Terms and conditions InfraServ GmbH & Co. Wiesbaden KG
Sales and delivery terms
All current and future products and services provided to our contract partners (hereinafter referred to as "Customer") shall be governed exclusively by these General Terms and Conditions. Provisions that conflict with these Terms and Conditions, including especially the Customer's terms and conditions, shall not apply even if we do not specifically object to their application separately. Nor shall we be deemed to have accepted such terms and conditions if we make reference to any document that contains or makes reference to the Customer's or a third party's terms and conditions.
Some products or services are subject to special terms and conditions which may amend or modify these Terms and Conditions of Sale and Delivery. We point out that, depending on the service to be provided, supplemental terms & conditions regarding external services, assembly, construction or planning shall be applied in addition to these Terms and Conditions. Should you not be in possession of these provisions, we will submit them to you upon request.
2. OFFER AND CONCLUSION OF CONTRACT
Our offers are non-binding and are valid for a maximum of 30 days. On receipt of an order, we have 30 days to accept that order and enter into a contract. All contracts regarding delivery of products and services which fail to be in writing are only legally valid if confirmed by us via fax or letter. Unilateral contractual declarations regarding the contract, especially notices of termination, must be made in writing. Statements in writing may also be transmitted by fax.
Information regarding the subject-matter of the product or service (e.g. weights, measurements, values in use, loads, tolerances and technical data), as well as depictions thereof, shall be understood to be descriptions or identification marks of the product or service. They shall only impose a stricter standard of liability if we expressly agree to be legally bound by them in writing. Deviations are allowed to the extent that they do not adversely affect the relevant product or service's fitness for the contractual purpose and if they are customary in the trade or industry, are required under legal regulations, or represent technical improvements.
We reserve all rights in and to the offers and cost estimates that we provide, and all rights in and to the tools, auxiliary materials, samples, specimens, illustrations, descriptions, models, calculations, collections of data records (including those that originated with other orders) and any other documents supplied to the Customer by us or third parties. The Customer may not give third parties access to these items or any information contained, disclose them, copy them, or make use of them directly or through third parties without obtaining our consent. The Customer must return all such items and any copies thereof upon our request if he no longer needs them in the ordinary course of business or if the negotiations have not culminated in a contract.
German Civil Code (BGB) Section 312 e Paragraph 1 Sentence 1, Numbers 1 - 3 and Sentence 2 shall not apply to e-commerce contracts, unless the Customer is a consumer as defined by the German Civil Code (BGB).
3. BILLING, SET-OFF, LATE PAYMENT
Our prices only apply to the agreed-upon scope of supply and services. Additional and special work/services shall be charged separately.
Our invoices are immediately due net without any discounts, unless otherwise agreed upon. For weight calculations the weight at the moment of dispatch is valid.
If the contract parties (Customer and InfraServ) have agreed that the delivery of a product or service shall be executed later than four months after conclusion of contract, and if in the meantime
- our own suppliers increase their prices,
- costs incurred such as wages or freight have increased,
- higher or new charges or taxes are levied or
- we have increased our prices in general,
we may increase our price for this service/product accordingly, unless a fixed price was agreed upon. The Customer shall be notified of any price increase before the execution of the order and before we become entitled to any remuneration.
The Customer may only set off his claims against our claims or withhold payment if his counterclaim is undisputed or established as final and absolute. Without prejudice to our other rights, we are entitled to request advance payment on pending deliveries and immediate payment of all amounts outstanding in case of late payment or reasonable doubt as to the Customer's solvency or creditworthiness. Our delivery obligations shall be suspended for as long as the Customer is late in paying an outstanding invoice. In this case, we may also charge the penalty interest rate stipulated by the German Civil Code.
