General terms and conditions with customer information
Table of Contents
1. scope of application
2. conclusion of contract
3. right of withdrawal
4 Prices and terms of payment
5. delivery and shipping conditions
6. retention of title
7. liability for defects
8 Applicable law, contractual language
9. place of jurisdiction
10. alternative dispute resolution
11. final provisions
1) Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") of Ochmann Holzbearbeitungsmaschinen GmbH (hereinafter referred to as "Seller"), apply to all offers, confirmations, deliveries, services and contracts that a consumer or entrepreneur (hereinafter referred to as "Customer") concludes with the Seller in person or using means of distance communication (e.g. telephone, fax, e-mail, letter) exclusively by means of individual communication within the meaning of § 312j para. 5 sentence 1 BGB. The inclusion of the customer's own terms and conditions is hereby objected to, unless otherwise agreed. These terms and conditions shall be deemed to have been accepted by confirmation of purchase, at the latest, however, upon acceptance of the goods or the service.
1.2 These General Terms and Conditions shall apply accordingly to contracts for the delivery of vouchers, unless otherwise expressly stipulated.
1.3 For the purposes of these GTC, a consumer is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed. An entrepreneur within the meaning of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.
2) Conclusion of contract
2.1 The Customer may submit a non-binding request for an offer to the Seller in person, by telephone, by fax, by e-mail, by post or via the online contact form provided on the Seller's website. The seller will send the customer a binding offer for the sale of the goods previously selected by the customer from the seller's range of goods in text form (e.g. by e-mail, fax or letter). Our offers are subject to change. The documents belonging to the offer, such as drawings, illustrations, technical data as well as information in advertising material, do not constitute warranties of characteristics, unless they are expressly designated as such in writing. We reserve the right of prior sale for all machines offered. All agreements made verbally, by telephone or before third parties must be confirmed in writing by the seller in order to be valid. Only those accessories which are listed in our order confirmations or invoices are considered to be included in the prices and to be supplied. In the case of trade-in of used machines, these must be free of cracks and breakages and without hidden defects.
2.2 The Customer may accept offers by submitting a declaration of acceptance to the Seller in person, by telephone, by fax, by e-mail, by post or via the online contact form provided on the Seller's website.
3) Right of withdrawal
3.1 Consumers are generally entitled to a right of withdrawal.
3.2 More detailed information on the right of withdrawal can be found in the seller's cancellation policy.
3.3 The right of withdrawal does not apply to consumers who do not belong to a Member State of the European Union at the time of conclusion of the contract and whose sole place of residence and delivery address are outside the European Union at the time of conclusion of the contract.
4) Prices and terms of payment
4.1 Unless otherwise stated in the Seller's product description, the prices quoted are net prices which do not include the statutory value added tax. Our prices are subject to change. Unless otherwise agreed, they are ex works for new machines and ex site for used machines. The prices do not include the costs for packaging, freight, transport insurance, unloading, installation or other expenses. The prices valid on the day of delivery shall apply. In the event of default in acceptance or payment, the Supplier shall be entitled to invoice the price applicable on the day of delivery.
4.2 In the case of deliveries to countries outside the European Union, further costs may be incurred in individual cases for which the Seller is not responsible and which are to be borne by the Customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of funds if the delivery is not made to a country outside the European Union, but the customer makes the payment from a country outside the European Union.
4.3 The payment option(s) will be communicated to the customer in the seller's offer.
4.4 If advance payment by bank transfer has been agreed, payment shall be due immediately after conclusion of the contract, unless the parties have agreed on a later due date, but always before collection, loading, packaging or commencement of dismantling.
4.5 If the payment term is exceeded, the Seller shall be entitled to charge interest from the relevant date onwards at the respective bank rates for overdraft facilities, but at least at a rate of 5% above the respective discount rate of the Deutsche Bundesbank for consumers and 8% above the respective discount rate of the Deutsche Bundesbank for merchants. The customer is not entitled to withhold the purchase price or to offset it, not even if a notice of defects has been given or transport damage has occurred. The Supplier shall be entitled, despite any provisions of the Customer to the contrary, to set off payments first against older debts. If costs and interest have already been incurred, the Seller shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance. If the seller receives unfavourable information about the financial situation of the customer, he may, at his discretion, withdraw from the contract in the case of goods not yet delivered or demand cash advance payments, cancelling all possible payment agreements, and demand return or cash payment in the case of goods delivered but not yet paid for.
5) Delivery and shipping conditions
5.1 The delivery of goods shall be made by dispatch to the delivery address specified by the customer, unless otherwise agreed.
