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General Terms & Conditions

§ 1 Scope
These General Conditions of Sale apply exclusively to entrepreneurs as defined by Paragraph § 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law as defined by Paragraph § 310 Section 1 of the German Civil Code (BGB).
We shall only accept terms and conditions of The Purchaser that conflict with and/or deviate from our General Conditions of Sale if we expressly agree to their validity in writing.
These General Conditions of Sale also apply to all future transactions with The Purchaser, as far as related legal transactions are concerned.
§ 2 Offer and conclusion of contract
If an order is regarded as an offer in accordance with Paragraph § 145 of the German Civil Code (BGB), we can accept this by sending the written order confirmation. Inquiries, sales offers etc. on our part are not binding, as long as they are not expressly designated as binding.
The content of our written order confirmation and these General Conditions of Sale is decisive for the content of the contractual obligations assumed.
Our employees are not authorized to make oral promises that go beyond the written agreement or that deviate from it.
§ 3 Prices and payment
1. Unless otherwise agreed in writing, our prices are ex works plus VAT of the appropriate statutory amount.
Costs of packaging, delivery and shipping are not included in our prices and will be invoiced separately. Installation costs, commissioning costs and costs of instruction/training of the operating personnel will be charged according to expenditure and invoiced separately.

2. The unloading of the machine and the provision of the necessary tools and personnel is the responsibility of The Purchaser.
If assistance is provided during unloading by our personnel, no liability is thereby established.

3. Payments must be made exclusively to one of the accounts stated in the order confirmation/invoice. The deduction of any cash discount is only permitted with a written special agreement.

4. The due date for the purchase price shall depend on the payment agreement made with the order confirmation.
We are not obliged to send the goods until receipt of the payment on an agreed upon delivery bill after notification of readiness for dispatch.
Default interest shall be charged at the rate of 9% above the corresponding base interest rate p.a. plus a flat rate of € 40.00.
The right to assertion of a higher damage caused by delay remains reserved.
Unless a fixed price agreement has been made, reasonable price changes due to changes in labour, material and distribution costs for deliveries to be made four months or more after conclusion of the contract remain reserved.
§ 4 Delivery
1. Insofar as no expressly binding delivery date has been agreed, our delivery dates or delivery periods are exclusively non-binding information.
The beginning of the delivery period specified by us requires the timely and proper fulfilment of the obligation of The Purchaser.
We reserve the right to plead non-performance of the contract.
If The Purchaser is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses.

Further claims remain reserved.
If the above prerequisites are met, the risk of accidental loss and accidental deterioration of the purchased item shall pass to The Purchaser at the time at which The Purchaser is in default of acceptance or payment.

2. The Purchaser can ask us in writing to deliver within a reasonable period three weeks after exceeding a non-binding delivery date/delivery period.
Should we culpably fail to comply with an expressly defined delivery date/delivery period, The Purchaser must set us a reasonable grace period to effect the service, this also applies for other reasons of possible default.
If we let this grace period pass without result, The Purchaser shall be entitled to withdraw from the purchase contract.
In the event of a delay in delivery not caused intentionally by us or as a result of our gross negligence, we shall be liable in the form of flat-rate compensation of a maximum of 10% of the delivery value. 3. If The Purchaser is in default of payment with the payment of an agreed invoice after confirmation of the order, or in default of acceptance with acceptance of the subject of the contract, we can demand fulfilment of the contract or withdraw from the contract after expiration of a reasonable grace period. In the event of such a contract withdrawal, we are entitled to claim damages in the amount of 15% of the net order value, unless The Purchaser proves that the damage was not incurred or was incurred only to a lesser extent.
Our right to demand higher compensation for damages upon production of evidence remains unaffected by this.
§ 5 Right of retention/offsetting right
The Purchaser is only authorized to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
The Purchaser is entitled to offset only if their claim has been legally established or is undisputed.
§ 6 Provided documents
We reserve the right of ownership and copyrights to all documents provided to The Purchaser in connection with placing the order, such as costing, drawing, etc.
T hese documents must not be made accessible to third parties, unless we give The Purchaser our express written consent.
§ 7 Transfer of risk upon dispatch
If the goods are dispatched to The Purchaser at the request of The Purchaser, the risk of accidental loss and accidental deterioration of the goods shall pass to The Purchaser upon dispatch to The Purchaser, at the latest when leaving the factory/warehouse. This applies regardless of whether the goods are shipped from the place of performance or whether we bear the freight costs.
§ 8 Retention of title
1. We reserve the ownership of the delivered goods until complete payment of all claims from the delivery contract.
This also applies to all future deliveries, even if we do not always expressly refer to them. We are entitled to take back the purchased goods if The Purchaser behaves contrary to the contract.

