GENERAL TERMS OF DELIVERY OF AVEMA SP. Z O.O., POLAND
AVEMA Sp. z o.o. Is a Polish company selling its products (building materials, plant pots, animal urns, etc.) primarily in Germany, Austria and Switzerland to commercial customers (2B2).
AVEMA products are produced in a sustainable and environmentally friendly way.
§ 1 Scope of application
(1) All deliveries, services and offers made by AVEMA shall be made exclusively on the basis of these General Terms and Conditions of Delivery. These shall be an integral part of all contracts concluded by AVEMA with its contractual partners (hereinafter also referred to as “Client”) for the deliveries of services offered by AVEMA. They shall apply to all future deliveries, services or offers to the Client, even if they are not separately agreed upon. By making use of AVEMA’s deliveries, services and offers without objection, the Client accepts the General Terms and Conditions of Delivery.
(2) Terms and conditions of the Client or third parties shall not apply, even if AVEMA does not separately object to their validity in individual cases. Insofar as AVEMA refers to written communication that contains or refers to the Client’s or a third party’s terms and conditions of business, this shall not constitute an agreement to the validity of such terms and conditions of business.
(3) Legally relevant declarations and notifications made by the Client to AVEMA after conclusion of the contract (e.g. Setting deadlines, notifications of defects, declaration or withdrawal of orders) must be made in writing to be effective.
(4) AVEMA’s General Terms and Conditions of Delivery shall only apply to entrepreneurs within the meaning of Section 14(1) of the German Civil Code (BGB).
§ 2 Conclusion of contract
(1) All offers shall be subject to change and are non-binding unless they are expressly marked as binding or contain a specific acceptance period. AVEMA can accept orders or contracts within fourteen days of receipt.
(2) The legal relationship between AVEMA and the Client shall be governed solely by the purchase contract concluded in written form, including these General Terms and Conditions of Delivery. The latter shall fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by AVEMA prior to the conclusion of this contract shall not be legally binding and oral agreements between the contracting parties shall be replaced by the contract in writing, unless it is expressly stated in each case that they shall continue to be binding.
(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. Transmission by fax or transmission by e-mail shall be sufficient to comply with the requirement for it to be presented in writing.
(4) Information provided by AVEMA on the subject matter of the delivery or service (e.g. weights, dimensions, practical value, load-bearing capacity, tolerances and technical data) as well as representations thereof (e.g. drawings and illustrations) shall only be approximately relevant unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements shall be permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) AVEMA retains the ownership or copyright of all offers and cost estimates submitted by it, as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client. The Client may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without AVEMA’s express consent. Upon AVEMA’s request, he shall return these items to AVEMA in their entirety and destroy any copies that may have been made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§3 Conditions of Sale – Prices
(1) The prices shall apply to the scope of services and deliveries listed in the order conformations. Additional or special services will be charged separately. The prices are quoted in EURO ex Nowa Sól (Poland) plus packaging, the statutory value added tax, in the case of export deliveries customs duties as well as fees and other public charges.
(2) Insofar as the agreed prices are based on AVEMA’s list prices and delivery is to be made more than four months after conclusion of the contract, AVEMA’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoice amounts shall be payable immediately upon receipt of the invoice without any deductions, unless otherwise agreed in writing. Invoices are payable by SEPA corporate direct debit mandate. If the Client fails to make payment when due, the outstanding amounts shall bear interest from the due date, at a rate of 8% above the base interest rate p.a.; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Client or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been legally established.
(5) AVEMA shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Client and which jeopardize the payment of AVEMA's outstanding claims.
(6) Discounts or freight reimbursements granted by AVEMA to the Client shall lapse in the event of legal disputes with the Client, out-of-court settlement proceedings, insolvency proceedings or default in payment on the part of the Client.
§ 4 Delivery conditions
(1) Deadlines and dates for deliveries and services promised by AVEMA shall always apply only approximately, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the Client, forwarding agent, carrier or other third party commissioned with the transport.