5.2 If the delivery of the goods fails for reasons for which the customer is responsible, the customer shall bear the reasonable costs incurred by the seller as a result. This does not apply with regard to the costs for the return shipment if the customer effectively exercises his right of revocation. In the event of an effective exercise of the right of revocation by the Customer, the provision made in the Seller's revocation instructions shall apply to the costs of returning the goods.
5.3 In the event of self-collection, the Seller shall first inform the Customer by e-mail that the goods ordered by the Customer are ready for collection. After receipt of this e-mail, the customer can collect the goods at the seller's registered office by arrangement with the seller. In this case, no shipping costs will be charged.
5.4 Delivery shall be deemed to have been fulfilled when the delivery items are ready for dispatch and the customer has been notified of this. At this point in time, the risk is transferred to the customer, regardless of whether the delivery item is at the seller's location or at another location. If, by way of exception, the Seller complies with the Customer's request for rescission, the Customer shall reimburse the Seller for any expenses incurred and for any loss of profit. Unless otherwise agreed, shipment shall be for the account and at the risk of the customer. The seller offers to take out transport insurance. The costs for this shall be borne by the customer. The seller is entitled to the claims from the concluded insurance against the insurance company. As a precautionary measure, the Seller assigns to the Customer the claims given in this respect. The customer shall be obliged to pay the purchase price in the event of transport damage, irrespective of the damage paid by the insurance company.
5.5 Delivery periods shall be extended to a reasonable extent in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, as well as in the event of the occurrence of unforeseeable obstacles which are beyond our control, insofar as such obstacles demonstrably have a considerable influence on the production or delivery of the delivery item. This also applies if the circumstances occur at our suppliers. We shall inform the Buyer of such circumstances without delay. These regulations apply accordingly to delivery dates. If the Seller is in default of performance in accordance with the delivery conditions and the Customer sets the Seller a period of grace of at least 6 weeks by registered letter with the express declaration that he will refuse acceptance of the performance after expiry of this period, the Customer shall be entitled to withdraw from the contract if the Seller culpably fails to comply with the period of grace. All other claims of the customer, in particular for damages, are expressly excluded. Delays in the delivery of machines, equipment or accessories and tools shall also be deemed to be without fault on the part of the sub-supplier, delivery dates are always non-binding. If it is agreed with the customer that he has to collect the delivery item from the seller or a third party, he has to take care of a professional disassembly. The customer shall bear the costs of disassembly and collection as well as any damage to equipment and buildings incurred in the course of disassembly. The Seller shall not be liable for any delays in collection or for any damage incurred during collection and dismantling.
6) Retention of title
If the Seller makes advance performance, it shall retain title to the goods delivered until the purchase price owed and all ancillary claims have been paid in full. The ancillary claims include the costs of packaging, freight, unloading, transport and installation, insurance, dismantling, assembly, delivery of spare parts, accessories and repairs, including all claims arising from non-fulfilment, from contracts, from loans and lost profit, as well as the costs of any legal action and of interventions in the event of seizure of the delivery items by third parties. The seller reserves the right of ownership of all goods delivered by him until payment of the total claim arising from the business relationship with the customer, as well as future claims in the sense of a current account balance. Insofar as the customer combines the delivery item with another item, this shall only be done for a temporary purpose. Any processing is carried out for the seller. If the customer connects, processes or mixes permanently, the seller shall be entitled to co-ownership of the new item in the ratio of the invoice value of the item subject to retention of title to the final price of the new item; the co-ownership shall be deemed to be goods subject to retention of title within the meaning of these conditions. The customer is not entitled to sell the delivered goods in whole or in part before full payment has been made. If this nevertheless happens, the customer's claims from the resale of the reserved goods are already now assigned to the seller. In the event that the reserved goods are sold by the customer together with other goods not belonging to the seller, the assignment of the purchase price claim shall only apply to the amount of the value of the reserved goods which were the subject of the purchase contract together with the other goods or part of the object of purchase. The retention of title also extends to tools, accessories and spare parts supplied. However, if these have been procured elsewhere at the customer's expense, the customer shall be entitled to remove them when exercising the retention of title. As long as the retention of title exists, the seller is entitled to enter the rooms in which the delivery items are located or to have them entered by his employees or agents, and furthermore, in the event of the retention of title being exercised, to take possession of the delivery item and to remove it or to request its dispatch. The customer shall bear the costs of the return shipment. Insofar as ownership is reserved, the customer must keep the delivered items insured against any damage at his own expense. In the event of loss or damage to the delivered goods, the customer's claim against the insurance company shall be deemed assigned to the seller. The risk of loss or damage during the period of retention of title shall be borne by the customer. If the delivery item is seized in favour of third parties or impaired by third parties, the customer is obliged to inform the seller immediately. The costs of intervention incurred by the Seller shall be borne by the Customer. The Seller not only expressly acknowledges but agrees with the Customer that the goods subject to retention of title shall be connected with land only for a temporary purpose until the purpose of security has been fulfilled. The contracting parties agree that neither of them has the intention to connect the reserved goods to the land other than for a temporary purpose before the security purpose has been fulfilled. The goods subject to retention of title which are connected to the land shall therefore only become the property of the customer when the security purpose has been achieved.
