Conditions Générales de Vente
We work exclusively on the basis of the following general terms and conditions of business that shall apply to all our supplies and services. They exclude conflicting terms and conditions of business, particularly terms and conditions of purchase. Differing agreements shall only be effective if they are confirmed by us in writing. A waiver of this formal requirement shall require the written form. If individual provisions are wholly or partly invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall replace any possible invalid provisions, within reasonable limits and in good faith, with such provisions that best meet the economic purpose of the contract without the terms of the contract being changed substantially as a result. The same shall apply in the event of gaps in the provisions of the contract. Our general terms and conditions of business also apply for all future businesses.
2. Offer and order confirmation
Our offers are non-binding. Orders only become effective when confirmed by us in writing (by letter, fax or e-mail). If no such confirmation is sent, then the issued invoice shall be deemed to be the order confirmation. If the order qualifies as an offer in accordance with § 145 German Civil Code, then we can accept this within 2 weeks. The buyer is bound to his offer for 2 weeks. Orders on our part are only binding if they are made in writing (by letter, fax or e-mail). Order confirmations, dimensional drawings and calculations must be checked immediately by the buyer upon receipt. If the buyer fails to carry out this check, then errors shall be the buyer's responsibility. Insignificant deviations, or deviations that are customary in the trade, that do not adversely affect usability and which are deemed acceptable to the buyer, shall remain reserved. Technical difficulties which were not known at the time of conclusion of the contract, and which we cannot reasonably be expected to accept, give us the right to rescission of contract.
The delivery shall take place at buyer's risk, also in the case of carriage-paid delivery on an ex-works basis. Risk shall pass over to the buyer as soon as the goods are handed over to the first carrier, for forwarding to the buyer, at the site of our commercial establishment. If we are obliged to hand over the goods to the carrier at a specified site, then risk shall only pass over to the buyer when the goods are handed over to the carrier at this site. Binding terms of delivery may only be agreed in writing. Terms of delivery begin when the contract is concluded and assume clarification of any technical queries. If there are delays for reasons for which the buyer is responsible, our terms of delivery shall be extended accordingly by the period of delay. The same shall apply if we are affected by measures associated with labour disputes, particularly strikes and lockouts, as well as the occurrence of unforeseeable events that lie beyond our control, for example, traffic problems and interruptions to business operations, shortages of energy and materials, delivery delays on the part of a subsupplier etc. If the aforementioned reasons, that are not in our sphere of responsibility, lead to a delay of more than 2 months, we shall be entitled to withdraw from the contract. Any payment made shall be refunded immediately. If the buyer so wishes, we shall take out insurance cover for the delivery; the buyer shall bear the costs thereof.
4. Partial performance
We are entitled to partial performance, unless partial performance is exceptionally unacceptable for the buyer, taking into consideration the mutual interests.
5. Return of goods sold and packaging
In principle, the return of goods sold is excluded. If, by way of exception and on the basis of a special written (letter, fax or e-mail) agreement, goods are taken back, a refund shall only be made with a reasonable deduction. Furthermore, freight and packaging shall be paid for in full by the buyer. The aforementioned provisions shall not apply within the context of warranty claims. Transport packaging and all other packaging shall not be taken back in accordance with the regulation on packaging. The buyer is obliged to ensure that waste is disposed of correctly and properly at his own expense.
6. Deterioration of the buyer's financial situation
If, after the contract is concluded, the buyer's financial situation deteriorates substantially, or if details emerge about the buyer's circumstances which, on the basis of a rational economic assessment, would have deterred us from concluding the contract, or would have led us to ask for payment in advance or a deposit of security, then we shall be entitled to withdraw from the contract, to request cash before delivery or the deposit of securities. Rejection by a trade credit insurance company shall always be deemed to be a deterioration of the buyer's financial situation. In the event of rejection by a trade credit insurance company, we shall always be entitled to withdraw from the contract, to request cash before delivery or the deposit of securities.
Unless the order confirmation states otherwise, our prices are quoted ex-works without packaging in Euro; packaging shall be invoiced separately. The statutory VAT is not included in our prices; the statutory amount shall be stated separately in the invoice on the day that the invoice is drawn up. Subsequent changes at the request of the buyer, as well as additional work that is not included in the order confirmation, shall be invoiced separately.
Invoices shall be due for payment immediately and without any deduction. A discount may only be deducted if this is agreed or confirmed in writing (letter, fax or e-mail). In the event of payment being delayed, we shall be entitled - without prejudice to our right to further claims for damages - to demand interest on arrears in accordance with § 288 German Civil Code.
