§ 1 General
The following General Terms and Conditions shall apply to all offers, deliveries and services of Ziermann GmbH. These General Terms and Conditions shall apply exclusively.
Any deviating conditions of the customer shall be excluded unless Ziermann GmbH expressly confirms their validity in writing. This shall also apply if the performance is carried out without reservation in the knowledge of any deviating conditions of the customer.
Deviating agreements, collateral agreements, assurances and other promises shall only be effective if they are confirmed in writing by Ziermann GmbH. This shall also apply to the cancellation of this written form requirement.
§ 2 Offer, subject matter of the contract
(1) The offers of Ziermann GmbH, whether they are made orally or in writing, are always subject to change and non-binding. Offers for new machines shall be valid for three months, offers for second-hand machines shall be subject to prior sale. Orders shall only be considered legally binding if they are confirmed in writing within a period of no more than two weeks.
(2) The written order confirmation shall be decisive for the type, scope and time of the service or delivery.
(3) Ziermann GmbH reserves the right to customary deviations with regard to the services specified in advertising materials, illustrations, drawings and other descriptions, in particular with regard to dimensions, weight specifications, colours, designs and shapes as well as other deviations that do not impair the use for the contractual purpose, without the customer being able to derive any claims from this.
(4) Drawings, illustrations, dimensions, as well as weight specifications and other technical data do not constitute a guarantee of quality or durability. Any warranted properties shall require a separate written agreement.
§ 3 Prices
Unless otherwise stated in the order confirmation, the prices include delivery ex works or ex warehouse including simple packaging, but excluding freight, customs, insurance, assembly, other ancillary costs and VAT applicable on the day of delivery. These items shall be shown separately in the invoice.
Ziermann GmbH reserves the right to make price adjustments due to errors on invoices as well as on price lists, delivery notes, order confirmations and offers.
§ 4 Delivery, transfer of risk
Delivery shall be ex works or ex warehouse for the account and at the risk of the customer, even if carriage paid delivery or transport has been agreed on. The choice of the means of transport shall be incumbent upon Ziermann GmbH, unless otherwise agreed.
The transfer of risk takes place when the goods are handed over to the forwarder or carrier for the purpose of transport to the customer.
§ 5 Delivery time
(1) The customer is entitled to grant a reasonable grace period if a delivery date agreed on in writing is exceeded. If the delivery is also not made by the end of the grace period, the customer is entitled to withdraw from the contract by means of a written declaration to the exclusion of other rights.
If only a part of the delivery is affected, the right of withdrawal shall be limited to this part, unless the delivery performed would no longer be of interest to the customer. In the event of delay on the part of Ziermann GmbH for reasons for which it is responsible, the customer shall only be entitled to claim for damages if the cause of the delay is based on intent or gross negligence. Compensation for damages shall be limited to 0.5% of the order value per week of delay, but in total to a maximum of 5% of the delivery value.
(2) Ziermann GmbH shall not be responsible for delays in delivery or service due to force majeure or due to events that make delivery or service significantly more difficult or impossible – such as strike, lockout, official orders, lack of personnel, subsequently occurring difficulties in the procurement of materials, adverse weather conditions, etc. – even if they occur at suppliers or their sub-suppliers. In this case, the delivery or service can be postponed for the duration of the impediment or the contract can be withdrawn in whole or in part due to the part not fulfilled yet.
If the impediment exceeds a period of 3 months, the customer shall be entitled, after setting a reasonable deadline, to withdraw from the part of the contract not fulfilled yet and to demand repayment of any advance payments made, to the exclusion of any further rights.
In the event of partial delivery, the customer may only withdraw from the entire contract if the remaining performance of the contract is of no interest to him.
§ 6 Machine takeover
The customer is obliged to collect or accept the ordered machines at the latest four weeks after notification of completion. Ziermann GmbH reserves the right to charge a monthly storage fee of € 100.00 plus the respective statutory VAT per machine from the fifth week onwards.
Ex-works machines will be delivered fully assembled. Any necessary dismantling due to transport or insertion openings will be charged at cost. The packaging materials required for this, the packaging time and the additional transport costs will also be charged at cost.
