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Terms and Conditions of pure! GmbH
I. General(1) These General Conditions of Sale ("Terms and Conditions") of pure! GmbH ("Seller") only apply to entrepreneurs within the meaning of § 14 BGB ("Buyer") for the sale of machines, integrated software and other products ("Products").
(2) Offers, order confirmations, deliveries and services of the seller are made exclusively on the basis of these terms and conditions.
(3) The terms and conditions also apply to all future business relationships, even if they are not expressly agreed again.
(4) Counter-confirmations of the buyer under reference to his business or purchase conditions shall not be valid even if the seller has not expressly objected.
(5) Deviations from these terms and conditions are only effective if the seller confirms them in writing.
II. Offer and Conclusion of Contract(1) The offers of the seller are non-binding, unless they are expressly marked as binding.
(2) The contract is only concluded with the order confirmation by the seller. The order confirmation may be in writing or by telex (including EDI, remote data transmission and machine readable media). This applies accordingly to additions, amendments or ancillary agreements. Invoicing is considered an order confirmation. Offers are made without obligation prior to the issue of an order confirmation no conclusion of contract is concluded. Offers remain valid for a period of 30 (thirty) days from the date of issue or (otherwise) for the period specified in the offer itself.
(3) Order or article number refer to the latest edition of the seller's documents, such as catalogs or brochures, from which further technical details can be obtained. These documents are only approximately authoritative, unless they are expressly designated as binding or the usability for the purpose for which they are contractually intended by both parties requires exact conformity. For the exact observance of the in the catalog given piece weights can not be guaranteed.
(4) Drawings, illustrations, dimensions, weights or other performance data are only binding if expressly agreed in writing. All drawings and documents are to be returned to the seller without request if the contract is not concluded.
(5) If, after conclusion of the contract, in particular due to open, overdue invoices, it becomes apparent that the seller's claim to the consideration is jeopardized by the purchaser's inability to perform, the seller is entitled to refuse performance of the contract until the buyer effects the consideration or security for them. The seller is entitled to withdraw from the contract if she has unsuccessfully set a reasonable deadline for the buyer to effect the consideration or the security deposit. Any counterclaims of the buyer remain unaffected.
III. Prices and Terms of Payment(1) The prices quoted by the seller in her offers are non-binding, unless they are marked as binding. Unless otherwise stated in the order confirmation, the prices ex works / warehouse of the seller are exclusive of packaging, postage, freight, other shipping charges, insurance and customs. These will be invoiced separately. The packaging will be charged at cost. The legal VAT is not included in the prices of the seller. It will be charged separately at the statutory rate.
(2) All invoices of the seller are payable in cash 30 days after date of invoice net of any deduction or within 14 days of the date of invoice, minus 2% discount at paying agent of the seller. A discount deduction is inadmissible, as purchase price claims due to older, due invoices are still outstanding. Any discounts are to be deducted from the gross invoice amount.
(3) The Seller is entitled, irrespective of the Buyer's stipulation otherwise, to first offset payments against its older debts. If costs and interest have already arisen, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main service.
(4) A payment shall only be deemed made when the corresponding amount has been received by the seller.
(5) If the buyer defaults on his payment obligations, the seller is entitled after expiry of a reasonable period to make the entire remaining debt due or to demand other security deposits.
IV. Offsetting, Right of Retention, Prohibition of Assignment(1) The Buyer is entitled to offset and retention only in respect of claims that are undisputed or legally established. The reduction due to complaints is subject to the same restrictions.
(2) The Buyer agrees to a set-off of his receivables and liabilities by the Seller and its affiliates. In the same way, claims and liabilities of the Group companies of the buyer can be offset.
(3) The rights of the buyer under the contract and these terms and conditions are not transferable.
V. Delivery and Service Time(1) The dates and deadlines stated by the seller are non-binding, unless otherwise agreed in writing. On-demand and blanket orders require individual delivery time agreements.
