General Terms and Conditions of Sale
(Status: January 2020)
1.1 All deliveries, services and offers made by CONTAINERWERK eins GmbH, Forster
Weg 40, 41849 Wassenberg (referred to as Seller hereafter) shall be exclusively governed by these General Terms and Conditions of Sale. They form an integral part of all contracts that the Seller concludes with its contractual partners (referred to as Customer hereafter) for deliveries or services it offers. They shall also apply to all future deliveries, services or offers to the Customer even when not specifically agreed upon again.
1.2 The terms and conditions of the Customer or third parties shall not apply, even when the Seller does not expressly object to their validity in each individual case. Furthermore, reference by the Seller to written correspondence containing or referring to the terms and conditions of the Customer or a third party shall not constitute any agreement to the validity of such terms and conditions.
2. Conclusion and content of the contract of sale
2.1 All of the Seller’s offers are subject to change and without obligation unless they have been explicitly identified as being binding or include a specific period of acceptance. Binding offers shall only be submitted by the Seller, subject to otherwise more explicit declarations, in connection with the conclusion of a written contract of sale. The contract shall come into being upon the signing of the contract of sale by the Seller and the Customer.
2.2 The sole authoritative document for the legal relations between the Seller and the Customer shall be the written contract of sale, including these terms and conditions, and other annexes of the written contract of sale. This reflects all agreements on the contract’s subject matter between the contracting parties in full. Verbal guarantees by the Seller before the conclusion of the contract of sale are not legally binding and verbal agreements by the contracting parties shall be replaced by the written contract.
2.3 Supplements and amendments to the agreements reached, including these terms and conditions, are to be made in writing for purposes of proof. Electronic transmission, particularly email, shall be sufficient if a copy of the signed statement is to be submitted. With the exception of company executives and authorised signatories, employees of the Seller are not entitled to reach any verbal agreements differing from the written agreements.
2.4 Details from the Seller on the subject matter of the delivery or service (e.g. technical data, dimensions, consumption values, etc.) as well as visual representations of such (e.g. drawing and illustrations) are only approximations, unless their use for the contractually stipulated purpose requires exact conformity. Normal trade tolerances resulting from legal requirements or represent technical or structural improvements, as well as the replacement of components with parts of equal value, are permissible to the extent that there is no adverse effect to the use for the contractually stipulated purpose.
2.5 The Seller shall retain the ownership or copyright of all offers and cost estimates issued by the Seller as well as the drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources made available to the Customer. The Customer is forbidden to make these items or their contents available to third parties, to publish them, to use or reproduce them, or allow third parties to use or reproduce them,
without the express consent of the Seller. Upon the Seller’s request, these items are to be returned in full to the Seller, or any copies made are to be destroyed by the Customer when these are no longer needed for normal business activities or when negotiations fall short of a contract of sale being concluded. An exception to this is the storage of electronically provided data for normal data backup purposes.
2.6 Unless otherwise explicitly agreed, other support, planning and advisory services by the Seller are not subject to the contract of sale. Also not covered is the preparation of connections that may be required for the object of purchase’s use. In particular, it remains the responsibility of the Customer to obtain and secure the public-service permits that may be required for use.
3. Delivery and transfer of risk
3.1 The delivery of the purchased object takes place at the Seller’s premises EXW (Forster Weg 40, 41849 Wassenberg), Incoterms 2010. Delivery periods and delivery dates refer to the supply from the Seller’s works. The risk of accidental loss or the deterioration of the object of purchase is transferred to the Customer upon collection. If the Customer fails to collect the object of purchase within 14 working days of the Seller informing the Customer of the object of purchase’s readiness for collection, the Customer is in default of acceptance and shall bear the additional expenses that arise from the storage and maintenance of the object of purchase.
3.2 Upon collection of the object of purchase, a handover certificate is to be prepared in which the parties document in particular the condition and possible faults of the object of purchase. The handover certificate is to be signed by both parties with each party receiving a copy of it. If the Customer is not present at the collection of the object of purchase, the Seller will prepare a handover certificate and forward a copy to the Customer. If there is no objection from the Customer to the handover certificate within three working days, the handover certificate shall be considered approved.
3.3 If the collection of the object of purchase is delayed, particularly due to the building site being unready for its delivery by the Customer or for its installation, the Customer is to inform the Seller of this in writing as early as possible. In this case, the risk shall be transferred to the Customer on the last day on which the object of purchase should have been collected according to the contractual agreement. From this day, the Customer shall be in default of acceptance and shall bear the additional expenses that arise from the storage and maintenance of the object of purchase.
3.4 If the Customer requests the shipment of the object of purchase without specifying a means of transportation, the choice of transportation is chosen by the Seller while observing the interests of the Customer. In this case, the place of delivery is the Seller’s works. The risk for the object of purchase’s delivery shall be transferred at the latest upon the provision of the goods at the Seller’s premises according to the EXW conditions of the Incoterms 2010. The Seller has no obligation to the Customer to take out transportation insurance.
