§ 1 General, scope
(1) These General Terms and Conditions of Sale (AVB) apply to all of our business relationships with our customers (hereinafter: “Buyer”). The AVB only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The AVB apply in particular to contracts for the sale and/or delivery of movable items (hereinafter also: goods), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 651 BGB). The current version of the AVB also applies as a framework agreement for future contracts for the sale and/or delivery of movable items with the same buyer, without us having to refer to them again in each individual case.
(3) Our AVB apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in any case, for example even if we carry out the delivery to the buyer without reservation, knowing the general terms and conditions of the buyer.
(4) Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) always take precedence over these AVB. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications that are to be submitted to us by the buyer after the conclusion of the contract (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be in writing in order to be effective.
(6) References to the validity of legal regulations are only of clarifying importance. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these AVB.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we have ownership rights and copyrights Reserved.
(2) The ordering of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within one week of receipt.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
§ 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually or specified by us when accepting the order. If this is not the case, the delivery period is approx. 6 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the buyer of this immediately and at the same time communicate the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the buyer. A case of non-availability of the service in this sense is in particular the failure to supply ourselves in time by our suppliers if we have concluded a congruent hedging transaction.
Our statutory rights of withdrawal and termination as well as the statutory provisions on the execution of the contract in the event of an exclusion of the obligation to perform (e.g. impossibility or unreasonableness of the service and/or supplementary performance) remain unaffected. The buyer's rights of withdrawal and termination in accordance with § 8 of these AVB also remain unaffected.
(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in default of delivery, the buyer can demand lump-sum compensation for his damage caused by the delay. The flat-rate compensation for damages is 0.5% of the net price (delivery value) for each full calendar week of delay, but no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer suffered no damage at all or only a significantly lower damage than the above flat rate.
§ 4 Right of Withdrawal
(1) Consumers have a two-week right of withdrawal.
Instructions on revocation / right of revocation: You can revoke your contractual declaration within two weeks in text form (e.g. letter, fax, e-mail) without giving reasons or - if the item is left to you before the deadline - by returning the item. The period begins after receipt of this instruction in text form, but not before receipt of the goods by the recipient (in the case of recurring deliveries of similar goods not before receipt of the first partial delivery) and also not before we have fulfilled our information obligations in accordance with § 312c Para. 2 BGB in connection with § 1 paragraph 1, 2 and 4 BGB-InfoV as well as our obligations according to § 312e paragraph 1 sentence 1 BGB in connection with § 3 BGB-InfoV. The timely dispatch of the cancellation or the item is sufficient to meet the cancellation deadline. The revocation must be sent to:
Maiwell, owner: Mai Lam, Hochheiderweg 75, 26123 Oldenburg.
Consequences of revocation: In the event of an effective revocation, the services received by both parties must be returned and any benefits (e.g. interest) surrendered.
Transportable items are to be returned at our risk.
You must bear the costs of the return if the delivered goods correspond to those ordered and if the price of the item to be returned does not exceed an amount of EUR 150 or if you have not yet paid the consideration or have made a contractually agreed partial payment.
Otherwise, the return is free for you. Items that cannot be sent by parcel will be picked up from you. Obligations to reimburse payments must be fulfilled within 30 days. The period begins for you with the dispatch of your declaration of revocation or the item, for us with their receipt.
(2) Before returning, please notify us at email@example.com to announce the return. In this way, you guarantee us the fastest possible assignment of the products.
(3) Please note that the modality mentioned in paragraph (2) is not a prerequisite for the effective exercise of the right of withdrawal.
§ 5 Delivery, Passing of Risk, Acceptance, Default of Acceptance
(1) Delivery is ex warehouse, which is also the place of performance. At the request and expense of the buyer, the goods will be sent to another destination (sales by mail). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this we charge a lump-sum compensation i. hv EUR 20 per calendar day, starting with the delivery period or – if there is no delivery period – with the notification that the goods are ready for dispatch.
Evidence of greater damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The buyer is entitled to prove that we have suffered no damage at all or only a significantly lower damage than the above flat rate.
§ 6 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices apply at the time the contract is concluded, ex warehouse, including statutory sales tax.
(2) In the case of mail-order sales (§ 4 Paragraph 1), the buyer bears the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. If we do not invoice the actual transport costs incurred in the individual case, a flat rate for transport costs (excluding transport insurance) i. hv 110 EUR as agreed. Any customs duties, fees, taxes and other public charges are borne by the buyer. We do not take back transport packaging or any other packaging in accordance with the Packaging Ordinance, it becomes the property of the buyer; pallets are excluded.
(3) The purchase price is to be paid at the latest when the goods are handed over.