2. The Purchaser is obliged, as long as the property has not been transferred to them, to treat the purchased goods with care. The Purchaser is not entitled to resell the reserved goods until the payment of the full purchase price.
The Purchaser is obliged to insure the goods against theft, fire and water damage at their own expense sufficiently to the replacement value.
If maintenance and inspection work has to be carried out, The Purchaser has to carry it out on time at their own expense.
As long as the ownership has not been transferred, The Purchaser must notify us immediately in written form if the delivered item is seized or subjected to other interventions by third parties.

If the third party is not able to refund us the judicial and extrajudicial costs of an action in accordance with Paragraph § 771 of the German Code of Civil Procedure (ZPO), The Purchaser shall be liable for the loss incurred by us.

3. If the purchased item is processed and rebuilt or remodelled by The Purchaser, this is always done on behalf of us. In this case, the right of expectancy of The Purchaser to the purchased item continues with the remodelled item.
If the purchased item is processed with other items not belonging to us, we shall acquire the co-ownership of the new item in proportion to the objective value of our purchased item to the other processed items at the time of processing.
§ 9 Warranty and notice of defects
1. Insofar as the information contained in our brochures, advertisements and other offer documents has not been expressly designated by us as binding, the illustrations or drawings contained therein are only approximately authoritative.
Insofar as the delivered item does not possess the quality agreed upon between The Purchaser and us and if despite all due diligence, the delivered goods demonstrate a defect that existed at the time of transfer of risk, we will repair the goods or replace them at our discretion, subject to the defects being reported in good time. We shall always have the opportunity to provide subsequent rectification within a reasonable time.
If the repair fails, we must always be allowed at least two further attempts at rectification.
If the subsequent rectification fails altogether, The Purchaser may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
Claims of The Purchaser for the expenses required for the purpose of subsequent rectification, in particular transport, travel, labour and material costs are excluded, insofar as the expenses have increased because the goods delivered by us have subsequently been moved to another location as The Purchaser's place of business, unless the shipment complies with its intended use.
Claims for defects shall not exist in the event of negligible deviation from the agreed condition, negligible impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of faulty or negligent handling, excessive use, the use of unsuitable operating equipment or as a result of special external influences which were not specified in the contract.
If The Purchaser or a third party carries out improper repairs or changes, there shall be no claims for defects for these and the resulting consequences.

2. Claims for defects become statute-barred twelve months after delivery of the goods delivered by us to The Purchaser if the goods are new. Claims for defects for used goods are excluded.
For damage claims in the event of intent and gross negligence as well as injury to life, body and health which are based on a wilful or negligent breach of duty of the user, the statutory limitation period shall apply.

3. Warranty rights of The Purchaser presuppose that The Purchaser has complied in due time and correctly with their duties of inspection and complaint as well as notification obligations regulated by Paragraph § 377 of the German Commercial Code (HGB).
§ 10 Choice of law/place of performance/jurisdiction
1. This contract and the entire legal relationship between the parties is subject to the formal and substantive law of the Federal Republic of Germany, excluding the applicability of CISG (UN Sale of Goods Convention) and the ROME I and II Regulations.

2. Unless otherwise agreed and in the event that The Purchaser is a merchant as defined by the German Commercial Code (HGB), the place of performance of the mutually accepted contractual obligations is our place of business.

3. If The Purchaser is a merchant as defined by the German Commercial Code (HGB), the exclusive place of jurisdiction for all disputes arising from the contractual relationship is our place of business; the District Court of Wittlich and German State Court (Landgericht) of Trier. However, we are entitled to sue The Purchaser at their general place of jurisdiction.
§ 11 Severability clause
Should individual provisions of this contract be or become ineffective or contain a gap, the remaining provisions shall remain unaffected by this.
CLEMENS GMBH & CO. KG - FEBRUARY 2019

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