§ 1 Scope of application
(1) The following conditions apply to all legal transactions of Döbeln Elektrowärme GmbH. The buyer acknowledges the exclusive validity of our terms and conditions even if the contrary terms of their own terms and conditions regarding the order placed. Conflicting general terms and conditions of the buyer do not oblige us even if we do not expressly contradict them.
(2) All assurances, side agreements and changes to an order require a written confirmation with a legally binding signature of the management in order to take effect.
§ 2 Offer/Offer documents
(1) An order shall not be deemed accepted until it has been confirmed by us in writing as binding and legally binding.
(2) We reserve all proprietary rights and copyrights to cost estimates, subscriptions and other documents without limitation. Estimates, subscriptions and other documents provided must not be made accessible to third parties, unless we have expressly agreed to the disclosure.
(3) Subscriptions and other documents belonging to offers are to be returned immediately upon request if a contract is not concluded.
§ 3 Goods Specifications
(1) Required protection devices are included insofar as these are required by law or expressly agreed upon.
(2) For all deliveries and services the regulations of the VDE are valid as far as they are considered for the delivery. Deviations are permissible if the same security is assured in another way.
(3) Markets will be charged for non-standard packaging.
§ 4 Delivery Time
(1) The delivery period begins on the day the order confirmation is sent and ends on the day the goods leave the supplier. In case of later order changes made by the buyer that affect the delivery time, the delivery time will begin only after confirmation of the change is sent. We reserve partial deliveries.
(2) Delivery by us is subject to the proviso that we ourselves are supplied on time and correctly and thus we are not responsible for the lack of availability.
In the case of force majeure, we are released from our performance obligations for the duration and to the extent of the effects.
In case of unavailability of the goods, we will inform the buyer and refund any possible advance payment without delay. We are then entitled to withdraw from the contract.
(3) Compliance with our delivery guarantee presupposes the timely and complete fulfilment of the contractual obligations of the purchaser, in particular the timely receipt of all documents to be supplied by the purchaser, including required approvals and clearances.
(4) Claims for damages by the buyer due to late delivery are excluded, as far as the delay is not due to intent or gross negligence on our part.
§ 5 Default acceptance
(1) If the customer remains in arrears with the acceptance of the goods for more than fourteen days from receipt of the notification of availability, we can set a grace period of fourteen days with the declaration that the buyer refuses acceptance after this period. After the expiration of the grace period we are entitled to withdraw from the contract by written declaration or to demand compensation for non-performance. A grace period is not required in the event of a final and serious refusal of purchase by the buyer. If the buyer culpably violates other obligations to cooperate we are entitled to demand compensation for the damage incurred to us. Further claims are reserved.
(2) If goods are kept at the exclusive disposal of the buyer from the manufacturer’s warehouse or sold for preparation without shipping destination (on-demand item), the buyer must accept them within six weeks after notification of completion. For the rest, the paragraph 1) is valid.
§ 6 Shipping
(1) The costs of acceptance and shipping to a place other than the place of delivery shall be borne by the buyer from the place of dispatch. We reserve the right to choose the shipping route and the shipping method.
(2) In the case of carriage paid delivery, the purchaser shall bear the additional costs incurred for subsequent changes in the type of packaging, the mode of transport, the destination or similar circumstances affecting the freight charges.
(3) The cost of transport insurance and other insurance of the goods shall be borne by the buyer.
§ 7 Transfer of Risk
(1) The risk passes to the buyer as soon as the goods leave the factory. This also applies if carriage paid delivery has been arranged.
(2) If the shipment is delayed due to a circumstance for which the buyer is responsible, the risk shall pass to the buyer from the date of notification of the readiness for dispatch. At the express written request of the buyer, we are obliged to insure the goods stored by us at the expense of the buyer. This also applies to cases in which a delivery date is not expressly agreed with the proviso that the risk passes to the buyer seven calendar days after notification of readiness for shipment.
§ 8 Prices and Payment
(1) Unless otherwise stated in the order confirmation, our prices are “from storage” or “from supplier”, excluding shipping and packaging costs, plus value added tax.
(2) We reserve the right to adjust our prices at our discretion to the development of the costs which are decisive for the price calculation. A price increase shall be considered and a price reduction shall be made if, for example, the costs for the procurement of materials or energy increase or decrease or other changes in the prices of materials or general conditions in the energy industry lead to a changed cost situation. This may also be caused by currency fluctuations. Increases in one type of cost, e.g. material costs, may only be used for a price increase to the extent that they are not compensated by possible decreases in costs in other areas, e.g. energy procurement. In the event of a reduction in costs, e.g. due to material costs, we shall reduce the prices to the extent that the reduction in costs is not fully or partially offset by increases in other areas. When exercising our reasonable discretion, we shall choose the respective times of a price change in such a way that cost reductions are not taken into account according to standards that are less beneficial for the customer than cost increases, i.e. cost reductions shall have at least the same effect on prices as cost increases.
