General Terms of Sale of FutureCarbon GmbH
Ritter-von Eitzenberger-Straße 24, 95448 Bayreuth
1. Scope, written form, contractual language
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") apply to all contracts for deliveries and services to be provided by us which we conclude with companies within the meaning of § 14 BGB (German Civil Code) (hereinafter referred to as "Customers").
1.2 The General Terms and Conditions apply exclusively to all our legal transactions. Contradicting or additional clauses of the customer shall only apply insofar as they have been expressly acknowledged by us in writing.
1.3 Contractual agreements and legally relevant declarations must be in writing to be effective.
1.4. These terms and conditions shall also apply in their current version (see www.future-carbon.de) for all future business relations with the customer.
2. Offers, conclusion of contract, contract documents
2.1. Our offers are subject to change without notice. A contract is only concluded by our written order confirmation.
2.2. We reserve the right to a period of at least one week to examine incoming offers.
2.3. Illustrations, descriptions and specifications in technical sheets, advertising documents and other representations are non-binding; weight indications are approximate values. The assurance of properties is not associated with this. This always requires our express written declaration.
2.4. We reserve all rights to texts, illustrations, drawings, calculations and other files or documents. The passing on to third parties is only permitted with our express prior written consent.
3. Prices, terms of payment, default in payment, right of retention, set-off, counterclaim
3.1. Prices are valid ex warehouse or factory in EURO including packaging, excluding freight, insurance, customs duties or other additional costs, plus the respectively valid value added tax. In exceptional cases, we reserve the right to charge separately for additional packaging material, for example thermal packaging.
3.2. For orders, the price list valid on the day of receipt of the order shall apply. If significant changes in material prices or wages occur between the time of placing the order and delivery, we reserve the right to make appropriate price adjustments.
3.3. Unless otherwise agreed, advance payment applies. If delivery against invoice has been agreed, payment must be made immediately after the invoice is issued, without deductions, to the specified account.
3.4. Cheques or bills of exchange are always accepted on account of performance. They shall be held by us as security until they are cashed.
3.5. If the customer defaults on at least two instalments in the case of partial payments, we shall always be entitled to make the entire open claim from the customer's current account due for payment.
3.6. We reserve the right to obtain a credit-worthiness inquiry from a credit agency, e.g. Schufa, Creditreform, etc., at our expense before delivery.
3.7. If we become aware of a significant de-terioration in the financial circumstances of the customer, e.g. of en-forcement measures by third parties against the customer's assets, the initia-tion of extrajudicial or judicial debt settlement proceedings, e.g. under the German Insolvency Act (Insolvenzordnung, InsO), we may withhold our performance until the consideration is received. This shall also apply if such a situation of the customer existed at the time of con-clusion of the contract but was not known to us. If the consideration is not provided despite the setting of a deadline, we have a right of withdrawal without prejudice to other claims.
3.8. In the event of default of payment, the customer is obliged to return to us the delivered goods still in his possession upon request. For our protection, he must store them separately without delay, irrespective of any request for return, and clearly mark them as our property (see section 8).
3.9. Goods taken back because of the customer's default of payment will be credited to the customer with an appropriate discount and offset against our claim, without prejudice to the as-sertion of further claims for damages. The customer shall be responsible for providing evidence of a lower reduction in value.
3.10. Only undisputed or legally binding claims can be offset against our claims. The counterclaim is excluded. A right of retention can only be exercised by the customer because of claims from the same contractual relationship.
4. Delivery date, delay in delivery
4.1. The subject of our delivery obligation is exclusively goods produced by ourselves or in our stocks, unless otherwise expressly agreed in writing (e.g. procurement). For our products, we also process natural materials, the availability and price of which are subject to strong fluctuations in some cases. We therefore do not assume the risk of sufficient and timely delivery of raw materials.
4.2. The delivery time begins with the date of the order confirmation. Partial deliveries are permissible, as far as they are reasonable. We may also provide our deliveries and services before the expiry of the agreed delivery time.
4.3. In the event of delivery delays due to force majeure or other circumstances beyond our control at our premises or those of our suppliers, in particular traffic and operational disruptions, labour disputes, shortage of raw materials, pandemic disease, war, etc., the delivery period shall be extended accordingly. If, in addition, a permanent obstacle to delivery arises, we may withdraw from the contract. In this case, we undertake to inform our contractual partner immediately about the non-availability of the goods and to reimburse any consideration paid by the customer without delay.
4.4. If the agreed delivery time is exceeded, the customer is obliged, at our request, to declare within one week whether he still insists on delivery. If he does not declare within this time, we are entitled to withdraw from the contract or to cancel the contract.
4.5. The following shall apply in the event of our default:
4.5.1. In principle, our liability is limited to a maximum of 5 % of the value of the delivery.
4.5.2. In case of grossly negligent or intentional breach of contract, our liability is limited to the foreseeable, typically occurring damage.
5. Delivery, transfer of risk
5.1. Unless otherwise agreed, CPT (in accordance with INCOTERMS in the version valid at the time of conclusion of the relevant contract) applies from Ritter-von-Eitzenberger Straße 24 in 95444 Bayreuth to the agreed delivery address.
5.2. In the event of agreed delivery, delivery shall be free kerbside at the agreed unloading point. The customer guarantees free access and immediate unloading. The customer will be charged for additional costs due to the fact that it is not possible to approach the site or due to waiting times.
