Conditions of sale of THEPRA Didactic GmbH, Fellbach
1. Scope of application
All our offers, deliveries and services are exclusively based on these terms of sale. Terms and conditions of the purchaser shall not apply unless we have expressly agreed to their validity in writing. This shall also apply if we carry out the deliveries or services without reservation in the knowledge of the customer's terms and conditions. For future business with the customer, our terms of sale shall also apply without renewed inclusion.
2.1 A contract is only concluded by our written order confirmation. We can accept the contractual offer contained in the order within one week of receipt by means of a written order confirmation.
2.2 The conclusion of the contract shall be subject to correct and timely delivery by our suppliers.
2.3 We reserve the property rights and copyrights to illustrations, drawings, calculations, parts lists and other documents; they may only be made available to third parties with our express written consent. The purchaser has a non-exclusive right of use in software in unchanged form on the agreed equipment.
3. Prices, terms of payment
3.1 Unless otherwise stated in our order confirmation, our prices are ex works, excluding packaging and plus value added tax at the statutory rate on the day of invoicing.
3.2 In the absence of a special agreement, the purchase price shall be payable without any deduction within 14 days from invoice date due for payment.
3.3 If we have taken over the installation or assembly and nothing else has been agreed upon, these services including travel and transport costs, allowances etc. shall be remunerated separately.
3.4 The customer shall only be entitled to withhold payments or to offset them against counterclaims if his counterclaim has been recognised by us or has been established as legally binding and is based on the same contractual relationship.
4. Delivery time, delay in delivery
4.1 The delivery period shall not commence until the order has been clarified (clarification of all technical and commercial questions, necessary involvement of the purchaser in the procurement of documents, approvals, releases) and receipt of an agreed down payment. If these prerequisites are not yet in place when our order confirmation is sent, the stated delivery period shall be extended accordingly. Compliance with our delivery obligation presupposes the timely and proper fulfilment of the purchaser's obligations, including the provision of components and material.
4.2 Agreed delivery periods shall be extended by the duration of the hindrance in the event of unforeseeable events beyond our control (in particular strikes and lock-outs, official orders, operational disruptions at our premises or those of our suppliers). If such events make delivery significantly more difficult or impossible for an unforeseeable period of time, both parties are entitled to withdraw from the contract. The customer shall only be entitled to withdraw from the contract if his interest in the further performance of the contract has ceased to exist due to the delay and a reasonable period of grace set in writing has expired without result.
4.3 If we are culpably in default of delivery, the customer's claims for compensation due to delay in performance shall be limited to a lump sum of 0.5 % of the delivery value for each completed week of the delay, up to a maximum of 5 % of the delivery value.
4.4 If we are culpably in default of delivery, the customer can set us a reasonable extension of time in writing with a threat of refusal. If this grace period expires without result, the customer is entitled to withdraw from the contract. Claims for damages are limited to the amount of the foreseeable, typically occurring damage and the customer is only entitled to them if the delay is due to intent or gross negligence or to a fundamental breach of contract.
4.5 If the customer is in default of acceptance or violates other obligations to cooperate, we can demand compensation for the resulting damage including additional expenses. In the event of default of acceptance, the risk of accidental loss or accidental deterioration of the object of the contract shall pass to the customer.
5. Transfer of risk
5.1 Unless otherwise specified in our order confirmation, delivery ex works is agreed. The risk shall also pass to the customer upon dispatch, even if we bear the costs of dispatch, partial deliveries are made or we have assumed responsibility for installation and assembly.
5.2 At the request of the customer and at his expense, we will insure the shipment against transport risks.
6. Liability for defects
6.1 Technical specifications and performance descriptions in offers and in our order confirmation are quality specifications. Guarantees are only given by express written agreement and in accordance with the guarantee conditions specified in the individual case.
6.2 Warranty claims of the purchaser require the fulfilment of his inspection and complaint obligations according to § 377 HGB.
