AGB - Lieferungen
General Terms and Conditions of Sale and Delivery VOLK
(status as of January 2016)
Offer and conclusion of contract
offer or quotation and contract for the sale of any machine, equipment
and other utensil by the contractor shall be subject exclusively to the
"General Terms and Conditions of Sale and Delivery (hereinafter also
referred to as "Terms and Conditions of Contract") as indicated
hereinbelow. No customer terms and conditions of contract conflicting
with or differing from these Terms and Conditions of Contract shall be
recognized by the contractor unless with the contractor's express and
written consent thereto. These Terms and Conditions of Contract shall be
applicable even when the contractor makes any delivery to the customer
without reservation while being aware of any customer terms and
conditions of contract conflicting with or differing from these Terms and
Conditions of Contract.
Every offer submitted by the contractor shall be subject to change
without notice. If a purchase order of the customer shall be qualified as
an offer, the contractor may accept such offer within a period of 14
business days. No order awarded shall be binding unless after its written
confirmation by the contractor.
individual agreement (including any subsidiary agreement, supplement or
amendment) made with a customer on a single-case basis shall prevail over
these Terms and Conditions of Contract. The contents of any such
agreement shall be subject to a written contract or written confirmation
issued by the contractor.
contractor shall reserve title to ownership and, where copyrightable, the
copyright in any cost estimate, drawing, or any other document. No such
document may be disclosed to any third party.
the underlying purchase agreement nor these General Terms and Conditions
of Sale and Delivery shall apply unless to entrepreneurs, legal entities
under public law, or special funds under public law as defined in Section
310, Subsection 1, Sentence 1 of the German Civil Code (BGB).
2. Scope of obligation to deliver
scope of delivery shall be subject to the contractor's written order
expressly referred to as binding, any dimensional notation, weight,
illustration or drawing or any other document belonging to any offer or
quotation shall only be been deemed binding to an approximate degree.
3. Price and payment
shall apply ex contractor works. Value-added tax shall be invoiced in
as otherwise agreed, the payment of the purchase price shall be made
without any deduction of cash discount not later than within a period of
10 business days after delivery and after having received the invoice.
contractor shall be entitled not to perform any delivery or service
outstanding unless against advance payment or provision of security in
the event of any failure to comply with the terms of payment or if the
contractor, after having concluded the contract, becomes aware of any
risk to the claim for payment due to the customer's lacking ability to
3.4 No right
to set-off and/or retention shall be available to the customer unless for
counterclaims which are recognized by declaratory judgment, uncontested
or ready for a decision in any proceedings pending in court.
the SEPA Direct Debit Scheme, the prior notice period for a pending debit
memo will be reduced to one (1) day. The collection of recurring payments
for the same amounts shall not require any prior announcement by the
contractor unless once per year.
4. Delivery period
delivery deadline shall be deemed met when, prior to its expiry, the
delivery item has left the contractor's works, or when readiness for
dispatch has been notified to the customer.
delivery deadline shall be extended by a reasonable period in the event
of industrial action or of any contingency which is beyond the
contractor's sphere of control. The foregoing shall also apply if any
such hindrance occurs after a delay has already been incurred.
4.3 The customer
shall be entitled to claim compensation for any loss or damage incurred
by the customer due to any delay for which the contractor is responsible,
including but not limited to any date of delivery or performance firmly
agreed with the customer. For ordinary negligence, such compensation
shall amount to 0.5 % for every full week exceeding the deadline but to a
maximum of 5 % of the net-price of the delivery which has not been
delivered in time due to any such delay. Any further claim for damages
for delay shall be excluded for ordinary negligence without prejudice to
item 8.5 hereof.
4.4 If shipping
is delayed due to any circumstance under the customer's control, the
contractor shall be entitled to claim the costs incurred by the
contractor due to such delay including any storage costs incurred with
any third party.
After an additional period of time granted by the contractor has
elapsed without any result, the contractor shall be entitled to use the
delivery item otherwise and to make delivery to the customer subject to a
reasonable extension of the delivery period.
Compliance with the delivery deadline shall be subject to the observance
of the customer's obligations as defined in the purchase agreement.
delivery period shall be extended to a reasonable extent if the
contractor does not receive supplies itself in spite of having given
identical purchase orders to the contractor's supplier or manufacturer.
In this case, the contractor shall immediately notify the customer about
the unavailability of the delivery.
5. Transfer of risk and receipt of delivery item
shall pass to the customer upon the transfer of the delivery item to a
forwarding agent, carrier or collector, or when carried by any means of
transport belonging to the contractor but not later than when leaving the
contractor's or manufacturing plant's warehouse.