(2) AVEMA may - without prejudice to its rights arising from the Client's default - demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the Client fails to meet his contractual obligations towards AVEMA.
(3) AVEMA shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, war, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by suppliers) for which AVEMA is not responsible. Insofar as such events make it significantly more difficult or impossible for AVEMA to deliver or perform and the hindrance is not only of temporary duration, AVEMA shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance. Insofar as the client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately notifying AVEMA in writing.
(4) AVEMA shall be entitled to make partial deliveries if
• the partial delivery is usable for the Client within the scope of the contractual intended purpose,
• the delivery of the remaining goods ordered is ensured and
• the customer does not incur any significant additional work or costs as a result of this
The transfer of an object of delivery or service to several forwarders/carriers due to type or quantity does not constitute a partial delivery. The delivery of one of several different items of purchase or service contained in an order of the Client shall also not constitute a partial delivery.
(5) If AVEMA is in default with a delivery or service or if such delivery or service becomes impossible, AVEMA's liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
(6) If the Client is in default of acceptance, fails to cooperate or if AVEMA's delivery is delayed for other reasons for which the Client is responsible, AVEMA shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
(7) Return shipments of goods shall only be accepted freight prepaid upon AVEMA's prior written consent. In this case, the Client shall bear the transport risk until the goods are handed over to AVEMA.
(8) If the goods sold are shipped to another location at the request of the client, the risk shall pass to the Client as soon as AVEMA has delivered the goods to the forwarding agent, the carrier or any other person designated to perform or ship the goods.
§ 5 Warranty in the event of defects
(1) The warranty period shall be 1 year from delivery or, if acceptance is required, from acceptance. Claims for reimbursement of expenses of the Purchaser/Buyer pursuant to § 445a BGB (recourse of the Seller) shall also become invalid after one year from the statutory commencement of the limitation period, provided that the last contract in the supply chain is not a purchase of consumer goods. If the goods are used for a building in accordance with their customary use and have caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Section 438 (1) No. 2 BGB). Components that can be replaced without intervention in a structure do not constitute goods that are used and cause its defectiveness. Also unaffected are special statutory provisions for claims in rem for surrender by third parties (Section 438 (1) No. 1 BGB), in the event of fraudulent intent on the part of the Seller (Section 438 (3) BGB) and for claims in supplier recourse in the event of final delivery to a consumer (Section 479 BGB).
(2) The delivered items shall be inspected carefully immediately after delivery to the Client or to the third party designated by the Client. They shall be deemed to have been approved if AVEMA has not received a written notice of defects with regard to obvious defects or other defects which were recognizable during an immediate, careful inspection within seven working days after delivery of the item delivered or otherwise within seven working days after discovery of the defect or any earlier point in time at which the defect was recognizable to the Client during normal use of the item delivered without closer inspection. At AVEMA's request, the item delivered which is the subject of the complaint shall be returned to AVEMA freight prepaid. In the event of a justified notice of defect, AVEMA shall reimburse the costs of the most favorable shipping route.
(3) In the event of material defects in the items delivered, AVEMA shall first be obligated and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Client may withdraw from the contract or reasonably reduce the purchase price.
(4) If a defect is attributable to AVEMA, the Client shall be entitled to claim damages.
(5) The warranty shall lapse if Customer modifies the delivery item or has it modified by a third party without AVEMA's consent and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Client shall bear the additional costs of remedying the defect resulting from the change.
§ 6 Place of performance – delivery modalities
(1) The place of performance for all obligations arising from the contractual relationship is Nowa Sól (Poland).
(2) The method of shipment and packaging shall be at the discretion of AVEMA.
(3) The risk shall pass to the Client at the latest when the delivery item is handed over to the Client, forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or AVEMA has taken over other services. If the shipment or handover is delayed as a result of a circumstance the cause of which lies with the Client, the risk shall pass to the Client from the day on which the delivery item is ready for shipment and AVEMA has notified the Client of this.
