General terms and conditions of business
I. General terms and conditions of business
1.1 Area of applicability
These general terms and conditions of business apply in the version valid at the time of conclusion of the contract to all business relationships between ourselves, G. Zwiehoff GmbH, Gießereistr. 8, 83022 Rosenheim and yourself. Should you use conflicting general terms and conditions of business, these are hereby being expressly objected to.
1.2 Conclusion of the contract
The contractual language shall be German. The display option on our website in various languages is merely for assistance purposes.
Customers as referred to in these general terms and conditions of business are solely entrepreneurs as stated in § 14 of the German Civil Code (BGB).
1.3 Conclusion of the contract
The contract shall be concluded individually by means of an offer and acceptance. Unless otherwise agreed, the usual process in which you submit an enquiry to us and then receive a binding offer from us which you can then accept within two weeks shall apply. The contract shall come into existence at the time of acceptance. The contract will not be saved by us separately, rather the content of the contract shall be determined individually in accordance with the agreement which has been concluded.
1.4 Right of use and copyright
We have the exclusive right of use and hold the copyright in relation to drawings, images, sketches, price lists, models, devices and other documents which were created by us and which have been provided to you by us. These may not be made accessible to third parties without our consent and must be immediately returned to us on request.
1.5 Your information
We always carry out your order in accordance with the information which you have provided and do not check this in relation to your respective request. Prior to the performance of the order, you must notify us of and provide us with any necessary information for your order (for example all relevant files and sketches) as without this, we cannot commence our service. We cannot be held responsible for delays which are due to failure to co-operate on your part. In such a case, we reserve the right to bring a claim in relation to the losses incurred by us due to the delay and the additional costs.
2.1 Partial deliveries
We are entitled to provide partial deliveries, provided that this is reasonable for you. However, in case of partial deliveries, you will not incur any additional shipping costs.
2.2 Delivery and performance delays
Delivery and performance delays due to force majeure and extraordinary events which are unforeseeable and which cannot be prevented by us despite the application of the highest degree of care and for which we are not responsible (including strikes, orders of the authorities or courts and cases of incorrect or improper self-supply despite a relevant covering transaction) shall entitle us to postpone the delivery by the duration of the event which has given rise to the hindrance.
2.3 Exclusion of deliver
Deliveries will not be made to PO Box addresses.
2.4 Acceptance default
Should you enter default in relation to the acceptance of the goods which have been ordered, then following the setting of a reasonable period of grace, we are entitled to rescind the contract and claim damages due to default or non-performance. During the period of acceptance default, you shall bear the risk of possible destruction or deterioration.
2.5 Performance time
As a rule, the delivery and performance times will be agreed with you individually and are contained in the offer. Compliance with these is subject to all commercial and technical queries between yourself and ourselves being clarified first and you having fulfilled all of your additional obligations, such as the provision of the necessary official certifications or permits or the making of a down payment. Should this not be the case, the performance and delivery times will be extended accordingly.
Please also bear in mind that our delivery times depend significantly on the delivery times of our partners and that longer delivery times may occur as a result. Of course we will always endeavour to provide you with your goods as quickly as possible.
Therefore unless expressly agreed with you otherwise, the delivery will be provided by us within 14 days. In case of advance payment, the delivery deadline will start to run on the day following the issuing of the payment mandate to the transferring bank and in case of payment on acceptance or purchase by invoice, on the day following conclusion of the contract. The deadline will end on the following 14th day. Should the deadline end on a Saturday, Sunday or a generally recognised state national holiday at the delivery location, the deadline will end on the next working day.
2.6 Storage costs
Should the shipping or delivery of the goods be delayed following a request by you or due to fault on your part, we reserve the right to charge you the costs incurred as a result (in particular storage costs).
2.7 Amendment and extension requests
Unless otherwise agreed or booked, amendment and extension requests will only be carried out if these are necessary in order to attain the contractual purpose. Following an express request by the customer, amendment and extension requests can however be carried out by means of the issuing of a separate engagement to us. This must then be paid for separately. The assessment of the feasibility of the amendment and extension requests must also be paid for.
3.1 Prices and shipping costs
All prices are ex-works, inclusive of loading at the factory, however exclusive of packaging and unloading. All prices are subject to value added tax.
Unless otherwise agreed, invoices are due for payment immediately and must be paid by transfer to our bank account within 10 days without any discount. Please bear in mind that any customs and import duties may be due on orders outside of the European Union. These must be paid by you and are not included in the price. Discounts can only be granted by prior agreement.
3.2 Payment default
You will enter default if the payment is not received by us within two weeks of receipt of the invoice. In case of payment default, interest will be charged to the sum of 9 percentage points above the base rate of interest of the European Central Bank. Should you enter default with your payments, we reserve the right to charge warning fees to the sum of 2.50 EUR. We reserve the right to bring damages claims which go beyond the above. You remain entitled to provide proof what we did not suffer a loss or that the loss incurred by us was less than the above.
3.3 Right of retention
You only have the right to claim a right of retention for such counterclaims which are due and which relate to the same legal relationship as your obligation.