No insurance cover shall be provided for the delivery item on the
part of the contractor. Upon the customer's request, an insurance against
breakage, transport damage or damage by water or fire shall be taken out
for the consignment by the contractor at the customer's expense.
shall pass to the customer on the date of readiness for dispatch if
shipment is delayed due to any circumstance not under the contractor's
control. The contractor shall agree to insure the delivery item against
any damage upon the customer's request. Any cost thereof shall be at the
customer shall take delivery of any object delivered inbound unless it
presents any material defect without prejudice to any right resulting
from item 7 hereof. Any shipping damage shall be reported without delay
to the shipping agent or carrier making delivery.
deliveries shall be permitted to a reasonable extent.
6. Reservation of title
contractor shall reserve title to ownership in every delivery item until
the complete payment of every debt due to the contractor from the
business relation with the customer. For current accounts, the entire
reserved property shall be used for securing the debt resulting from the
balance of such account.
If the estimated value of the reserved property used as security
for the contractor exceeds the receivables from the customer still to be
paid by more than 10 %, the contractor shall agree, upon the customer's
request, to release collaterals of its choice to such extent.
6.2 If the
customer commits any act contrary to the contract including, but not
limited to any default in payment, the contractor shall be entitled to
take back any delivery item after sending a reminder and the customer
shall be obliged to surrender possession thereof. The assertion of the
retention of title shall require the rescission of the contract. After
taking it back, the contractor shall be entitled to realize the item
purchased, and the proceeds of such realization shall be credited to the
customer's accounts payable after deducing reasonable realization cost.
customer shall agree to treat the purchased item with care; this shall
include but shall not be limited to insuring the item purchased
sufficiently against any damage by fire, water or theft at its
reinstatement value and at the customer's expense. Where required, any
maintenance and inspection work shall be carried out by the customer at
its expense and in good time.
6.4 In the
event of any levy of execution or any other impairment by any third
party, the customer shall give immediate written notice to the contractor
so as to enable the contractor to bring action as provided for in Section
771 of the German Code of Civil Procedure (ZPO).
customer shall be entitled to resell the delivery item within the
ordinary course of business; notwithstanding the foregoing, the customer
shall already now assign to the contractor any claim up to the final
invoice amount (including any value-added tax) which may accrue to the
customer against the customer's purchasers or against any third party
from resale irrespectively whether the delivery item is resold without or
after processing. The customer shall remain entitled to collect such
claim even after assignment. The contractor's authority to collect such
claim by itself shall be unaffected by the foregoing. The contractor
shall agree, however, not to collect such claim as long as the customer
fulfils its obligations to pay from the proceeds received, as long as the
customer does not incur in any delay in payment and, in particular, as
long as no petition is made for commencing any composition or bankruptcy
proceedings or as long as there is no cessation of payments. But if any
of the foregoing occurs, the contractor may require the customer to
disclose to the contractor any such claims assigned and the debtors of
any such claims, in addition to providing any information as required for
collection, submitting any document related thereto and communicating
such assignment to the debtors (third parties).
processing or modification made by the customer on the delivery item
shall always be deemed performed on the contractor's behalf. If the
delivery item is processed with any other item not owned by the
contractor, the contractor shall acquire co-ownership in the new item at
the ratio of the value of the item purchased (final invoice amount
including value-added tax) to the other items at the time of such
processing. In other respects, the same provisions as for a purchased
item delivered under reservation shall apply mutatis mutandis to the item
created by processing.
6.7 If any
delivery item is inseparably mixed with any other item(s) not owned by
the contractor, the contractor shall acquire co-ownership in the new item
at the ratio of the value of the delivery item (final invoice amount
including value-added tax) to the other mixed item(s) at the time of
mixing. If mixing is done in such a manner that the customer's item is to
be considered the main item, it shall be deemed agreed that the customer
assigns proportional co-ownership to the contractor. The customer shall
safeguard the sole ownership or co-ownership thus created on the
6.8 If and
where a vehicle registration certificate (or an approval certificate,
part II) has been issued for the delivery item, the contractor shall,
during the period of reservation of title, have the sole right to the
possession of such vehicle registration certificate (or approval
certificate, part II).
7. Liability for defects in delivery
part which, within a period of twelve (12) months after its delivery,
presents any material defect caused by any circumstance which occurred
prior to the transfer of risk shall be either remedied or replaced at the
contractor's option subject to the latter's reasonable discretion. The
discovery of any such defect shall be notified to the contractor in
writing and without any delay.
Claims for material defects shall be subject to a limitation
period of twelve (12) months after delivery. The period mentioned in
sentence 3 of the foregoing item 7.1 shall not apply neither to any
defect in a building nor to any item used for a building and having
caused such material defect. In derogation of sentence 3 of the foregoing
item 7.1, the statutory time limits shall also apply in the event of any
entrepreneur recourse pursuant to Sections 478, 479 of the German Civil
Code (BGB), and in case of any customer claim in accordance with item 8.5
of these Terms and Conditions of Contract.
liability shall be assumed for any damage caused by natural wear and
warranty shall be assumed for any loss or damage due to any of the causes
Unsuitable or improper use;
Incorrect installation or start-up by the customer or
by any third party;
Improper or negligent handling of the delivery item
including with regard but not limited to any operating
Exposure to excessive stress and strains; and
Use of any unsuitable operating media or substitute
7.4 If and where
there is any defect in the delivery item, the contractor shall, at the
contractor's option, ensure subsequent performance either by way of
defect correction or by delivering a new item free from any defect.