9. Right of set-off and right of retention
A set-off by the buyer shall only be possible if his counter-claim is uncontested or is recognised by declaratory judgement. The buyer may only assert a right of retention if his counter-claim is based on the same contractual relationship.
10. Reservation of title
The delivered goods, including packaging, remain our property until all claims arising out of the current commercial relationship have been fully settled. If the buyer is a merchant within the meaning of the German Commercial Code, a corporate body under public law or a special fund under public law, we reserve the right to retain title to all the goods until settlement of all, including future and contingent, claims ensuing from the business relationship. In the event of the buyer acting in breach of contract, particularly in the event of a delay in payment, we shall be entitled to take the goods back. If we take the goods back, this does not constitute a withdrawal from the contract, unless we declared this expressly in writing (by letter, fax or e-mail). Having taken back the goods, we shall be entitled to dispose of them and offset the proceeds derived from the disposal against the liabilities of the buyer, minus all reasonable costs of realisation. The buyer is obliged to handle the reserved goods with care. In particular he must obtain sufficient insurance at his own expense to cover the replacement value of goods damaged by fire, water and theft. Claims against the insurance company are assigned to us as of now. We hereby accept the assignment. In the event of seizures or other third-party interventions, the buyer must inform us immediately and in writing. The buyer shall be entitled to resell the goods during the ordinary course of business. Authorisation to resell the goods can be revoked by us if the buyer fails to duly comply with his obligations. In the event of goods being processed, combined or mixed by the buyer, we shall acquire co-ownership of the new product in the ratio of the value of the goods (invoice amount including VAT) to the other processed or combined goods. The buyer hereby assigns to us all accounts receivable which arise from resale to his customers or third parties, irrespective of whether the goods are resold without any processing, combining or mixing or after such processing, combining or mixing. We hereby accept the assignment. The buyer shall remain entitled to collect these accounts receivable even after the assignment. Our right to collect the accounts receivable ourselves shall remain unaffected by the above. We undertake however not to collect the accounts receivable ourselves provided that the buyer fulfils his payment obligations in accordance with the contract, does not fall into arrears with payment, no application is filed for the institution of insolvency proceedings and payments have not been suspended. If this is the case, we may demand that the customer informs us of the assigned accounts receivable and the debtors, that he gives us all the information and relevant documents necessary to assert our rights and that he informs the debtors (third parties) of the assignment. The buyer shall not be entitled to pledge or to assign by way of security goods that are subject to reservation of title. At the buyer's request, we are obliged to release existing securities at our discretion insofar as their value exceeds the amount owed to us by more than 10%.
We must be notified in writing of obvious defects within one week following receipt of the goods and we must be notified in writing of hidden defects within one week after they are detected; otherwise the goods shall be deemed to be approved. Timely dispatch of the notification shall suffice for observance of the deadline. The buyer fully bears the burden of proof for all prerequisites of a claim, especially for the defect itself, for the date that the defect is detected and for the timeliness of the notice of defect. If the buyer has installed the received goods and if subsequently he asserts warranty claims, we shall only be liable if the goods were installed competently. In this respect the buyer shall bear the burden of producing evidence and the burden of proof. We shall, at our option, repair or replace the defective goods, for which we are responsible. If we fail to repair or replace the defective goods, the buyer can, as he deems fit, ask for a reduction in payment (deduction from the price) or cancellation of the contract (redhibition). The warranty period is one year from delivery of the goods. If the goods have been used for a building according to their customary use and have caused its defectiveness, the period of limitation shall be five years. In the event of an unfounded complaint, inspection and transportation costs shall be borne by the buyer.
12. Compensation for damages
If legally permissible, claims for damages are excluded. Moreover, if permissible, claims for damages shall, in terms of the amount, be limited to double the net invoice amount (excluding VAT) and excluding packaging.
13. Copyright and industrial property rights
We reserve our proprietary rights and copyrights to all illustrations, drawings, calculations and other documents. This shall also apply to written documents that are marked as "confidential". Before passing these on to third parties, the buyer must obtain our expressed written approval (letter, fax or e-mail).
14. Final provisions
If the buyer is a merchant within the meaning of the German Commercial
Code, a corporate body under public law or a special fund under public law,
the place of jurisdiction and place of performance for any disputes ensuing
from this contractual relationship and for supplies shall be Salzhemmendorf or
the relevant place of trial therefor.
As of: 01.05.2013
Calenberg Ingenieure GmbHAm Knübel 2-4
+49 5153 9400-0
+49 5153 9400-49