General Terms and Conditions of Delivery and Payment
The following General Terms and Conditions of Delivery and Payment of zimmerlin GmbH Edelstahl-Technik (hereinafter: “we”) shall apply in the version valid at the time of the order to all current and future quotations we have given and contracts we have concluded with companies (§ 14 of the German Civil Code (BGB)), legal entities under public law, or special funds under public law (hereinafter: “customers”). Any deviating or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity.
1. Conclusion of a contract
1.1 Unless otherwise stated, our quotations are subject to change without notice and are non-binding; a contract is only concluded with submission of our written order confirmation or by delivery. Our order confirmation alone shall be authoritative for the content of the contract, in particular for the scope of services. Amendments and supplements to the contract require our express confirmation.
1.2 We reserve the right to make changes to the illustrations, descriptions, drawings, weights, dimensions and other information in our brochures, price lists, catalogues and our quotation, insofar as the delivery item is not significantly changed or its quality improved as a result and the changes are reasonable for the customer.
2. Prices and payment terms
2.1 Our prices for deliveries are ex works plus packaging, shipping and statutory VAT; for export deliveries, also plus customs duties, fees and other public charges.
2.2 Unless expressly agreed otherwise, the remuneration shall be due without any deduction upon delivery or acceptance. The customer shall be in default 14 calendar days after delivery and invoicing without the need for a reminder. The effective date of payment is the day on which we receive it.
2.3 If we must consider our claims to be at risk due to a significant deterioration in the customer’s economic circumstances, we are entitled to withdraw from the contract. If the customer is in default of payment, we are entitled to make our total claim due immediately. In the aforementioned cases, we are further entitled to make the processing of all the customer’s orders dependent on an advance payment or a security deposit.
2.4 Offsetting with customer’s counterclaims or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established or are in a reciprocal relationship with our claims.
3. Delivery conditions, transfer of risk and default, documentation of transport damage
3.1 Delivery dates shall be based on the agreements made in the individual case. A delivery period shall be deemed to have been met if the delivery item has been submitted for transport or readiness for shipment has been established and communicated. The agreed delivery time shall be extended accordingly if the customer is delayed with necessary cooperation or requests subsequent changes to the contract.
3.2 All deliveries are ex works (EXW, Incoterms 2020) as stated on the order confirmation. At the customer’s request, the goods may be delivered to another destination at the customer’s expense (shipment to a place other than the place of performance).
3.3 The risk of accidental loss and accidental deterioration of the contractual object shall pass to the customer as soon as the goods have been submitted for transport, or notification has been given that the goods are ready for shipment and the customer will not be collecting the goods immediately. This applies irrespective of whether the shipment is made from the place of performance (in particular if the delivery is made from the premises of a third party (so-called drop shipment)) and who is bearing the transport costs.
3.4 In the event of externally visible damage to the goods or packaging (in particular transport damage), the customer is obliged to ensure that the damage is documented (in particular with photos of the damaged outer packaging or goods) and that the damage is noted on the receipt of the freight service provider. Clause 5.1 remains unaffected.
3.5 Partial deliveries are permissible if the partial delivery is usable for the customer within the scope of the intended contractual purpose, the delivery of the remaining ordered goods is ensured, and the customer does not incur significant additional expense or costs as a result.
3.6 We shall not be liable for the impossibility or delay of delivery or performance insofar as such impossibility or delay is caused by force majeure (e.g., natural disasters, war, riots, epidemics, pandemics) or other events unforeseeable at the time of contract conclusion (e.g., operational disruptions of all kinds, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures, or the failure to deliver, incorrect delivery or late delivery by upstream suppliers) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and it cannot be foreseen that we will be able to perform within a reasonable period of time – at the latest within 2 months – we and the customer may withdraw from the contract; we will immediately refund any related costs the customer has already borne. In the event of temporary hinderances, delivery or service deadlines shall be extended or the delivery or service dates postponed by the duration of the hindrance plus a reasonable start-up period.
3.7 If the customer does not accept the delivered goods as agreed or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage; including storage costs and costs for additional routes or partial deliveries. To compensate for storage costs, we may require a lump-sum compensation amounting to 0.5% of the invoice amount of the goods to be stored per complete week, up to a maximum of 5% of the invoice amount, from the date of delivery or – if there is no delivery date – from the date of notification that the goods are ready for shipment. The customer has the right to prove that we have suffered less or no damages. We reserve the right to claim verifiably higher damages. Our statutory claims and rights shall remain unaffected. However, the lump-sum compensation is to be offset against further claims for damages.
4. Retention of title
4.1 We shall retain title to the goods we have delivered until payment has been made in full. We shall retain title to goods which the customer has not already paid for in full before delivery until all our claims arising from the entire business relationship with the customer have been settled in full (current account reservation). This retention of title shall also cover replacement or exchange parts, unless they are essential components for installation.
4.2 The customer is obliged to separately store and label the goods subject to retention of title (reserved goods). The customer shall insure the reserved goods at its own expense against fire, water damage, burglary and theft. The insurance policy must be sent to us for inspection upon request. The customer hereby assigns to us in advance the claims against the insurance company. We hereby accept this assignment.
4.3 The customer must notify us immediately in the event of third-party access (seizures, confiscations, etc.) to the reserved property. The customer shall bear all costs that must be incurred in order to reverse the seizure and to recover the goods we have delivered.
4.4 The customer is entitled to sell the reserved goods in the ordinary course of business as long as it is not in default. Pledges or transfers of ownership by way of security are not permitted. The customer hereby assigns to us by way of security the claims arising from the resale or any other legal ground (insurance, tort) with regard to the goods subject to retention of title to their full extent, without any special declaration being required. We accept this assignment. We revocably authorise the customer to collect the claims assigned to us for our account in its own name. Upon our request, the customer shall disclose the assignment and submit to us the information and documents required for collecting the claim.