(4) Storage costs after transfer of risk shall be borne by the Customer.
(5) Insofar as acceptance has to take place, the object of sale shall be deemed to have been accepted if
• the delivery has been completed,
• AVEMA has notified the client of this and requested acceptance,
• 2 weeks have passed since delivery or installation or the Client has started using the purchased item
• the client has refrained from acceptance within this period for a reason other than a defect, notified to AVEMA, which makes the use of the purchased item impossible or significantly impairs it.
§ 7 Retention of title
(1) The retention of title agreed below shall serve to secure all of AVEMA's respective existing current and future claims against the Client arising from the delivery relationships existing between the contracting parties (including balance claims arising from a current account relationship limited to this delivery relationship).
(2) The goods delivered by AVEMA to the Client shall remain the property of AVEMA until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title taking their place according to this clause are hereinafter referred to as goods subject to retention of title.
(3) The Client shall store the reserved goods free of charge for AVEMA.
(4) The Client shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the case of realization (paragraph 9) arises. Pledges and transfers of ownership by way of security are not permitted.
(5) If the goods subject to retention of title are processed by the client, this shall be done for AVEMA as manufacturer and AVEMA shall acquire direct ownership or – if the processing is done using materials from several owners or the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership should occur at AVEMA, the Client shall already now transfer its future ownership or - in the aforementioned case - its right of ownership to AVEMA. Ratio – co-ownership of the newly created item as security to AVEMA. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, AVEMA shall, insofar as the main item belongs to it, transfer to the Client pro rata co-ownership of the uniform item in the ratio specified in sentence 2.
(6) In the event of resale of the goods subject to retention of title, the Client hereby assigns by way of security the resulting claim against the purchaser – in the event of co-ownership by AVEMA of the goods subject to retention of title in proportion to the co-ownership share – to AVEMA accepting this assignment. The same shall apply to other claims which take the place of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. AVEMA revocably authorizes the Client to collect the claims assigned to AVEMA in its own name. AVEMA may only revoke this direct debit authorization in the event of liquidation.
(7) If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the Client shall immediately notify them of AVEMA's ownership and inform AVEMA thereof in order to enable AVEMA to enforce its ownership rights.
(8) AVEMA shall release the goods subject to retention of title as well as the items or claims replacing them upon request at its discretion insofar as their value exceeds the amount of the secured claims by more than 50%.
(9) If AVEMA withdraws from the contract in the event of a breach of contract on the part of the Client – in particular default of payment – AVEMA shall be entitled to demand the return of the goods subject to retention of title.
§ 8 Liability
(1) AVEMA's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is relevant in each case.
(2) AVEMA shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations.
(3) Insofar as AVEMA is liable on the merits for damages pursuant to § 8 para. 2, such liability shall be limited to damages which AVEMA foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the item delivered shall also only be compensable insofar as such damage is typically to be expected when the item delivered is used for its intended purpose.
(4) The above exclusions and limitations of liability shall apply to the same extent in favor of AVEMA's corporate bodies, legal representatives, employees and other vicarious agents.
(5) The limitations of this § 8 shall not apply to AVEMA's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§ 9 Data protection / data transfer
(1) The Client acknowledges and agrees, by placing an order, that AVEMA may process the necessary data arising from the contractual relationship, with reference to Art. 6 (1) lit. a, b, f DSGVO, for the purpose of fulfilling the contract and reserves the right to transmit the data to third parties (e.g. insurance companies and logistics service providers) to the extent necessary for the fulfillment of the contract.
(2) The Client shall have the right to inspect the data stored about him at AVEMA at any time.
§ 10 Place of jurisdiction – Miscellaneous
(1) The place of jurisdiction for all possible disputes arising from the business relationship between AVEMA and the Client shall be either the registered office of AVEMA PL -67-100 Nowa Sól, Göppingen or the Client's registered office.
(2) The relations between AVEMA and the Client shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.