Allgemeine Geschäfts- und Liefervereinbarungen der Evers GmbH (Stand 01.07.2014)

§ 1 Contractual basis, scope

  1. The following general business and delivery conditions (AGV) are exclusively valid; contradicting conditions or conditions that deviate from our AGV are not accepted, except if we explicitly and in writing approve their validity. Our AGV is also valid if we execute without reservations the deliveries or services for the contract partner even if we know about contradicting or deviating conditions of the contract partner.
  2. The AGV is only valid for corporate bodies organized under public law, special assets under public law and companies in accordance with § 310 section 1 BGB.
  3. The AGV is also valid for future businesses and the entire business relationship with the purchaser. It is valid for all goods and services delivered by us.

 

§ 2 Quotations and contract closings

  1. Our quotations are subject to change, except if other agreements have been made.
  2. All agreements between us and the contract partner have been made in writing in the order or in the order acknowledgment. The contract parties will confirm verbal agreements in detail immediately in writing. Orders received will be acknowledged in writing. It is possible that our acknowledgment will be sent with the billing.

 

§ 3 Deliveries

  1. Service and delivery dates must be specified based on calendar dates, otherwise the service and delivery time will be based on our normal organizational operating sequence.
  2. We will deliver "ex-factory", except if other agreements have been made. The regulations about forwarding sales in accordance with § 447 BGB are valid even if the shipping will be performed with our transport devices or by our employees. The purchaser must record transport damages - possibly together with the freight forwarder - and must report them immediately to the freight forwarder and to us.
  3. We have the right to partial deliveries and services assumed that the acceptance of the partial delivery or service is reasonable for the contract partner.
  4. Adherence to and completion of our delivery and service obligations assumes the on-time and proper delivery of goods and services to us.
  5. In case we do not deliver within the agreed upon period, then the contract partner has the right to establish an adequate grace period for the contractually owed delivery or service. The contract partner has the right to withdraw from the contract only after the grace period expires without delivery.
  6. In case of strikes, riots, acts of god and other unpredictable damaging events that do not fall into our area of responsibility, the service and delivery period will be extended by the duration of the disruption, assumed that the disruption had verifiably an impact on the delivery of our services. This also applies if these events happen at our suppliers. Each contract party can withdraw from the contract if this disruption lasts longer than four weeks after the originally agreed delivery date. The withdrawal covers the part of the contract that has not yet been delivered assumed that the partial deliveries or services can be utilized by the contract partner.

 

§ 4 Shipping, packaging, payments

  1. The contractually agreed "ex-factory" prices listed in the invoice are valid. The packaging cost and the transport costs such as freight, loading, transport insurance are always paid by the contract partner.
  2. We reserve the right to change our prices if cost reductions or cost increases are experienced after contract closing, especially due to labour agreements or raw material or material price changes. On request by the customer, we will provide proof for the price changes.
  3. All invoices are due within 10 days after mailing of the invoice (invoice date) net without cash discounted deductions. Payment default occurs if the contract partner does not pay within this period.
  4. The contract partner has completed the payment obligation only after final credit of the payment amount on our account.

 

§ 5 Retention of title

  1. We are retaining the title of all delivery objects until all receivables related to the order and to the business relationship to the contract partner have been fulfilled (retention of title products). In case of an open account, the retention of title refers to the acknowledged balance.
  2. The contractor has the right to use the delivery objects in the normal business environment assumed that the obligations in the order and in the business relationship have been fulfilled.
  3. Receivables from the sale of the retention of title products are already now been transferred by the contract partner to us. This refers to the scope of the retention of title for the sold delivery objects as a security. We accept the transfer. The contract partner maintains the right for the collection of this receivable after the transfer. Our right to collect the receivables is not affected. However, we agree to not collect the receivable as long as the customer meets his payment obligations from the received income, does not delay payment, opening of insolvency proceedings have not been filed or bankruptcy has been declared. In this case, we can request that the contract partner informs us about the assigned claims and its debtors, that he provides all the information required to collect these claims, that he hands over all required documents to us and that he informs the debtor (third party) about the assignment.
  4. The contract partner will process the retention of title products on our behalf. In case of processing, combination or mixing of the retention of title products with other objects that we do not own, the contract partner already now transfers a co-ownership in the new item at a ratio of the value of the retention of title products to the other processed items to secure our receivables and we request that the contract partner stores the new item for us free of charge. All required declarations of intent have therefore been made. The same rights are applicable for the item that is generated by processing, combination of mixing as for the retention of title products.
  5. In case the realizable value of the existing securities exceed the value of the receivables by more than 10%, we will release securities on the request of the contract partner at our choice.
  6. The contract partner must provide all required information about the inventory of the products that are owned by us and by the receivables that are transferred to us. The contract partner must inform us immediately about enforcement measures of third parties for the retention of title products or for the receivables transferred to us as well as about other impairments of our securities. The documentation required for an intervention or for countermeasures must be provided to us immediately. The contract partner is responsible for the cost of out-of-court settlements for the release and return of the securities. This also applies to the cost of a justified legal intervention, if the above cannot be obtained from the third party.
  7. The contract partner must treat the retention of title products with care, must insure them on his account against fire, theft and other damages and must provide proof of the insurance protection on request. He transfers his claims of the insurance contracts to us.

