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Terms and conditions
§ 1 Applicability of the terms and conditions
1. Our deliveries, services and offers are made exclusively on the basis of these Terms and Conditions. They also apply to all subsequent business relationships, even if they are not expressly agreed again. These Terms and Conditions shall be deemed accepted at the latest upon receipt of the goods or services.
2. We do not recognise any terms and conditions that conflict with or deviate from our Terms and Conditions unless we have expressly agreed to their validity in writing.
3. Our Terms and Conditions apply only to persons who enter into the contract in their capacity as entrepreneurs within the meaning of the German Standard Terms and Conditions Act, or who are legal entities under public law or special funds under public law.
§ 2 Offers and conclusion of contract
1. Our offers are generally subject to change and non-binding. As an exception, individually prepared written offers shall be deemed binding contractual offers for a period of two months; thereafter, they shall be non-binding. The order constitutes a binding contractual offer. The contract is concluded upon receipt of our order confirmation, but no later than upon acceptance of the goods by the customer.
2. Drawings, illustrations, dimensions, weights or other performance data shall only be binding if this has been expressly agreed in writing.
§ 3 Performance
1. We reserve the right to make insignificant deviations in form, design and dimensions resulting from technical or operational changes or improvements, provided that these do not affect warranted characteristics and are customary in the trade.
2. In the case of custom-made products, the ordered quantity may be under- or exceeded by up to 10% where such a deviation is customary in the trade.
3. Unless expressly stated otherwise, prices apply to the items as described, but not to contents, accessories or decoration.
4. The quantities, weights and dimensions determined by us shall be authoritative.d.
§ 4 Prices
1. Only the prices stated in our order confirmation shall apply, plus the applicable statutory VAT.
2. Unless otherwise agreed, prices do not include packaging, freight costs or assembly. For an order value of at least EUR 1,025.00, prices for standard shipping include packaging and delivery free of charge within mainland Germany. Costs for express delivery or other special shipping methods shall be borne by the recipient. Otherwise, deliveries are made ex works at the customer’s expense.
3. We reserve the right to increase prices if, after conclusion of the contract but before delivery, material prices, wages or our own purchase prices increase, or if other cost factors change to our disadvantage. This shall not apply during any period in which delivery is delayed for reasons for which we are responsible.
§ 5 Payment
1. Unless otherwise agreed, our invoices are due upon receipt and must be paid within 30 days. After the expiry of 30 days, we are entitled to charge the statutory default interest on our claims.
2. Invoices are issued on the date of delivery or partial delivery. If delivery of the goods or acceptance is delayed beyond the agreed date for reasons for which the customer is responsible, the invoice may be issued upon notification that the goods are ready for dispatch.
3. If the customer’s payment is received by us within 10 days of the invoice date, we grant a 2% cash discount. A cash discount may only be deducted if the customer is not in default with any other outstanding claims.
4. Unless otherwise specified by the customer, we shall apply payments first to the customer’s older debts. If costs and interest have already been incurred, we are entitled to apply the payment first to costs, then to interest and finally to the principal claim.
5. A payment shall only be deemed to have been made once we are able to dispose of the amount. In the case of cheques, payment shall only be deemed to have been made once the cheque amount has been credited to our account.
6. Where cheques or bills of exchange are accepted, they shall in all cases only be accepted on account of performance. Any interest and costs arising upon collection shall be borne by the customer and shall be due for payment immediately. We shall only be liable for late presentation or protest if the delay was caused by at least gross negligence on our part. The customer is responsible for informing us immediately before expiry of the presentation or protest period.
7. If the customer fails to meet their payment obligations, in particular if a cheque is not honoured or payments are suspended, or if other circumstances become known to us which call the customer’s creditworthiness into question, the entire remaining debt shall automatically become due, even if we have accepted cheques or bills of exchange on account of payment. In such cases, we are also entitled to demand advance payments or security. Our rights to demand security or advance payment on other legal grounds shall remain unaffected.
8. The customer may not offset counterclaims unless such counterclaims are undisputed or have been finally established by a court of law. The same applies to counterclaims that are ready for decision in legal proceedings without further taking of evidence.
