General Terms and Conditions
§ 1 General
In the following, Zeller Present Handels GmbH is referred to as Zeller for short. All contracts relating to the delivery of goods shall be concluded in accordance with these Terms and Conditions, unless other special contractual terms and conditions of Zeller apply. These Terms and Conditions also apply to any and all future transactions, even if the Terms and Conditions are not expressly agreed upon in each case. At the latest upon the acceptance of the goods or services, these conditions shall be deemed as having been accepted. Any conflicting confirmations of the Buyer with reference to its own terms and conditions are hereby explicitly rejected. Deviations from these Terms and Conditions shall only be effective if they are confirmed in writing by Zeller.
§ 2 Orders and order processing
Zeller accepts verbal and written orders. A contract shall, however, only be concluded upon written confirmation of the order by Zeller, but no later than upon fulfilment of the order or upon Zeller’s offer to fulfil it.
The offers prepared by Zeller are always non-binding and subject to change. Services or goods included in an offer shall only be regarded as belonging together if this is expressly agreed.
§ 3 Risk assumption and delivery
Zeller delivers at the sole risk of the Buyer – even if Zeller expressly takes over the transportation costs. Upon handover of the goods to the Buyer or a party transporting the goods, the risk, including payment of the full purchase price for the goods, shall be transferred to the Buyer, even in the event of accidental destruction, accidental damage or loss of the goods. The place of performance is the headquarters of Zeller.
The Buyer is responsible for arranging transportation insurance. The Buyer also bears the transport risk for the delivery of goods returned to Zeller. Zeller is entitled to make partial deliveries, which can be charged individually following completion.
§ 4 Prices and payments
All prices quoted by Zeller are net without VAT. VAT shall be charged at the statutory rate unless expressly agreed otherwise. Costs for special packaging and transportation are payable by the Buyer unless agreed otherwise. Unless agreed otherwise, invoices are payable in advance or upon delivery (COD) without any deductions. Cheques are only accepted as a form of payment subject to the deduction of any collection fees.
The Buyer is only entitled to offset charges if its counterclaim is undisputed or legally binding.
If a Buyer is in default with a payment, Zeller is entitled to charge interest at the amount usually charged by commercial banks for outstanding overdrafts, but at least 5% above the base rate of the European Central Bank for consumers and 8% above the base rate of the European Central Bank for companies, whereby the interest is immediately due for payment.
If a Buyer is in default with its payment obligations or if the Buyer’s cheques or bills of exchange cannot be cashed, Zeller is entitled to make all remaining debts due for immediate payment, even if further cheques or bills of exchange have been accepted. In this case, Zeller is entitled to request advance payments or securities for all other performances contractually owed to the Buyer and to withdraw from these contracts following a reasonable grace period and/or demand compensation for damages on the grounds of default where this is legally permissible.
With regard to export deliveries, prices shall be calculated in EUR. The taxes, fees, customs duty, banking fees and similar charges associated with the conclusion or execution of the delivery contract are not included in these prices. In the case of export shipments, import tax is not included in the prices. This shall be charged separately at the respective statutory level, unless specified otherwise. Fees paid in advance by Zeller are to be reimbursed by the Buyer.
§ 5 Security clause
If the security paid by the Buyer exceeds the total amount owed to the Seller by more than 20%, the Seller is obliged in this respect to release securities at the request and according to the wishes of the Buyer.
§ 6 Retention of title
All goods supplied by Zeller to the Buyer shall remain the property of Zeller until full payment of all claims arising from the entire business relationship between the Buyer and Zeller.
The Buyer is not allowed to pledge goods subject to retention of title by Zeller or to otherwise transfer these goods by way of security. The Buyer is obliged to immediately report in writing any distraints or other seizures by third parties relating to goods delivered that are subject to retention of title by Zeller. The Buyer is also required to immediately inform the third parties who have seized the goods subject to retention of title that these goods are the property of Zeller.
The Buyer shall carefully store the goods subject to retention of title and insure them against the risk of robbery, theft, fire damage, water damage and vandalism. The Buyer hereby assigns to Zeller any future claims under the insurance policies associated with the goods subject to retention of title.
