1. Scope
1.1 These General Terms and Conditions of Sale (GTC) apply to all our business relationships with our customers (“buyer”). The General Terms and Conditions of Sale only apply if the buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code.
1.2 Our General Terms and Conditions of Sale apply exclusively. Differing, conflicting or supplementary General Terms and Conditions of the buyer only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement also applies if the buyer refers to his General Terms and Conditions as part of the order and we have not expressly objected to the General Terms and Conditions.
1.3 These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable items (“goods”). It does not take into account whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 of the German Civil Code). Unless otherwise agreed, the General Terms and Conditions of Sale apply in the version valid at the time the buyer places their order or in the version last communicated to them in text form as a framework agreement for similar future contracts, without us as the seller having to refer to them again on a case-by-case basis (note: as a precaution, the General Terms and Conditions of Sale should always be included in the order confirmation).
1.4 Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) and information in our order confirmation take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
1.5 Legally relevant declarations and notifications from the buyer regarding the contract (e.g. notifications of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e. in written and text form (e.g. letter, e-mail, fax). Further statutory formal requirements and further evidence (if there are doubts about the legitimacy of the person making the declaration) remain unaffected.
1.6 If references are made to the validity of statutory provisions, it should be noted that these are only intended to clarify. The statutory provisions apply - even if no corresponding clarification has been made - to the extent that they are not modified or excluded by the General Terms and Conditions of Sale.
2. Offer and conclusion of contract
2.1 Our offers are non-binding and subject to change. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards) and other product descriptions or documents (also in electronic form). We reserve ownership and copyright to all documents provided to the buyer in connection with the order. These documents may not be made accessible to third parties unless we give the buyer our express written consent to do so.
2.2 When the buyer orders the goods, this is a non-binding contract offer in accordance with Section 145 of the German Civil Code (BGB). If the order does not state otherwise, we are entitled to accept this contract offer within two weeks of receipt.
2.3 Acceptance of the contract offer by the buyer can be declared either in writing (e.g. by means of an order confirmation) or by delivery of the goods to the buyer. If we as the seller do not accept the buyer's offer within the period specified in Section 2.2, any documents sent to the buyer must be returned to us immediately.
3. Prices and payment agreements
3.1 Unless otherwise agreed in writing in individual cases, our prices ex warehouse at the time of conclusion of the contract apply, plus statutory sales tax. The costs of packaging will be invoiced separately. Unless a fixed price agreement has been made, reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place 3 months or later after conclusion of the contract remain reserved.
3.2 In the context of a mail order purchase, the buyer must bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. In the event that we do not invoice the transport costs incurred in the individual case, we charge a flat rate transport cost (excluding transport insurance) of €80. Any customs duties, fees, taxes and other public charges must be borne by the buyer.
3.3 Payment of the purchase price must be made exclusively to the account specified overleaf. The deduction of discounts is only permitted with a special written agreement.
3.4 Unless otherwise agreed, the purchase price is due and payable within fourteen days of invoicing and delivery or acceptance of the goods. However, even within the framework of an ongoing business relationship, we are entitled at any time to make a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation.
3.5 The buyer is in default if the above payment period expires. During the default, the purchase price is subject to interest at the applicable statutory default interest rate according to Section 288 Paragraph 2 of the German Civil Code (BGB) in the amount of eight percentage points above the respective base interest rate (see Appendix 1). We reserve the right to assert further damages caused by default. In the case of merchants, our claim to commercial default interest according to Section 353 of the German Commercial Code (HGB) remains unaffected.
3.6 If, after conclusion of the contract, it is foreseeable that our claim to payment of the purchase price is at risk due to a lack of performance on the part of the buyer (e.g. by filing for insolvency proceedings), we are entitled to refuse performance and, if necessary after setting a deadline, to withdraw from the contract in accordance with the statutory provisions (Section 321 of the German Civil Code). In the case of contracts in which the production of irreplaceable items (custom-made items) is owed, we can declare withdrawal immediately. The statutory provisions on the dispensability of setting a deadline remain unaffected in this respect.
4. Rights of retention
The buyer is only entitled to set-off or retention rights if his claim has been legally established or is undisputed and his counterclaim is based on the same contractual relationship. In the event that defects occur during delivery, the buyer's counter-rights, in particular in accordance with Section 8.6, sentence 2 of these General Terms and Conditions of Sale, remain unaffected.
5. Delivery period and delay in delivery
5.1 The delivery period is agreed individually or stated by us when the order is accepted. If this is not the case, the delivery period is approximately 2 weeks from the conclusion of the contract and payment of the goods.
