Barsch GmbH & Co. KG Burkhardfelderstraße 19 35447 Reiskirchen Amtsgericht Gießen HRA 4520
phG: Barsch Beteiligungs GmbH, Geschäftsführer: Nadine Barsch Amtsgericht Gießen HRB 8366
Telefon 06408-96-947-12 Telefax 06408-96-947-29 E-Mail email@example.com
builds and supplies Flowpack machines.
1.2. These general terms and conditions apply to all our business relationships with our customers. The general terms and conditions only apply if the customer is an entrepreneur (§ 14 BGB), a legal person under public law or a special fund under public law.
1.3. The general terms and conditions apply in particular to contracts for the sale and / or delivery of movable goods (“goods”), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the customer's order or in the version last communicated to him as a framework agreement also apply to similar future contracts without us having to refer to them again in each individual case.
1.4. Our terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example, even if we carry out the delivery to the customer without reservation, knowing the general terms and conditions of the customer.
1.5. Individual agreements made with the customer in individual cases (including side agreements, additions and changes) always take precedence over these General Terms and Conditions.
1.6. Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) are in writing, i.e. to be submitted in writing or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
1.7. References to the validity of legal regulations are only of clarification. Therefore, even without such a clarification, the statutory provisions apply, unless they are directly modified or expressly excluded in these terms and conditions.
2.2 Our offers are a service of Barsch GmbH & Co. KG and are provided free of charge for the purpose of contract initiation. If the customer uses our offer or parts of our offer, in particular service / product descriptions for other purposes, we are entitled to request remuneration for this, which we determine at our reasonable discretion (§ 315 BGB).
2.3 The order of the goods by the customer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 2 weeks of its receipt by us.
2.4 The acceptance can be declared either in writing (e.g. by order confirmation) or by delivering the goods to the customer.
3.2 If we are unable to meet binding delivery times for reasons for which we are not responsible (unavailability of the service), we will inform the customer of this immediately and at the same time notify the expected new delivery time. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the customer. The case of non-availability of the service in this sense is in particular the late delivery by our supplier if we have concluded a congruent cover transaction, neither we nor our supplier are at fault or we are not obliged to procure the goods in individual cases.
3.3 The occurrence of our delay in delivery is determined according to the legal regulations. In any case, a reminder from the customer is required. If we are in default of delivery, the customer can demand flat-rate compensation for his damage caused by delay. The flat rate for damages is 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has suffered no damage or only significantly less damage than the above flat rate.
3.4 The rights of the customer Section 8 of these GTC and our legal rights, in particular if the obligation to perform is excluded (e.g. due to the impossibility or unreasonableness of the service and / or supplementary performance), remain unaffected.
4.2 The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest when the goods are handed over.
4.3 In the case of a mail order purchase, however, the risk of accidental loss and accidental deterioration of the goods and the risk of delays pass as soon as the goods are delivered to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment.
4.4 If acceptance has been agreed, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after our notification of readiness for acceptance. The customer may not refuse acceptance if there is an insignificant defect.
4.5 The handover or acceptance is the same if the customer is in default of acceptance.
4.6 If the customer is in default of acceptance, fails to cooperate or our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this we charge a lump sum compensation in the amount of 0.5% of the net price (delivery value) per calendar week, beginning with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch or ready for acceptance.
4.7 Proof of higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The customer is entitled to prove that we have incurred no damage or that the damage is less than the above flat rate.
5.2 The customer must provide sufficient original product and original film for the design of machine parameters within the scope of the project planning, the running-in of the machine before delivery and for the creation of machine programs. If additional work is required for setting work or commissioning with flat-rate agreements, which can be attributed to non-existing original products and foils, the calculation is based on the valid assembly kits.
5.3 The customer must provide sufficient product and specialist personnel for continuous industrial operation for commissioning, acceptance and personnel training.
5.4 Waiting times or additional work due to the end of the shift at the customer are calculated separately. The customer is obliged to spend the system at your installation site and to ensure the energy supply (e.g. electricity, compressed air). If, by way of exception, our assembly personnel are commissioned to transport the machine in the factory, this is at the risk of the customer. We are only liable for damage caused by this transport if the installer acted with intent or gross negligence.