§ 7 Customer’s duty to cooperate
The customer shall ensure at its own expense that the technical prerequisites are prepared in accordance with the manufacturer’s installation instructions and that the installation or commissioning can be started as agreed and carried out without interruption. Furthermore, it is the customer’s responsibility to obtain the necessary official approvals and to clarify the existence of structural installation conditions and installation possibilities. This applies in particular to the static and dynamic load in buildings when installing machines. If the above-mentioned conditions are not fulfilled, the additional costs will be invoiced to the customer according to the expenditure incurred.
§ 8 Terms of payment
(1) Unless otherwise agreed, payments shall be made within seven days from the date of invoice without deduction. Delivery abroad shall be made exclusively on prepayment.
(2) Notwithstanding any contrary performance provision by the customer, payments shall first be set off against older debts – namely first against costs, interest and finally against the principal claim.
(3) A set-off or the assertion of a right of retention by the customer may only be made if its counterclaim against Ziermann GmbH has been legally established, is undisputed or has been acknowledged in writing.
(4) If the customer is in default of payment, interest on arrears shall be charged at a rate of 8 per cent above the respective base interest rate. Further claims remain unaffected.
(5) In the event of default of payment by the customer and other justified doubts about his ability to pay, all outstanding invoices shall become due for immediate payment.
(6) Default of payment by the customer can lead to delayed delivery on the part of Ziermann GmbH, as orders are only processed after receipt of payment.
(7) If the customer refuses to accept the goods after a deadline set to him or declares beforehand that he is unable or unwilling to accept the goods, Ziermann GmbH reserves the right to withdraw from the contract and to assert claims for damages. The general claim for damages shall amount to 25% of the gross purchase price. The proof of a higher damage remains reserved. The customer shall be permitted to prove that no damage has actually been incurred or that the damage incurred is less than the lump sum mentioned.
§ 9 Retention of title
(1) The delivered goods shall remain the property of Ziermann GmbH until all claims arising from the business relationship with the customer have been fulfilled.
In the case of leasing/financing/renting, the customer is obliged to treat the purchased item with care. In particular, he shall be obliged to insure it adequately at his own expense against damage by fire, water, theft and vandalism at the replacement value. Upon request, the customer has to provide evidence of the above mentioned insurances.
(2) In the event of access by third parties to the reserved goods, the customer must refer to the reservation of title and notify the Ziermann GmbH without any delay.
(3) In the event of conduct by the customer in contrary to the contract, in particular default of payment, the Ziermann GmbH can withdraw from the contract and take back the reserved goods or demand the assignment of the customer’s claim for surrender against third parties.
(4) The customer shall be permitted to sell the reserved goods in the ordinary course of business as long as he/ she is not in default. The customer is not permitted to pledge or assign the reserved goods as security. At this point in time, the customer already assigns claims arising from the resale or any other legal reason to Ziermann GmbH. However, he/ she is revocably authorized to collect the claims in his/ her own name.
(5) If the reserved goods delivered by Ziermann GmbH are processed or combined with goods owned by the customer, the Ziermann GmbH shall be entitled to be the owner of the new item in the amount of the fraction corresponding to the invoice value of the reserved goods in relation to the value of the new item at the time of processing or combination. If the customer acquires sole ownership of the new item by law through processing or combination, he/ she shall already transfer co-ownership of the new item to the Ziermann GmbH in proportion to the invoice value of the reserved goods to the value of the new item created at the time of processing or combination, and hold it in safe custody for Ziermann GmbH free of charge.
If the reserved goods are sold by the customer or installed or processed by a third party on the basis of a contract for work or services, the customer’s claim against the third party and if applicable the amount of Ziermann GmbH’s co-ownership share of the goods sold or used shall be transferred to Ziermann GmbH up to the amount of Ziermann GmbH’s claims against the customer. To this extent the customer already now assigns the claims to Ziermann GmbH.
If the value of the security exceeds the claims of Ziermann GmbH against the customer by more than 20 percent, Ziermann GmbH shall, at the customer’s request and at his/ her choice, release securities to the corresponding extent.