The Buyer shall bear the costs of all measures required to maintain or secure Zeller’s property. This applies even if such a measure fails, yet objectively appears to be necessary.
In the event of breach of contract by the Buyer, in particular if it is in default of payment, Zeller is entitled to request the return of the goods delivered subject to retention of title without providing a grace period or notice of withdrawal. The Buyer is then required to surrender the goods immediately. Withdrawal from the contract by Zeller is only applicable if Zeller has declared its withdrawal in writing.
§ 7 Delivery deadlines
Zeller shall attempt at all times to adhere to stated or agreed delivery deadlines. If a binding promise of delivery is exceeded by more than four weeks, the Buyer shall provide Zeller with a grace period of four weeks, which shall begin when Zeller has been notified. If no agreement regarding a new delivery date can then be agreed, the Buyer is entitled to withdraw from the contract at the end of the grace period by sending a registered letter. In this case, claims by the Buyer for damages are only valid if Zeller has caused damages for the Buyer as a result of intent or gross negligence. Any further claims for damages by the Buyer are excluded where legally permitted.
If the Buyer does not promptly make use of any of its aforementioned rights, it shall not be entitled to assert any claims arising from non-fulfilment of the delivery obligations.
§ 8 Warranty
When selling new goods to the Buyer (as an end user), Zeller guarantees a freedom from defects corresponding to the state of the art of the respective type of goods. The warranty period for new commodities is two years for customers who are consumers, and for all other customers (companies) one year, from handover of the goods to the Buyer or – if the goods are shipped – from handover to the shipping company. In the case of second-hand commodities, a warranty period of one year shall be deemed to have been agreed for consumers and an exclusion of liability for all other customers. Special guarantees granted regardless of the warranty are the subject of a separate guarantee agreement with Zeller.
The warranty shall be implemented by way of repair or replacement. If the attempt to repair or replace the product has failed twice, the Buyer is entitled to demand an appropriate reduction of the purchase price or, alternatively, rescission of the purchase contract. A prerequisite for this is that the Buyer has provided Zeller with a grace period of at least four weeks, notified by registered letter.
Further claims resulting from faulty delivery, the breach of contractual obligations or any other failure to fulfil duties by Zeller are hereby excluded to the extent legally permissible. This applies both to damages and consequential damages. Damages resulting from intent or gross negligence by Zeller or which occur as a result of the lack of a feature expressly guaranteed by Zeller, in addition to damages relating to the breach of material contractual obligations, claims which involve damage to life and limb and claims based on indispensable requirements pursuant to the Product Liability Act (ProdukthaftG) are not included in this exclusion of liability.
No guarantee can be provided that the purchased goods will work with other products without the occurrence of faults.
The assertion of warranty claims is excluded if operational or maintenance instructions are not followed, changes are made to the delivered goods, parts are exchanged or consumables are used which do not correspond to the original specifications.
The warranty shall also become void if the Buyer fails to immediately – within eight days of receiving the goods – report a fault to Zeller in writing. At the request of Zeller, the Buyer shall send the goods at issue to Zeller at its own expense, providing precise details about the complaint and quoting the invoice number.
Costs incurred in connection with unjustified complaints shall be covered by the Buyer.
§ 9 Returning goods
Returned goods shall only be accepted with the express prior consent of Zeller. A flat-rate fee shall generally be charged in the event of an agreed return of the goods.
§ 10 Place of jurisdiction and applicable law
The following shall apply to the place of jurisdiction to the extent legally possible and permissible: Obernburg is hereby agreed as the legal venue for any disputes with Zeller arising from a business relationship or initial approaches for the formation of a business relationship, to the extent legally possible and permissible.
Place of performance is the registered office of Zeller, 63939 Wörth (Federal Republic of Germany).
It is hereby agreed that the law of the Federal Republic of Germany shall apply exclusively. The Uniform Law on the International Sale of Goods is expressly excluded to the extent legally possible.
§ 11 Partial invalidity
The invalidity of individual provisions of these Terms and Conditions shall not affect the validity of the remaining provisions. The ineffective provision shall be replaced with a valid provision which most closely reflects the economic effects of the invalid condition.