General terms and conditions of sale and delivery of SAR Gröpler GmbH
1. General information
1.1 The following General Terms and Conditions of Sale and Delivery (AGB) apply exclusively to all our deliveries and services. They apply to all contracts with entrepreneurs. Deviating, conflicting or supplementary general terms and conditions of the purchaser shall not become part of the contract unless their validity is expressly acknowledged in writing.
1.2 Within the scope of ongoing business relations, our General Terms and Conditions of Business shall apply to future deliveries and services even if they have not been expressly agreed in each case.
1.3 The customer agrees to the storage and evaluation of order and customer data by us in accordance with the provisions of the Federal Data Protection Act.
2.1 Our offers are subject to change without notice and are merely an invitation to of an order.
2.2 The information given in printed documents or electronic media about dimensions, weights, performance and physical or material properties of our Products are only approximate unless they have been expressly confirmed by us in writing as binding as an integral part of our offer.
2.3 We reserve the right to make technical and design changes to the delivery items that deviate from offers, brochures or information in electronic media in accordance with customary commercial practice, provided that they do not unreasonably affect the customer and provided that they do not affect the serviceability of the delivery items.
3. Conclusion of contract
3.1 The orderer is bound to his order for fourteen days – calculated from the day the order is sent.
3.2 The contract is only concluded by our order confirmation in text form or by execution, whichever is earlier.
4.1 Deliveries and services for which no prices have been agreed shall be the prices valid on the day of delivery.
4.2 Our prices for deliveries are ex works/warehouse including loading. However, if other lifting equipment is required for loading at the works/warehouse as forklift trucks, which are to be rented from us at a charge, we are entitled to charge these costs to the customer. Packaging costs, transport costs and costs of transport insurance requested by the customer are charged separately.
4.3 Our prices for personnel deployment only include the time required. Travel costs – including any costs for excess baggage – and costs for overnight stays and meals will be invoiced separately, unless otherwise agreed.
4.4 All prices are net; the value added tax valid on the due date is added to the agreed/displayed prices.
4.5 If the delivery date is later than four months after conclusion of the contract, we are entitled to adjust the prices in accordance with any increase in material or wage costs that has occurred in the meantime.
5. Payment, default of payment, offsetting ban
5.1 Means of payment other than cash or bank transfers shall only be accepted after prior agreement and even then only on account of performance. At Payments made by cheque-bill of exchange procedure shall only be deemed to have been made when the last bill of exchange has been honoured. The acceptance of a bill of exchange is only associated with a deferral if this is expressly agreed in writing; interest and costs are at the expense of the buyer.
5.2 Rebates or discounts can only be deducted if this has been agreed in writing. A discount deduction requires that all payments from the order are received by us within the discount period.
5.3 If the purchaser is in default of payment, we shall be entitled to charge interest on arrears at a rate of 8 percentage points above the base rate in accordance with § 247 BGB. Our claim for compensation for an actually higher damage remains unaffected.
5.4 A set-off is only possible with counterclaims that are legally binding, undisputed or acknowledged by us. The customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
5.5 If the customer remains in default of payment for more than two months or in the event of cheque or bill protests or enforcement measures against the customer, we shall be entitled to make outstanding deliveries to the customer from other orders or from call orders only against advance payment.
6. Delivery Dates, Delivery Periods, Delay in Delivery
6.1 If, for the manufacture of the ordered goods, the customer has to provide us with design documents, materials or test equipment (cooperation of the customer), an agreed delivery period shall not commence until the customer has performed the cooperation owed.
6.2 Agreed delivery periods shall be extended and agreed delivery dates shall be postponed appropriately in the event of industrial disputes, in particular strikes and lock-outs, as well as in the event of force majeure or unforeseen hindrances beyond our control, insofar as such hindrances demonstrably affect the completion or delivery of the delivery item. This also applies if the circumstances occur at our suppliers. Also a late delivery of raw materials and vendor parts for which we are not responsible as well as transport obstacles will lead to a reasonable extension of the delivery period. If the above-mentioned circumstances affect our operations in such a way that we can no longer reasonably be expected to execute the order, we shall be entitled to withdraw from the contract.
6.3 In the event of a delay in delivery, the customer may withdraw from the contract after a reasonable grace period has expired without result; in the event of impossibility, the customer shall be entitled to this right even without setting a grace period. Claims for damages (including any consequential damages) are excluded without prejudice to Sections 6.4 and 10; the same applies to claims for reimbursement of expenses pursuant to § 284 BGB.
6.4 The limitations of liability according to No. 6.3 and 10 shall not apply if a commercial transaction for delivery by a fixed date has been agreed; the same shall apply if the customer is liable for damages due to of the delay for which we are responsible can claim that his interest in the fulfilment of the contract has ceased to exist.
7. Shipping and transfer of risk
7.1 The choice of the dispatch route, the mode of dispatch and the carrier shall be left to us, unless expressly agreed otherwise. We do not assume any guarantee for the cheapest shipment. It is the customer’s responsibility to provide the lifting equipment necessary for unloading the contract goods from the transport vehicle.
