Terms and Conditions (AGB) of Zwanzig HSC-Drive-Systems
Owner: Hubert C. Zwanzig
§ 1 General / Purview
(1) These terms and conditions shall be applied exclusively; conflicting or deviating terms and conditions of the client / customer (hereinafter referred to as customer, client, customer or contractor) shall not be accepted unless we agree to their validity in writing. Our terms and conditions shall be applied, even if benefits to the customer are unconditionally provided by us though we are aware of conflicting or deviating terms and conditions of the customer.
2) These terms and conditions apply only to merchants and businesses within the meaning of § 310 BGB
(3) Deliveries, services and offers are subject to these terms. They also apply to all future business relations, even if they are not explicitly agreed again. This is especially true for consequential and supplementary contracts.
§ 2 Offer, Conclusion of Contract, Contents of Contract and Copyright
(1) If an offer of the buyer is to be qualified under § 145 BGB, the purchaser is bound thereto for 4 weeks. We can accept such an offer within the commitment period.
(2) Our descriptions, cost estimates and offers are, unless otherwise expressed in written form, non-binding and without obligation. Information, specifications in brochures, leaflets and application instructions or descriptions are to act only informative and convey general knowledge. Unless otherwise agreed, they are not part of the contract.
(3) We preserve the right to make technical changes in performance of the contract to the extent that in a particular case in the interest of the efficiency of the facilities or other goods / services this turns out the progress of technical development and / or as appropriate and is reasonable for the customer .
(4) We preserve all rights of ownership and copyright to illustrations, drawings, sketches, calculations and other documents.This also applies to written documents which are marked as confidential. Before passing on to third parties, without our explicitly written consent.
(5) In fulfilling our obligations, we shall be entitled to make use of other reliable companies or persons.
§ 3 Prices
(1) The prices are valid from our place of business, excluding packaging, transport, transport insurance, custom duties, fees and TÜV-assembly, unless otherwise agreed in writing. For calculation and / or other errors, an adjustment of our offer and invoice prices are reserved.
(2) Regardless of paragraph 3 (1) we can change prices after the conclusion of the contract, cost reductions or cost increases, especially due to material price changes, public charges, supplementary charges or freight and delivery or service is rendered more than four months after the conclusion. This is proved to the purchaser on request. Price changes can not be performed when a fixed price has been agreed upon explicitly in writing. A price increase due to cost increases before contract is excluded.
(3) All prices exclude the statutory value added tax.
§ 4 Payment Conditions
(1) Deduction of discount requires a special written agreement.
(2) Unless stated in our order confirmation, the purchase price is due for payment within 14 days of the invoice date without deduction.
(3) If the purchaser defaults in payment, he has to pay interest at the rate of 8% per annum above the base lending rate. If a higher damage is caused for us by default, the purchaser has to pay for it if prooved.
(4) A set-off right is only entitled to the buyer if his counterclaims are legally established or recognized by us. In addition, the customer is only entitled to exercise a right of retention if his counterclaim is based upon the same contractual relationship.
(5) The acceptance of checks, drafts or other securities is only for processing under the usual condition of payment, and their discounting to acquire all standing in connection with the redemption cost by the buyer. Discount and bill charges shall be borne by the customer and are to be paid immediately.
(6) In case of partial deliveries or services, we have the right to demand corresponding partial amounts.
(7) All of our claims are to be paid regardless of the term of any bill of exchange, accepted or credited, and credited bills immediately if the payment is not kept by the client or circumstances become known which are likely to reduce their credit-worthiness.
§ 5 Construction, Maintenance, Repair and Service of / for Installations
For any type of installation, assembly, repair, maintenance and service the following coditions are valid, unless otherwise agreed in writing:
(1) The buyer pais us the agreed upon order entry rates for working and surcharges for overtime, Sunday and holiday work, unprepared longer works, for work under difficult circumstances, as well as for planning and monitoring. This applies to the consumption of material including cuttings, as well as for the construction and connection of the device.
(2) Preparation and run times as well as feedback are regarded as working time. For arrivals and departures, which are primarily wages and vehicle costs, the actual cost will be charged unless agreed otherwise.
