General conditions of sale of ZARGES GmbH

(Last updated September 2014)

Please note that personal data maintained in respect of our business relationship or in conjunction with it, regardless of whether such data originates from the purchaser/supplier himself of from third parties, will be processed within the purport of the Federal Data Protection regulations.

1. Scope

Our sales terms only apply to companies within the context of paragraph 1 of §310 of the BGB.

Our sales terms apply exclusively. Conflicting conditions or customer conditions that deviate from our sales terms shall not be recognised if we do not consent to them explicitly in writing. Our sales terms shall also apply without reservation in cases where we complete the delivery to the customer, despite being aware that the customer has contradictory or deviating conditions.

2. Formation of the contract

Our product offering on the Internet, in brochures and other printed media shall remain subject to change. We reserve the rights to all illustrations, drawings, calculations and other documents, including designs provided within the context of an offer. This shall also apply to written documents that are indicated as being confidential. Upon request or in the event that the contract is not awarded to the customer, these documents must be returned immediately. The customer may only pass these on to third parties with our explicit written permission.

Orders are offers from our customers. They may be accepted by us in writing with an order confirmation within two weeks of receipt.

No oral side agreements shall be made.

3. Content of contracts that govern the production of parts according to plans or drawings from the customer
Special tools for completing the contracts shall be invoiced to our customers at cost price. These tools shall remain our property. Upon completion of the contract, the tools will be stored by us for one year. On expiry of this period, the tools will be destroyed.

4. Prices
Our prices are net prices in euros ex works (Weilheim in Upper Bavaria). Prices do not include packaging. Packaging will be invoiced separately. VAT shall be indicated on the invoice separately according to the legal amount on the day the invoice is submitted. 

5. Delayed payment
Unless otherwise stipulated in the order confirmation, the purchase price will fall due without deductions within 30 days from date of invoice.

The customer shall only be entitled to offset payment in cases where the counterclaims have been determined to be legally valid, are undisputed or if they are acknowledged by us.

6. Delivery times

The beginning of an agreed to or indicated delivery time requires clarification of all technical questions in advance.

Adherence to our obligation to deliver also requires timely and correct fulfilment of the customer’s own obligations. The right of exemption on the grounds of failure to fulfil contractual conditions remains reserved.

If the customer delays acceptance of the delivery or if other cooperative obligations are violated, then we shall be entitled to demand remuneration for additional costs and possible damage incurred. We reserve the right to subsequent claims. 

In cases of 6.3, the risk of accidental destruction of or accidental damage caused to the purchased goods shall be transferred to the customer when acceptance of the delivery or payment (arrears) is delayed. 

We shall be liable in accordance with the legal provisions in as far as the sales contract in question represents a forward transaction within the scope of point 4 of paragraph 2 of §286 of the BGB or §376 of the HBG. We shall also be liable in accordance with the legal provisions in cases where the customer is entitled to claim that the interest in fulfilment is void as a result of a delivery delay caused by us.

Furthermore, we shall also be liable in accordance with the legal provisions in the event that a delayed delivery results from a wilful or grossly negligent breach of contract on our part. Responsibility on behalf of our representatives or vicarious agents is to be attributed to us. In as far as the delivery delay involves grossly negligent violation of the contract on our behalf, our liability to effect compensation shall be limited to the typically occurring, foreseeable damage.

We shall also be liable according to legal provisions if the delivery delay for which we are responsible involves a culpable violation of an important contractual obligation. However, our liability to effect compensation in such cases shall be limited to the typically occurring, foreseeable damage.

Otherwise, in cases of delayed delivery, we shall be liable to pay compensation for each complete week of delay within the scope of a flat-rate delay penalty amounting to 0.5 % of the
delivery value per week, but with maximum liability of 5 % of the delivery value.

Other statutory claims of the customer remain unaffected

7. Transfer of risk
Unless otherwise stipulated in the order confirmation, the transfer of risk with regard to the delivery shall be agreed to as "ex works." 

8. Liability for defects

The customer’s rights regarding defects are subject to the customer successfully fulfilling his obligation to examine the goods and report defects in accordance with §377 of the HGB.

Provided a defect is present in the purchased item, the customer is entitled to claim supplementary performance. Provided a claim to supplementary performance is submitted, we may choose to correct the defects or deliver a new, defect-free item. In the case of supplementary performance, we shall be obligated to cover all costs involved in correcting the defects, provided that these do not increase as the result of the purchased item being at a location other than the place of fulfilment.

If supplementary performance is unsuccessful, the customer may choose to withdraw or demand a price reduction.

We shall be liable in accordance with the legal provisions in cases where the customer enforces claims for damages based on wilful or gross negligence, including wilful or gross negligence on the part of our representatives or vicarious agents. In as far as we are not charged with wilful breach of contract, liability for claims for damages shall be limited to the foreseeable, typically occurring damage.

We shall be liable in accordance with the legal provisions in cases where we culpably violate an important contractual obligation; however, in this case, claims for damages shall be limited to the foreseeable, typically occurring damage. 

