead of a claim for compensation for damage in lieu of performance, demands compensation for futile expenses, the costs for an interruption to operations, the costs associated with a loss of production, recall costs or compensation for lost profit.

9.2 The foregoing exemption from liability shall not apply to claims asserted by the Buyer based on the assumption of a guarantee for the quality of the purchase item, to liability for damages due to injury to life, limb or health, including injury to life, limb and health based on an intentional or negligent breach of duty by us or by a legal representative or vicarious agent of ours and to liability under the Product Liability Act; otherwise, insofar as the cause of the damage is based on intent or gross negligence by us or by a legal representative or vicarious agent or if a defect is fraudulently concealed by us.

9.3 Likewise, the above exemption from liability shall not apply if we culpably violate an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and whose observance the contractual partner is regularly entitled to expect.

In this case, however, the liability is limited to the foreseeable, typically occurring damage.

 

10. Prohibition of assignment

The Buyer is not entitled to transfer rights under the contracts concluded with us to third parties without our consent.

 

11. Applicable law, place of performance, place of jurisdiction

11.1 If the Buyer is a registered merchant within the meaning of the German Commercial Code or a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be 69115 Heidelberg; however, we shall also be entitled to sue the Buyer at its place of business. If the Buyer is a registered merchant, a legal entity under public law or a special fund under public law, the place of performance shall be our registered office in Sinsheim.

11.2 All contractual relations with the Buyer shall be governed solely by the laws of the Federal Republic of Germany to the exclusion of the provisions of international private law (Introductory Act to the German Civil Code). The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is excluded and shall not apply to the contractual relationship. The contractual language is German.

Last amended: May 2020