General Terms and Conditions of ZN-Metall GmbH for Sale, Delivery and Payment
1. Validity of the terms and conditions
Our terms and conditions of sale and delivery shall apply to all deliveries and services, including those arising from future business transactions. Deviating terms and conditions of the customer shall only apply if they have been expressly recognised by us in writing. These Terms and Conditions of Sale shall be deemed to have been accepted at the latest upon acceptance of our products or services.
2. Offer and conclusion of the contract
2.1 Our offers are subject to change and non-binding. Unless otherwise agreed in writing, we shall be bound by the prices stated in an offer for 30 calendar days. The information contained in an offer or enclosed documents such as dimensions, weights, drawings, technical data, installation instructions, performance descriptions, etc. shall not be binding for us . As they are based on the supplier‘s documents, they are provided without any liability on our part with regard to weight and quality tolerances. We reserve the right of ownership and copyright to cost estimates, drawings and other documents. Prices for individual items in the offer are only valid if the entire order for the offer in question is placed.
2.2 All contracts are concluded upon receipt of our written order confirmation, in any case upon acceptance of the goods. The content of the contract shall be governed by the order confirmation, if issued, and our General Terms and Conditions of Sale and Delivery. Agreements deviating from this always require our express confirmation in writing.
3 Delivery time, delivery and assembly
3.1 Deliveries are made ex works and always at the risk of the recipient. The risk of loss of or damage to the goods shall pass to the customer at the time at which we hand over the goods to a forwarding agent or carrier, but at the latest when the goods leave our factory. If the goods are ready for dispatch and dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the goods. to the customer upon notification of readiness for dispatch.
3.2 Irrespective of the time of transfer of risk (reference to section 3.1), delivery shall be made - unloaded - to the agreed delivery address of the buyer, provided that this can be reasonably reached by vehicle. We reserve the right to choose the means or route of transport.
3.3 Unloading must be carried out immediately and properly by the buyer at the buyer‘s expense. Waiting times and unloading by the Seller shall be charged to the Buyer.
3.4 We are entitled to charge a flat-rate freight and packaging fee for all outgoing goods based on the total value of the goods.
3.5 The delivery date is the date of dispatch from the factory.
3.6 If the delivery or service owed by us is delayed due to unforeseeable circumstances for which we are not responsible (e.g. labour disputes, operational disruptions, transport obstacles, raw material shortages, official measures - in each case also at our suppliers - as well as late delivery to us), we shall be entitled to withdraw from the contract in whole or in part or, at our discretion, to postpone the delivery or service for the duration of the hindrance.
the duration of the hindrance. If the originally agreed delivery time is exceeded by more than four weeks, the customer has the right to withdraw from the contract. Claims for damages are excluded.
3.7 Should the customer incur damages due to circumstances for which we are responsible, the customer shall be entitled to claim compensation for delay. The right to assert a claim presupposes that we have not complied with a grace period set by the customer in writing. The amount of compensation for delay shall be a maximum of 0.5% for each week of delay, but no more than a total of 5% of the value of that part of the total delivery which is not available on time as a result of the delay. The amount of compensation is higher or lower if we can prove lower damages or the customer can prove higher damages. Any further claims are excluded, unless the delay is due to at least gross negligence.
3.8 The customer can only demand compliance with the agreed execution deadlines insofar as he has provided all necessary documents and an unhindered start of assembly at the construction site is guaranteed. If the commencement, continuation or completion of the work is delayed for reasons for which we are not responsible, we shall be released from the obligation to comply with the agreed delivery dates.
3.9 If the client fails to remedy the situation immediately at our request, we may demand compensation or set the client a reasonable deadline for fulfilment of the contract and declare that we will withdraw from the contract after the deadline has expired.
4. Notification of defects
4.1 All obvious defects, shortages or incorrect deliveries must be reported in writing immediately, at the latest within five days of delivery, but in any case before processing and installation. In the case of delivery by a third party, the buyer must fulfil the necessary formalities vis-à-vis the third party.
4.2 Defects that cannot be discovered within this period, even after careful inspection, must be reported to us in writing immediately after discovery. The general obligations to give notice of defects under §§ 377 and 378 HGB (German Commercial Code) shall apply.
4.3 The Buyer must give us or our upstream supplier the opportunity to inspect and rectify defects. If the Buyer fails to fulfil this obligation, all claims for defects shall lapse.
4.4 As a matter of principle, the Buyer may initially only demand rectification of defects. Instead of repair, we can deliver a replacement item. If the replacement delivery or the rectification of defects fails, the customer may, at his discretion, demand a reduction in payment or cancellation of the contract. A reference to DIN standards generally includes the more detailed description of the goods and does not constitute a warranty on our part, unless a warranty has been expressly agreed in writing. Technical changes do not entitle the buyer to give notice of defects.