7.2 Packaging is charged at cost price. Packing material provided on loan must be returned to us by the customer carriage paid to our shipping address.
7.3 The risk of accidental loss and accidental deterioration shall pass to the customer in accordance with the provisions of the sale to destination, unless we are not responsible for assembly or installation. The transfer to the person entrusted with the execution of the shipment is the same if the customer is in default of acceptance. If we owe the assembly or installation of the delivered item, the risk of accidental loss and accidental deterioration shall pass to the customer on the day of acceptance into the customer’s own business or, if agreed, after a faultless trial run.
7.4 Delivered items, even if they have minor defects, are to be accepted by the orderer without prejudice to his rights under clauses 8 to 10.
7.5 If the orderer is in default with the acceptance of the service or if he does not call off the ordered goods despite notification of readiness for dispatch and the setting of a grace period, the risk of accidental loss and accidental damage shall pass to the orderer upon expiry of the grace period and the orderer shall reimburse all costs and damages arising from the default. Subject to a higher expense or damage, we are entitled to charge a fee of 0.5% of the net value of the stored goods for each month or part thereof. The purchaser reserves the right to prove that the damage was lower. In case of default of acceptance as well as in other cases in which we are obliged to store the delivery due to the customer’s behaviour, our respective claim in this respect is due within 14 days after the occurrence of the default.
8. Claims for defects, period of limitation, notice of defects
8.1 We guarantee that the design and material are free of defects in accordance with the current state of the art and that production is in accordance with the technical standards applicable in the Federal Republic of Germany.
8.2 Warranty claims (subsequent performance, compensation for damages and replacement of use) shall become statute-barred 12 months after delivery of the goods. There is no warranty claim for declassified goods, special items, waste and not new goods. The claims for reduction and the exercise of a right of withdrawal are excluded, as far as the claim for supplementary performance is statute-barred.
8.3 The customer shall inspect the goods delivered by us immediately upon receipt and notify us of any obvious defects within 10 days. Non-obvious defects are to be reported immediately after discovery. If the customer fails to notify us of any defects in writing in due time, the goods shall be deemed to have been approved. The customer shall bear the burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notification of defects.
9. Warranty rights
9.1 If defects occur, we shall be entitled to choose between remedying the defect or delivering a defect-free item (subsequent performance). We may refuse subsequent performance as long as the customer does not fulfil his payment obligations towards us to an extent corresponding to the defect-free part of the performance.
9.2 If rectification is impossible, if attempts to rectify the defect have failed for the second time or if the rectification or replacement delivery is not carried out or is only carried out with culpable delay, the customer may, at his discretion, demand a reduction in price or withdraw from the contract. In the event of only a minor breach of contract, the customer shall not be entitled to withdraw from the contract. If the contract goods are a new technical development or a prototype, the rectification of defects shall only be deemed to have failed if, taking into account the interests of both contracting parties, the customer can no longer be reasonably expected to make a further attempt at rectification.
9.3 Unless otherwise provided for in Clause 10, any further claims of the Purchaser – irrespective of their legal basis – shall be excluded; this shall also apply to claims for reimbursement of expenses pursuant to § 284 BGB (German Civil Code). We shall therefore not be liable for damage that has not occurred to the delivery item itself; in particular, we shall not be liable for loss of profit or other financial losses of the customer.
9.4 The above provisions shall also apply in the event of delivery of another item and a smaller quantity.
10. Total liability, exceptions to the exemption from liability
10.1 The exclusion of liability in accordance with Clauses 6.3 and 9.3 shall not apply if the exclusion or limitation concerns liability for damages arising from injury to life, limb or health that are based on an intentional or negligent breach of duty by one of our employees, representatives or vicarious agents; it shall also not apply if the exclusion or limitation of liability for other damages is agreed upon that are based on an intentional or grossly negligent breach of duty by one of our employees, representatives or vicarious agents. If we culpably violate an essential contractual obligation which endangers the achievement of the purpose of the contract in its core area, liability is not excluded according to clauses 6.2 and 9.3, but limited to the foreseeable damage typical for the contract.
10.2 No exclusion of liability shall apply to the extent that liability for personal injury and property damage must be assumed under the Product Liability Act in the event of defects in the delivery item.
10.3 Furthermore, the exclusion of liability shall not apply if and insofar as we have assumed a guarantee.
10.4 We shall not be liable for damages for the following reasons: unsuitable or improper use, faulty assembly by the customer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, defective construction work, chemical, electrochemical or electrical influences, improper modifications or repair work carried out by the customer or third parties without our prior approval.
10.5 Claims arising from manufacturer recourse (§ 478 BGB) shall remain unaffected.
10.6 Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and vicarious agents.
11. Provision of materials and documents
11.1 If, on the basis of drawings or other information provided by the customer, the goods are (e.g. his instructions regarding shapes, dimensions, colours or other specifications), the customer alone is responsible for ensuring that no third-party property rights are infringed. The customer shall indemnify us against all claims of third parties for infringement of industrial property rights (including legal costs) and, at our request, shall support us to the best of his ability in any legal dispute.