 

§ 6 Warranty

  1. In case of obvious defects, the contract partner must provide a notice of defect in writing immediately after the delivery object has been received. Hidden defects must be reported immediately after they have been identified.
  2. In case of a justified notice of defect, we will provide a replacement delivery or service or - at our choice - a repair of the deficient delivery or service. When selecting the type of supplementary performance we will consider the type of defect and the justified interests of the contract partner. The cost for the supplementary performance will be covered by us. Additional costs that are generated because the delivery objects have been moved to a different location than the place of delivery must not be covered by us, except if the relocation is in accordance with the normal use of the delivery objects.
  3. The contractor has a choice to reduce the contract value, withdraw from the contract or to claim damages if the supplementary performance should fail. The purchaser has no claim for damages if the purchaser withdraws from the contract. In case only a part of the product delivery is deficient, then the contract partner can only withdraw from the contract if he has no interest in the remaining part of the delivery.
  4. The contract partner has the right of recourse due to warranty rights from consumer product contracts (§478 BGB) against us only in so far as the contract partner has not made an agreement with his customer, which exceeds the legal deficiency claims.
  5. The claims and the rights due to deficiencies of the delivery objects or our services can only be made within a warranty period of 12 months after the delivery of the product. This does not apply to claims and right for which the law requires mandatory longer periods in accordance with § 438 section 1 No. 2 BGB for buildings and building materials as well as in accordance with § 479 section 1 BGB for rights of recourse for consumer goods contracts as well as in accordance with § 634 a section 1 No. 2 BGB for buildings and for its associated planning and monitoring services.

 

§ 7 Limitations of liability

  1. The sections above include all our liability and warranty services for the delivery objects and our services and obligations and exclude other warranties and claims for damages of any kind and without regard for the legal nature of the claim being made, especially due to obligation violations from a contractual obligation, from illegal handling and for claims of replacement of lost profits or other asset damages of the contract partner. This also applies to the acceptance of a guarantee or a procurement risk, for liabilities in accordance with the product liability law, for liabilities for damages of culpable violations of life, body and health or major contract obligations. Except for cases of intention, gross negligence and for liabilities for damages of violations of life, body or health, we are only liable for the typical contract related damages that can reasonably be predicted in cases of culpable violations of major contract obligations. Our liability is in this case being limited to the amount of coverage in the public liability insurance or the pecuniary damage liability insurance of Euro 5,000,000.00. The burden of proof has not been transferred to the contract partner by the above. The above as well as any other liability limitations in this AGV are also valid for the personal liability of our employees, legal representatives and vicarious agents.

 

§ 8 Assignment/Offset

  1. The contract partner is prohibited to assign or pledge legal claims that are aimed at us to third parties without our agreement. The offset with counterclaims is only permissible if these are acknowledged and legally binding.

 

§ 9 Place of fulfilment and place of jurisdiction

  1. Oberhausen is place of fulfilment for all liabilities that result from this contract or from the business relationship.
  2. Oberhausen is the place of jurisdiction for all contracts with merchants. This also applies to disagreements in the action for assertion of a claim concerning payment of a cheque, a note or a certificate. However, we have the right to sue the contract partner at his general place of jurisdiction (residence of business location).
  3. The contract relationships are exclusively based on the laws of the Federal Republic of Germany. The regulations of CISG (United Nation Convention on Contracts for the International Sale of Goods or UN purchase law dated 04/11/1980) are excluded.