5.5 In the event of machine overhaul or repair, the machine must be cleaned and easily accessible. The customer must ensure this in good time before the agreed date.
5.6 The customer must ensure in advance that the machine delivered is connected to the house connection. It is expressly pointed out that otherwise there may be problems with the RCCB.
6.2 When purchasing a shipment, the customer bears the transport costs ex works and the costs of any transport insurance the customer may require. The customer bears any customs duties, fees, taxes and other public charges.
6.3 The purchase price is due and payable within 7 days of invoicing and delivery or acceptance of the goods. However, even in the context of an ongoing business relationship, we are entitled at any time to make a delivery in whole or in part only against prepayment. We declare a corresponding reservation at the latest with the order confirmation.
6.4 The customer is in default once the above payment period has expired. Interest is payable on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to claim further damage caused by delay. Our entitlement to commercial maturity interest (§ 353 HGB) remains unaffected.
6.5 The customer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. If the delivery is defective, the customer's counter-rights remain unaffected.
6.6 If it becomes apparent after the conclusion of the contract (e.g. by requesting the opening of insolvency proceedings) that our claim to the purchase price is endangered by the customer's inefficiency, we are entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In contracts for the manufacture of unacceptable items (custom-made items), we can immediately declare the withdrawal; the statutory regulations on the dispensability of setting deadlines remain unaffected.
7.2 The goods subject to retention of title may neither be pledged to third parties nor fully transferred as security before the secured claims have been paid in full. The customer must immediately notify us in writing if an application is made to open insolvency proceedings or if third parties (e.g. attachments) access the goods belonging to us.
7.3 If the customer behaves contrary to the contract, especially if the purchase price is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and / or to demand the goods based on the retention of title. The request for surrender does not include the declaration of withdrawal; we are rather entitled to only demand the goods and reserve the right to withdraw. If the customer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the customer a reasonable deadline for payment or such a deadline can be dispensed with in accordance with the statutory provisions.
7.4 Until revoked in accordance with c) below, the customer is authorized to resell and / or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
a) The retention of title extends to the full value of the products created by processing, mixing or combining our goods, whereby we are the manufacturer. If the right of ownership remains in the course of processing, mixing or combining with third-party goods, we acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
b) The customer hereby assigns the claims against third parties resulting from the resale of the goods or the product to us as a whole or in the amount of our possible co-ownership share in accordance with the preceding paragraph for security. We accept the assignment. The obligations of the customer mentioned in paragraph 2 also apply to the assigned claims.
c) In addition to us, the customer remains authorized to collect the claim. We undertake not to collect the claim as long as the customer meets his payment obligations to us, there is no defect in his performance and we do not exercise the retention of title by exercising a right pursuant to Enforce clause 7.3. However, if this is the case, we can request that the customer inform us of the assigned claims and their debtors, provide all the information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the customer's authority to resell and process the goods subject to retention of title.
d) If the realizable value of the collateral exceeds our claims by more than 10%, we will release collateral of our choice at the customer's request.
8.2 The basis of our liability for defects is above all the agreement made on the quality of the goods. All product descriptions and manufacturer information which are the subject of the individual contract or which we have made public (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract are deemed to be an agreement on the quality of the goods.
8.3 If the condition has not been agreed, it is to be judged according to the legal regulation whether there is a defect or not (§ 434 Abs. 1 S. 2 and 3 BGB). However, we do not accept any liability for public statements by the manufacturer or other third parties (e.g. advertising statements) that the customer did not indicate to us as decisive for the purchase.
8.4 The customer's claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other processing, an examination must always be carried out immediately before processing. If there is a defect in the delivery, the inspection or at any later point in time, we must be notified immediately in writing. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects that cannot be detected during the inspection within the same period of time from discovery. If the customer fails to properly inspect and / or report defects, our liability for defects that are not reported, or not reported on time or incorrectly, is excluded in accordance with the statutory provisions.