The Customer shall bear the risk of transport and storing. Place of performance for delivery contracts and contracts for work and labour (Werksvertrag) is Wiesbaden, Germany, even if partial deliveries are made or we have agreed to provide other services (shipping, delivery, etc.), but have not agreed to discharge our obligation at the Customer's place of business (Bringschuld). The Customer is responsible for unloading and storage. If shipment or delivery is delayed due to circumstances caused by the Customer, the risk shall pass to the Customer on the ready-to-ship date. The Customer shall bear the storage costs incurred after the passage of risk.
If the Customer or an authorized agent arranges pickup from the point of delivery, he shall be responsible for loading the vehicles. All relevant regulations regarding dangerous goods must be observed. When bulk deliveries are made, the Customer must ensure the cleanliness and sound condition of tanks or other storage containers and is responsible for the connection of the filling pipes to his own storage system. Any of our employees who assist in loading or transferring product from a tank or other container to the Customer’s storage system act solely at the Customer's risk and not as our vicarious agents.
The Customer shall bear any increases in freight that occur after the contract has been concluded and any extra costs incurred due to impediment or delivery delays caused by circumstances we are not responsible for. If we accept returned goods entirely or in parts, the Customer shall bear all costs incurred thereby, regardless of the reason for the return.
We shall not insure the consignment against theft, breakage, transport, fire, water or other insurable risks except at the Customer's expense and upon his explicit request.
5. FORCE MAJEURE
Force majeure and other disturbances not attributable to us that could not be foreseen at the moment of concluding the contract (e.g. interruptions of operations, delivery delays or non-delivery by our suppliers, energy or material shortages, traffic holdups, strikes, lockouts, or official orders) shall release us from our obligation to provide the product or service for as long as the disturbances exist and to the extent that they affect us. The Customer, in case of force majeure, is not entitled to withdraw from the contract, claim compensation, or withhold payment for services/goods already provided.
6. WARRENTY CLAIMS
The Customer must immediately on receipt of product/service verify whether the delivered product or service has the contractually agreed quality and is fit for the intended purpose. Other than that, the provisions of the German Commercial Code (HGB) Section 377 apply.
If defects in the delivered products or services are timely brought to our attention in writing, we must remedy the defects by either repairing the defective good or service or by replacing it. The choice between these two options is at our discretion.
If the second attempt to remedy the situation fails, the Customer may choose to, after consulting us and according to further legal provisions, reduce the amount of the respective invoice or, unless construction work is part of the subject-matter and/or if a reduction of the invoice amount would be unreasonable to and not in the interest of the Customer, withdraw from the contract. The regulations in Section 282 and 283 German Civil Code remain valid.
Rejected goods may only be returned with our explicit consent. We shall refund the costs of the cheapest shipping method if the complaint was justified.
We are liable for wilful misconduct and gross negligence. We are also liable in cases where strict liability applies, especially such as cases governed by the Product Liability Act (Produkthaftungsgesetz). We are not liable for economic loss of any kind, e.g. consequential loss, lost profit, loss of confidence, production downtimes, and so on.
Our liability for all other culpable violations of material contractual obligations (obligations whose satisfaction is essential to the proper discharge of the contract and upon whose satisfaction the contracting party may consistently rely) is limited in amount to the typical and foreseeable damages regarding the contract, regardless of legal grounds.
We are not liable for slight negligence concerning the violation of other contractual obligations which are not material contractual obligations.
Therefore our liability for insured risks covered by our public and products liability insurance is restricted to EUR 5 million per event of damage. Upon explicit request by the Customer we are prepared to increase coverage against an additional charge.
If we place orders with third parties on behalf, for the account and with the consent of the Customer, we shall only be liable for diligently selecting and monitoring the third party. No further liability is assumed.
The aforementioned liability provisions also apply to our employees and other vicarious agents.
8. LIMITATION PERIOD
Claims against us for contractual violations attributable to us shall become time-barred after one year. This does not apply to claims arising from wilful violations or to claims made by the Customer for defects in accordance with German Civil Code (BGB) Section 438 (1) No. 2 and Section 634a (1) No. 2. The statutory regulations shall determine when the limitation period begins. The consumer rights set forth in the German Civil Code Section 475 shall remain unaffected thereby.