(3) Our invoices are payable within fourteen days of receiving an invoice, unless otherwise stated in the order confirmation. The statutory provisions regarding late payments apply.
(4) The buyer can only submit a counter-claim insofar as it is undisputed or legally determined. The customer can only assert a right of retention if it is based on the same contractual relationship.
§ 9 Deterioration of the Solvency of the Buyer
All claims on our part are due immediately if the terms of payment are not met or after the conclusion of the contract a significant deterioration in the financial circumstances of the customer is made known. We are then entitled to execute outstanding deliveries and services only against advance payment or security deposit. If advance payment or security has not been provided even after the expiration of a reasonable grace period, we can withdraw from the contract.
§ 10 Retention of Title
(1) The delivered goods remain our property until full payment of all claims against the buyer arising from the business relationship; on acceptance of bills of exchange and checks until their redemption or credit.
(2) The buyer is revocably entitled to process the delivered goods in the ordinary course of business or to connect them with others. In the case of processing, mixing or combination with other goods by the buyer, we obtain the co-ownership of the new object in proportion of the invoice value of the reserved goods to the general population. The resulting co-ownership rights shall be deemed as reserved goods within the meaning of paragraph 1).
(3) The buyer is entitled to sell the reserved goods in the ordinary course of business, if the buyer is not in default of payment with our purchase price claims.
(4) If the buyer sells the goods subject to retention of title, he hereby assigns to us all claims against third parties with all ancillary rights from the resale to him until the repayment of all claims against him. If the reserved goods are resold after processing, mixing or combination, the assignment of the claim from the resale shall only apply up to the value of the reserved goods invoiced by us to the buyer. This also applies if the reserved goods are resold together with third-party goods not belonging to us. We accept this assignment of claims.
(5) The buyer is entitled to collect the claims even after the assignment. We may limit or revoke the direct debit authorization if there is a good cause to do so. The buyer is obligated to send us a list of these claims upon request and to inform his customers of the assignment. We are then entitled to collect the claim in our own name.
(6) Insofar as the feasible value of all security interests, which we have under the current business relationship with the buyer, exceed the amount of all secured claims by more than 15%, we shall release a corresponding part of the security rights at the request of the buyer.
(7) The purchaser must notify us immediately of a seizure of the reserved goods or other enforcement measures relating to the reserved goods. The costs of the measures necessary for the elimination of interventions of third parties shall be borne by the buyer.
§ 11 Warranty
(1) The buyer must inspect the delivered goods immediately after arrival at the place of destination for quantity, wrong delivery and obvious defects. This also applies to the type sample sent to the buyer.
(2) Complaints must be reported to us immediately. Defects that cannot be determined even after careful examination are to be reported to us immediately upon discovery. The report must be made in writing in all cases.
(3) We are entitled to supplementary performance in the case of reasonable and justified complaints. We have the choice between reparation or replacement. In the event of repairs we are obliged to bear the transport, labour and material costs, insofar as these are not increased by the fact that the delivered goods were transported to a place other than the place of delivery.
(4) If the repair or replacement does not take place within a reasonable period of time considering our delivery options or if the repair / replacement delivery fails, the buyer may choose to reduce the purchase price or withdraw from the contract.
(5) Material defect claims expire in 12 months. This does not apply, as far as the longer periods are prescribed by law pursuant to § 438 (1) No. 2 (buildings and material for buildings) and § 634a (1) No. 2 (construction defects) BGB or if it is a consumer goods purchase over new materials pursuant to § 474 (1) BGB.
(6) Excluded from the above are claims for damages by the buyer as well as the limitation of the statute of limitations period. Claims for damages by the buyer excluding the endangerment of life, the body or the health, make the seller responsible for the breach of duty and the liability for other damages including intentional or grossly negligent breach of duty by the seller, his legal representative or his assistants.
§ 12 Liability
(1) In the case of injury to life, body and health by us, our employees or assistants, we are also liable for simple negligence according to the principles of strict liability.
(2) In addition, we are only liable for damages caused by us, our employees or assistants due to intent or gross negligence.
(3) Liability shall be limited to the damage typical for the contract which we were obliged to foresee at the time of conclusion of the contract taking into account the circumstances known to us or the circumstances which we should have known as a possible consequence of the infringing act.
§ 13 Choice of Law and Jurisdiction
(1) The place of jurisdiction for property disputes arising from this contract is Leipzig, if the buyer is a merchant and the contract belongs to the operation of his trade or the buyer has no general jurisdiction in Germany and if no exclusive jurisdiction exists. However, we are entitled to sue the customer at any other legal place of jurisdiction. For non-merchants the legal jurisdictions apply.
(2) The contractual relations of the parties are subject to the law of the Federal Republic of Germany.
§ 14 Nullity of Individual Clauses
The legal ineffectiveness of one or more conditions of these General Terms and Conditions does not affect the legal validity of the remaining provisions. If a provision is ineffective it will be replaced by the valid provision that comes closest to the economic purpose of the invalid provision.