5.2 In the event that we are unable to meet contractually agreed delivery deadlines for reasons for which we are not responsible, we must inform the buyer of this fact immediately and at the same time provide the expected or new delivery deadline. If a delayed delivery cannot be made within the newly announced delivery period due to the unavailability of the service, we are entitled to withdraw from the contract in whole or in part; we must immediately reimburse any consideration already provided by the buyer (in the form of payment of the purchase price). The unavailability of the service is the case, for example, if our supplier has not delivered on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (for example due to force majeure) or if we are not obliged to procure in the individual case.
5.3 Whether there is a delay in delivery on our part as the seller is determined by the statutory provisions. However, a prerequisite for a delay in delivery on our part as the seller is a reminder from the buyer. In the event of a delay in delivery, the buyer can claim flat-rate compensation for the damage caused by the delay. The flat-rate compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to provide appropriate evidence that the buyer has suffered no damage or only less damage than the above flat rate.
5.4 The buyer's rights in accordance with Section 9 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.
6. Delivery, transfer of risk, acceptance, delay in acceptance
6.1 Delivery takes place ex warehouse. The warehouse is also the place of performance for the delivery and the place for any subsequent performance. If the buyer wants the goods to be sent to another destination (sale by dispatch), he must bear the costs of the dispatch. If nothing has been contractually agreed, we can decide on the type of dispatch (packaging, shipping route, transport company) ourselves.
6.2 When the goods are handed over to the buyer, the risk of accidental loss and accidental deterioration passes to the buyer. In the context of a sale by dispatch, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay pass to the freight forwarder or carrier when the goods are delivered. In the event that acceptance of the goods is contractually agreed, this is decisive for the transfer of risk. Further statutory provisions of the law on work contracts remain unaffected. The handover or acceptance of the goods is equivalent if the buyer is in default of acceptance.
6.3 In the event that the buyer is in default of acceptance or our delivery is delayed for other reasons for which the buyer is responsible, we have a claim against the plaintiff for compensation for the damage incurred, including additional expenses (e.g. storage costs). If this is the case, we will invoice the buyer a flat-rate compensation of €40.00 per calendar day (beginning with the delivery period or, if no delivery period has been specified, with the notification that the goods are ready for dispatch). Our statutory claims (compensation for additional expenses, reasonable compensation, termination) and proof of greater damage remain unaffected.
6.4 Proof of greater damage and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate must be offset against further monetary claims. However, the buyer reserves the right to prove that we have suffered no damage at all or only significantly less damage than the above flat rate.
7. Retention of title
7.1 We retain title to the goods delivered until all of our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
7.2 Until the secured claims have been paid in full, the goods subject to retention of title may not be pledged to third parties or transferred as security. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is made or if third parties (e.g. seizures) take effect on the goods belonging to us. If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the buyer is liable for the loss incurred by us.
7.3 In the event of the buyer's conduct in breach of contract, in particular if the purchase price due is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The request for return does not simultaneously contain a declaration of withdrawal; rather, we are entitled to simply demand the return of the goods and reserve the right to withdraw. In the event that the buyer does not pay the purchase price due, we must have unsuccessfully set the buyer a reasonable deadline for payment before asserting these rights. This only applies if such a deadline is not dispensable under the statutory provisions.
7.4 The buyer is entitled, until revoked in accordance with section 7.4.c, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition:
a) The products of our goods created by combining, mixing or processing are subject to retention of title at their full value, with us being considered the manufacturer. In the event that the property rights of third parties remain in place when the goods are combined, mixed or processed with them, we acquire co-ownership in proportion to the invoice values of the combined, mixed or processed goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title. The buyer also assigns to us, for security purposes, any claims against third parties that arise from the combination of the reserved goods with a property. In this case, we accept the assignment.
b) The buyer assigns to us at this point in time, for security purposes, the claims against third parties arising from the resale of the goods or the product in the amount of the final invoice amount agreed with us (including VAT), in full or in the amount of our possible co-ownership share in accordance with section 7.4.a. We accept the assignment. The buyer's obligations listed in section 7.2 also apply with regard to the assigned claims.
c) The buyer remains authorized to collect the claim alongside us. As long as the buyer meets his payment obligations to us, there is no lack of performance on the part of the buyer and we do not assert the retention of title by exercising a right in accordance with clause 7.3, we undertake not to collect the claim. If we assert the exercise of a right in accordance with clause 7.3, we can demand that the buyer disclose the assigned claims and their debtors, and that the buyer provide all information necessary for collection, hand over the associated documents and inform the debtors (third parties) of the assignment. In addition, we are entitled to revoke the buyer's authority to resell and his authority to process the goods subject to retention of title.
d) In the event that the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the buyer's request.
