General terms and conditions and terms of delivery and payment for business relations with Nivell GmbH, DE-72351 Geislingen (GTC Nivell)
1.1 These GTC Nivell regulate business relations between us and our customers and determine delivery and payment terms. They apply to all contractual partners in all legal forms, except consumers as defined in Section 13 of the German Civil Code (§ 13 BGB).
1.2 These GTC Nivell apply to all legal relations and legal transactions between us and our customers for current and future transactions without the need to expressly agree upon the GTC Nivell again.
1.3 Purchasing or other business terms and conditions of our customers shall not become a contractual part of any current legal transaction or future legal transaction, even if we do not expressly object to these in general or in individual cases. The GTC Nivell also apply if we realise an order without an express reservation in the knowledge of the opposing conditions of the customer.
2. Offer and conclusion of contract
2.1 Our offers in any form are non-binding and entail no obligation. A contract in an individual case only comes about through our order confirmation.
2.2 In the case of a written order confirmation, this shall be decisive for the content of the contract. Additional agreements, in particular the assurance of certain characteristics, require the written form. This also applies to subsequent contract amendments.
2.3 The information on our services and products (product information) listed in catalogues, price lists, brochures, on our website or in other media is non-binding and entails no obligation. We reserve the right to make technical modifications. Normal commercial deviations of goods in terms of quality, dimensional accuracy and the colour tone are reserved.
3. Prices and terms of payment
3.1 Our prices are valid as of the place of performance in Geislingen. Packaging, freight costs, transport insurance and other shipping costs and any customs duties shall be borne by the customer.
3.2 Our prices do not include statutory value-added tax (VAT). This is calculated additionally at the statutory value-added tax rate applicable on the reference date.
3.3 Unless otherwise agreed, charges for our service shall be payable immediately upon receipt of invoice by the customer without deduction.
3.4 We are entitled to demand advance payment in the event of the creditworthiness of the customer being unknown or doubtful or in the case of a delay in payment for previous deliveries.
4. Delivery times / delivery deadlines
4.1 Delivery times and performance times are non-binding unless they have been expressly confirmed in writing as "binding" in the order confirmation or agreed in the individual contract.
4.2 Binding delivery times and delivery deadlines are only fixed dates as defined in Section 286 sub-section 2 of the German Civil Code (§ 286 Abs.BGB) or Section 376 of the German Commercial Code (§ 376 HGB) if the delivery deadline is expressly confirmed by us as a fixed date.
4.3 In the event of a delay in delivery, the customer must grant us a reasonable period of grace, unless a fixed transaction has been agreed. We are entitled to realise partial deliveries and partial services at any time, provided this is reasonable for the customer.
4.4 In the event of a delay in delivery for which we are responsible resulting from a culpable breach of a significant contractual obligation and whereby culpability is attributable to our representatives or vicarious agents, we shall be liable in accordance with statutory provisions, provided that liability for damages in this case is limited to foreseeable, typically occurring damage. Any further claims are excluded, unless wilful intent can be ascribed to us.
5. Shipping and risk transfer
5.1 We ship the goods to the place of delivery specified by the customer using a transport company of our choice, provided no special method of shipping has been agreed.
5.2 The risk of accidental loss passes to the customer upon handover of the goods by us to the transport company.
5.3 We do not take back transport and other packaging. The customer must dispose of the packaging at his own expense.
5.4 Transport insurance is only concluded at the customer's request for his account.
5.5 The customer is obliged to examine the delivered goods immediately for transport damage and, should damage be detected, to claim for it against the transport company and to inform us.
6 Reservation of title
6.1 Our goods remain our property until all of the goods delivered by us so far have been paid for in full.
6.2 The customer is entitled to sell and/or use the reserved goods in the ordinary course of business, provided he is not in default of payment or has not ceased his payment in general or filed an application for insolvency. In the event of processing or reworking, we shall be deemed the manufacturer pursuant to Section 950 of the German Civil Code (§ 950 BGB). In the case of combination of the reserved goods with items of the customer or third parties, we acquire co-ownership pursuant to Section 947 of the German Civil Code (§ 947 BGB).
