[rt_simple_title name=”CONDITIONS OF SALE, SUPPLY AND REPAIR – MOBILEN EISENBAHN REPARATURSERVICE 24 (MER24).
[collapse title=”§1 GENERAL, COVERAGE” state=”active”]
(1) These General Conditions of Sale apply to all our business transactions with our customers (hereinafter “Buyer”).
(2) Our General Terms of Sale apply exclusively. Deviating, opposing or additional terms and conditions of business from the buyer shall only become a contractual part insofar as we have expressly consented to their validity. Our terms and conditions also apply if we unconditionally deliver goods to the customer notwithstanding our awareness of the buyer’s terms and conditions.
(3) In isolated cases, individual agreements with the buyer (including supplementary agreements, additions and amendments) shall in any case take precedence over these General Conditions.
(4) Legal declarations and announcements made after the conclusion of contract negotiations (e.g. deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing.
(5) Any references to the application of statutory provisions are for the purposes of clarification only.
[collapse title=”§2 CONCLUSION OF CONTRACT”]
(1) Our tenders are non-binding and unconditional. This applies if we have granted the buyer catalogues, technical documentation (e.g. drawings, plans, calculations, references, DIN standards), or other product descriptions or documents – also in electronic form – on which we reserve ownership and copyright.
(2) The ordering of goods by the buyer is considered a binding contract. Unless otherwise specified in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt.
(3) Acceptance may be made either in writing (for example by order confirmation) or through delivery of the goods to the buyer.
[collapse title=”§3 SCOPE OF SERVICE”]
For the execution of the order, the information and documents pertaining to the tender, such as dimensions, weights, illustrations and drawings, are only approximate, unless they are expressly stated as binding. We reserve ownership and copyright on the documents; they shall not be made accessible to third parties and shall be returned immediately upon request or if the contract is not accepted.
[collapse title=”§4 DELIVERY TIMEFRAME AND DELAYS IN DELIVERY”]
(1) The delivery timeframe is to be agreed individually or more specifically, stated by us upon acceptance of the order. The agreed delivery period is only approximate, unless expressly stated to be binding. It begins with the sending of the order confirmation, but not before the provision of the documents and permits to be procured by the purchaser as well as before the receipt of the agreed down payment. The delivery period is complied with if the delivered item has left the factory or the warehouse or the dispatch is notified.
(2) The delivery period is extended befittingly if unforeseen obstacles affect the completion, repair or dispatch of the delivery item, irrespective of whether they occur with us or our subcontractors. Such delays shall in no case be attributable to us, even if they occur during an already existing default. If we cannot comply with binding delivery periods for reasons beyond our control (non-availability of the service), we will inform the buyer without delay.
(3) The occurrence of a delay in delivery is determined in accordance with legal provisions.
(4) The rights of the buyer pursuant to Art. § 8 of these General Terms and Conditions and our statutory rights, in particular in the case of exclusion of the performance obligation (for example due to impossibility or unreasonable performance and / or supplementary performance), shall remain unaffected.
[collapse title=”§5 DELIVERY, TRANSFER OF RISK, ACCEPTANCE, DEFAULT OF ACCEPTANCE”]
(1) Deliveries take place ex warehouse. At the Purchaser’s request and expense, the goods will be shipped to another destination (consignment purchase). Unless otherwise agreed upon, we are entitled to determine the type of shipment (in particular, transport company, dispatch route, packaging).
(2) The risk shall pass to the buyer upon dispatch from the factory or warehouse, even if freight-free delivery has been agreed upon or if we have taken over other services, such as installation. If the shipment is delayed due to the fault of the customer, the risk passes to the buyer from the date of dispatch.
(3) We are entitled to demand acceptance before shipment. In the event of successful delivery or delay despite requests, the delivered goods shall be deemed authorised. If a particular quality of the delivery item is agreed or should it be usable for a specific purpose or if it is dispatched to a third party or abroad, an inspection and acceptance of the delivery item in the factory or warehouse is necessary; if this is not the case, the delivery item shall be delivered as conditionally delivered, even if we have not expressly requested acceptance.
(4) The customer is in every situation free to demand the inspection or inspection of the goods in our factory or warehouse. The customer bears the cost of the inspection as well as special verifications. For materials testing, the agreement remains subject to a special price.