7.5 The buyer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it at his own expense against theft, fire and water damage to the new value (note: only permitted when selling high-value goods). If maintenance and inspection work has to be carried out, the buyer must carry it out in a timely manner at his own expense.
8. Buyer's claims for defects
8.1 The statutory provisions apply to the buyer's rights in the event of material and legal defects (including incorrect and incomplete deliveries as well as improper assembly/installation or inadequate instructions), unless otherwise specified below. This does not affect the statutory provisions on the purchase of consumer goods (§§ 474 ff. BGB) and the buyer's rights from separately issued guarantees, in particular from the manufacturer.
8.2 Agreements that we have made with buyers regarding the quality and the intended use of the goods (including accessories and instructions) regularly form the basis of our liability for defects within the scope of the warranty. A quality agreement includes all product descriptions and manufacturer information that are the subject of the individual contract or that were made public by us (in particular in catalogs or on our website) at the time the contract was concluded. In the event that no quality was agreed, it must be assessed according to the provisions of Section 434 Paragraph 3 of the German Civil Code (BGB) whether a defect exists. Against this background, it should be noted that public statements made by the manufacturer as part of advertising or on the label of the goods take precedence over statements made by other third parties.
8.3 For goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content if this is expressly stated in a quality agreement in accordance with Section 8.2. We accept no liability for public statements made by the manufacturer or other third parties.
8.4 We are not liable for defects that the buyer knows about when the contract is concluded in accordance with Section 442 of the German Civil Code (BGB) or that he is grossly negligent about not knowing about.
8.5 The buyer's claims for defects only exist if the buyer has complied with his statutory inspection and notification obligations (Sections 377, 381 of the German Commercial Code (HGB). If the goods are building materials or other goods intended for installation or other processing, an inspection must be carried out immediately before processing. We must be notified in writing immediately if a defect becomes apparent during delivery, inspection or at a later date. Obvious defects must be reported in writing within
5 working days of delivery and undetectable defects within the same period of time from the discovery of the defects. In the event that the buyer fails to carry out or does not comply with his obligation to carry out a proper inspection and/or report defects, liability on our part for the defect that is not reported or not reported in a timely manner or not reported properly is excluded in accordance with the statutory provisions. If the goods were intended for installation, fitting or installation, this also applies if the defect only became apparent after the corresponding processing as a result of non-compliance with or violation of one of these obligations. In this case, the buyer is not entitled to claim compensation for the "installation and removal costs".
8.6 If the delivered goods are defective, we as the seller have the right to choose whether we provide subsequent performance by removing the defect (repair) or by delivering a defect-free item (subsequent delivery). If the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case, he can refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. In addition, we are entitled to make the subsequent performance to be provided by us dependent on the buyer paying the purchase price due. However, the buyer has the right to retain a portion of the purchase price that is appropriate in relation to the defect.
8.7 The buyer must grant us the necessary time and opportunity to provide the subsequent performance to be provided. In particular, the buyer must hand over the item for which he has claimed a defect to us for inspection purposes. In the event that we make a subsequent delivery of a defect-free item, the buyer must return the defective item to us in accordance with the statutory provisions. However, the buyer is not entitled to a right of return.
8.8 Unless we have contractually committed ourselves to this, the subsequent performance does not include the removal, removal or disassembly of the defective item or the installation, attachment or installation of a defect-free item. This does not affect the buyer's claims for reimbursement of "installation and removal costs".
8.9 We will reimburse the expenses necessary for inspection purposes and subsequent performance (transport, labor and material costs as well as removal and installation costs, if applicable) in accordance with the statutory provisions and these General Terms and Conditions of Sale in the event that a defect exists. However, we can demand reimbursement from the buyer for costs incurred due to an unjustified request for defect rectification in the event that the buyer knew or could have recognized that there was actually no defect.
8.10 The buyer has the right to remedy the defect himself and to demand reimbursement of the objectively necessary expenses for this if there is an urgent case (e.g. in the event of a risk to operational safety or to prevent disproportionate damage). The buyer must inform us immediately if he undertakes to remedy the defect himself. In the event that we are entitled to refuse subsequent performance in accordance with the statutory provisions, the buyer has no right to remedy the defect himself.
8.11 The buyer can withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline set by the buyer for subsequent performance has expired without success or is dispensable according to the statutory provisions. However, in the event of a minor defect, the buyer has no right of withdrawal.