(2) Delivery periods begin on the day the buyer's order is received by the seller. Compliance with Seller's obligation to deliver presupposes the lawful and orderly fulfillment of Buyer's obligation, in particular Seller must have received all documents, parts, details and approvals to be provided by the Buyer, as well as any advance payments agreed.
(3) The day of delivery is the day on which the goods were reported ready for pickup. If shipping is due, the day of delivery is the day on which the goods are handed over to the carrier. Reasonable partial deliveries and partial services are permitted to a reasonable extent. Furthermore, unavoidable quantity deviations of up to +/- 5 to 10% are not considered too small.
(4) The seller is not responsible for delivery and service delays due to force majeure. Force majeure and labor disputes release the seller from the obligation to perform for the duration of the disruption and to the extent of its effect. The Seller is obliged to provide the necessary information as soon as reasonably practicable and to adapt its obligations to the changed circumstances in good faith. In these cases, the buyer has the right of withdrawal only if the agreed delivery time has been exceeded by the period of the duration of the force majeure plus a reasonable start-up period. Previously, the right of withdrawal exists only if the seller has informed the buyer in writing that the delivery can not or no longer be provided by the buyer. The above restriction does not apply to fixed transactions.
(5) If the seller defaults in delivery with a delivery date agreed in writing, the buyer can withdraw from the contract if he has set the seller a reasonable period of grace of at least 14 days, unless a deadline is exceptionally dispensable. If the buyer does not already declare during the period of grace, whether he continues to insist on fulfillment or wishes to exercise his right of withdrawal and if such a declaration does not reach the seller within a further period of 7 days, the seller is in turn entitled to withdraw from Contract to resign. The right of the purchaser under Section X. to claim damages remains unaffected.
VI. Transfer of Risk(1) The risk shall pass to the buyer as soon as the goods have left the factory of the seller, an external warehouse or, in the case of direct delivery of non-self-produced goods, the warehouse of the subcontractor. If the shipment or collection is delayed or impossible due to the fault of the seller, the risk shall pass to the buyer upon notification of readiness for shipment.
(2) Delivered items shall be accepted by the Buyer, even if they have insignificant defects, without prejudice to the rights under Section VIII.
VII. Retemtions of Title(1) The delivered goods remain the property of the seller until the buyer has repaid all liabilities from the existing business relationship.
(2) Processing and transformation always take place for the seller as a manufacturer, but without obligation for her. If the co-ownership of the seller expires through mixing, it is already agreed that the co-ownership of the buyer in the unitary item shall pass to the seller in the amount of the invoice value. The buyer holds the property or co-ownership of the seller free of charge.
(3) The buyer undertakes to protect the property / co-ownership of the seller with the care of a prudent businessman from spoiling, depreciation or loss, also towards his buyers.
(4) The buyer is entitled to process and sell the reserved goods in the ordinary course of business. Pledging or transfer by way of security is not permitted. The buyer hereby assigns the claims resulting from the resale or any other legal reason with respect to the reserved goods to the seller in full and with all ancillary rights.
(5) In the case of access by third parties to the reserved goods, the buyer will point out the property of the seller and notify them immediately. Costs and damages paid by the buyer.
(6) In the event of default of payment by the buyer, the seller is entitled to withdraw from the contract and to take back the goods subject to retention of title at the expense of the buyer or, if necessary, to demand assignment of the buyer's claims for return against third parties. The seller's right to claim damages remains unaffected. The same applies to other breach of contract by the buyer.
(7) The seller undertakes to release the securities due to her at the request of the buyer to the extent that the realizable value of her securities exceeds the claims to be secured by more than 20%. She is responsible for the selection of the released securities.
VIII. Claims for Defects(1) The seller is responsible for the fact that their products are free of manufacturing and material defects and otherwise have the properties provided for in the order confirmation. Subject to the terms and conditions provided for in these Terms and Conditions, Seller does not make any other express or implied warranties, including, but not limited to, average quality and goodness or fitness for a particular purpose. Guarantees are only granted by the seller if expressly stated in writing as a guarantee. Claims of the buyer due to defects presuppose that he has duly fulfilled his duties of inspection and complaint according to § 377 HGB.