6. Claims for defects
6.1. Delivered goods are to be inspected by the customer immediately after delivery and, if necessary, a complaint is to be made immediately (§ 377 HGB). The customer is not released from his duty of inspection even in the case of recourse by the entrepreneur according to § 478 BGB. If, in such cases, he does not immediately notify the defect claimed by his customer, the goods shall be deemed to have been accepted even in view of this defect.
6.2. If a defect is present, we are entitled to determine the type of subsequent performance. Subsequent performance shall be deemed failed after the third unsuccessful attempt. Sentence 2 shall not apply in the event of recourse under § 478 BGB.
6.3. In the event of a complaint concerning the functionality of a heating system supplied by us, the application and installation protocols of the heating system must be submitted to us.
6.4. In the case of subsequent performance in the event of defects, we shall not reimburse any expenses such as transport, travel, labour and material costs which are based on the fact that the item was taken to a place other than the registered office or commercial branch of the customer to which the delivery was made. This clause does not apply in the case of recourse according to § 478 BGB.
6.5. All claims of the customer arising from defects shall become time-barred after one year. This does not apply in the case of recourse according to § 478 BGB and in the cases of §§ 438 para. 1 no. 2 and § 634a para. 1 no. 2 BGB. Nor shall this apply to claims for damages due to injury to life, body or health or due to a grossly negligent or intentional breach of duty by us or our vicarious agents. In the case of § 438 I No. 2 b BGB (items for buildings), the customer's claims for defects shall become statute-barred after 2 years.
7. Liability for damages and reimbursement of expenses
7.1. In the event of our contractual liability for damages, the following shall apply:
7.1.1. If the claims are based on a grossly negligent breach of duty by us or our representatives or vicarious agents, liability is limited to the foreseeable, typically occurring damage.
7.1.2. This shall also apply in the event of culpable breach of an essential contractual obligation by us, our representatives or vicarious agents.
7.1.3. Otherwise, our liability for damages is excluded. The same applies insofar as recourse claims exist against us as suppliers in accordance with § 478 BGB.
7.2. The exclusions and limitations of liability under item 7.1. also apply to other claims, in particular tortious claims or claims for compensation for futile expenditure instead of performance.
7.3. The exclusions and limitations of liability under item 7.1. do not apply to any claims under §§ 1, 4 of the Product Liability Act or due to culpable injury to life, body or health.
7.4. Unless the limitation of liability according to No. 7.1. applies to claims arising from the producer's liability according to § 823 BGB, our liability is limited to the amount of our insurer's benefit. Insofar as this does not occur or does not occur completely, we shall be liable up to the amount of the sum insured, at the most up to a sum of five hundred thousand euros. Sentences 1 and 2 shall not apply in the event of culpable injury to life, body or health.
7.5. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
7.6. A reversal of the burden of proof is not associated with the above provisions.
7.7. Our liability for delayed delivery is subject to the special provision in clause 4.5.
8. Retention of title
8.1. The ownership of the delivered goods remains reserved until all payments from the contract have been received, in the case of a current business relationship until all claims from this relationship have been settled.
8.2. The customer is obliged to handle the delivered goods with care, in particular to store them properly; he is also obliged to insure them sufficiently at his own expense against fire, water and theft damage at replacement value.
8.3. In the event of seizures and other interventions by third parties, the customer must inform us immediately in writing in order to protect our rights. Furthermore, the customer is obliged to protect the object from enforcement measures within the scope of his possibilities.
8.4. The customer is entitled to resell and use delivered goods in the ordinary course of business. He hereby assigns to us the claims accruing to him from the resale against his customers or third parties in the amount of the value of the reserved goods. The value of the goods subject to retention of title shall be the final invoice amount agreed with us, including VAT.
8.5. If delivered goods are inseparably mixed with other items, we shall acquire co-ownership of the new item in the ratio of the objective value of the delivered goods to the other items at the time of processing.
8.6. In this case, the assignment shall extend to the amount corresponding to our share of ownership.
8.7. The customer is not entitled to other dispositions, such as pledging or transfer of ownership by way of security.
8.8. The customer is authorized to collect the claim from the resale. Our authority to collect the claim ourselves remains unaffected by this. We undertake not to collect the claim as long as the customer is not in default of payment or an application for the opening of insolvency proceedings on his assets has been filed or there is no de facto suspension of payments. If this is the case, the customer is obliged to disclose to us without delay the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents and to inform his debtor of the assignment and to provide us with evidence of the notification. We reserve the right to do this ourselves.
We undertake to release securities to which we are entitled at the request of the customer to the extent that their realisable value exceeds the claims to be secured by more than 20%; the choice of the securities to be released is incumbent on us.
10. Results of work; industrial property rights
The intellectual property rights to our developments remain with us as a matter of principle. We have the right to protect new materials developed by us for us and we make regular use of this right.
11. Applicable law, place of performance, place of jurisdiction
11.1 The law of the Federal Republic of Germany shall apply, excluding the Law on Contracts for the International Sale of Goods (CISG). The INCOTERMS in the version valid at the time of conclusion of the contract concerned shall be applied for the interpretation of trade terms.
11.2 The place of performance for all claims arising from this contract is Bayreuth.
11.3 For contracts with merchants, legal entities under public law, special funds under public law and with foreigners who have no domestic place of jurisdiction, the place of jurisdiction is Bayreuth. However, we are also entitled to take legal action at the customer's place of business.
Should a clause be or become invalid, the validity of the remaining provisions shall not be affected.