(Status: May 2010)
1. Validity and Recognition
The following terms of delivery and payment apply to all business relationships with our contractual partners. Deviations from these conditions or other agreements are only legally binding if they have been confirmed in writing. Conflicting terms and conditions of business or purchase of the customer are expressly contradicted, unless we have expressly agreed to their validity in writing. Our terms and conditions also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
Our offers are generally non-binding. Orders only become binding upon receipt of our written confirmation or upon execution of the delivery. If the content of the order confirmation or the delivery note deviates from the order, the customer must object in writing within 2 weeks. Otherwise, the content of the order confirmation or the delivery note applies. The information contained in our offers about the quality of the goods (dimensions, weights, type designations, year of construction, technical data) are non-binding unless they are expressly designated as binding.
3. Drawings / documents for used machines
Insofar as drawings, plans or instructions are handed over to the customer when delivering used machines, this is done without any liability on the part of the supplier. The supplier assumes no guarantee or other liability for such documents. Our information on weights and dimensions, for example for the purpose of manufacturing machine foundations, is non-binding. It is solely up to the customer to check the correctness of the information.
4. Supplier protection for used machines
Our information about machine locations and prospective sellers is only intended for the recipient and may not be passed on to third parties without written consent. If we can prove that the customer or an interested party has an object for sale, he undertakes not to conduct price and final negotiations for all objects for sale at this point without our written consent, either directly or indirectly or through third parties, but exclusively through us. In the event of violations of this provision, we are entitled to a claim for damages. With the purchase of the machines and equipment, the buyer is obliged to comply with the accident prevention regulations applicable to the operation / use of the machines and equipment or to implement the statutory regulations valid in the buyer's area of application.
5. Prizes and other Ko sten
Unless otherwise expressly agreed, the prices apply ex warehouse Eilenburg, excluding packaging, freight, postage, insurance, expenses. Assembly or other ancillary costs shall be borne by the buyer. The prices do not include the VAT applicable at the time of delivery. In the case of deliveries within 4 weeks, the prices agreed upon when the contract was concluded apply in any case. This time limit does not apply if the client is a merchant.
6. Terms of Payment
Invoices are due for payment immediately or within the specified payment period and without deduction. Invoice amounts are due before the goods are loaded, but no later than 14 days after notification of readiness for dispatch, if the goods have not been collected by then for any reason for which the supplier is not responsible. Unless otherwise agreed, the following modalities generally apply: An interest-free payment term of 30 days net from the invoice date is granted for new machines and tools. A 2% discount is granted for payments within 10 days. The date of receipt of payment is decisive for granting a discount. In the case of payments by bill of exchange, there is generally no discount deduction. Payment for used machines must always be made without deduction of a discount. In the event of a delay in payment or a significant deterioration in the customer's financial situation, we can demand immediate payment of the entire claim. If the target is exceeded, we charge - subject to further claims - interest of 6% above the respective base rate according to the Discount Transition Act or a base rate taking its place. We expressly reserve the right to accept bills of exchange. They are only accepted as payment and not as performance. Discount and bank charges will be charged to the customer. Offsetting against counterclaims other than those that are undisputed or legally established, as well as the exercise of rights to refuse performance and rights of retention against our claims, require our written consent.
7. Delivery Dates
The specified delivery dates are estimated and are considered non-binding and approximate unless fixed delivery periods have been expressly agreed in writing. The deadline will be interrupted in cases of force majeure or other circumstances for which we are not responsible, even if they occur at the manufacturer. Such are, for example, strikes, other disruptions to operations, official measures, traffic disruptions. If these circumstances do not disappear within 3 months, we can withdraw from the contract. The customer can withdraw from the contract if the delivery is delayed and a written grace period of 3 months has been set. Compensation for damages due to delay in performance or impossibility of delivery can only be demanded in the case of intent or gross negligence.
8. Dispatch / transfer of risk / default of acceptance
The route and means of dispatch are left to the choice of the supplier, unless otherwise agreed. Shipping is always at the risk and expense of the customer. If the client wants a special type of shipping, this must be reported explicitly and in good time. In the case of expressly agreed delivery free place of destination, possibly border crossing point, the customer must ensure immediate acceptance of the delivery. The unloading and any costs incurred are at his expense.