(3) In addition, the following expenses are refunded: travel expenses, costs for the transport of hand tools, for freight and packing, for the delivery of all material and equipment, as well as for appointed technical documents.
§ 6 Delivery and Performance period, Delivery
(1) Information about delivery times and dates are considered to be non-binding, unless we have explicitly designated as binding in writing.
(2) The start of the delivery time dated by us requires the clarification of all technical questions.
(3) Meeting our delivery obligations requires the timely and proper fulfillment of the obligations of the purchaser. The legal objection of breach of contract is reserved.
(4) If the customer delays acceptance or violates other obligations to cooperate, we are entitled to demand compensation for the damages incurred thereby, including any additional expenses. Furthermore, our performance period is extended to the period during which the customer is in default with his obligations. We reserve the right of further claims.
(5) If the requirements of the above paragraph 4 are met, the risk of accidental loss or accidental worsening goes over to the purchaser at the time, when he gets in default of acceptance or payment.
(6) In the case of force majeure and other unavoidable, exceptional and involuntary circumstances, eg material procurement difficulties, breakdowns, lockouts, lack of transportation, governmental interference, difficulties of energy supply etc. – even if they occur at our suppliers -, if our supplier is not able to fulfill his obligations, the delivery time is extended to the duration of the hindrance plus a reasonable starting time. If delivery or performance becomes impossible or unreasonable because of the indicated circumstances, we are free from the obligation to deliver, unless we are responsible for the circumstances. We can only refer to the indicated circumstances, if we notify the customer immediately.
(7) We are entitled to partial deliveries and partial services any time.
(8) If no agreement is made about the shipment between the customer and ourselves, this is at our discretion, although we are not obliged to choose the lowest price of shipment.
(9) If an agreed performance / delivery deadline is not met due to our own fault, then, if we have not acted with gross negligence or willful misconduct, or a material contractual obligation has been injured, entitled to the exclusion of further claims, our contractual partner – after a reasonable grace period – can demand a compensation for delay or cancel the contract. The delay compensation amounts by 0.5 per cent for each completed calendar week of delay, but no more than 5 per cent of the net price of that part of the goods or services with which we have found ourselves in default. Cancellation and / or enforcement of compensation for delay is excluded if the contractual partner itself is in default of acceptance. The contractual partner is entitled to prove a higher damage as well as we are entitled to prove lower damages.
§ 7 Reservation of title
(1) We reserve title to the goods or to the delivered item (hereinafter called object) until full payment according to the particular contract. IF the buyer is behaving contrary to te contract, in particular in the event of a default in payment, we are entitled to take back the object if we have set a reasonable deadline and said deadline has expired to no effect. Taking back the object by us does not constitute withdrawal from the contract, unless we have explicitly declared this in writing. The seizure of the object by us shall always constitute a withdrawal from the contract. After taking back the object we are authorized to sell it; we shall offset the redemption proceeds after the deduction of costs incurred to the customer against its liabilities; we shall refund any balance.
(2) The customer is obliged to treat the matter with care; in particular, he is obliged to insure them against fire, water and theft at reinstatement value. If maintenance and inspection work is necessary, the buyer must carry them out at his own expense.
(3) If pawnings or third parties‘ interventions are happening, the purchaser must notify us immediately in writing so that we can bring an action pursuant to § 771 ZPO if possible. As far as the third party is not able to reimburse the judicial and extrajudicial costs of an action pursuant to § 771 ZPO the purchaser shall release us from this.
(4) The customer is entitled to sell the object in the ordinary course of business; however, as a precaution he assigns all claims of the final invoice amount (including VAT), which arise from the resale against his customers or third parties, regardless of whether the goods were resold without or after processing. The customer remains authorized to collect this debt even after the assignment. Our authority to collect the claim ourselves remains unaffected. We oblige not to collect the claim as long as the customer meets his payment obligations towards us, does not fall into arrears and in particular no application to open insolvency or composition proceedings or payments have been made. If this is the case, we may require that the customer informs us about assigned claims and their debtors, delivers all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.
(5) The processing or transformation of the object by the customer is always done for us. If the object is processed or combined with other objects not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the object (final invoice amount including VAT) to the other processed items at the time of processing. For the object created by processing, the same conditions are valid as for the object delivered under the reservation of title.