Liability shall be cancelled for the consequences brought about by any
modification or repair work which has been performed improperly by the
customer or by any third party without the contractor's prior
further claim of the customer shall be admissible unless in the event as
set forth in item 8.5 of these Terms and Conditions of Contract.
Second-hand delivery items shall not be sold unless excluding any
liability for material defects. Such exclusion shall not apply to any
claim as defined in item 8.5 of these Terms and Conditions of Contract.
as otherwise agreed, the contractor shall make its domestic deliveries
free from any industrial property right and copyright of any third party.
If there should still be a corresponding infringement of an industrial
property right, the contractor shall either obtain a corresponding right
of use from such third party, or modify the delivery item to an extent
which ensures that there will be no more infringement of any industrial
property right. Where the foregoing may not be expected at reasonable
conditions from the contractor, both the contractor and the customer
shall be entitled to rescind the contract.
7.10 The provisions set
forth in this item 7 shall apply mutatis mutandis in other respects if
there is any deficiency in title while no claim of the customer shall
exist unless the customer notifies the contractor of any such claim
raised by any third party in writing and without any delay, does not
recognize any alleged act of infringement neither directly nor
indirectly, every opportunity for defence is maintained for the
contractor without any restriction whatsoever, the infringement of any
such right is not based on any modification to the delivery item made by
the customer or any use thereof contrary to the agreement, and any such
deficiency in title is not due to any instruction given by the customer.
8 Customer's rights to rescind the contract, reduce the price, and
other contractor liability
The customer may rescind the contract if complete performance by
the contractor prior to the transfer of risk becomes definitely
impossible. The same shall be applicable if the contractor is unable to
perform. In addition, the customer may also rescind the contract if the
performance of a part of a delivery becomes impossible in terms of
quantity when ordering objects similar in type, and if the customer has a
legitimate interest in rejecting a partial delivery. If the foregoing is
not the case, the customer may reduce consideration accordingly.
customer shall be entitled to rescind the contract if there is any delay
in delivery as defined in item 4 of these Terms and Conditions of
Contract, and if the customer grants a reasonable time extension to the
contractor in default, and if such time extension is not observed.
customer shall remain obligated to give consideration if impossibility of
performance occurs while the customer is in default of acceptance or due
to any fault of the customer.
Furthermore, the customer shall be entitled to rescind the contract if
the contractor has allowed a reasonable time extension set by the
customer for defect remedy to elapse without fulfilment. The customer's
right to rescind the contract shall also exist in the event of any other
failure of the contractor to remedy a defect or provide replacement.
8.5 No other
claim for compensating any loss or damage whatsoever, including any loss
or damage not caused to the delivery item itself, shall exist unless as
In case of gross negligence or intent;
- In the event of injury of life, body or health;
In the event of any culpable non-observance of
essential duties under the contract where the fulfilment of the
of the contract is put at risk with regard to the foreseeable damage or
loss typical of this contract;
- If and where the German Product Liability Act provides
for liability for personal injury or material damage of
objects used for
private purposes in the event of any defect in any item delivered;
- For any defect which may have been fraudulently concealed or whose nonexistence has been guaranteed by
Any further claim for damages shall be excluded in other respects.
personal liability of any legal representative, performing agent or
company personnel of the contractor shall be excluded for any loss or
damage caused by ordinary negligence.
9. Liability for collateral duties
The provisions as set forth in items 7 and 8 of these Terms and
Conditions of Contract shall apply mutatis mutandis excluding any further
claim of the customer if the delivered item cannot be used by the
customer as provided for in the contract through any fault committed by
the contractor due to any failure to perform or any defective performance
of any proposal or consulting made or given either before or after
contract conclusion or any other subsidiary duty under the contract,
including but not limited to any instruction for the operator control and
maintenance of such delivered item.
10. Place of perormance and place of jurisdiction
10.1 If the customer is
a merchant, a corporate body under public law or a special fund under
public law, the place of performance and the exclusive place of
jurisdiction applicable to both parties and to any present or future
claim arising out of this commercial relationship shall be either the
contractor's head office or, at the contractor's option, the registered
office of the branch establishment which has concluded the agreement.
10.2 Any claim arising
out of or in relation with the underlying agreement shall be governed by
the substantive laws of the Federal Republic of Germany to the exclusion
of the UN Sales Convention.