9. Purchasers and users of quality-assured storage racks and racking systems undertake to grant representatives of the Materials Testing Office Dortmund access to the installation locations at any time and to permit an inspection of the quality. Any such inspection shall take place within the scope of the quality assurance scheme and shall be free of charge for the purchaser or user.
§ 6 Right of withdrawal in the event of insufficient creditworthiness
If facts become known to us which seriously call the customer’s creditworthiness into question to such an extent that our claim for payment appears to be at risk, we are entitled to withdraw from the order.
§ 7 Delivery
1. The dates and deadlines stated by us are non-binding unless otherwise expressly agreed in writing. Six weeks after an agreed non-binding delivery date or deadline has been exceeded, the customer may request in writing that we deliver within a reasonable additional period, stating that they will refuse acceptance after expiry of this period. If the additional period expires without delivery, the customer is entitled to withdraw from the contract by written declaration. § 7 para. 2 shall apply accordingly.
2. Compliance with a binding delivery period is subject to all documents, approvals and releases to be provided by the customer being received by us in good time and to payment and other obligations being fulfilled as agreed.
3. Delays in delivery or performance due to force majeure or events that significantly impede or render delivery impossible for us – including subsequently arising difficulties in procuring materials, operational disruptions, strikes, lockouts, staff shortages, lack of means of transport, official orders, etc., even where these occur at our suppliers or their subcontractors – shall not be our responsibility, even where binding deadlines and dates have been agreed, unless we are responsible for the impediment or were already in default with our performance. Such events entitle us to postpone delivery or performance for the duration of the impediment plus a reasonable start-up period, but for no longer than four months. If an impediment for which we are not responsible results in permanent impossibility of performance, we are entitled to withdraw wholly or partially from the contract with regard to the part not yet performed. Any advance payments made by the customer relating to the unfulfilled part shall be refunded.
4. We are entitled to make partial deliveries and provide partial services where this is reasonable for the customer. However, we are under no obligation to make partial deliveries or provide partial services.
5. Before accepting the goods from the carrier, the recipient must inspect the goods for externally visible signs of damage. If such signs are present, the shipment may only be accepted after the damage has been confirmed by the carrier on the consignment note or after a formal damage report has been requested.
6. If damage is subsequently discovered despite the goods appearing externally undamaged, the carrier must be notified immediately in writing upon discovery and requested to record the damage. This must take place no later than:
for rail shipments: within 7 days
for postal shipments: within 24 hours
for shipments by third-party lorry: within 7 days
Until inspection by a representative of the carrier, the shipment must remain unchanged.
7. The customer may not subsequently be released from their obligation to accept the goods, nor may ordered goods be returned without entitlement under warranty provisions, unless otherwise expressly agreed.
§ 8 Transfer of risk
1. Risk shall pass to the customer as soon as the shipment is handed over to the person carrying out the transport or has left our warehouse for dispatch, unless otherwise expressly agreed. If dispatch becomes impossible through no fault of our own, risk shall pass to the customer upon notification that the goods are ready for dispatch.
2. If the customer is in default of acceptance, risk shall pass to the customer upon notification that the goods are ready for dispatch.
3. If, in the case of custom-made products, the fully or partially completed work is damaged or destroyed before acceptance due to force majeure, war, civil unrest or other unavoidable circumstances for which we are not responsible, the completed work shall be invoiced at the contractual prices. In addition, the costs already incurred by us and included in the contractual prices for the uncompleted portion of the work shall be reimbursed. Neither party shall be liable to the other for any further damage.
§ 9 Retention of title
1. Until all claims arising from any legal basis against the customer have been satisfied, including all current account balance claims and identifiable future claims, the following securities shall be granted to us. At our discretion, we shall release such securities upon request where their value permanently exceeds the claims by more than 20%.
2. The goods shall remain our property. Processing or transformation shall always be carried out on our behalf as manufacturer, but without creating any obligation on our part. If our ownership or co-ownership expires through combination with other items, it is hereby agreed that ownership or co-ownership of the resulting unified item shall pass to us proportionately according to its value based on the invoice value. The customer shall hold our property or co-property free of charge. Goods in which we hold ownership or co-ownership are hereinafter referred to as goods subject to retention of title.