(6) We oblige to release the securities due to us insofar as the realizable value of the collateral exceeds the secured claims by more than 10%; we choose the selection of the securities to be released.
§ 8 Transfer of Risk – Packaging Costs
(1) Unless specified otherwise in the order confirmation, or in other written agreements that have been made, delivery is from our place of business. The transfer of risk depends on §§ 446, 447 BGB.
(2) Transport and other packaging in accordance with the packaging regulations can not be returned. The customer is obliged to arrange for disposal of the packaging at his own expense.
(3) If the customer wishes, we will cover the delivery by a transport insurance; the occasional costs shall be borne by the customer.
§ 9 Warranty for defects / Damage compensation
(1) The warranty rights of the customer assume that he has met his obligation according to § 377 HGB inspection and complaint.
(2) If there is a justifiable defect in the goods or services supplied, we shall be entitled at our discretion to correct the defect or replace delivery. In case of defect removal, we are obliged to bear all costs required for the removal of defects, in particular transport, travel, labor and material costs, unless such costs are increased by the fact that the object has been transported to a place other than the place of performance .
(3) If the repair fails twice, the purchaser shall be entitled at his option to withdraw from the contract or demand a decrease of the purchase price (reduction).
(4) The warranty period for new delivery items is a year or 1,000 operating hours and depends only on the fulfilled condition, calculated from the transfer of risk, unless explicitly agreed otherwise in writing. The period is a limitation and applies to claims for compensation for consequential damages, unless claims in tort are asserted; for this is the statutory limitation period. Unless agreed upon on a case-to-case basis, the claims of the contractor for defects are excluded on used delivered goods.
(5) Claims for insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, unsuitable or improper use, excessive use, faulty installation or commissioning, unsuitable equipment, damage due to above-average contamination of the ball bearing due to insufficient suction during use or due to external influences (eg moisture, excessive heating, intense exposure to sunlight or artificial light, other temperature or weather conditions, chemical, electronic or electrical influences) are not assumed under the contract, provided that the damage is not attributable to our willful or grossly negligent behavior. If improper changes or repairs are made by our contractors or third parties, no claims result from these and their consequences.
(6) It is also a condition for warranty claims, that the delivery item has been properly maintained, serviced according to the regulations and to our operating and installation manual, and handled properly.
§ 10 Liability
(1) We are liable for damages only in the case of intent or gross negligence or willful misconduct or gross negligence of our representatives or vicarious agents. Moreover, a liability for damages is excluded. Zwanzig’s HSC Drive Systems is not liable for damages caused by the related product due to improper handling. Moreover, there is no liability on the part of the buyer to claim for further damages, such as loss of production costs, increased production costs, production losses, lost profits, etc, caused for the user by a defective product (defective goods).
(2) The liability referred to in Paragraph 1 shall not apply to the negligent breach of contractual obligations by us, in the absence of warranted characteristics in the assumption of a guarantee, for damages arising from injury to life, body or health and in liability under the Product Liability Act.
(3) In the case of negligent breach of essential contractual obligations (cardinal obligations) our liability is limited to typical and foreseeable damage. Cardinal obligations are primarily those obligations, that allow the due and proper execution of the contract; the contract partners, therefore, rely and may rely on their fulfillment.
(4) Claims for damages due to lack of assured properties are limited to the damage that should be covered in respect of which the purchaser by the warranty. This does not apply in cases of intent or gross negligence by us.
§ 11 Place of Jurisdiction, Place of Fulfillment, Written Form, Other and Saving clause
(1) Unless specified otherwise in the order confirmation, or otherwise explicitly agreed upon, our business is the Place of Fulfillment. Place of Jurisdiction is Oldenburg in Holstein.
(2) Only the law of the Federal Republic of Germany is valid for these Terms and Conditions and all legal relations between the parties. The application of the UN Sales Convention is excluded.
(3) If any single regulation of this agreement is proved to be invalid or unenforceable, the remaining provisions will remain effective.
Zwanzig HSC-Drive Systems, Owner: Hubert C. Zwanzig
State: July 2013