5. Prices and payments
5.1 Prices are always quoted exclusive of VAT. Unless otherwise agreed, prices are ex works excluding packaging. Additional costs for requested express delivery shall be borne by the customer.
5.2 If a price increase for materials or labour costs occurs 4 months after conclusion of the contract, the contracting parties undertake to renegotiate the increases in material and labour costs that have occurred. This time restriction of 4 months shall not apply if the client is a merchant or if there are continuing obligations.
5.3 Services not expressly estimated in the offer, but which are necessary for the fulfilment of the order or which are carried out at the request of the client, shall be invoiced additionally. The prices are for normal working hours and labour. For overtime, Sundays and public holidays as well as for work under difficult conditions, the corresponding surcharges shall be added to the effective wage.
5.4 Unless otherwise agreed, the delivery or service is payable immediately net without any deductions.
5.5 Payment shall only be deemed to have been made when we can finally dispose of the amount. By accepting bills of exchange or cheques, we do not assume any obligation with regard to protesting and timely presentation. All expenses or other costs arising from the collection of bills of exchange or cheques shall be borne by the customer.
5.6 Invoices of the seller shall be deemed to be recognised if no objection is raised in writing within 20 days of receipt of the invoice.
5.7 If the customer fails to meet his payment obligations despite a reminder or if there is a significant deterioration in the customer‘s financial situation, we shall be entitled to declare the entire remaining debt from the business relationship due and payable, even if we have already accepted bills of exchange or cheques. In this case, we are also entitled to demand advance payment or the provision of security and to refuse to fulfil our obligations until advance payment or the provision of security has been made. If our request is not fulfilled within a period set by us, we shall be entitled to withdraw from the contract and/or demand compensation for non-fulfilment. In the event of cessation of payment or over-indebtedness of the customer, the setting of a grace period shall not apply.
5.8 The customer is only entitled to offset, withhold or reduce the price, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established by a German court or are undisputed.
6. Retention of title
6.1 We reserve title to the goods until the purchase price has been paid in full.
6.2 If the reserved goods are combined with other goods by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the other goods and the processing value.
6.3 The customer is authorised to process and sell the reserved goods in the ordinary course of business as long as he is not in arrears with his payments to us. Pledges or transfers by way of security are not permitted. The customer hereby assigns to us by way of security any claims arising from the resale or any other legal reason
the customer hereby assigns to us by way of security. If we are only entitled to co-ownership of the reserved goods, the advance assignment shall be limited to that part of the claim which corresponds to the share of our co-ownership (based on the invoice value). We revocably authorise the customer to use the claims assigned to us for own invoice in its own name. This collection authorisation can only be revoked if the customer does not properly meet his payment obligations.
6.4 For the purposes of these Terms and Conditions of Sale and Delivery, the delivery of goods, processing, assembly or other utilisation, in particular installation in land, buildings or structures, shall be deemed to be a sale.
6.5 In the event of access by third parties to the reserved goods, the customer must draw attention to our ownership and notify us immediately.
6.6 If the customer acts in breach of contract, in particular by defaulting on payment, we shall be entitled to temporarily demand the return of the reserved goods at the customer‘s expense - by surrendering or returning them to us - or, if necessary, to demand assignment of the customer‘s claims for return against third parties, even without setting a grace period. The taking back or seizure of the reserved goods by us shall not constitute a cancellation of the contract, unless the German Instalment Purchase Act applies.
7. General limitation of liability
7.1 Claims for damages arising from impossibility of performance, from positive
breach of contract, culpa in contrahendo and tort are excluded both against us and against our vicarious agents and assistants, except in the case of wilful or grossly negligent behaviour on our part or on the part of our executive bodies and senior employees.
7.2 In the case of employee leasing contracts, liability for damages is limited to intent and gross negligence. Liability for damage caused by our employees as a result of their work for the customer is excluded. In accordance with the statutory provisions, it is not possible to provide a warranty for the quality of the work or for the work result to grant.
7.3 Claims for damages for processing errors and or loss of material provided are excluded in all cases.
8. Place of fulfilment, place of jurisdiction, applicable law
8.1 The place of performance and exclusive place of jurisdiction for deliveries, services and payments (including cheques and actions on bills of exchange), as well as all disputes arising between the parties, shall be our head office, unless otherwise provided by law.
8.2 The relationship between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany.
8.3 Additional or deviating agreements must be made in writing and only then become part of the contract.