General Terms and Conditions
§ 1 subject of the contract
The company ZMT R&S GmbH represented by its Managing Director, Mr Gerhard Bauer, Speiglerstr. 22, 76359 Marxzell – in the following text named seller – sells used machines and spare parts to commercial buyers – in the following text named customer.
§ 2 Area of application
(1) This terms of sale apply only to entrepreneurs, corporate bodies under public law or public-law special funds.
(2) Contrary or deviating terms of the customer to our terms and conditions will only be accepted if we agreed to their validity in a explicitly written form.
(3) This terms of sale apply additionally to all future business dealings with the customer, if the transactions will be in the same way.
§ 3 Conclusion of contract
The contract will be concluded in acceptance of the legal provisions to offer and adoption. An order constitutes an offer as defined by § 145 BGB and subject the customer to adopt.
§ 4 Costs and payment
(1) If there is no written agreement to the contrary, the agreed price will be the net price, plus shipping and handling costs, plus the respective value added tax.
(2) The payment of the agreed price results from the bank transfer to the stated bank account. A cash discount deduction is only allowed when there is a special written agreement.
(3) If there is no written agreement to something else, the agreed price has to be payed 14 days after delivery. In case of late payment we calculate interest of delay amounting 8 percentage points on the base rate. The enforcement of a higher damage for delay will be reserved.
§ 5 Offsetting and retention
(1) The customer has the right to offset if his counterclaims establish as final and absolute or are undisputed.
(2) A retention of goods by the costumer is only given when his counterclaims base on the same contractual relationship.
§ 6 Delay
(1) If the customer is in default of acceptance or breaches culpably the obligation to co-operate, the seller has the right to demand the resulting damage plus possible additional expenses. Other claims remain unaffected.
(2) In case of not deliberate or grossly negligent caused default in delivery, the liability of the seller is limited by maximum 15 % of the delivery value.
§ 7 Passing of risk during shipment
If the goods were send to the customer on his demand, the risk of accidental loss or accidental decline will in any case be transferred to the customer, with the dispatch to the customer or at the latest with leaving of the factory premises of the seller.
§ 8 Reservation of proprietary rights
(1) The seller reserve the property of the delivered goods until the full payment of all claims out of the contract for delivery is guaranteed. This will be also essential for all future deliveries, even if the seller doesn't refer to it all the time.
(4) The customer is obligated to treat the goods carefully until he gains the ownership of them. Until the property is not changed over to the customer, the customer has to inform the seller immediately when the delivered object is attached or exposed to other interventions by a third party.
(5) The processing or transformation of the good by the costumer is always effected by naming and order of the seller. In this case the expectant right of the customer on the goods continues on the transformed good as well. If the goods are processed with other items not belonging to the seller, the seller acquires common ownership of the new item at the rate of the objective value of the good to the other transformed items at time of processing. The same is effective in case of mixing. In case the mixing is effected so that the part of the costumer is seen as the main part, deemed to be agreed, that the costumer transfers proportionately co-ownership to the seller and the so accrued sole ownership or co-ownership for the seller is kept secure.
§ 9 Guarantee/Warranties
(1) If the costumer makes use of his warranty rights, it assumes that he discharge the investigation engagements and notify defects according to § 377 HGB properly.
(2) Claims for defects on used goods lapse 6 months after successful delivery to the costumer.
(3) If, despite all due care, there is a defect on the good which has already existed at the time of passing the risks, the seller will optional repair or replace the good in a reasonable period, assumed timely notice of defect.
(4) If the supplementary performance fails, the customer may – disregarding any claims for damages – withdraw from the contract or reduce the agreed price.
(5) Claims for defects does not only include insignificant deviations from the agreed quality, but also insignificant damage of the usability, natural wear or erosion.
(6) Customer claims related to the expense for the realization of the supplementary performance, particularly with regard to transport-, travel-, labor- and material costs, are excluded, when the expenses rise, because the delivered goods were brought to another place as the establishment of the customer. Unless the shipment equates their normal use.
§ 10 Exclusion of liability
(1) The liability of the seller is excluded for damages caused by a slightly careless neglect of duty of the seller or whose statutory agent or servants. Apart from this exclusion of liability are claims which refer to damages arising from injury to life, body or health, the breach of contract, claims out of guarantees and claims out of the law on product liability.
(2) The liability of the seller for slightly careless neglect of duty by his servants is excluded, unless it is not about the breach of contract or damages arising from injury to life, body or health.
(3) In case of a careless neglect of duty, the liability of the seller is limited on a damage which is typical for the contract, reasonable and predictable.
(4) In cases of a slightly careless neglect of duty, claims for compensations instead of getting the achievement, are limited in the amount on the dual of the agreed consideration (without sales tax) for not filled services.
§ 11 Choice of law, jurisdiction
(1) The german law is used to the exclusion of the UN Sales Convention (CISG).
(2) Place of execution and exclusive jurisdiction is agreed Karlsruhe.
§ 12 Severability clause
If one ore more provisions of this terms and conditions will be or are legally void or impracticable, it does not impact the business conditions in other respects. The legally void or impracticable provision shall be replaced by a provision which comes as close as possible to the economic and legal arrangements which were meant by both parties of the contract before. This also applies to any contractual gaps.