(4) With the expiry of the above payment period, the buyer is in default. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay. Our claim to the commercial maturity interest (§ 353 HGB) remains unaffected in relation to merchants.
(5) The buyer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, Section 7 (8) remains unaffected.
(6) If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk due to the buyer's inability to pay (e.g. due to an application for the opening of insolvency proceedings), we are entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline entitled (§ 321 BGB). In the case of contracts for the production of non-fungible items (custom-made products), we can declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 7 Retention of title
(1) We reserve ownership of the goods sold until all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The buyer must inform us immediately in writing if and to the extent that third parties access the goods belonging to us.
(3) If the buyer behaves in breach of contract, in particular if the purchase price due is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or setting such a deadline is unnecessary under statutory provisions.
(4) The buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the products created by processing, mixing or combining our goods at their full value, whereby we are considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, we acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 also apply with regard to the assigned claims.
(c) The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, does not default on payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
§ 8 Buyer's claims for defects
(1) The statutory provisions shall apply to the rights of the buyer in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse in accordance with §§ 478, 479 BGB) remain unaffected.
(2) Our liability for defects is primarily based on the agreement made on the quality of the goods. The product descriptions designated as such, which were given to the buyer before his order or were included in the contract in the same way as these General Terms and Conditions, apply as an agreement on the quality of the goods.
(3) If the quality has not been agreed, it is to be assessed according to the statutory regulation whether there is a defect or not (§ 434 Para. 1 Sentence 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements).
(4) The buyer's claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect is found during the inspection or later, we must be notified immediately. The notification is deemed to be immediate if it is made within two weeks; the timely dispatch of the notification is sufficient to meet the deadline. The notification must be made in writing. Irrespective of the above obligations to inspect and give notice of defects, the buyer must report obvious defects (including incorrect and short deliveries) within two weeks of delivery; Deadline is sufficient for the timely dispatch of the notice of defects. The notification must be made in writing. If the buyer fails to notify the defects specified above, our liability for the non-notified defect is excluded.
(5) If the delivered item is defective, the buyer can initially choose to either remedy the defect (rectification) or delivery of a defect-free item (replacement delivery) as supplementary performance. If the buyer does not declare which of the two rights he chooses, we can set him a reasonable deadline to do so. If the buyer does not make the choice within the deadline, the right to choose passes to us upon expiry of the deadline.
(6) We are entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a part of the purchase price that is reasonable in relation to the defect.
(7) The warranty expires in the event of interventions, repairs or repair attempts by unauthorized third parties. The assignment of warranty claims is excluded.
Replaced parts become our property. We provide the same guarantee for replacement or repairs as for the purchased item. The warranty is not extended after the defect has been rectified. The warranty is void if a defect occurs due to improper handling or improper installation by the customer or unauthorized third parties.
(8) The buyer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. We shall bear the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions.
(9) In urgent cases, e.g. if there is a risk to operational safety or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively required for this. We must be informed immediately, if possible beforehand, of such a self-performance. The right to take action ourselves does not exist if we were entitled to refuse subsequent performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or a deadline set by the buyer for the supplementary performance has expired without success or is unnecessary according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
(11) Claims by the buyer for damages or reimbursement of wasted expenses exist only in accordance with Section 8; otherwise they are excluded.
§ 9 Other Liability
(1) Unless otherwise stated in these AVB including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We are liable for damages – for whatever legal reason – in the event of intent and gross negligence. We are only liable for simple negligence
a) for damage resulting from injury to life, limb or health,
b) for damages resulting from the breach of a material contractual obligation (obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims by the buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
§ 10 Statute of limitations
(1) The mutual claims of the contracting parties become time-barred in accordance with the statutory provisions, unless otherwise specified below.
(2) Contrary to Section 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
(3) Statutory special regulations for third-party restitution claims (§ 438 Para. 1 No. 1 BGB), for buildings and building materials (§ 438 Para. 1 No. 2 BGB), for claims in supplier recourse (§ 479 BGB) as well as for the claims for damages mentioned in § 8 paragraphs 2 and 3. In these cases, the statutory statute of limitations applies exclusively.
(4) Insofar as we owe the buyer compensation in accordance with Section 8 because of or as a result of a defect, the statutory limitation periods of sales law (Section 438 BGB) also apply to competing non-contractual claims for damages if the application of the regular statutory limitation period (Sections 195, 199 BGB) does not apply ) leads to a shorter limitation period in individual cases. The limitation of the product liability law remain unaffected in any case.
§ 11 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany applies to these AVB and all legal relationships between us and the buyer, to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Sales Convention. However, the prerequisites and effects of the retention of title according to § 6 are subject to the law at the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Oldenburg. However, we are also entitled to bring an action at the buyer's general place of jurisdiction.