ZENDOME GmbH Standard terms and conditions of sale (version 10/06)
1 Scope of application
1.1 The following terms and conditions of sale shall apply to all contracts
we make for the supply of goods and the provision of services. Even where
the incorporation of these terms and conditions has not been expressly
agreed they shall apply also to all future business dealings with the
customer. Even where we do not expressly repudiate such customer terms and
conditions as diverge from ours, unless expressly accepted by us, we shall
not be bound by them.
1.2 Unless agreed otherwise, all agreements made in connection with our
contractual agreements and services, shall routinely be recorded in writing
in the contract, its terms and conditions and in our order confirmation.
2 Offer / Documentation
2.1 Unless we have in writing expressly characterised our offers as binding,
they shall be subject to change and shall not have binding force.
Unlessprovided otherwise in the relevant offer, our binding offers shall
bind us routinely for a period of four weeks.
2.2 Illustrations, drawings, calculations and other documents shall remain
our property and we retain our copyright therein. Where these do not form
the subject-matter of a contract we may require the customer to return them
to us. Only to the extent that the customer's own use of the contractual
goods and services necessitates the reproduction or
any other exploitation of the documents shall this be permitted. In
addition, this rule shall apply also to such documents, information,
material, and such like marked as "confidential". All documents, materials,
etc. in respect of which in accordance with the contractual purpose the
customer enjoys a nonexclusive user licence shall be clearly marked with a
reference to us incorporating our url www.zendome.de or shall retain our
company symbols and/or copyright notices without amendment.
The preceding rule shall apply independently of the medium of communication
and of the mode of availability, for example, in paper or electronic format.
2.3 Only in so far as it is reasonable for the customer to accept variations
in our measurements, illustrations, descriptions of materials, technical
details, designs, drawings, sketches and other documents contained within
our non-binding offers or which result from our catalogues and other public
announcements concerning our products shall they have binding force. We
reserve the right to make modifications, in particular, as a result of
amendments. Even without the customer's consent, modifications which it is
reasonable for the customer to accept, in particular, those necessary and/or
appropriate for technical or production reasons or to satisfy official
requirements shall be treated as in accordance with the contract.
3 Prices / Payment terms
3.1 Except where agreed otherwise with the customer, our prices are "ex
works" exclusive of packaging costs.
3.2 Where no other agreement has been made with the customer, the purchase
price (in full) including any charges for installation services or
assistance shall be payable in advance with the placement of the order.
3.3 Except where the contract provides otherwise, fees for additional
supplies, services etc shall be payable in accordance with our price lists
prevailing at the time. Additional supplies shall on each occasion be due
for payment five days following the date of invoice. Monthly service fees
shall on each occasion be payable in advance and shall fall due on the third
working day of the month.
3.4 Where the agreed supply period exceeds a period of four months from the
date the contract was made or where, for reasons for which the customer
alone is responsible or which fall within the scope of the risk to be borne
by the customer alone, supply is deferred to a date more than four months
from the date the contract was made we shall be entitled to charge the pricein
force on the supply date. Where delay in supply occurs for reasons forwhich neitherwe
nor the customer are responsible, we reserve the right to amend our
prices accordingly if during the intervening period, in particular, on
account of pay settlements or changes in the price of materials there has
been an increase or decrease in our costs. We shall substantiate such price
amendments at the customer's request.
3.5 Even where no payment reminder is issued, where the customer does not
pay fees within 10 days of them falling due, he shall be deemed to be in
default. Where the customer is in default on a payment, we shall be entitled
to charge interest from the relevant date at a rate of 5 percentage points
(for consumers) or 8 percentage points (for business customers) above the
relevant statutory base rate. We reserve the right to demonstrate that we
have suffered further losses resulting from the default over and above such
losses as relate to the cost of borrowing.
3.6 Even where the customer makes claims concerning defects or
counter-claims, he shall be entitled to make set-off, only if those
counter-claims have been determined by final judgment of a court, have been
acknowledged by us or are uncontested. Only where the customer's
counter-claim derives from the same contract shall he be entitled to apply
4 Installation services and assistance
4.1 The fees charged for installation services and/or assistance as provided
for in 3.1 (prices/payment terms) are based on our understanding of the task
recorded in the quote submitted. If during the course of installation the
customer requests modifications or additions, a charge shall be made for the
additional expenses thereby arising as provided for in 3.3.