The goods can be insured on your request against theft, breakage and transport, fire and water damage, as well as against other risks. This must be agreed individually and must be paid for separately. The warranty right and the regulations pertaining to liability shall be unaffected thereby.
You are solely responsible for the content and correctness of the data and information provided by you. You are also obliged not to transfer any data whose content breaches third party rights or infringes existing laws. By means of the transfer of data to us, you are confirming that you have complied with the provisions under copyright laws.
You shall release us from all claims which are brought against us by third parties due to such breaches. This also includes the costs of any necessary legal representation.
4.3 Data security
You are jointly responsible with us for securing the information which is sent. We cannot be held responsible for the loss of the data sent by you, as we do not assume any general data security guarantee.
4.4 Co-operation obligation
You are obliged to provide the necessary co-operation actions for the contract, so that we can perform the contractual service. In particular, you must obtain the necessary permits in advance.
4.5 Access to and requirements in relation to the performance location
Should we need to carry out work at your premises, or should this be included in the booked service, you must ensure that we are granted access to the respective premises or land or that we are provided with relevant keys. You are responsible for any delays caused by failure to co-operate.
You must always comply with the instructions /notices which are provided or which are notified by us in relation to the cleaning, storage or handling of the goods. Therefore, we cannot assume any responsibility for incorrect behaviour on your part. The instructions and training provided by us should therefore always be followed in an attentive manner.
You are obliged to treat secretly all business and operating secrets which are notified to you during the performance of the contract and/or of which you become aware and which are designated as confidential information.
Any advice concerning the functional capability and suitability of the goods for your intended purpose of use is only provided by us as a means of assistance and should not be considered to represent a guarantee. You yourself must ensure that you comprehensively inform yourself of the functional capability and suitability and obtain any third party information which may be required.
5 Reservation of ownership
The goods, works and materials delivered by us shall remain our property until complete fulfilment of all current and future claims under the business relationship. You hereby assign to us your claim and damages which you receive for the damage, destruction or loss of these items. Unless otherwise agreed below, you are not entitled to sell, give, pledge or provide as security the items which are delivered to you under reservation of ownership.
5.2 Attachments and other impairments
Should the item under reservation of ownership be attached or otherwise impaired by third parties, you must immediately inform us, so that a lawsuit can be brought under §771 of the German Code of Civil Procedure (ZPO). Should the third party not be in the position of being able to reimburse the court and out-of-court costs of a lawsuit in accordance with §771 of the German Code of Civil Procedure (ZPO), you will incur liability for the shortfall incurred by us.
You are entitled to resell the goods subject to reservation of ownership in the course of normal business dealings. You hereby now assign to us the claims of the consumer under the resale of the goods subject to reservation of ownership to the sum of the agreed final invoice amount (including value added tax). This assignment applies regardless of whether the object of purchase has been resold without or following processing. Also following the assignment, you remain authorised to collect the claim. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we will not collect the claim, provided that you comply with your payment obligations under the revenues generated, are not in payment default and, in particular, provided that no application for the opening of insolvency proceedings or a suspension of payments are present.
5.4 Alteration and processing
The processing or alteration of the object of purchase is always undertaken by you in our name and on our behalf. In such a case, your right of first refusal in relation to the object of purchase will continue in relation to the transformed item. Should the object of purchase be processed with other objects which do not belong to us, we will acquire co-ownership in relation to the new item according to the objective value of the object of purchase to the other processed items at the time of processing. The same applies in case of mixing. Should the mixing take place in such a way that your object is to be considered to be the principal item, it is agreed that you will assign co-ownership to us on a pro rata basis and will store the sole or co-ownership which is accrued in such a way for us. In order to secure the claims against you, you shall also assign to us such claims which you acquire against a third party due to the connection of the goods subject to reservation of ownership with land; we hereby accept the said assignment.
5.5 Retaking possession
In case of behaviour on your part which is in breach of contract, in particular in case of payment default but also in case of an application for insolvency proceedings against your assets, we are entitled to retake possession of the goods. In such a case, the retaking of possession of the goods does not represent any rescission of the contract, unless we expressly declare such in text form.
5.6 Release of securities
Should the value of the securities exceed the value of the secured claims by more than 15 percent, then following a request by you, we are obliged to release securities.
Statutory warranty rights exist. A warranty right can only exist in relation to the qualities of the goods. Reasonable deviations in relation to the aesthetic properties of the goods do not give rise to a warranty claim. In particular, technical and design-related deviations (for example colour, weight, measurement, design, scale, positioning etc) may arise in relation to the descriptions, images and statements in our offers, prospectuses, catalogues, on the website and in other documents, provided that such alterations are reasonable for you. Such reasonable reasons for alterations can relate to fluctuations and technical production processes which are customary in the trade. Should guarantees which go beyond the warranty claims be provided, the precise terms and conditions of these can be found with the product. Possible guarantees do not affect the warranty rights.