8.12 Claims by the buyer for reimbursement of expenses in accordance with Section 445a Paragraph 1 of the German Civil Code are excluded, unless the last contract in the supply chain is a purchase of consumer goods (Sections 478, 474 of the German Civil Code) or a consumer contract for the provision of digital products (Sections 445c Sentence 2, 327 Paragraph 5, 327u of the German Civil Code).
8.13 Claims for damages or claims for reimbursement of wasted expenses by the buyer (Section 284 of the German Civil Code) only exist in the event of a defect in accordance with Section 9 and Section 10.
9. Limitation period
9.1 The general limitation period for claims resulting from material or legal defects is one year from delivery, in deviation from Section 438 Paragraph 1 No. 3 of the German Civil Code. In the event that acceptance has been contractually agreed, the limitation period begins with acceptance.
9.2 The limitation period is 5 years from delivery in accordance with the statutory provisions (§§ 438 paragraph 1 no. 2 BGB) in the event that the goods are a building or an item that has been used for a building in accordance with its usual use and has caused its defect (building material). This applies subject to the other special statutory provisions on limitation (in particular § 438 paragraph 1 no. 1, paragraph 3, §§ 444, 445b BGB)
9.3 The above limitation periods under the law on sales also apply to contractual and non-contractual claims for damages by the buyer that are based on a defect in the goods, unless the application of the regular statutory limitation period in accordance with Sections 195 and 199 of the German Civil Code would lead to a shorter limitation period in individual cases. Claims for damages by the buyer in accordance with Sections 10.1 and 10.2.a) as well as those under the Product Liability Act expire exclusively according to the statutory limitation periods.
10. Other liability
10.1 Unless otherwise stated in these General Terms and Conditions of Sale, including the following provisions, we as the seller are liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
10.2 Within the scope of liability based on fault, we are liable for damages, regardless of the legal basis, only in the event of intent and gross negligence. In the event of simple negligence, we are liable, subject to statutory limitations of liability (e.g. care in one's own affairs; insignificant breach of duty), only:
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (obligations whose fulfilment enables the proper execution of the contract and on whose compliance the contractual partner relies and may rely). In this case, however, our liability is limited to compensation for foreseeable, typically occurring damage.
10.3 The limitations of liability resulting from section 10.2 also apply to third parties and in the event of breaches of duty by persons whose fault we are responsible for under statutory provisions. If a defect was fraudulently concealed and a guarantee for the quality of the goods was given, the limitations of liability do not apply. This also applies to claims by the buyer under the Product Liability Act.
10.4 The buyer can only withdraw or terminate the contract due to a breach of duty that does not result from a defect if we as the seller are responsible for the breach of duty.
10.5 The buyer's right of termination (in particular in accordance with Sections 650, 648 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply.
11. Choice of law and place of jurisdiction
11.1 These General Terms and Conditions of Sale and the contractual relationship between us as the seller and the buyer are governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
11.2 If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our place of business in Cuxhaven is the exclusive and international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code.
11.3 We are also entitled to file a lawsuit at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a prior individual agreement or at the general place of jurisdiction of the buyer. Priority statutory provisions (exclusive places of jurisdiction) remain unaffected by this.
11.4 German law applies. For consumers, this choice of law only applies insofar as it does not deprive them of the protection granted by mandatory provisions of the law of the state in which the consumer is habitually resident (favorability principle).
11.5 The place of performance for all services arising from the business relationship with us and the place of jurisdiction is our registered office, provided that you are not a consumer but a merchant, a legal entity under public law or a special fund under public law. The same applies if you do not have a general place of jurisdiction in Germany or the EU or if your place of residence or habitual abode is not known at the time the action is brought. The right to also appeal to the court at another legal place of jurisdiction remains unaffected.
12. Warranty periods
For purchase and work contracts, the warranty period is 2 years.
Identity of the seller
BONGARTZ GmbH
Am Königshof 63a
27478 Cuxhaven
Germany
Telephone: +49 (0)4721 663050
E-mail: office@ecofiltex.de
Alternative dispute resolution:
The European Commission provides a platform for out-of-court online dispute resolution (OS platform), available at https://ec.europa.eu/odr.
The "OS platform" can be used to settle disputes arising from contracts concluded online for the sale of goods and/or services between consumers and entrepreneurs.
We participate in a dispute resolution procedure before a consumer arbitration board. The responsible body is:
Federal Universal Arbitration Board - Center for Arbitration e. V.
Straßburger Str. 8, 77694 Kehl
Link to the consumer arbitration board's website: https://www.verbraucher-schlichter.de
As of July 22, 2024