6.3 In the event of actual or legal seizure of our reserved goods by a third party, our property shall be indicated to the third party and we are to be informed immediately.
6.4 If the reserved goods are sold by the customer, he shall assign the payment claims against the buyer to which he is entitled from the sale and all securities to us until our claims are repaid. We shall accept the assignment. We shall disclose the assignment and collect the claim if the customer is in default of payment. The customer is obliged to provide us with all information necessary to assert our rights.
6.5 We shall release the securities to which we are entitled insofar as the realisable value of our securities exceeds the claim to be secured by more than 25%. The choice of securities to be released shall be at our own discretion.
7 Warranty and liability (limitation of liability)
7.1 The delivered goods must be inspected immediately upon receipt pursuant to Section 377 of the German Commercial Code (§ 377 HGB) and identifiable defects must be reported in writing.
7.2 We assume the statutory warranty for defects for goods delivered by us. Insofar as we provide a guarantee for quality or durability through an individual agreement, the provisions shall take precedence without prejudice to the minimum requirements according to the law.
7.3 In the event of a deficiency of the goods existing which is our responsibility, we are, given a temporary exclusion of the buyer's rights to withdraw from the contract or to reduce the purchase price, entitled to supplementary performance through repair/improvement or replacement delivery within a reasonable period. In the event of correction of deficiencies, we shall bear the necessary expenses, provided they do not increase because the object of the contract is located in a place other than the delivery location. If supplementary performance has failed, the customer has the legal right to reduce the purchase price (reduction) or withdraw from the contract. Repair/improvement is regarded as having failed on the second unsuccessful attempt. If a test period is required to determine the suitability of supplementary performance, then it is necessary to wait for the said period to expire.
Should the customer assert claims for defects, then we are entitled to inspect and examine the goods which are the subject of complaint on site. The customer must give us sufficient opportunity to realise this.
The limitation period for asserting claims due to material defects is 3 months as of receipt of the delivery by the buyer.
7.4 Liability for defects shall be excluded insofar as the defect is caused by a circumstance which lies within the sphere of use or danger of the customer and this circumstance is outside our sphere of influence or the use intended and usually to be expected for our products. Our products are designed for the application areas specified in our product information.
The use of our products for purposes which are not specified in our general or special product information or for which no adequate testing has been conducted must be agreed with us prior to order placement.
7.5 When it comes to the use of our products, we presuppose a certain degree of expertise on the part of our customers. If this is not the case, we must be informed for the purpose of providing further clarification.
7.6 Our instructions for use and technical applications must be strictly adhered to in order to prevent damage and defects. In the event of non-observance, claims for damages, warranty rights and warranty claims are excluded if the damage or defect could not also have occurred during correct handling.
7.7 We bear unrestricted liability in accordance with statutory provisions for any damage to life, body and health which are the result of a grossly negligent or intentional violation of general obligations by us, our legal representatives or vicarious agents, and also for damages encompassed in liability pursuant to the product liability law. For other damages resulting from an intentional or grossly negligent breach of contractual obligations on our part, we bear liability in accordance with statutory provisions. In this case, however, liability for damages shall be limited to foreseeable, typically occurring damage, provided no intentional cause exists on our part. In the case of damages resulting from the absence of the guaranteed quality or durability, but which do not occur directly on the delivered goods, we shall be liable only insofar as the risk of such damage is clearly covered by the quality and durability guarantee.
7.8 Of the costs incurred in remedying deficiencies, the contractor shall, insofar as the complaint proves to be justified, bear the costs of the replacement part, including shipping. In addition, the contractor shall also bear the costs of dismantling and installation and the costs of any necessary provision of the required installation personnel, including travel expenses, provided this does not result in a disproportionate burden on the contractor.
8 Place of performance, place of jurisdiction and applicable law
8.1 The place of performance and jurisdiction for deliveries and payments and for all disputes arising between us and the buyer from any legal relations with our customers is our place of business in Geislingen. However, we are also entitled to sue the buyer at the buyer's general place of jurisdiction.
8.2 The legal relationship between the contractual parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods and the Uniform Law on the Conclusion of Contracts for the International Sale of Goods is excluded.
Nivell GmbH / Status: 06/2015