9. RETENTION OF TITLE
We retain title to all goods which we deliver until the Customer has settled all outstanding accounts derived from the business relationship with us (hereinafter: "retained goods").
We also retain title to new products created by processing the retained goods. If the goods are processed, transformed or combined with goods which do not belong to us, we shall acquire partial ownership. Our share in ownership shall be proportional to the invoice price of the retained goods in relation to the price of the other compound materials.
The Customer may dispose of goods which we own or co-own in the ordinary course of business as long as he is willing and able to properly satisfy his obligations towards us.
a) If the Customer grants his customers an extension in paying the purchase price, he must retain title to the modified goods vis-à-vis his customer. Unless the Customer retains title in this way, he is not authorized to dispose of the retained goods.
b) The Customer hereby assigns to us all proceeds and all claims against sub-purchasers, including checks and bills of exchange, accruing from the sale of the retained goods as security for all outstanding accounts derived from the business relationship. If the Customer sells goods that we co-own, the assignment of claims against sub-purchasers to us shall be restricted to the portion of proceeds that corresponds to our ownership share. If our retained goods are processed by the Customer as part of a contract for work and labour (Werksvertrag), the Customer hereby assigns to us the proportional share of his future claims against the sub-purchaser, and the portion so assigned shall correspond to the retained goods thus processed. The Customer is only authorized to resell or otherwise use the retained goods if the resulting claims against the sub-purchaser are certain to be transferred to us as stipulated above.
c) If the assigned claim against a sub-purchaser is added to a current account, the Customer thereby assigns to us a portion of the current account balance that is equal to the amount of the assigned claim (including the corresponding portion of the final balance). If interim balances are calculated and carried forward by agreement, the portion of the old balance - accrued to us under the foregoing provisions - shall be deemed as assigned to us in the new balance.
d) The Customer is authorized to collect outstanding payments assigned to us until we revoke this authorization and as long as he pays his outstanding invoices with us on time.
As long as we retain title, the Customer must treat and store the retained goods with care for as long as they are in his area of control and shall perform necessary and customary inspection, maintenance and preservation work at his own expense. The Customer may not pledge or transfer ownership of the retained goods as security while title is retained. We must be notified without delay in writing or by fax
- if the retained goods are seized by third parties (by seizure or confiscation) or
- if the retained goods are damaged or destroyed.
The Customer must bear all costs incurred necessary to annul the seizure and recover the retained goods, unless the costs can be collected from third parties.
If the Customer violates his obligation to treat the retained goods with care, violates other duties of care, or defaults on paying secured outstanding amounts, we are entitled to retrieve the retained goods. The taking back of goods only constitutes a withdrawal from the contract if we issue a written declaration of our withdrawal. We are entitled to realize reclaimed goods; the proceeds must be credited to the Customer's liabilities after deducting reasonable cost of realization. This applies mutatis mutandis to all other contractual violations committed by the Customer.
If the realizable value of the security (retained goods) exceeds the secured claims by more than 10 percent, we shall release excess security selected by the Customer upon his request.
If ROT clauses are not allowed in full or at all by the applicable laws of the Customer's country, our aforementioned rights shall be restricted to the legally allowed extent.
10. GENERAL PROVISIONS
German law shall exclusively govern all legal dealings between us and the Customer in their entirety. The UN Convention on Contracts for the International Sale of Goods as of 11 April 1980 shall never apply.
Wiesbaden shall be the place of jurisdiction for any and all disputes arising from the business relationship between us and the Customer, provided the Customer is a registered trader (Vollkaufmann) or is not domiciled in Germany. The statutory provisions governing exclusive jurisdiction shall remain unaffected by this clause.
If a provision in these General Terms and Conditions or in supplementary agreements is or becomes invalid as a whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision or part of the provision shall be replaced with such legally valid provision as most closely approximates the intent of the invalid provision.