(2) For products with integrated software, a separate purchase contract is concluded with regard to the software. A defect in this software does not constitute a defect in the remainder of the product, unless the remainder of the product does not match the quality agreed between the seller and the buyer due to the lack of software. If such condition has not been agreed, a defect in the Software will only constitute a defect in the remainder of the product if the remaining product is unsuitable for contractually required or ordinary use due to the software defect.
(3) Deviations customary in the industry shall only be regarded as a defect if this has been expressly agreed in writing by the parties. The information provided by the seller on the subject of the delivery and service in its catalogs, brochures and price lists merely represents descriptions, markings or reference values, unless otherwise stated in the order confirmation or in the contractually agreed purpose agreed by both parties. Minor, insignificant deviations from the catalogs or goods delivered earlier are not considered defects.
(4) The buyer must check for himself whether the goods ordered from the seller are suitable for the intended use. The non-suitable goods shall only be considered as defective if the seller has confirmed the suitability in writing to the buyer.
(5) The wear and tear of wear parts in the context of normal use is not a defect.
(6) If the seller's assembly, installation, operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used which do not conform to the original specifications, claims for defects will only be made if the buyer proves that the defect was not caused by this, but already existed at the time of the transfer of risk.
(7) If the goods have not yet been delivered to an end consumer, justified and properly complained defects shall oblige the seller, at their discretion, to rectify the defects by rectification or to re-deliver the delivery item or parts thereof. If subsequent deliveries or improvements fail, the buyer can only demand a reduction of the remuneration or, at his option, withdraw from the contract. The right of withdrawal and a claim for damages instead of the entire performance exist only as far as the defect is not insignificant. The buyer's right to claim damages is governed by Section X.
(8) If the goods have already been delivered to an end user, the buyer is in principle only entitled to assert those claims for defects against the seller which his buyer has asserted against him.
(9) Claims for defects can not be asserted against the seller insofar as the goods have been taken back due to the grace arrangements not agreed with the seller. In addition, the buyer is not entitled to rescind the vendor if he had to take back the goods because he did not duly fulfill his obligation to remedy the defect, in particular because he let a grace period set for him have fruitlessly elapse. The buyer must notify the seller in writing without delay of the customer's request for subsequent performance and notify her of the intended type of remedy and the approximate costs involved. The buyer is obliged, in the interests of the seller, to keep the sum of the expenses within the meaning of § 439 (2) BGB as low as possible and to comply with the seller's proposals for a more favorable version of the supplementary performance.
(10) If the seller breaches non-performance-related obligations in accordance with Art. § 241 Abs. 2 BGB, the buyer is entitled to a right of withdrawal and a claim for damages instead of the performance then, if the buyer the adherence to the contract can no longer be expected.
(11) In the case of removal of defects, the seller is obliged to bear all expenses necessary for the purpose of correcting the defect, in particular transport, travel, labor and material costs, insofar as they are not based on the fact that the goods are transported to a location other than the place of performance is spent.
(12) Claims for defects become statute-barred within 12 months from delivery of the item to the buyer. For cases of intent or negligence, section X applies.
IX. SoftwareThe seller's software is not intended for private use. It may only be installed and / or used by qualified personnel who are familiar with the information provided by the seller in the installation and warning instructions. Incorrect installation, operation and / or maintenance of the software by the purchaser may result in the software not functioning properly and / or causing damage to equipment and / or machines or to people. If and insofar as defects in the software are due to the failure of the Seller's installation and warning instructions and / or faulty operation and / or maintenance of the Software by the Buyer, these are not covered by the Seller's warranty obligations. Likewise, the seller accepts no liability for resulting consequential damages. This applies in particular to any damage to the software arising from the faulty software and / or consequential damage to machines, systems or other products and people.