The risk passes to the customer at the latest when the delivery items are dispatched from the factory/warehouse, even if partial delivery is made or the supplier has taken on other services such as shipping costs or delivery and installation. If the customer refuses acceptance without justification, the additional costs incurred as a result shall be borne by him. Partial deliveries are possible. Delivered objects, even if they show defects, are to be accepted by the customer without prejudice to the rights from paragraph 9. In the event of delays in shipping for reasons for which the customer is responsible, the risk passes to the customer on the day the goods are ready for shipment.
9. Complaints / Warranty
We are liable for delivered machines and tools in the absence of expressly guaranteed properties as follows: NEW MACHINES AND TOOLS - six months according to the statutory provisions of the German Civil Code; All new machines and tools must be checked for functionality immediately upon receipt. Recognizable defects and the lack of guaranteed properties must be reported in writing within 14 days of receipt at the latest. The justified and proper notification of defects includes the warranty of our choice. USED MACHINES AND TOOLS are sold without any warranty. Used machines and tools are sold in the condition in which they are and with the accessories present. The customer has the right to inspect and examine the delivery item before the conclusion of the contract. If he makes no or only partial use of this right, he acknowledges the condition of the delivery item without looking at it. Agreed assurances of freedom from cracks and breakage are limited to defects that preclude the operability of the machine. In this case, too, the liability of the supplier does not extend to defects in gear wheels and in particular parts that are subject to wear or to breakage, cracks or other damage caused by improper commissioning of the delivery item by the customer. Machines that have been welded or repaired using the so-called bolting process are considered to be free of cracks and breaks. Warranty rights of the customer presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to § 377 HGB. Insofar as the supplier is liable for defects, the following applies:
a) the supplier is entitled to choose between remedying the defect (rectification) or delivering a replacement (replacement delivery)
b) if the supplier is not willing or not able to rectify the defect or replace the goods, or if he delays beyond a reasonable period of time or fails in any other way, the customer is entitled to cancel the contract (conversion) or to reduce the purchase price (Reduction) entitled.
c) if the supplier is liable for damages, the supplier is liable insofar as he caused the damage intentionally or through gross negligence or through culpable violation of essential contractual obligations. He is also liable in the absence of guaranteed properties for damages due to non-performance according to §§ 463, 480, paragraph. 2, 635 BGB for consequential damage, however, only insofar as the property assurance aims to protect the customer against consequential damage and the damage is based on the lack of guaranteed properties, or insofar as liability is already based on the above provisions. The supplier is also liable under the Product Liability Act. Any other liability of the supplier is excluded.
10. Retention of Title
Machines and tools are delivered subject to retention of title. They remain our property until full payment of all claims to which we are entitled from the business relationship and which will arise, with a current account of the balance claim existing at this point in time. In principle, the customer is not entitled to sell the machines and tools delivered under retention of title to third parties. Exceptions to this are dealers who are or will be authorized by us. If, contrary to the contractual agreements, the customer sells machines and tools to a third party despite the retention of title, he assigns all claims arising from the contractually excluded resale to us. The same applies equally to sales by dealers.
The customer must notify us immediately of the opening of composition or bankruptcy proceedings, attachments or any other impairment of our security rights. In this case he must inform his creditors or other third parties of the advance assignment. The customer has to bear the costs for interventions against access by third parties. In this case, or in the case of other serious doubts about the ability to pay in the event of default in payment or other behavior by the customer that is contrary to the contract, we are entitled to demand the return of the machines and tools owned by us without setting a grace period or declaration of withdrawal at the customer's expense according to §985 BGB.
11. Jurisdiction / Applicable Law / Severability / Data Protection
Place of jurisdiction is Eilenburg. The law of the Federal Republic of Germany applies exclusively as agreed. The invalidity of individual provisions of these contractual provisions does not affect the validity of the remaining provisions. Contract language is German, German law also applies to foreign transactions.
ZOMA Maschinenhandel is entitled to process and store the data received about the buyer in connection with the business relationship - even if this comes from third parties - in accordance with the Federal Data Protection Act and to have it processed and stored by third parties commissioned by ZOMA Maschinenhandel.
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