(5) Insurance against loss, breakage, transport, fire and water damage shall only be carried out at the purchaser’s request and expense. Partial deliveries are permissible and are regarded as an independent business.
(6) The containers from the vehicles delivered and repaired by us are not considered ready for use upon delivery to the purchaser. It is solely the responsibility of the purchaser to check the condition of the container for its suitability to receive future cargos and to make the containers ready for filling.
(7) If the buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional costs (e.g. storage costs). For this purpose, we charge a lump sum compensation in the amount of 0.2% of the value of the goods per calendar day, beginning with the delivery period or – in the absence of a supplier – with the notification of the readiness for dispatch of the goods. The proof of further damage and our statutory claims (in particular replacement of extra charges, reasonable compensation, termination) shall remain unaffected; however, the lump sum is to be accounted for by further monetary claims.
[collapse title=”§6 PRICE AND PAYMENT CONDITIONS”]
(1) Unless otherwise agreed in individual cases, the current prices as specified at the conclusion of contract shall be valid, namely ex warehouse, plus statutory value-added tax, exclusive of packaging, transport or protective means. The prices specified in our quotations and order confirmations shall be based on the price-forming factors on the day of conclusion of the contract, in particular raw material and energy prices, wages, social contributions, freight rates and public data. Changes to these price bases entitle us to appropriate price authorisation.
(2) In the case of sales shipment (§4 para. 1), the buyer bears the costs for transport ex warehouse and insurance, if required by the buyer. If we do not invoice the actual individual transport costs incurred, a transport lump sum cost sum (excluding transport insurance) in the amount of …….EUR applies as agreed. Any duties, charges, taxes and other public fees shall be borne by the buyer. Transport and all other packaging in accordance with the Packaging Ordinance shall not be accepted; they become the property of the Buyer; with the exception of pallets.
(3) Subject to deviating agreements, the payment shall be made in cash without any deduction in Unterwellenborn. One third of the order sum is to be paid after receipt of the order confirmation, another third as soon as the buyer is notified of the readiness of the goods for dispatch, with the remaining amount to be paid within a further month.
(4) Bills of exchange and checks will only be accepted for payment after express agreement. Exchange values will be determined on the day of disposal. Rebate and collection charges as well as stamp fees shall be borne by the Buyer.
(5) The purchaser is considered to be in default once the preceding payment periods have expired. Our claim to the commercial maturity interest (§ 353 HGB) remains unaffected by merchants.
(6) The buyer shall be entitled to set-off or retention rights only to the extent that his
Claim is legally binding or undisputed. In the event of defects in the delivery, the purchaser’s opposing rights, Section 7 (6) sentence 2 of this notice is not affected.
(7) If, after the conclusion of the contract, we become aware that our claim to the purchase price is jeopardized by a lack of performance by the buyer (e.g. by applying for the opening of insolvency proceedings), we shall rescind the contract in accordance with statutory provisions on the refusal of performance.
[collapse title=”§7 RETENTION OF TITLE”]
(1) Until the payment in full of all our present and future accounts receivable as detailed in the purchase contract (secured claim), we retain ownership of the sold goods.
(2) The goods subject to retention of title may not be used nor transferred to third parties nor pledged by way of security to third parties before full payment. The buyer must notify us immediately in writing if and insofar access of the goods by third parties occurs.
(3) In the case of breach of contract by the buyer, in particular in case of non-payment of the monies due, we are entitled to withdraw from the contract in accordance with statutory provisions and to demand the restoration of the goods.
(4) The buyer is authorized to resell and / or process the goods subject to retention of title in the normal course of business. In this case, the following provisions shall in addition apply:
(a) The reservation of proprietary rights shall cover the processing, mixing or combination of our products to their full value, which apply to us as Manufacturer. If, in the case of processing, mixing or connection with goods of third parties, their proprietary rights remain, we acquire co-ownership in the ratio of the invoice values of the processed, mixed or connected goods. The same applies to the resulting product as to the goods delivered under retention of title.
(b) The purchaser shall assign the claims arising from the resale of the goods or the product against third parties to us in full or in the amount of our possible co-ownership share pursuant to the preceding paragraph for security. We accept the assignment. The obligations of the buyer as set forth in paragraph 2 shall also apply in respect of the assigned claims.