11.2 If parts or material are supplied by the customer for processing or as a delivered for the purpose of processing an order, no technical incoming inspection for non-obvious errors will be carried out by us, unless expressly agreed otherwise.
11.3 Equipment, machines or other accessories provided by us on loan or hire to the customer must be clearly marked as our property and may only be used for the agreed purpose. In the event of seizure or other impairment of rights by third parties, the customer must notify us immediately in writing.
If we have undertaken the assembly of the ordered goods, the following shall apply additionally:
12.1 The customer shall be responsible for all earthwork, concrete, construction work, electricity, plastering, painting and other ancillary work outside of our scope of business, including the related work, at his own expense. required building materials and make them available in good time. It is the responsibility of the purchaser to provide the lifting equipment necessary for unloading the contract goods from the transport vehicle. The purchaser must also provide the scaffolding, lifting equipment, fuels and lubricants required for assembly and commissioning.
12.2 The customer shall take the necessary measures to protect our property and our assembly personnel on the construction site.
12.3 Prior to commencement of the assembly work, the customer shall provide the necessary information on the location of concealed power, gas and water lines or similar installations as well as the necessary structural data.
12.4 If assembly, erection or commissioning is delayed due to circumstances for which we are not responsible, the customer shall bear all costs incurred for idle times and any other necessary travelling by the assembly personnel.
12.5 We shall only be liable for the proper handling and installation or assembly of the delivery items; we shall not be liable for the work of the installers or our assembly personnel and other vicarious agents, unless such work is directly related to the delivery and assembly and was arranged by the orderer.
12.6 The orderer shall reimburse us for the costs of working hours, travel expenses, travel costs as well as surcharges for overtime, night work, Sunday and public holiday work agreed upon when the order was placed.
13. Retention of title
13.1 The delivered goods shall remain our property until full payment of all claims arising from the business relationship between us and the customer. The inclusion of individual claims in a current invoice as well as the striking of a balance and its recognition shall not affect the reservation of title.
13.2 The customer is entitled to resell the reserved goods in the normal course of business; however, he is not permitted to pledge or assign them as security. In the event of a pledge or assignment of the expectant right of ownership by way of security, the customer must inform the secured party of our ownership and notify us immediately of the pledge or assignment of the expectant right of ownership by way of security. The ordering party is obliged to secure our rights when reselling the reserved goods on credit, in particular to pass on the reservation of title.
13.3 The purchaser’s claims from the resale of the reserved goods the customer hereby assigns to us the amount of the purchase price agreed with us; we accept this assignment. If a transfer of claims is not possible according to the agreements made at the time of resale, the customer is only entitled to resell the reserved goods with our express and written consent. This also applies if the claim from the resale is to be included in a current account. Irrespective of whether the resale in this case takes place unlawfully or with our consent, the customer hereby assigns to us his claim to a balance credit in the amount of the invoice value.
13.4 Irrespective of the assignment and our right to collect, the customer shall be entitled to collect as long as he fulfils his obligations to us and does not suffer financial collapse. In the event of a significant deterioration in the financial situation of the customer – in particular with an application for the opening of insolvency proceedings – the right to collect shall expire. At our request, the customer must provide us with the information necessary for collection and inform the debtor of the assignment. At our request, the customer shall at any time, i.e. even if he himself is entitled to collect the debt, provide us with a signed notice of assignment.
13.5 Any processing and treatment of the reserved goods shall be carried out by the customer on our behalf without any obligations arising for us. If the reserved goods are processed, combined, mixed or blended with other goods not belonging to us, we shall be entitled to the resulting co-ownership share in the new object in the ratio of the invoice value of the reserved goods to the other processed goods at the time of processing, combination, mixing or blending. If the purchaser acquires sole ownership of the new item, the contracting parties are already now in agreement that the purchaser grants us co-ownership of the new item in the ratio of the invoice value of the processed or combined, mixed or blended goods subject to retention of title; it is already now agreed that the purchaser will store this new item for us free of charge. If the reserved goods are resold together with other goods, whether without or after processing, combination, mixing or blending, the advance assignment agreed above shall only apply to the amount of the invoice value of the reserved goods which are resold together with the other goods.
13.6 The purchaser is obliged to insure goods delivered under reservation of title against fire and water damage until the full ownership has been acquired and to prove on request that this has been done.
13.7 We shall be obliged to release securities if and to the extent that the sum of the securities granted by the customer exceeds the total claim arising from the business relationship by 15% and the customer so requests.
The customer does not receive guarantees in the legal sense from us. A reference to DIN standards or other works of the recognized rules of technology serves only to describe the goods and does not constitute a guarantee.
15. Contract language, choice of law, place of performance and jurisdiction
15.1 The contractual language is German.
15.2 The law of the Federal Republic of Germany shall apply exclusively to the mutual legal relations. The uniform UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
15.3 The place of performance for deliveries ex works and for all payments is the registered office of our company in Dettingen an der Erms.
15.4 All legal disputes shall be settled before the court having jurisdiction over us, if the purchaser is a merchant or a legal entity under public law.