General Terms and Conditions Status: Thursday, January 11, 2007
- The General Terms and Conditions of Sale and Delivery of Burst & Zick GmbH shall only apply to contractual partners within the meaning of §§ 310 BGB, 1 et seq. HGB (in particular merchants, companies and legal entities under public law or a special fund under public law). These terms and conditions of sale shall also apply to all future business transactions with the purchaser, insofar as these are legal transactions of a related nature.
- The terms and conditions of sale and delivery of Burst & Zick GmbH shall apply exclusively. Conflicting or deviating conditions of the buyer are not recognized
- Burst & Zick GmbH retains title to the delivered goods and services until payment in full (including all ancillary costs, such as exchange costs, financing costs, interest, etc.). In the case of merchants, this shall apply with regard to all claims arising or still arising from the business relationship with the customer, irrespective of their nature and legal basis, until all outstanding claims have been satisfied. In the case of a current account, the reserved property shall be deemed to be security for the balance of the account.
- Before the transfer of ownership, the pledging or transfer of ownership by way of security of the goods is prohibited. The customer is entitled to resell and process the purchased goods in the ordinary course of business.
- The customer already now assigns to Burst & Zick GmbH the claims arising from the resale or any other legal ground (insurance / tort) with regard to the goods subject to retention of title (incl. all balance claims from current account, as well as incl. VAT), which accrue to the customer from the resale vis-à-vis his customers or third parties (irrespective of whether the purchased item has been resold without or after processing). Burst & Zick GmbH accepts this assignment. The customer remains authorized to collect this claim even after the assignment.
The authority of Burst & Zick GmbH to collect the claim itself remains unaffected by this. However, Burst & Zick GmbH undertakes not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment, in particular no application for the opening of insolvency proceedings has been filed, or a suspension of payments exists.
If this is the case, however, Burst & Zick GmbH may demand that the customer inform Burst & Zick GmbH of the assigned claim to the debtor, provide all information required for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment. - The processing or transformation of the purchased item by the customer is always carried out on behalf and in the name of Burst & Zick GmbH, without any liabilities for Burst & Zick GmbH arising from this.
If the purchased item is processed with other items not belonging to Burst & Zick GmbH, Burst & Zick GmbH shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other processed items at the time of processing. The same shall apply to the item created by processing as to the purchased item delivered under reservation. - In the event of installation in third-party goods by the customer, Burst & Zick GmbH shall become co-owner of the newly created products, in the ratio of the value of the goods delivered by you to the third-party goods used with them.
- If the goods delivered by Burst & Zick GmbH are mixed or combined with other items, the customer hereby assigns to Burst & Zick GmbH his ownership or co-ownership rights in the ratio of the value of the purchased item to the other mixed items at the time of mixing in the mixed stock or the new item. Burst und Zick GmbH accepts the assignment.
If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to Burst & Zick GmbH on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership free of charge with the necessary care for Burst & Zick GmbH. - The customer also assigns to Burst & Zick GmbH those claims to secure Burst & Zick GmbH's claims against him which arise against a third party through the connection of the purchased item with a piece of real estate. Burst & Zick GmbH accepts the assignment.
- Checks are only accepted on account of payment. The retention of title and the counterclaim of Burst & Zick GmbH shall expire only with the final and loss-free crediting of the check.
- Burst & Zick GmbH is permitted to inspect the goods or have them inspected at any time before the retention of title expires.
- If the customer is in default of payment in whole or in part, he is no longer entitled to dispose of the goods. In such a case, Burst & Zick GmbH may withdraw from the contract and/or revoke the customer's authority to collect from the consignee. Burst & Zick GmbH is then entitled to demand information about the consignees, to notify them of the transfer of claims to Burst & Zick GmbH, and to collect the customer's claims against the consignees.
- Insofar as the default extends over at least two installments and is not caused by the customer through no fault of his own, Burst & Zick GmbH may further demand the immediate surrender of the goods; in case of doubt, this does not constitute a withdrawal from the contract in the case of transactions other than consumer credit transactions. In the case of merchants, Burst & Zick GmbH is in this case entitled to realize the item by crediting it against the purchase price owed.
- Should the goods have been seized before expiry of the reservation of title or, in the case of other interventions by third parties, should they have been removed from the actual sphere of control of the customer, or should the opening of insolvency proceedings against the customer's assets be applied for, the customer shall immediately notify Burst & Zick GmbH in writing so that Burst & Zick GmbH can file a lawsuit pursuant to 771 ZPO.
Insofar as the third party is not able to reimburse Burst & Zick GmbH for the judicial and extrajudicial costs of a lawsuit according to 771 ZPO, the customer shall be liable for the loss incurred by Burst & Zick GmbH. - Insofar as the value of all security interests to which we are entitled according to these provisions exceeds the amount of all secured claims by more than 20%, Burst & Zick GmbH is obliged to release a corresponding part of the security interests at the customer's request.
- For the duration of the retention of title, the goods are to be stored safely and insured by the customer against fire, water, theft and burglary for a value of € 2,000.00 or more. The rights from this insurance are already now assigned to Burst & Zick GmbH. Burst & Zick GmbH accepts the assignment.
- Rights of retention of the purchaser which are not based on the purchase contract are excluded.
- The purchaser shall bear all costs of taking back and realizing the object of purchase. The utilization costs amount to 10 % of the utilization proceeds without proof. They are to be set higher or lower if Burst & Zick GmbH proves higher costs or the buyer proves lower costs.
- For all present and future claims arising from the business relationship with merchants, including claims arising from bills of exchange and checks, the exclusive place of jurisdiction shall be the registered office of Burst & Zick GmbH. The same place of jurisdiction shall apply if the purchaser does not have a general place of jurisdiction in Germany, moves his place of residence or habitual abode out of Germany after conclusion of the contract, or his place of residence or habitual abode is not known at the time the action is filed. Otherwise, in the case of claims of Burst & Zick GmbH against the purchaser, the purchaser's place of residence shall be the place of jurisdiction.
Other
- This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- Amendments and supplements to this contract must be made in writing. This also applies to amendments to this written form clause. No verbal collateral agreements have been made.
- Should individual provisions of this contract be or become ineffective or contain a loophole, the remaining provisions shall remain unaffected. A so-called severability clause ("The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap") should not be included in the GTCs, but should be negotiated as an individual agreement.
- The GTC have been translated, only the German GTC are legally effective.
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