§ 10 Warranty, Limitation of Liability
(1) Unless otherwise agreed in writing, the sale of all second-hand machines and equipment shall be made to the exclusion of any warranty. No guarantee shall be granted.
(2) The warranty for assembly and new spare parts is three months from the date of delivery.
(3) If the customer is a merchant, §§ 377 f. of the German HGB shall apply to him. If the notification of defects is made in good time and is justified, the customer’s claim for subsequent performance is limited, whereby Ziermann GmbH may, at its own discretion, deliver a defect-free item as a replacement or remedy the defect.
(4) In all other respects, the warranty period for material defects in new equipment shall be one year from delivery of the item to the customer. Longer periods prescribed by regulations (claims under a right of recourse, cases of injury to life, body or health, intentional or grossly negligent breach of duty and fraudulent concealment of a defect) shall remain unaffected. The statutory provisions on suspension of expiry, suspension and recommencement of time limits shall remain unaffected.
(5) The prerequisite for these claims is that the material defect complained of existed at the time of handover, for which the customer bears the burden of proof, and is asserted within the limitation period.
These claims for defects do not apply in the case of natural wear and tear, damage resulting from improper or negligent handling, excessive stress, unsuitable operating materials and non-compliance with operating instructions. The same applies to damage caused by modifications or repair work carried out by the customer or by third parties not engaged by Ziermann GmbH.
(6) Claims for damages – in particular any kind of consequential damages – are excluded. The exclusion of claims for damages shall not apply in the event of intent or gross negligence or in the event of liability for injury to life, body or health.
Any claims for damages on the occasion of a breach of essential contractual obligations shall be limited to the typical foreseeable damage, unless there is intent or gross negligence or in the case of liability for injury to life, body or health.
§ 11 Manufacturer’s warranties
If Ziermann GmbH is not the manufacturer of an object of performance or delivery and if the manufacturer offers the customer of the Ziermann GmbH an independent manufacturer’s warranty going beyond the warranty, the Ziermann GmbH shall inform the customer of this and hand over the warranty documents to the customer at the latter’s request. In this case, Ziermann GmbH shall not be the guarantor and shall not be liable for the fulfilment of the warranty granted by the manufacturer.
§ 12 Purchase of second-hand machines
In the case of trade-in and purchase of second-hand machines, the seller guarantees that they are his property and that dry cleaning machines are free of solvents on his part and that there are no water residues (danger of frost). In the absence of any indication to the contrary in the contract, the machines are complete, functional and not dismantled. Existing, repaired and/or eliminated defects or damages are to be reported or made known to Ziermann GmbH by the customer. In the event of non-fulfilment, Ziermann GmbH shall be entitled to reduce the purchase price within the scope of the expenditure incurred or to invoice the additional expenditure incurred.
§ 13 Place of performance, place of jurisdiction, severability clause
(1) Unless otherwise stipulated in the contract, the place of payment and performance shall be the registered office of Ziermann GmbH.
(2) For all disputes arising from the contractual relationship, the court located at the registered office of Ziermann GmbH shall be deemed to have local jurisdiction, provided that the customer is a merchant.
(3) Insofar as the customer is a merchant, the law of the Federal Republic of Germany shall apply exclusively to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(4) Should one or more clauses in these General Terms and Conditions be invalid, the validity of all other provisions or agreements shall remain unaffected. Rather, in this case the respective statutory provision shall apply to this provision.
§ 14 Assembly services
(1) The structural and technical requirements for the installation of the machine, such as e.g. ground conditions and load-bearing capacity, sufficiently wide and high insertion openings, access routes etc. must be ensured by the customer. The supply lines such as water, waste water, electricity, steam, air, exhaust air etc. must be professionally installed on site and must be routed up to 2 m to the installation site of the machines. The supply lines must meet the technical requirements of the machines according to the installation instructions and must be completed before commissioning.
Status: November 2018
Ziermann GmbH | Lochmatt 1a | 77880 Sasbach, Germany | Phone: +49 (0)7841-6002-100 | Fax: +40 (0)7841-6002-130 | firstname.lastname@example.org