(c) The purchaser remains empowered to collect the claim. We undertake not to collect the receivables as long as the buyer complies with our payment obligations, is not in default with payment, no application for the opening of insolvency proceedings is filed and no other lack of his capacity exists. If this is the case, we can demand that the buyer notify us of the assigned claims and their debtors, make all the necessary information for collection, hand over the related documents and notify the debtors (third parties) of the assignment.
(d) If the realizable value of the collateral exceeds our claims by more than 10%, we shall, at the Purchaser’s request, release securities at our discretion.
[collapse title=”§8 BUYERS’ WARRANTY CLAIMS”]
(1) For the rights of the buyer in the case of material and legal deficiencies (including false delivery and shortfalls, as well as improper installation or inadequate assembly instructions), the statutory provisions shall apply, unless otherwise specified in the following.
(2) Our liability for defects is based primarily on the agreement entered into with regard to the condition of the goods. Agreements as to the condition of the goods include any product descriptions so designation (including those of the manufacturer), which were made available to the customer prior to the purchase order or became part of the contract in the same way as these Terms and Conditions.
(3) Insofar as the nature has not been agreed upon, the statutory provisions shall determine whether a defect exists or not.
(4) The purchaser’s claims for defects presuppose that he has complied with his statutory obligations to investigate and report defects. If the buyer neglects the proper investigation and / or fault indication, our liability for the not indicated defect is excluded.
(5) If the delivered item is defective, the buyer can first demand correction of the defect (rectification) or delivery of a defect-free item (replacement delivery). If the buyer does not know which of the two rights is preferable, a reasonable deadline can be set. If the buyer does not make the choice within the deadline, the right to choose shall pass to us at the end of the period in question.
(6) We are entitled to make the subsequent supplementary performance dependent on the buyer paying the purchase price due. The purchaser is, however, entitled to withhold a portion of the purchase price proportionate to the defect.
(7) The buyer must give us the time and opportunity necessary for the subsequent rectification or replacement delivery, and is required to hand over the rejected goods for inspection purposes.
(8) In urgent cases, e.g. in case of a threat to operational safety or to prevent disproportionate damages, the buyer has the right to remedy the defect and to demand from us replacement of the incurred expenses. We are to be immediately informed in this circumstance, if possible beforehand. The right to self-action is cancelled if it is proved we were justified in refusing to comply with the statutory provisions.
(9) The buyer shall be entitled to claim compensation or reimbursement of expenses in accordance with § 9 and shall otherwise be excluded.
[collapse title=”§9 OTHER LIABILITIES”]
(1) Unless otherwise specified in these General Terms and Conditions, including the following provisions, we shall be liable in the case of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal basis – in the case of intent and gross negligence. In case of simple negligence we are only liable:
(a) for damage resulting to injury to life, body or health,
(b) for damages resulting from a breach of an essential contractual obligation (the fulfillment of which is fundamental to the proper execution of the contract and may regularly and justifiably be relied upon the buyer); in such case our liability shall however be limited to foreseeable damage typical of the contact.
(3) The limitations of liability arising from section 2 shall not apply insofar as we maliciously conceal a defect or have assumed a guarantee for the quality of the goods.
(4) Due to a breach of duty, which is not a defect, the buyer can only rescind or terminate if we are responsible for the said breach of duty.
[collapse title=”§10 SCOPE OF LIMITATION”]
(1) The Statute of Limitations begins once acceptance has been reached.
(2) The mentioned Statute of Limitation applies to contractual and non-contractual damages claims by the buyer, which are attributable to a defect of the goods.
[collapse title=”§11 SCOPE OF APPLICATION”]
(1) The above conditions apply not only to the delivery of new buildings, but also to the execution of repairs and other services, unless in these cases separate terms and conditions for repair and conversion are made to the basis of the contract.
(2) In the case of repairs and other services, we shall be entitled to refuse the return of the goods until the customer has repaid all liabilities that may also arise from various business transactions.
[collapse title=”§12 LEGAL RIGHTS AND JURISDICTION”]
(1) These Terms and Conditions and all legal relationships between us and the buyer are governed by the law of the Federal Republic of Germany and under the auspices of the UN Sales Convention.
(2) The place of execution and jurisdiction for both parties is Saalfeld / Saale. We are also entitled to sue at the general court of the buyer. These provisions apply to bills of exchange and checks.