7) Liability for defects
7.1 If the purchased item is defective, the provisions of the statutory liability for defects shall apply.
7.2 Notwithstanding the foregoing, the following shall apply to used goods: used machines and goods are sold to entrepreneurs to the exclusion of any warranty. Claims for defects are excluded if the defect only occurs after the expiry of one year from delivery of the goods. Defects which occur within one year of delivery of the goods can be claimed within the statutory period of limitation. However, the shortening of the liability period to one year does not apply
- for items which have been used for a building in accordance with their customary use and have caused its defectiveness,
- for claims for damages and reimbursement of expenses of the customer, as well as
- in the event that the seller has fraudulently concealed the defect.
7.3 The period begins with the transfer of risk. The Seller shall initially only be liable to repair defective parts or to deliver completely new parts at its discretion. The rights according to § 437 BGB (German Civil Code) due to non-fulfilment arise for entrepreneurs if a threefold rectification of one and the same source of defect does not lead to freedom from defects. Claims for damages and reimbursement of expenses exist only in cases of gross negligence and intent and if cardinal obligations are violated. After three attempts to remedy the defect, the customer has the right to one new delivery from the seller. If the customer modifies the machine by means of additions or conversions, any warranty claims shall lapse. This shall also apply in the event of improper use, faulty assembly, unprofessional commissioning, operating errors, excessive stress, unsuitable operating materials and lack of care. If the seller decides to repair the goods, the customer must allow sufficient time for this. Substitute performance by the customer shall only be considered after default together with the setting of a grace period and threat of refusal or if the measure is necessary to avert immediate danger to the delivered item. The warranty shall expire if repair work is carried out by third parties without consultation with the Seller. Claims for compensation for damage to the delivered goods, consequential damage, consequential harm caused by a defect are excluded, unless the Seller can be accused of intent or gross negligence. In the case of the purchase of consumer goods, §§ 433 to 435, 437, 439-443 BGB (German Civil Code) shall apply with the exception of the reduction of the warranty period to one year in the case of used machines and the exclusion of claims for damages. In the case of sale to entrepreneurs, the entrepreneur warrants that he will not resell to consumers. He indemnifies the seller against claims and expenses incurred in the event of recourse pursuant to § 478 BGB.
7.4 If the customer is acting as a consumer, he is requested to complain about delivered goods with obvious transport damage to the deliverer and to inform the seller of this. If the customer does not comply with this, this shall have no effect on his statutory or contractual claims for defects.
8) Applicable law, contractual language
8.1 The law of the Federal Republic of Germany shall apply to all legal relationships between the parties to the exclusion of the laws on the international purchase of movable goods. In the case of consumers, this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence.
8.2 Furthermore, this choice of law with regard to the statutory right of withdrawal shall not apply to consumers who do not belong to a Member State of the European Union at the time of conclusion of the contract and whose sole place of residence and delivery address are outside the European Union at the time of conclusion of the contract.
8.3 The contractual language is German.
9) Place of jurisdiction
If the customer is a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract shall be the place of business of the seller. If the customer is domiciled outside the territory of the Federal Republic of Germany, the seller's place of business shall be the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from the contract can be attributed to the customer's professional or commercial activity. In the aforementioned cases, however, the Seller shall in any case be entitled to invoke the court at the Customer's place of business.
10) Alternative dispute resolution
10.1 The EU Commission provides a platform for online dispute resolution on the Internet at the following link: https://ec.europa.eu/consumers/odr.
This platform serves as a contact point for the out-of-court settlement of disputes arising from online purchase or service contracts involving a consumer.
10.2 The seller is neither obligated nor willing to participate in a dispute resolution procedure before a consumer arbitration board.
11) Final provisions
Existing or occurring total or partial invalidity of a part of these General Terms and Conditions does not entail the invalidity of the remaining part. A conclusion on the basis of these terms of delivery and payment makes them a legally binding component for all further conclusions between the seller and the customer, even if they are not specifically agreed for the individual part. The place of performance for all obligations arising from the contract is without exception the registered office of the seller.
Ochmann woodworking machines GmbH
Registered office: 97941 Tauberbischofsheim, Ernst-Bauer-Str. 3+5
Managing Director: Arno Ochmann
Local court Mannheim, HRB 723195