8.5 If the delivered item is defective, we can first choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the legal requirements remains unaffected.
8.6 We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to withhold a reasonable part of the purchase price in relation to the defect.
8.7 The customer has to give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install it.
8.8 We bear or reimburse the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs, as well as any expansion and installation costs, in accordance with the legal regulations, if there is actually a defect. Otherwise, we can demand reimbursement from the customer of the costs arising from the unjustified request to remedy the defect (in particular inspection and transport costs), unless the customer was not aware of the deficiency.
8.9 In urgent cases, e.g. in the event that operational safety is endangered or to prevent disproportionate damage, the customer has the right to remedy the defect himself and to request compensation from us for the expenses that are objectively necessary for this. We are to be informed immediately, if possible in advance, of such a self-undertaking. The right of self-exemption does not exist if we were entitled to refuse a corresponding supplementary performance according to the legal regulations.
8.10 If the supplementary performance has failed or a reasonable period of time to be set by the customer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
8.11 Claims by the customer for damages or reimbursement of futile expenses, even in the event of defects, only exist in accordance with Section 8 and are otherwise excluded.
8.12 We are not liable for damage caused by • Corrosion, chemical, electrochemical or electrical influence on the parts, • contamination of the transport route, • Improper and excessive use, operating errors or misuse by the contractor
8.13 We exclude liability for natural wear and tear (especially wear parts), liability for damage caused by the fact that the customer does not replace the wear parts when worn and liability for damage to electronic components caused by external influences.
8.14 We make it clear that there may be significant deviations from the packaging of a standardized product when packaging non-standardized natural products, e.g. Wrinkles in the seam. These deviations are not defects.
8.15 If the customer or a third party repairs improperly, we are not liable for the resulting consequences. The same applies to changes to the delivery item made without our prior consent.
9.2 Use of the software on more than one system is prohibited. The customer may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. Copyright Act). The customer undertakes not to remove manufacturer information - particularly copyright notices - or to change it without our prior express consent. All other rights to the software and the documentation, including copies, remain with us or with the software supplier. Sublicensing is not permitted.
10.2 We are liable for damages - regardless of the legal reason - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we are only liable, subject to statutory liability restrictions (e.g. care in our own affairs; insignificant breach of duty)
a) for damage from injury to life, limb or health,
b) for damages from the violation of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly trusts and may rely); in this case our liability is limited to the replacement of the foreseeable, typically occurring damage.
10.3 The limitations of liability resulting from section 10.2 also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to legal regulations. They do not apply if we maliciously concealed a defect or have assumed a guarantee for the quality of the goods and for claims by the customer under the Product Liability Act.
10.4 Due to a breach of duty that is not a defect, the customer can only withdraw or cancel if we are responsible for the breach of duty. A free termination right of the customer (in particular according to §§ 650, 648 BGB) is excluded. In addition, the legal requirements and legal consequences apply.
11.2 However, if the goods are a building or a thing that has been used for a building in accordance with its normal use and has caused its deficiency (building material), the statute of limitations is 5 years from delivery in accordance with the statutory provisions (§ 438 para. 1 No. 2 BGB). Other statutory special regulations on the statute of limitations remain unaffected (in particular § 438 Paragraph 1 No. 1, Paragraph 3, §§ 444, 445b BGB).
11.3 The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the customer based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer in accordance with § 8 Paragraph 2 Clause 1 and Clause 2 (a) as well as under the Product Liability Act are subject to the statute of limitations only after the statutory limitation periods.
12.2 If the customer is a merchant i.S.d. Commercial law, legal entity under public law or a special fund under public law is the exclusive - also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship - our place of business in Reiskirchen. The same applies if the customer is an entrepreneur i.S.v. § 14 BGB is. In all cases, however, we are also entitled to file suit at the place of fulfillment of the delivery obligation in accordance with these terms and conditions or a priority individual agreement or at the general place of jurisdiction of the customer. Priority statutory regulations, in particular regarding exclusive responsibilities, remain unaffected.