3. The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business as long as they are not in default. The right to resell or otherwise dispose of the goods shall only exist where the claim arising from such resale or disposal passes to the customer. The customer is not authorised to make any other dispositions concerning the goods subject to retention of title. Pledging or transfer of ownership by way of security is prohibited.
4. The customer hereby assigns to us in full, by way of security, all claims arising from the resale or any other legal basis relating to the goods subject to retention of title, including insurance claims, tort claims and all current account balance claims. We revocably authorise the customer to collect the claims assigned to us in their own name on our behalf. This authorisation to collect may be revoked if the customer fails to meet their payment obligations properly.
5. In the event of third-party access to the goods subject to retention of title, the customer shall point out our ownership and notify us immediately. Any costs and damages shall be borne by the customer.
6. In the event of conduct by the customer in breach of contract – in particular default in payment – we are entitled to take back the goods subject to retention of title or, where applicable, to demand assignment of the customer’s claims for surrender against third parties. Neither repossession nor seizure of the goods subject to retention of title by us shall constitute withdrawal from the contract.
§ 10 Warranty
1. We warrant that the products are free from manufacturing and material defects. The warranty period is 6 months. The following separate warranty provisions apply to racking systems and vertical carousel systems:
Material warranty for the housing: 5 years
Material warranty for electronics and electrical components: 6 months
Material warranty for mechanical components: 12 months
2. The warranty period begins upon delivery; in the case of a contract for the manufacture and supply of a non-fungible item, it begins upon acceptance.
3. If the customer is in default of acceptance, the warranty period shall begin upon notification that the goods are ready for dispatch.
4. In business transactions with our commercial customers, Section 377 et seq. of the German Commercial Code (HGB) shall apply.
5. If the products do not meet the warranty requirements, we are obliged to carry out rectification. At our discretion, we may require the customer to:
a. send the defective part or device to us for repair and subsequent return at our expense; or
b. keep the defective part or device available and allow one of our service technicians to visit the customer to carry out the repair.
If the customer requests warranty work to be carried out at a location other than the place of delivery, we may comply with this request. Parts covered by the warranty shall not be charged, while working time and travel costs shall be payable at our standard rates. The shipping costs saved shall be credited to the customer.
6. If rectification fails within a reasonable period, the customer may, at their discretion, demand a reduction in the price or, provided the contract does not relate to construction work, rescission of the contract.
7. Liability for normal wear and tear is excluded.
§ 11 Limitations of liability
1. Unless otherwise provided below, any further claims by the customer or the customer’s customers – irrespective of the legal grounds – are excluded. We shall therefore not be liable for damage that has not occurred to the delivered item itself; in particular, we shall not be liable for loss of profit or other financial losses suffered by the customer. The above limitation of liability shall not apply where the cause of the damage is based on intent or gross negligence. It shall also not apply where the customer asserts claims for damages for non-performance pursuant to Sections 463 and 480 para. 2 of the German Civil Code (BGB) due to the absence of a warranted characteristic.
2. Where we negligently breach a material contractual obligation, our liability for damages shall be limited to the foreseeable loss typical for the contract.
3. The warranty period of 6 months shall also apply to claims for compensation for consequential damage caused by defects, unless claims in tort are asserted.
4. Any further liability for damages beyond that set out above is excluded, irrespective of the legal nature of the claim asserted. This shall not, however, apply to claims under the German Product Liability Act or to cases of inability or impossibility of performance.
5. Where our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
§ 12 Technical copyrights and other intellectual property rights
All sketches, designs, drawings and technical advice are non-binding unless otherwise expressly confirmed by us in writing. We retain ownership and copyright in all documents relating to the offer, such as layouts, drawings, plans, etc. These documents may not be made accessible to third parties without our consent. At our request, and no later than upon termination of the contract, all documents must be returned to us.
Initial quotations are generally provided free of charge. Further quotations and design work shall only be carried out free of charge if a contract is concluded and remains legally effective.
§ 13 Place of performance and jurisdiction
Where the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of performance shall be Schillingsfürst and the place of jurisdiction shall be Ansbach.
The contract shall be governed by substantive German law, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, which shall not apply.
§ 14 Data protection
The customer agrees to the processing by us of their data insofar as this is necessary for the proper handling of the business relationship.
Version: May 2003, Dinzl Group of Companies, Schillingsfürst