Legal liability in the case of culpable injury to life, limb, or health shall remain unaffected; this applies also to liability strictly prescribed according to the Product Liability Act. 

Unless otherwise specified above, our liability shall be excluded.

The limitation period for claims involving defects shall be set at 12 months beginning with the transfer of risk. This shall not apply to cases involving the sale of an item that would normally be used for a given structure and that in turn resulted in the damage in question.

The limitation period in the case of a delivery recourse according to §§478 and 479 of the BGB shall remain unaffected. This period is 5 years, beginning with delivery of the defective item.

9. Joint liability

Any and all liability for damages in addition to the liability envisaged in 8 above is excluded regardless of the legal nature of the claim being asserted. This shall apply especially to damage compensation claims resulting from default upon formation of the contract, due to other violations of obligation, or due to criminal claims to compensation for damage to property according to §823 of the BGB.

The limitation in 9.1 also applies in cases where the customer demands reimbursement for wasted expenditures instead of claiming compensation for damage in place of performance.

Insofar as our liability for compensation of damages is excluded or limited, this shall also apply with regard to liability for personal damage compensation vis-à-vis our employees, workers, colleagues, representatives and vicarious agents.

10. Retention of title of ownership

We shall retain the title of ownership to goods delivered by us until all payment obligations resulting from the delivery contract have been fulfilled.

In the case that the customer violates the provisions of the contract, especially in the case that payments are in arrears, we shall be entitled to reclaim the purchased item. Our reclaiming the purchased item represents a withdrawal from the contract. We shall be entitled to reclaim and resell the purchased item. Revenues from the resale shall be offset against the customer’s accounts payable, less appropriate costs of the resale.

The customer is under obligation to handle the purchased item with due care. In particular, the customer is under obligation to insure the purchased item against damage from fire and water as well as theft up to the amount of its initial value. If maintenance and inspection work is required, the customer shall complete this in a timely fashion at own cost. 

In the case of seizure or other intervention on behalf of third parties, the customer must inform us immediately in writing so that we may dispute this according to §771 of the ZPO. If the third party is not in a position to provide remuneration for the legal and extra-legal costs connected with this dispute according to §771 of the ZPO, the customer shall be held liable for the resulting loss incurred by us.

The customer is under obligation to store and label the purchased item separately for as long as the retention of title remains. However, the customer shall be entitled to sell the purchased item via regular business proceedings. In spite of this, the customer shall herewith relinquish all claims against the purchaser or third parties resulting from a resale in the amount of the final invoiced sum, including sales tax on our payments receivable, and in particular, regardless of whether the purchased item has been resold without or after processing. 
The customer shall remain entitled to collect our claims, even after relinquishment. The ordering party must account for incoming amounts that are offset against relinquished claims separately. Our authority to collect claims ourselves shall remain unaffected by this. However, we undertake not to collect these claims, provided the customer fulfils the obligation to pay us with the revenues collected and is not in arrears, and especially if no application for the opening of composition or insolvency proceedings has been filed and payment has not been suspended. If this is the case, however, the customer must at our request inform us of relinquished claims and debtors, provide us with all information required for collection, all associated documents and inform debtors regarding the relinquishment of the claims to us.

The customer shall also be entitled to process or convert the purchased item within the scope of regular business proceedings. However, this will always be carried out on our behalf. Where the purchased item is processed using objects that do not originate from us, we shall acquire joint ownership of the new item in the ratio of the value of the purchased item – our final invoiced sum plus sales tax shall be authoritative in this case – against that of the processed objects at the time of processing. Furthermore, the item resulting from the processing shall be subject to the same retention of title as the delivered purchased item. 

Where the purchased item is inseparably integrated with objects that do not belong to us, we shall acquire joint ownership of the new item in the ratio of the value of the purchased item – our final invoiced sum plus sales tax shall be authoritative in this case – against that of the integrated objects at the time of integration. Where integration takes place in such a manner that the customer's item may be considered to be the main item, it is agreed that the customer will transfer proportionate joint ownership to us. The customer shall hold the sole title or joint title thus arising on our behalf.

The customer shall also relinquish to us claims against third parties that result from integration of the purchase item with real estate as a security on our own claims against the customer.

We are under obligation, on request by the customer, to release our securities insofar as the value of our securities exceeds the secured claim by more than 10%. The selection of securities to be released shall be determined by us.

11. Claims
We are entitled to assign our claims against the customer to third parties.

12. Court of jurisdiction
The court of jurisdiction shall be the company’s location in 82362 Weilheim, Germany. Nevertheless, we reserve the right to bring suit against the customer at the customer’s court of jurisdiction. 

13. Place of fulfilment
Unless otherwise stipulated by the order confirmation, the place of fulfilment is the company’s location in 82362 Weilheim, Germany.

14. Applicable law
The law of the Federal Republic of Germany shall apply with the exception of the UN international trade law.

Mailbox address:
PO Box 16 30
D-82360 Weilheim

Zargesstraße 7
D-82362 Weilheim

Court of register: 
Munich HRB 169642
ILN 40 03866 00000 5

Maximilian Treptow