6.3 In the event of defects in our delivery, we shall be obliged, at our discretion, to provide subsequent performance by remedying the defect or by delivering a defect-free item. If the supplementary performance fails, the customer must give us the opportunity to make a second attempt at supplementary performance. If the period for the second attempt at subsequent performance also expires without success, the customer may, at his discretion, reduce the purchase price or withdraw from the contract. The right to withdraw from the contract is excluded if the defect is insignificant or the reason for withdrawal is solely or predominantly the responsibility of the customer.
6.4 Any claims of the customer beyond the scope of Sections 6.2 and 6.3 for whatever legal reason are excluded. In particular, we shall therefore not be liable for damage that has not occurred to the delivery item itself, such as loss of profit or other financial losses of the customer.
6.5 The exclusion of liability according to item 6.4 does not apply if the damage was caused by us intentionally or through gross negligence. In the event of grossly culpable damage and culpable breach of a material contractual obligation, liability shall be limited to the foreseeable, typically occurring damage and shall otherwise be excluded.
6.6 The limitation period for our liability for defects is 12 months, calculated from the transfer of risk in accordance with item 5.1.
7. Limitations of liability
7.1 Any further liability for damages or reimbursement of expenses for whatever legal reason beyond the liability limits set out in Clauses 4 and 6 is excluded. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or claims in tort for compensation for property damage in accordance with § 823 BGB.
7.2 Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, other staff, representatives and vicarious agents.
7.3 The exclusions of liability in these terms of sale do not apply to claims based on §§ 1, 4 product liability law and in the case of damages due to injury to life, body and health.
7.4 A preclusion period of 18 days shall apply to the assertion of all claims for compensation which are not based on the Product Liability Act and are not subject to the statute of limitations due to liability for defects pursuant to Section 6.6. months. The period begins with knowledge of the damage and the person of the injuring party.
8. Retention of title
8.1 We reserve the right of ownership of the delivery item until all claims arising from the current business relationship with the customer have been met in full. In the event that the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to demand the return of the delivery item after the expiry of a reasonable period of grace set in writing. Taking back the delivery item shall constitute a withdrawal from the contract. After taking back the delivery item, we shall be entitled to realise the delivery item; the proceeds of realisation shall be set off against the liabilities of the customer less reasonable realisation costs.
8.2 The customer is obliged to treat the delivery item with care. The customer shall carry out the necessary maintenance and inspection work at his own expense and insure the delivery item at replacement value.
8.3 The customer is obliged to inform us immediately of any access to the delivery item by third parties, as well as any damage or loss. This shall also apply in the event of a change of ownership of the delivery item or a relocation of the customer's place of business.
8.4 The purchaser is entitled to resell the contractual item in the ordinary course of business. He hereby assigns to us all claims in the amount of the final invoice amount, including VAT, which he incurs against third parties from the resale. The customer shall remain entitled to collect this claim even after the assignment. Our authority to collect the claims ourselves remains unaffected by this.
8.5 Any modification or installation of the delivery item by the customer shall always be carried out for us. If processing is carried out with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the delivery item (final invoice amount including VAT) to the other processed objects.
8.6 We are obliged to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of the securities exceeds our claims by more than 10%, not only temporarily. The selection of the securities to be released is made by us.
9. Place of jurisdiction, application of law
9.1 The place of jurisdiction for disputes arising from and in connection with this contract is Stuttgart. However, we are also entitled to sue the customer at his general place of jurisdiction. Unless otherwise stated in the order confirmation, the place of performance shall be our place of business.
9.2 The law of the Federal Republic of Germany including the UN Convention on Contracts for the International Sale of Goods (CISG) shall apply.
9.3 Amendments and supplements to the contract and these Terms and Conditions of Sale must be made in writing to be effective. The remaining parts of the contract and the terms of sale shall remain binding even if individual provisions are legally ineffective. Insofar as the contract or these Terms and Conditions of Sale contain loopholes, legally effective provisions shall be deemed agreed for the purpose of filling such loopholes, which the contracting parties would have agreed upon in accordance with their economic objectives and the purpose of the Terms and Conditions of Sale had they been aware of the loophole.
The data of this contractual relationship is stored by us for the purpose of data processing and passed on to third parties. (e.g. insurances) as far as this is necessary for the fulfilment of the contract (§ 28 BDSG).