X. Limitation of Liability(1) The seller shall be liable without limitation for intent and gross negligence, culpable injury to life, body, health, defects that the seller has fraudulently concealed, or the provision of a guarantee of quality or durability. The seller is also liable without limitation in the context of product liability and other mandatory liability.
(2) In the event of culpable breach of essential contractual obligations, the seller is also liable in the event of ordinary negligence, but limited to the damage typical for the contract and reasonably foreseeable upon conclusion of the contract. Significant contractual obligations are those whose infringement jeopardizes the purpose of the contract, because the buyer is thereby deprived of any rights or rights that are to be granted to him by the seller according to the contractual content and purpose of the contract.
(3) Further claims for damages, in particular due to financial losses, are excluded.
(4) The above-mentioned limitations of liability of this Section X also apply to employees, representatives and vicarious agents of the Seller.
XI. Use and Exploitation Rights, Property Rights(1) Insofar as the seller manufactures goods and delivers them to the buyer on the basis of an order from the buyer in accordance with its instructions and guidelines, the buyer shall be liable to the seller for the freedom of the goods and services ordered by third parties in the course of his or her fault. He indemnifies the seller from all claims to the same extent and must compensate her for the damage incurred.
(2) Insofar as the seller provides the buyer with tools, designs, installation suggestions or other drawings and documents together with the goods, she reserves the right of ownership and all rights of protection and use thereof. The buyer is only entitled to use under the purchase contract; in particular, he is not entitled to reproduce such objects or to make them available to third parties.
(3) Insofar as the products are integrated software, the buyer is entitled to their use to the extent contractually agreed. The intellectual property rights to the software as well as to any supplied manuals remain unaffected. The customer may reproduce the software or the manuals only to the extent required by law or make them available to third parties. The §§ 69 a ff. Copyright Act (UrhG) remain unaffected. The seller assumes no warranty and / or liability for the software if and insofar as this is changed by the customer or not used properly.
XII. Confidentiality(1) Unless otherwise expressly agreed in writing, all information obtained by the buyer in connection with the contractual relationship shall be considered confidential.
(2) The obligation to maintain secrecy shall not apply to information
· that the party who received the information (the "receiving party") was known to have known it prior to disclosure, provided that the
receiving party so informed the party that disclosed the information ("disclosing party") within one month of receipt such information.
· which are already publicly known or accessible to the receiving party at the time of their disclosure or which become publicly available or
accessible after disclosure, without this being due to the breach of this contract by the receiving party.
· which the receiving party obtains from third parties, provided that such information is not the subject of a confidentiality agreement with
the disclosing party;
· their disclosure to third parties has been previously permitted in writing by the disclosing party; or
· to which the disclosing party is required by law or by judicial or regulatory order to disclose.
(3) The obligation of secrecy also applies beyond the termination of the contractual relationship.
XIII. Data ProtectionThe seller will store and process all data about the buyer received in the context of the contract execution under consideration of the regulations of the Federal Data Protection Act for own purposes.
XIV. Partial EffectivenessShould a provision in these terms and conditions or a provision in the context of other agreements be or become ineffective or contain a gap, this shall not affect the validity of all other provisions or agreements. In order to fill in the gaps, those effective provisions shall be deemed to have been agreed, which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these General Conditions of Sale if they had recognized the loophole.
XV. Jurisdiction, Place of PerformanceThe exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms and Conditions (including those relating to claims under tort law) between the parties for which there is no other, exclusive place of jurisdiction is Limburg. The seller is however entitled to sue the buyer at his place of business. Unless otherwise stated in the order confirmation, the place of performance is the place of business of the branch of the seller carrying out the respective delivery.
XVI. Applicable LawFor the terms and conditions and the entire legal relationship between the buyer and the seller is the law of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods of April 11, 1980 ("CISG") does not apply.
As of 01. January 2017