6.2 Warranty claim
In case of a defect, we will choose between providing supplementary performance in the form of defect correction or a replacement delivery. Thereby the risk of possible destruction or deterioration of the item will be transferred to you at the time of handover to the person carrying out the transportation. You must provide immediate notification of obvious defects and notification of hidden defects immediately following their discovery in text form. Otherwise, the bringing of the claim under the warranty will be excluded. The timely sending suffices in order to comply with the deadline. You bear the full burden of proof that all requirements for the claim are met, in particular for the defect itself, for the time of observing the defect and for the timeliness of the defect complaint.
6.3 Rights in case of minor defects
In case of the presence of a minor defect, you are only entitled to the right to reasonably reduce the purchase price, to the exclusion of the right of rescission.
6.4 Damages claims for defects
No liability can be assumed for losses which are due to improper treatment or use. Express reference is being made to the exclusion of liability below.
6.5 Limitation period
For second hand goods, all warranties are excluded. For new goods, the limitation period is one year. The right of recourse in accordance with § 478 of the German Civil Code (BGB) is excluded from the above. In express terms, the shortening of the limitation period does not exclude liability for losses due to injury to life, body or health or losses which are caused due to intent or gross negligence. The regulations of the German Product Liability Act (Produkthaftungsgesetz) shall also remain unaffected thereby.
6.6 Non-existence of the warranty right
No warranty claim shall exist in the following cases where the defect being asserted is due to:
- Unsuitable or improper use / placing of the goods
- Unilateral alterations
- Defective assembly and putting into operation by you or a third party
- Natural wear and tear of the goods
- Defective or negligent treatment of the goods (for example incorrect maintenance)
- Use of unsuitable operating equipment for the goods (for example use of unsuitable ground or construction materials for the goods)
- External consequences of environmental influences on the goods
- Improper storage of the goods
- Ageing of the goods connected to raw materials
- Chemical, electro-chemical or electrical influences on the goods for which we are not responsible
7 Use of software
7.1 Protection under copyright laws and right of use
Any software which is provided is protected under copyright laws. All rights derived under copyright laws are due exclusively to the rights owner. In particular, the copyright includes the complete program structure, the construction and images, as well as the design of the software. Any duplication, disclosure, alteration etc which changes the nature of the software is not allowed without express permission.
You will receive a non-exclusive right of use in relation to the software.
7.2 Limits to the right of use
The software is only being handed over for use of the intended object of delivery. Use of the software on multiple systems is prohibited.
Any copyright notices which are provided may also not be removed without our prior agreement.
7.3 Damages claims
We reserve the right to bring damages claims for any breaches of the contractual licence terms, in particular in case of copyright infringements.
Information concerning processing and application options in relation to the goods sold by us, as well as the technical advice and other details is provided in good faith and to the best of our knowledge. To this extent, the exclusion and reservation of liability under the following provisions applies. However, prior to placing an order, you must always ensure that you satisfy yourself and check that the goods being manufactured are suitable for your intended project.
8.2 Exclusion of liability
Ourselves and our vicarious agents only incur liability in case of intent. Only if essential contractual obligations (such obligations whose compliance is of significance for the attainment of the contractual purpose) are affected will we also incur liability in case of gross or simple negligence. Thereby the liability shall be limited to losses which are foreseeable and typical of the contract.
8.3 Reservation of liability
The exclusion of liability above does not include liability for losses connected to injury to life, body or health. The regulations of the German Product Liability Act (Produkthaftungsgesetz) shall also remain unaffected by the exclusion of liability above.
9 Closing provisions
9.1 Place of jurisdiction
Our place of business is hereby being agreed as the exclusive place of jurisdiction for all legal disputes under this contract, should you be a merchant, legal person under public law or a public law special fund or should you not have a place of jurisdiction in the Federal Republic of Germany.
9.2 Choice of law
Unless mandatory statutory provisions under the laws of your home country so prevent, German law shall be deemed agreed to the exclusion of the United Nations Convention governing the International Sale of Goods.
9.3 Severability clause
Should any individual provisions be ineffective, this shall not affect the validity of the remaining clauses of these general terms and conditions of business.
II. Information concerning the disposal of batteries
We are obliged to provide you with the following information in connection with the sale of batteries or the delivery of devices which contain batteries:
As an end user, you are legally obliged to return used batteries. You can return old batteries which we provide or have provided as new batteries in our range to our shipping warehouse (shipping address) free-of-charge. The symbols on the batteries have the following meaning:
The symbol of the crossed waste disposal unit means that the battery may not be thrown out with household rubbish.
Pb = battery contains more than 0.004 percent lead by weight
Cd = battery contains more than 0.002 percent cadmium by weight
Hg = battery contains more than 0,0005 percent mercury by weight
Please observe the information provided above.
III. Information concerning the German Electronic Devices Act (ElektroG)
We are not a manufacturer of electronic devices as defined in § 3 Paragraph 11 of the German Electronic Devices Act (ElektroG). However, as a seller of electronic devices, we provide an undertaking under the German Electronic Devices Act (ElektroG) to only bring such electronic devices onto the market whose manufacturers have registered with the Federal Environmental Office and the responsible body in accordance with § 6 Paragraph 2 Sentence 1 of the German Electronic Devices Act (ElektroG).