3.5 When in default of acceptance, all possible storage costs shall be the responsibility of the Customer. The Seller’s storage rate is 1.5% of the purchase price of the object of purchase per week. The rights of enforcement and substantiating additional expenditure are reserved.
3.6 The Seller has the right to partial deliveries, provided that this is acceptable to the Customer, that the delivery of the remaining objects of purchase are guaranteed, and that
the Customer incurs no additional costs as a result (unless the Seller expresses its willingness to absorb these costs).
3.7 The Seller shall not be liable for delivery that are not possible or delays in delivery resulting from force majeure or other events which were unforeseeable at the time of the conclusion of the contract. These are, for instance, fire damage, flooding, strikes and lawful lock-outs as well as breakdowns and official decrees for which the Seller is faultless. Supply problems and other service disruptions on the part of a sub-supplier of the Seller shall only be considered force majeure when the sub-supplier on its part is prevented from performing the contracted service due to an occurrence in accordance with sentence 2 above. In this case, the delivery and performance dates shall be extended by the duration of the obstruction in addition to a reasonable start-up period. If the obstruction is likely to be permanent, making the delivery impossible or unreasonable for the Seller, the Seller shall have the right to withdraw or partially withdraw from the contract. If as a result of the delay the Customer cannot reasonably be expected to accept the delivery, the Customer may withdraw from the contract of sale by sending the Seller immediate written notification.
4. Prices and payment
4.1 The prices apply to the scope of goods and services stated in the order confirmation. Additional or special services shall be charged separately.
4.2 All prices are quoted in euros and are subject to VAT.
4.3 The Seller shall be entitled to perform or fulfil services that are still pending exclusively against prepayment or a security deposit if, after the conclusion of the contract, circumstances become known to the Seller that considerably reduce the creditworthiness of the Customer and which jeopardise the Customer’s ability to pay the Seller’s outstanding claims arising from the existing contractual relationship (including separate orders valid under the same framework contract).
4.4 The offsetting of counterclaims or the retention of payments based on such claims shall only be permitted if the counterclaims are undisputed or have been established in law.
5. Termination / cancellation by the client
5.1 If the contractor cancels or terminates the contract, the seller can demand the agreed order amount, but must allow for what it saves in costs as a result of the termination of the contract or which it has acquired through other use of its labor or its business or has neglected to acquire maliciously.
5.2 Instead of substantiating this claim in detail, the seller can demand a flat fee of 5% of the order amount.
6. Retention of title
6.1 The object of purchase including all of its components and accessories shall remain the property of the Seller until the purchase price has been paid in full.
6.2 In the event of third parties taking possession of the object of purchase including all of its components and accessories or of the seizure of the plot of land on which the object of purchase stands, the Customer shall inform the third party of the Seller’s ownership and notify the Seller without delay.
7. Rights regarding defects
7.1 The Customer shall be entitled to the legal rights regarding defects subject to the following regulations. The Seller shall have the right to choose between repair and new delivery. The condition of the object of purchase does not cover its compliance with non-EU regulations in regard to the Customer’s designated purpose of use. Guarantees concerning the condition, utilisation or durability of the object of purchase must be expressly identified as such in the contract of sale, otherwise no guarantees shall be provided by the Seller.
7.2 Claims for compensation shall be excluded irrespective of their legal grounds. The Seller shall only be liable for damages in cases of wilful intent, gross negligence, culpable injury to life, body or health, in the case of defects maliciously concealed by the Seller, defects within the scope of a guarantee promise or the acceptance of a procurement risk, in cases of delay if a fixed delivery date was arranged, and in the event of liability according to the product liability law. In the event of a culpable breach of fundamental contractual obligations (without the fulfilment of which due performance of the contract would not be possible in the first place and on whose observation the customer can regularly count), the Seller shall also be liable to minor violations of negligence but in such cases limited to reasonable, foreseeable damage that is typical of the contract. The limitation of liability shall equally apply to claims for the reimbursement of expenses in accordance with section 284 of the German Civil Code (BGB).
8. Final provisions
8.1 The business relations between the Seller and the Customer shall be subject to German Law excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
8.2 The place of jurisdiction for all disputes arising from or in connection with the business relations between the Seller and the Customer is at the discretion of the Seller Aachen or the location of the Customer; for claims by the Customer exclusively Aachen. Statutory provisions on exclusive jurisdictions shall remain unaffected.
8.3 Should one or more of these General Terms and Conditions be or become ineffective in whole or in part, or contain a loophole, the validity of the remaining regulations shall remain unaffected. Legally effective regulations that are in keeping with the economic purpose of the contract and these General Terms and Conditions of Sale shall be used to close any loopholes that would have been agreed upon by the contracting parties had they recognised the loophole in the first instance.