4.2 Unless the contract provides otherwise, the customer shall make
available at his own expense such tools, lifting platforms and installation
workers as the needs of the contract require.
4.3 In accordance with contractual agreements the customer shall inform us
in good time of the on-site conditions for installation work and shall
provide us with the relevant documentation concerning, for example:
infrastructure, access, arrival, delivery, ground.
4.4 It shall be the customer's responsibility to ensure that the
installation workers supplied by him are adequately insured and that all
labour and social insurance law requirements are observed.
4.5 We shall compile an installation / service report which details the
progress of the installation. The customer shall be required to confirm the
progress / completion of the work. Where the Building Code and/or other
official regulations require a final inspection and approval or such like to
be performed, the customer shall apply to the relevant authority in good
time for such inspection to be held in the presence of the installation
supervisor / construction foreman prior to the customer handover of the
contractual product duly installed / constructed.
4.6 The customer shall designate a contact person for the installation /
service work who has been given the task and is authorised to take decisions
in the course of the installation work which have binding effect and on
which we can rely.
5 Supply and performance times
5.1 Only where we have expressly agreed supply dates and deadlines to be
binding shall they have such effect.
5.2 Our ability to adhere to supply dates or deadlines depends on the
resolution of all technical questions and on the customer making timely
payment. We reserve the right to rely on the defence of failure to perform.
5.3 If we default or there is a threat of this happening the customer shall
grant us a reasonable additional period of time in which to perform
beginning with the day on which written notice of default was received. If
on expiry of this additional period performance has not ensued, the customer
shall be entitled to terminate the contract. Where time is of the essence as
regards the supply date it shall not be a requirement that we be granted an
additional period of time for performance.
5.4 To the extent that we suffer loss, including any additional expenses
arising, where the customer defaults through non-acceptance or where he
infringes his obligations to cooperate we shall be thereby entitled to claim
damages. In such cases, from the time when the customer defaults through
non-acceptance or through non-performance of his
obligations risk of accidental destruction or deterioration of the
contractual product shall pass to the customer.
5.5 Where the underlying contract concerns a transaction where time is of
the essence within the meaning of the fourth point of Paragraph 286(2) of
the German Civil Code (BGB) or Paragraph 376 of the German Commercial Code
(HGB) or where following a default in supply for which we are responsible
the customer is entitled to claim that he
no longer has an interest in the continued performance of the contract, we
shall be liable in accordance with the statutory provisions.
5.6 In addition, to the extent that our default in supply results from an
intentional or grossly negligent breach of a contractual obligation for
which we are responsible – including the culpable conduct of our servants
and agents for which we are vicariously liable – we shall be liable in
accordance with the statutory provisions. To the extent that our default in
supply does not result from any intentional conduct for which we are
responsible, we shall be liable only for such losses as are reasonably foreseeable.
5.7 Further, to the extent that the default in supply for we are responsible
results from our culpable breach of a fundamental term of the contract we
shall be liable in accordance with the statutory provisions. In such a case
our liability to pay compensation shall be limited to those losses which are
5.8 For the remainder, in the event of a default in supply, for each
complete week of default, we shall be liable to pay flat-rate compensation
for the default – to be set-off against any further damages claims in the
matter – in the amount of 0.2 % of the value of the goods, subject to an
overall maximum, however, of 5 % of the value of the goods.
6 Passage of risk / Shipping / Packaging
6.1 Unless the order confirmation indicates otherwise, the parties shall be
deemed to have agreed on supply "ex works".
6.2 With the exception of pallets, we shall not take back transport
packaging and all other packaging as defined in the Regulation on avoidance
and recycling of packaging waste (Verordnung über die Vermeidung und
Verwertung von Verpackungsabfällen). It shall be the customer's
responsibility to arrange for the disposal of the packaging at his own
6.3 At the customer's request we shall insure the supply with shipping
insurance. The costs arising thereby shall be borne by the customer.
