General Terms and Conditions of Sale and Delivery
ROWA Aquaristik GmbH (hereinafter also: "the Supplier")
valid from 01.01.2014
1. Validity of the General Terms and Conditions of Sale and Delivery
These general terms and conditions of sale and delivery do not apply if the customer is a consumer within the meaning of § 13 BGB.
Our Terms and Conditions of Sale and Delivery shall apply exclusively; we do not accept any terms and conditions of the customer that contradict or deviate from our Terms and Conditions of Sale and Delivery unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale and Delivery shall also apply if we carry out the delivery to the customer without reservation in the knowledge of the customer's terms and conditions that contradict or deviate from our Terms and Conditions of Sale and Delivery.
These General Terms and Conditions of Sale and Delivery also apply to all future deliveries, services, or offers to the customer, even if they are not separately agreed upon again.
Unless expressly deviating agreements are made, the following conditions are exclusively based on:
2. Conclusion of the contract
The contract is concluded with the written order confirmation of the supplier. The written order confirmation of the supplier is decisive for the entire content of the contract. In the absence of an order confirmation, the contract is also validly concluded by the execution of the order.
If the order is placed electronically, the supplier will usually confirm receipt of the order. This confirmation of receipt only documents the receipt of the order and does not constitute a binding acceptance. However, the declaration of acceptance can be combined with the confirmation of receipt.
All additions, amendments, and ancillary agreements to the contract require written form or written confirmation by the supplier in order to be legally effective, unless these have been demonstrably negotiated between the parties. The employees, sales representatives, or other sales intermediaries of the supplier are not authorized to waive the requirement of a written order confirmation.
3. Scope of delivery and services; property rights
The written order confirmation from the supplier is decisive for the scope of delivery and services. Subsequent additions, side agreements, and changes require the written confirmation of the supplier.
Information provided by the supplier on the subject matter of the delivery and service (e.g., weights, dimensions, usage values, load capacity, tolerances, and technical data), as well as representations of the same (e.g., drawings and illustrations), are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations customary in the industry and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted, provided that they do not impair the usability for the contractually intended purpose.
The supplier reserves proprietary rights and copyrights to cost estimates, drawings, and other documents; these documents may not be made accessible to third parties.
In the case of orders for delivery items with design and composition features that the customer specifies, he is responsible for ensuring that the design and composition do not infringe on third-party property rights.The customer shall indemnify the supplier in the event of a claim.
The prices are ex-works, including loading, but excluding packaging. The respective amount of VAT is added to the prices. We reserve the right to change our prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective agreements or material price changes. We will prove these to the customer on request.
5. Terms of payment
Unless other payment methods have been agreed upon, invoices are payable within 10 days of the invoice date without deduction and free of charge to the supplier's payment point. If the customer fails to pay by the due date, interest at 8% above the respective base interest rate is payable on the outstanding amounts from the due date; the assertion of higher interest and additional damages in the event of default is unaffected.The customer can only offset such claims or make withholdings of payments due to claims that are undisputed or legally established.
If the supplier becomes aware of circumstances after the contract's conclusion that are likely to significantly reduce the customer's creditworthiness and jeopardize payment of the supplier's outstanding claims by the customer from the respective contractual relationship, he is only entitled to carry out or render outstanding deliveries or services against advance payment or the provision of security.
6. Partial deliveries, delivery time
Partial deliveries for manufacturing reasons are permitted.
The delivery period begins with the dispatch of the order confirmation, but not before the availability of all essential information, if the customer has to provide such. The delivery deadline is met if the delivery item has left the factory by the time it expires or, if the shipment is not made for reasons for which the supplier is not responsible, the readiness for shipment has been notified. The delivery period shall be extended appropriately in cases of force majeure and other obstacles beyond the will of the supplier, insofar as these are influenced by the completion or delivery of the delivery item and are not the responsibility of the supplier. This also applies if the circumstances occur with sub-suppliers.
If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims are reserved.
The risk of accidental loss or accidental deterioration of the purchased or delivered item passes to the customer when the latter is in default of acceptance or debtor if the customer meets the conditions of the default of acceptance.
7. Place of performance, transfer of risk, packaging, and transport insurance
The place of performance for all obligations arising from the contractual relationship is the registered office of the supplier, unless otherwise specified. If the supplier also owes the assembly, the place of performance is the place where the assembly has to be carried out.
