T&Cs for contracts with businesses
1. General - scope of application
(1) These conditions of sale only apply to companies within the meaning of § 310, Paragraph 1 of the German Civil Code.
(2) These conditions of sale apply exclusively; customer’s conflicting or conditions deviating from these conditions of sale will not be recognised. These conditions of sale shall also apply if we unconditionally carry out the delivery to the purchaser in the knowledge of the conflicting terms and conditions of the purchaser which deviate from our conditions.
(3) These conditions of sale also apply to all future transactions with the customer.
(1) The customer’s product descriptions contained in the online-shop do not represent binding offers on the part of the vendor but serve only for the purpose of the submission of a contractually binding offer by the customer.
(2) The customer can submit the offer using the online order form integrated in the online-shop.
(3) If the order qualifies as an offer pursuant to § 145 BGB (Civil Code), CaviTAU®, owner J. Lechner, can accept this offer within 2 weeks.
3. Prices, payment terms
(1) Unless not otherwise provided in the order confirmation, the prices shown apply exclusively as “ex works” excluding packaging, this is charged separately.
(2) If the offer in item 3 (1) submitted by the customer has been accepted, and the purchase prices used in the calculation change by more than 5 % between the time of the contract closure and the fulfilment of the contract, then CaviTAU®, owner J. Lechner, is entitled to pass on this price increase to the customer and to adjust the offer accordingly. In this case, the customer is entitled to terminate the contract within one week after being informed of the price increase or to withdraw from the contract.
(3) The statutory amount of VAT will be shown separately on the invoice, on the day of the invoice.
(4) The deduction of discounts requires a separate written agreement.
(5) Unless otherwise agreed upon in the order confirmation, the net purchase price (without discount) is to be paid within 30 days after the date of the invoice. The statutory regulations concerning the consequences of late payment apply accordingly.
(6) A purchaser only has the right of offset if his counterclaims are legally established, undisputed or acknowledged by us. Furthermore, he is authorised to exercise a right of retention insofar as his counterclaim rests on the same contractual relationship.
4. Reservation of self-supply
In the event that, despite a hedging transaction, delivery problems occur, not attributable to the CaviTAU®, owner J. Lechner, the supplier reserves the right of withdrawal. In this case the customer will be informed of this immediately. Where appropriate the delivery of a comparable product will be suggested to the customer. In the event that no comparable product is available, or the customer does not want the delivery of comparable goods, any payments made by the customer hitherto will be refunded immediately.
5. Delivery time
(1) Prerequisite for the beginning of the delivery time quoted is the clarification of all technical questions.
(2) A further prerequisite for the fulfilment of the delivery commitment is the timely and correct fulfilment of the customer’s obligations. We reserve the right to plead non-performance of the contract.
(3) If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, the CaviTAU®, owner J. Lechner, is authorised to demand the compensation of any losses caused, including any additional effort. We reserve the right to enforce additional claims.
(4) To the extent that the conditions from paragraph (3) apply, the risk of accidental loss or accidental deterioration of the object of purchase is passed to the buyer at the point in time when approval default or payment default commences.
(5) A liability is regulated according to the legal statutes, as long as the underlying purchase contract is a fixed date transaction within the meaning of § 286 paragraph 2 No. 4 of the German Civil Code or of § 376 German Commercial Code. Liability also exists according to the legal statutes, if, as a result of a delivery delay attributable to us, the customer is entitled to claim that his interest in the further contract fulfilment has ended.
(6) Liability also exists according to the legal statutes if the delivery delay is attributable to a deliberate or negligent violation of the contract on the part of CaviTAU®, owner J. Lechner, or is the fault of a representative or agent of CaviTAU®, owner J. Lechner. If the delivery delay is not caused by a deliberate breach of contract on the part of CaviTAU®, owner J. Lechner, liability for compensation for damages is limited to the foreseeable, typical types of damage.