4.5 If the goods subject to retention of title are combined with other objects, the retained title to the newly created object shall continue. We thereby acquire a co-ownership share as determined based on the value of the reserved goods (invoice value) in proportion to the value of the other combined items. The customer shall store the new item free of charge with regard to our co-ownership share. If the reserved goods are resold as part of the new item, the advance assignment agreed in Clause 4.4 shall only apply to the amount of the invoice value of the reserved goods.
4.6 In the event of conduct by the customer in breach of contract, in particular in the event of payment default, we shall be entitled, after setting a reasonable deadline, to demand return of the goods subject to retention of title at the customer’s expense. The customer shall be obliged to surrender the goods. Repossessing the goods shall only constitute a withdrawal from the contract if we expressly declare that to be the case. After prior warning, we may exploit goods subject to retention of title which have been taken back, settling our outstanding claims with the proceeds.
4.7 If the law of the country in which the delivery item is located does not permit the agreement of a reservation of title or only in a limited form, we may reserve other rights to the delivery item. The customer is obliged to cooperate in all necessary measures (e.g., registrations) to realise the retention of title or the other rights replacing the retention of title, and to protect these rights.
5. Claims for defects
5.1 In principle, we shall not be liable for defects of which the customer is aware at the time of contract conclusion or is not aware of due to gross negligence (§ 442 BGB). Furthermore, the customer’s claims for defects presuppose that it has fulfilled its statutory obligations to inspect and give notice of defects (§ 377, §381 of the German Commercial Code (HGB)). If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in text form without delay, at the latest within three working days of discovery. If the customer fails to carry out a proper inspection and/or report a defect, our liability for the unreported, untimely or improperly reported defect shall be excluded in accordance with the statutory provisions.
5.2 If our deliveries or services prove to be defective, we shall first be obliged to remedy the defects at our discretion by remedying the defect or supplying a replacement. In the case of a supplying a replacement, the customer shall return the defective goods in accordance with the statutory provisions. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, labour and material costs; this shall not apply insofar as the costs increase because the delivery item is located at a place other than the place of intended use.
5.3 We may request that the customer pay the purchase price due before carrying out the subsequent performance. However, the customer may withhold an appropriate portion of the purchase price on a pro-rata basis to the defect.
5.4 If the defect is based on a defective third-party product, we are entitled to assign our warranty claims against our upstream supplier to the customer. In this case, we can only be held liable under the above provisions if legal enforcement of the above claims against the supplier or manufacturer of the defective third-party product has been unsuccessful or is futile, for example due to insolvency.
5.5 The customer’s claims for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with the following clause 6.
6. Liability, statutory limitation
6.1 We shall be liable for a culpable breach of our material contractual obligations in accordance with the statutory provisions. Material contractual obligations are obligations which characterise the typical purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place, and on compliance with which the contractual partner may regularly rely. Insofar as we are not guilty of gross negligence or wilful misconduct, we shall, however, only be liable for the typically occurring, foreseeable damage.
6.2 In all other cases, we shall be liable if damage has been caused intentionally or through gross negligence by one of our legal representatives or by a vicarious agent. In the event of the assumption of a warranty and for damages arising from injury to life, limb or health, we shall be liable in accordance with the statutory provisions. Otherwise, claims for damages arising from breaches of duty against us are excluded.
6.3 Liability in accordance with the Product Liability Act (ProdHaftG) remains unaffected.
6.4 Claims for damages according to the aforementioned clauses 6.1 to 6.3 shall be subject to statutory limitation periods.
6.5 The limitation period for claims for defects is – except in the case of fraudulent intent and subject to Clause 6.4 – 12 months, calculated from the date of delivery or, if acceptance is required, from the date of acceptance.
6.6 A claim for damages due to breach of the duty of subsequent performance pursuant to §§ 437 no. 1, 439 BGB shall only exist if, during the 12-month limitation period pursuant to Clause 6.5, both a) the customer has demanded subsequent performance and b) we have breached our duty of subsequent performance.
6.7 The claim to rectification of defects shall not apply if the customer modifies the delivery item or has it modified by a third party without our consent, insofar as this makes rectification of defects impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect resulting from the change.
6.8 Supplies that have been damaged during processing are to be replaced by the customer unless negligence or intent was involved.
7. Drawings, designs and other documents
7.1 We shall retain title to drawings, designs, calculations and other documents, such as samples and models, which we have provided. The customer may neither disclose them to third parties nor use them for other purposes without our written consent. They must be returned to us after execution of the order or upon request.
7.2 In the case of deliveries according to drawings, models or information provided by the customer, the customer shall indemnify us against all intellectual property claims of third parties. In the event of breaches of contract by the customer, its intellectual property claims shall not prevent us from exploiting the goods.
8. Information and technical advice
Our information and recommendations are made without obligation and to the exclusion of any liability, unless we have expressly undertaken in writing to provide information and recommendations. Unless stated in writing, our information and details do not constitute any kind of promise of quality or guarantee of quality features. The customer shall be responsible for checking whether the goods we have delivered are suitable for the purpose the customer intends; we shall only assume responsibility for in this regard insofar as that has been expressly agreed in writing.
9. Final provisions
9.1 The place of performance for all obligations of both contracting parties is Bötzingen am Kaiserstuhl.
9.2 This contract is subject to German law. The UN Convention on the International Sale of Goods is excluded, i.e., does not apply.
9.3 The place of jurisdiction for all legal disputes arising from business relations between us and a registered merchant, a legal entity, or customers without a general place of jurisdiction in Germany, is Freiburg im Breisgau. Furthermore, we may also initiate legal proceedings against the customer at its general place of jurisdiction.
Dated, April 2023