In the case of delivery without assembly, the risk shall pass to the customer at the latest upon dispatch of the delivery parts, i.e., handover of the delivery item to the forwarder, carrier, or other third party designated to carry out the dispatch. In the event of delays for which the customer is responsible, the risk shall pass to the customer on the day of readiness for dispatch. Shipping is at the expense and risk of the customer.
In the case of delivery with assembly, the risk is transferred to the customer on the day of acceptance in his own company; in the case of an agreed trial operation, after the trial operation has ended, it is assumed that the trial operation immediately follows the ready-to-use assembly.
Transport and all other packaging in accordance with the Packaging Regulations will not be taken back, with the exception of pallets. The customer is obliged to dispose of the packaging at his own expense.
If the customer so wishes, we will cover the delivery through transport insurance; the costs incurred in this respect shall be borne by the customer.
The purchaser's rights to defects presuppose that he has duly fulfilled his inspection and complaint obligations owed in accordance with § 377 HGB (German Commercial Code). The delivered items are deemed to have been approved by the customer with regard to obvious defects or other defects that would have been recognizable during an immediate, careful examination if the supplier does not receive a written notice of defects within 7 working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if the notification of defects is not received by the supplier within 7 working days after the date on which the defect became apparent; if the defect was already recognizable to the customer at an earlier date during normal use, however, this earlier date is decisive for the start of the notification period. At the supplier's request, a defective delivery item must be returned to the supplier free of charge. In the case of a justified notice of defects, the supplier shall reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
If there is a defect in the purchased item, we are entitled, at our discretion, to subsequent performance in the form of defect rectification or the delivery of a new defect-free item.
Replaced parts shall become the property of the supplier.
If the subsequent performance fails despite two attempts to remedy the defect, the customer is entitled, at his discretion, to demand withdrawal or reduction.
Subject to an express written agreement to the contrary, used items will be sold with the exclusion of any warranty, unless there is an intentional or grossly negligent breach of contract by the supplier.
9. Compensation for damages
The supplier's liability for damages, for whatever legal reason, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations, and tort, is limited in accordance with this clause 9 insofar as it depends on a fault in each case.
We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. In the absence of an intentional breach of contract, our liability for damages is limited to the foreseeable, commonly occurring damage.
We are liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
Liability for culpable injury to life, limb, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
Unless otherwise agreed in advance, liability is excluded.
The limitation period for claims for defects is 12 months, calculated from delivery.
No liability is assumed for damages that have arisen for the following reasons: unsuitable or improper use, non-compliance with the operating instructions, incorrect installation (in particular, violation or non-compliance with our operating, operating, and installation instructions), or incorrect installation of the product. commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, poor maintenance, unsuitable operating equipment and replacement materials, defective construction work, unsuitable building ground, or chemical, electro-chemical, or electrical influences, unless they can be attributed to the fault of the supplier.
Insofar as the liability for damages according to this clause 8 is excluded or limited towards us, this also applies to the same extent in favor of our bodies, legal representatives, employees, and other vicarious agents.
10. Retention of title and right of withdrawal
The supplier reserves ownership of the delivery items until all claims arising from the delivery contract, including any refinancing and reversal changes, have been paid. If delivery items from the supplier are a) processed and/or processed or b) combined with other items to form a new, uniform item.If the goods are processed, it shall be deemed agreed that the customer transfers proportionate co-ownership to the supplier, namely in the case of a) the ratio of the invoice value of the delivery items to the invoice value of the finished product and in the case of b) the ratio of the invoice value of the delivery items to the invoice value of the other goods. The customer shall store the property for the supplier free of charge.
The customer is entitled to resell the delivery item in the ordinary course of business. However, he hereby assigns to the supplier all claims in the amount of the delivery value (plus interest and ancillary claims) that accrue to him from the resale against the buyer. The same applies to other claims that take the place of the delivery item or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction.
If the supplier withdraws from the contract in the event of breach of contract by the customer—in particular, default of payment—he is entitled to demand the delivery item back.
11. Place of jurisdiction—Applicable law
If the customer is a merchant, a legal entity under public law, or a special fund under public law, or if he does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between the supplier and the customer is Osnabrück. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
The supplier is also entitled to take legal action at the purchaser's head office.
The contractual relationship is subject to the substantive law of the Federal Republic of Germany. The validity of the UN Sales Convention is excluded.
12. Partial ineffectiveness
If any of these provisions is or becomes invalid, the remaining conditions will remain legally binding. The customer and the supplier will agree on other provisions that are equivalent to these in terms of economic success for the ineffective provisions.
ROWA Aquaristik GmbH
Tel.: +49 (0) 541 580 53 570 Fax: +49 (0) 541 580 53 57-77