(7) Liability according to the legal statutes also exists if the delivery delay is caused by a culpable breach of essential contractual obligations by CaviTAU®, owner J. Lechner; in this case liability for compensation for damages is limited to the foreseeable, typical types of damage. Essential obligations are such obligations, the fulfilment of which is essential for the proper performance of the contract and upon compliance with which the contracting parties can usually rely.
(8) Further legal claims and rights of the customer remain unaffected.
6. Transfer of risk - packaging costs
(1) Provided that nothing else arises following order confirmation, the delivery “ex warehouse” is agreed upon.
(2) Separate agreements apply for the return of packaging material.
(3) Insofar as the customer requests it, CaviTAU®, owner J. Lechner will cover the delivery by means of a transport insurance; the customer shall bear the costs incurred.
7. Liability for defects
(1) Defect claims on the part of the buyer assume that the latter has properly met his obligations under § 377 of the Commercial Code (HGB) to examine the property and report defects.
(2) If the purchased object has a defect, CaviTAU®, owner J. Lechner, is entitled, within the scope of the retroactive fulfilment, to rectify the defect or to deliver a new, defect-free object. The decision on the form of retroactive fulfilment lies with CaviTAU®, owner J. Lechner. In the case of defect rectification, CaviTAU®, owner J. Lechner will bear the costs up to the amount of the purchase price.
(3) If the retroactive fulfilment fails, then the customer is entitled, according to his choice, to claim cancellation or reduction. In addition the customer can claim compensation, the scope of which is determined by clause 7. (4) ff.
(4) Liability is in accordance with the statutory conditions if the buyer asserts claims which are based on intentional acts or gross negligence, including the intentional acts or gross negligence of their representatives or vicarious agents of CaviTAU®, owner J. Lechner. If no deliberate breach of contract by CaviTAU®, owner J. Lechner, can be proved, liability for compensation for damages is limited to foreseeable, typical types of damage.
(5) Liability according to the legal statutes also exists, if CaviTAU®, owner J. Lechner has culpably breached essential contractual obligations; if this is the case liability for compensation for damages is limited to foreseeable, typical types of damage occurring. Essential obligations are such obligations, the fulfilment of which is essential for the proper performance of the contract and upon compliance with which the contracting parties can usually rely.
(6) If the customer is entitled to claim compensation for the damage instead of the performance, the liability is also, within the scope of paragraph (3), limited to the compensation for damages for foreseeable, typical types of damage occurring.
(7) Liability due to culpable injury to life, body or health remains unaffected; this also applies to mandatory liability in accordance with the Product Liability Act.
(8) Unless stipulated otherwise in one of the preceding provisions, the liability is excluded.
(9) The limitation period for claiming defects is 12 months, calculated from the transfer of risk.
(10) The limitation period for delivery regress according to §§ 478, 479 German Civil Code remains unaffected; it is five years calculated from the delivery of the defect object.
(11) In the event that the customer returns purchased goods to CaviTAU®, owner J. Lechner, with the information that they are defect and which, in the course of the verification, prove to be defect free, then CaviTAU®, owner J. Lechner, is, in the event of a culpable breach of contract, entitled to claim reimbursement of expenses. After the amount of the claim has been communicated, the customer is entitled to claim that an entitlement to reimbursement does not exist, or does not exist for this amount.
(12) In the event of the assertion of the reimbursement according to clause 7. (11) CaviTAU®, owner J. Lechner, is entitled to assert the right of retention until the claim has been compensated.
8. Total liability
(1) A further liability for damage compensation than that defined in 7. is excluded, without taking into account the legal nature of the claim asserted. This applies in particular to claims for compensation for damages pursuant to in culpa contrahendo due to other breaches of duty or due to claims in tort to compensation for material damage in accordance with § 823 of the German Civil Code.
(2) The limitation according to paragraph (1) also applies, if the customer claims the compensation of useless efforts instead of the compensation of the damage.
