General Terms and Conditions of multilever, powered by Franz Nonnenmacher GmbH & Co. KG
1 Scope of application
These terms and conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 of the German Civil Code (BGB). We shall only recognize terms and conditions of the customer that are contrary to or deviate from our terms and conditions if we expressly agree to their validity in writing.
These terms and conditions shall apply to all, including all future, transactions with the Purchaser, insofar as these are legal transactions of a related nature.
2 Offer and Conclusion of Contract
Offers made by Franz Nonnenmacher GmbH & Co. KG are subject to confirmation.
If an order is to be regarded as an offer according to § 145 BGB (German Civil Code), we can accept it within two weeks. Acceptance of the offer can be made by sending the goods or issuing an order confirmation.
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give the Purchaser our express written consent to do so. If we do not accept the orderer’s offer within the period of § 2, these documents shall be returned to us without delay.
The Purchaser undertakes to enclose with its goods standard operating instructions of a Western European type, which shall at least also be in German. In the event of a breach of this obligation, Franz Nonnenmacher GmbH & Co. KG reserves the right to assert further claims for damages.
4 Prices and Payment
Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the applicable rate. Costs of packaging will be invoiced separately.
The price shall be the list price valid for the respective delivery or service on the date of the order. In the case of deliveries or services which take place later than 4 months after conclusion of the contract due to delivery times, the list prices valid at that time shall apply.
Payment of the purchase price shall be made exclusively to the account specified in the offer. The deduction of a cash discount is only permissible with a special written agreement.
Unless otherwise agreed, the purchase price shall be paid within 10 days after delivery. Interest on arrears shall be charged at a rate of 8% above the respective prime rate. We reserve the right to claim higher damages for default.
Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
5 Rights of retention / set-off
The Purchaser shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
The customer may only offset claims against the claims of Franz Nonnenmacher GmbH & Co. KG only if the customer’s claims have been acknowledged in writing or have been legally established by a court of law.
6 Delivery Time
The start of the delivery period stated by us is subject to the timely and proper fulfillment of the customer’s obligations. We reserve the right to plead non-performance of the contract.
The delivery time begins with the conclusion of the contract. The delivery time shall be deemed to have been met if the goods have left the factory/warehouse of Franz Nonnenmacher GmbH & Co. KG or the readiness of the goods for shipment has been notified. Claims of the customer due to delayed delivery shall only exist after the customer has unsuccessfully set a grace period for delivery of two weeks. Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
7 Shipment / Transfer of Risk
The decision on the form of shipment (transport route and means of transport) is reserved by Franz Nonnenmacher GmbH & Co. KG reserves the right. Unless expressly declared in writing by the customer, the goods will be compulsorily insured at the customer’s expense.
If the goods are shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
Liability for transport damage is excluded. Transport damages or transport losses are to be reported immediately.
The customer is obligated to accept partial deliveries without the need for prior consent.
8 Retention of title
We retain title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the purchaser acts in breach of contract.
As long as the ownership has not yet passed to him, the customer is obliged to treat the object of sale with care. As long as the ownership has not yet passed to him, the customer has to inform us immediately in writing if the delivered object is seized or exposed to other interventions of third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the Purchaser shall be liable for the loss incurred by us.
The customer shall be entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims against the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, as long as no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser’s expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against the purchaser, the purchaser shall also assign to us such claims as accrue to him against a third party as a result of the combination of the reserved goods with a property; we hereby accept this assignment.
We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
9 Warranty and notice of defects as well as recourse / manufacturer’s recourse
Warranty rights of the purchaser presuppose that he has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
Warranty claims for new goods shall become statute-barred 12 months after delivery of the goods supplied by us to our customer. For used goods, the warranty is excluded in its entirety.
The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, body and health which are based on an intentional or negligent breach of duty on the part of the user.
Insofar as the law mandatorily prescribes longer periods in accordance with § 438 Para. 1 No. 2 BGB (buildings and items for buildings), § 445 b BGB (right of recourse) and § 634a Para. 1 BGB (construction defects), these periods shall apply. Our consent must be obtained prior to any return of the goods.
If, despite all due care and attention, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear and of damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation soil or from particular external influences not assumed under the contract. If improper repair work or modifications are carried out by the Purchaser or third parties, no claims based on Defect shall exist either for such work or modifications or for the consequences thereof.
Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer’s place of business, unless the transfer is in accordance with their intended use.
The Purchaser’s right of recourse against us shall exist only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the Purchaser’s right of recourse against the Supplier.
The export of our goods from the Federal Republic of Germany requires our prior written consent. Re-export is also subject to German regulations and is not permitted without official approval.
This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract shall be our place of business, unless otherwise stated in the order confirmation.
All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.