General Trading Conditions
General Terms and Conditions of PHOENIX GmbH & Co. KG
§ 1. General
The following terms and conditions for our deliveries and services apply to the entire business relationship between our business partners and us for all deliveries, services and offers. Buyers accept the following terms and conditions when purchasing and inspecting our goods.
Our terms and conditions for deliveries and services are exclusive; We do not recognize any deviating conditions of the business partner, unless we have expressly confirmed their validity in writing. This also applies if we carry out the delivery without reservation in the knowledge of any deviating conditions of the business partner.
No liability is accepted for accidents during the inspection and pick-up. The putting into service of devices is strictly forbidden. All visitors to the sale are liable for any damage caused, of any kind. The buyer is liable for accidents, damage to buildings, foreign objects, etc. When collecting the instructions of our employees are authoritative.
§ 2 offer, subject of the contract
Our offers, oral or written, are always non-binding, unless we have expressly designated them as binding in writing.
All agreements made between us and the business partner within the business relationship are set out in writing in the contract itself, these terms and our order confirmation.
Illustrations, drawings, dimensions and weight specifications as well as other technical data or information merely identify the subject matter of the contract and do not constitute a guarantee of quality.
§ 3 prices, payment terms
Unless otherwise stated in the order confirmation or invoice, our prices are quoted ex-site and unassembled and unladen, excluding freight, packaging, insurance, installation, other ancillary costs and value-added tax applicable on the day of delivery. These items are shown separately in the invoice.
Payment of the entire claim must be made in cash, by EC-Cash, by bank-certified crossed check or by transfer to one of our accounts after sale to us.
The acceptance of checks is at the discretion of the seller.
The payment of VAT does not apply to business partners from EC Member States, provided that they have their VAT identification number certified as officially authenticated. Other foreign business partners must pay the full amount of the VAT as a deposit in cash and in euros. This amount will be refunded as soon as the copy of the export declaration accepted by the tax office is stamped by customs.
For the completion of export declarations, we charge 75 euros plus VAT.
The business partner can only set off against our claims or assert a right of retention if the counterclaim of the business partner is legally established, undisputed or acknowledged by us.
§ 4 delivery, transfer of risk
The risk passes to the business partner upon conclusion of the purchase contract, whereby the liability and risk of accidental loss, loss or deterioration due to, for example, fire, water, storm, theft and burglary are transferred to the business partner. This is also true and especially for accessories. The property, however, only after full payment - in check after confirmed bank credit - on the buyer.
It is generally agreed that all items acquired through us (hereinafter also referred to as goods) must be collected from the business partner at the location. If the business partner wishes to ship the purchased items, this will be at his expense. Only when the purchase price plus shipping costs has been received by us, is the agreed shipping of the goods. The business partner also bears the transport risk from the agreed place of collection. For permissible delivery by our own vehicles and employees of us, the liability is limited to intent and gross negligence on our part and our vicarious agents.
If the goods are picked up by persons other than those of the business partner, we must present a pick-up authorization from the business partner. Furthermore, the person picking up has to prove his identity by presenting a valid identity card / passport.
§ 5 delay and impossibility
If the business partner is in default of payment, we may, without prejudice to further claims, demand default interest in the amount of the usual bank interest rate for open current account receivables.
The business partner is obligated to pick up the purchased items within one week after the conclusion of the purchase contract, unless shipping or other arrangements agreed in writing have been made. For a late collection fees of up to 25 € per day can be charged.
In the event of default in payment or acceptance / acceptance default of the business partner, we are entitled to store the goods at the expense and risk of the business partner, us or third parties. Any necessary costs for insurance are also at the expense of the business partner. The business partner reserves the right to prove that costs were not incurred - or not at this amount.
Issue dates are to be agreed with us.
If the business partner does not pay by the specified deadline or if no pickup takes place within one week of the conclusion of the contract or on the agreed date, we shall be entitled to request the business partner to pay / pick up with a further week's notice. Setting a deadline is unnecessary, provided that a fixed date for payment / pickup was determined. After fruitless expiry of this period or the agreed date, we are entitled to withdraw from the contract and to claim damages. In this case, we are authorized to sell the object freehand. A possible reduction in revenue and the resulting additional costs shall be borne by the business partner. For the rest, there are no claims of the business partner on any additional proceeds generated.
§ 6 Retention of title
We reserve the property of all goods sold until full settlement of all claims from the current business relationship by the business partner, including all ancillary claims, in the case of payment by check until the time we can dispose of the amount, the goods remain our property ( § 449 I BGB).
This also applies if the purchase price has been paid for certain deliveries of goods designated by the business partner. The cessation of individual claims in a current account as well as the balance and their recognition do not affect the retention of title. The business partner is obliged to treat the goods with care and to insure them against theft and fire. All claims against the respective insurer are hereby assigned to us with regard to the goods subject to retention of title; We accept this assignment. The business partner must store all the objects that remain our property free of charge and with due commercial care.
We are entitled to withdraw from the contract in case of breach of contract by the business partner, in particular in case of default in payment or in case of breach of an obligation according to the preceding paragraphs of this provision and to demand the goods out.
The processing and processing of the goods by the business partner always takes place in the name and on behalf of us. If processing takes place with objects that do not belong to us, we acquire co-ownership of the new object in proportion to the value of the goods delivered by us to the other processed objects. The same applies if the goods are mixed with other objects not belonging to us.
§ 7 Warranty
The goods we offer are mostly used items. Technical data, mileage (mileage, vehicles), operating hours, dimensions or weights and years of construction are not binding. Listings of the objects are carefully and in good conscience created. The goods are sold as inspected and tested. Insofar as the business partner is a registered trader, a legal entity under public law, a special fund under public law or a trader, it is sold under exclusion of material defect liability unless we provide a guarantee or declaration. The exclusion of material defect liability does not apply in the case of intent or gross negligence, as well as injury to life, body and health.
For new goods applies:
a. Obvious defects, i. Legal or material defects, over-delivery, over-delivery or incorrect delivery as well as the lack of any guaranteed quality of the delivery or service (defects) are immediately, but no later than 14 days after receipt of the goods, non-obvious defects are also immediately, no later than however 14 days after recognition, to assert in writing.
b. If defects or other complaints are not asserted within a period according to the above paragraph, any warranty claims against us are excluded. In the event of a defect, we shall at our discretion make the removal of the defect (rectification of defects) or substitute delivery if the business partner proves that the defect already existed at the time of the transfer of risk. During the subsequent performance, the reduction of the purchase price or the withdrawal from the contract by the business partner are excluded. This does not apply if we are entitled to refuse supplementary performance due to the statutory provision. With used objects of purchase paragraph 1 applies.
c. We assume no liability for only insignificant deviation from the agreed quality and for insignificant impairment of usability and for damages that have arisen in particular for the following reasons: Inappropriate or improper use, incorrect installation or commissioning by the business partner or third parties, natural wear, faulty or negligent treatment - in particular excessive use, inappropriate equipment, replacement materials, chemical or electrical influences, provided that they are not the result of our fault, for which we are only responsible for intent or gross negligence.
§ 8 Applicable law, jurisdiction
Place of performance is our registered office in Buch.
The law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded.
Place of jurisdiction is in Memmingen, if the business partner is a registered trader, a legal entity under public law or a special fund under public law. We are entitled to sue at the business partner's domicile.
Contract language is German. This also applies to all product descriptions, brochures, offers and order confirmations. Insofar as we use translations, only the German version on which the translation is based shall prevail. A liability for misunderstandings from translations will not be accepted.
Should individual provisions of this contract be or become invalid or void, this shall not affect the validity of the remaining provisions of this contract.