(3) If the liability for damage compensation vis à vis CaviTAU®, owner J. Lechner, is excluded or limited, this also applies with regard to liability for personal compensation for damages on the part of our staff, employees, colleagues, representatives and vicarious agents of the CaviTAU®, owner J. Lechner.
9. Security of the Reservation of Title
(1) Ownership of the object of purchase will be retained until receipt of all payments from the delivery agreement. If the customer acts contrary to the provisions of the contract, in particular if he defaults on payment, CaviTAU®, owner J. Lechner, is entitled to revoke the object of purchase. With the revocation of the object of purchase the contract has been terminated. The CaviTAU®, owner J. Lechner, is, after the revocation of the object of purchase, entitled to its recovery, the proceeds realised - minus appropriate recovery costs - will be offset against the customer’s debts.
(2) The customer is obliged to treat the object of purchase with care.
(3) In the event of seizures or other action by third parties, the Customer must notify CaviTAU®, owner J. Lechner, immediately in writing so that a lawsuit according to § 771 ZPO (German Code of Civil Procedure) can be lodged. If the third party is unable to compensate us for the judicial and extrajudicial costs of a claim according to § 771 ZPO of the Civil Code, the buyer is liable for the costs incurred by us.
(4) The customer is entitled to resell the purchase item in the ordinary course of business; however the purchaser shall already assign to us all claims in the amount of the final sum (including VAT) of our demand, which arise from the resale to its purchaser or a third party, irrespective of whether the purchase item has been resold without processing or after processing. The purchaser remains entitled to collect this claim even after the assignment. The authorisation of CaviTAU®, owner J. Lechner to collect the claim itself remains unaffected. CaviTAU®, owner J. Lechner, undertakes not to collect the claim, as long as the customer fulfils its payment obligations from the revenue collected, is not in arrears with payment and, in particular, no application for the opening of settlement or insolvency proceedings has been filed or suspension of payment is present. If this is the case, we are entitled to demand that the purchaser notify us of the assigned claims and their debtors, make all necessary information ready for collection, hand over the related documents and notify the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of purchase by the customer is always performed for CaviTAU®, owner J. Lechner. If the object of purchase is processed with other objects, not belonging to CaviTAU®, owner J. Lechner, CaviTAU®, owner J. Lechner then acquires the co-ownership of the new object in the relationship of the value of the object of purchase (final invoice amount, including VAT) to the other processing objects at the time of processing. For the item resulting from the processing, the same applies as for the object of purchase delivered which is subject to reservation.
(6) If the object of purchase is inseparably mixed with other objects, not belonging to CaviTAU®, owner J. Lechner, CaviTAU®, owner J. Lechner then acquires the co-ownership of the new object in the relationship of the value of the object of purchase (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the item of the purchaser is to be regarded as the main item, it is agreed that the purchaser transfers co-ownership to CaviTAU®, owner J. Lechner, proportionally. The purchaser shall store the resulting item of sole proprietorship or co-owned property for CaviTAU®, owner J. Lechner.
(7) The customer also relinquishes any claims in favour of CaviTAU®, owner J. Lechner, to ensure the claims of CaviTAU®, owner J. Lechner, that arise from the connection of the object of purchase with a property against a third party.
(8) CaviTAU®, owner J. Lechner obliged to release the securities to which we are entitled, upon the customer’s request, should the realisable value of our securities exceed the receivables to be secured by more than 10%; the choice of which securities to release shall be incumbent upon CaviTAU®, owner J. Lechner.
10. Court of jurisdiction - Place of performance
(1) If the customer is a business, then the head office of CaviTAU®, owner J. Lechner, is the court of jurisdiction; who is, however, entitled to the customer at the court in his place of residence.
(2) The laws of the Federal Republic of Germany shall apply; this, however, under the exclusion of all legal rules that refer to another legal system, and also excluding
the UN treaty on contracts for International sales (New York Convention on Contracts for the International Sale of Goods - CISG dated 11.04.1980).
(3) Unless otherwise stated in the order confirmation, the place of fulfilment is the head office of CaviTAU®, owner J. Lechner.