6.4 On delivery the customer shall inspect the packaging without delay and
shall notify the shippers – in accordance with their provisions – of any
damage to the packaging. The customer shall inform us thereof without delay.
6.5 Where supply is to be made to a foreign destination, the customer shall
obtain the necessary consents, in particular the export licence, at his own
6.6 If at the customer's request or if through the customer's fault a delay
to shipping occurs, the purchase object shall as a result be stored by us at
the customer's risk and expense. In such a case our notice indicating that
the product is ready to ship shall be treated as equivalent to the supply
6.7 Provided that it is reasonable to expect the customer to accept such, we
shall be permitted at all times to make part shipments and part supplies.
7 Liability for defects / Liability
7.1 To the extent that the contractual product is defective and the customer
has clearly complained thereof, it shall be our responsibility to remedy the
defect within a reasonable period, either by repairing the defect or, if we
so choose, by supplying a replacement for the contractual product. In so far
as our costs have not been increased through any
relocation of the contractual product from the place of performance we shall
bear all necessary expenses arising in this connection. During the period of
supplementary performance the customer shall be permitted neither to reduce
the purchase price nor to terminate the contract.
7.2 Following the third unsuccessful attempt to remedy the defect, the
process shall be deemed to have
failed. Where supplementary performance has failed or where in definitive
terms we have unjustifiably refused to make supplementary performance, the
customer may insist on a reduction in the purchase price (price reduction)
or, if he so chooses, may terminate the contract.
7.3 To the extent that the customer is entitled to claim damages resulting
>from our intentional conduct or gross negligence, including that of our
servants or agents, we shall be liable in accordance with the statutory
provisions. To the extent that our conduct was not intentional nor in breach
of a fundamental term of the contract, nor motivated by malice nor
constituted the undertaking of a guarantee in the matter our liability for
damages shall be limited to such losses as are reasonably foreseeable. In
such cases our liability for consequential losses, that is to say, in
particular, loss of profit shall be excluded.
7.4 Our liability for personal injury resulting from our culpable conduct
shall remain unaffected; the same shall apply also to our liability under
the Law on product liability (Produkthaftungsgesetz).
7.5 Where default in supply or our breach of a contractual term results from
natural disasters and forces of nature, terrorist attacks, armed conflict,
political disturbances, strikes or such like, we shall not be liable.
7.6 In all claims of whatsoever legal nature any more extensive liability
shall be excluded.
7.7 For business customers, the limitation period for claims as to defects
shall be a period of 12 months calculated from the date of delivery.
7.8 In the event of recourse being had against the supplier in accordance
with the provisions of Paragraphs 478 and 479 of the German Civil Code (BGB)
the limitation period shall remain unaffected, it shall be a period of five
years from the date of delivery of the defective item.
7.9 To the extent that testing is required, the contractual products shall
be tested by the relevant bodies for conformity to the standards of DIN 4112
/ DIN EN 13814. As required by DIN rules, the documentation relating thereto
shall be included with the contractual products. As regards contractual
products which are not subject to these testing requirements, testing in
accordance with DIN / DIN EN standards and / or appropriate documentation
may, where applicable, be commissioned at an additional fee. Where the
customer's intended use of the product requires other certifications or such
like, the customer at his own expense and at his own risk shall arrange for
those to be undertaken. Unless provided otherwise in the contract, we shall
assume no liability for the award of certification in respect of States
which impose requirements other than conformity to the standards of DIN 4112
/ DIN EN 3814.
8 Safeguarding the seller's lien / Use of the contractual products / Collateral
8.1 Until all payments arising out of our commercial relationship with the
customer have been received we shall retain title to the goods (reserved
property). In the event of the customer's breach of contract, in particular
when he defaults on payment, we shall be entitled without serving further
prior notice to demand that he delivers up the goods supplied. The shipping
costs thereby arising shall be borne by the purchaser. Except where we
contemporaneously indicate our termination of the contract, our retaking of
the contractual product shall not constitute such termination. Our pledging
of the reserved item shall constitute always a termination of the contract.
Following the retaking of the reserved property we shall be entitled to
realise its value. The sum realised – less reasonable realisation expenses –
shall be set against the customer's liabilities. In the event of the
contract being terminated and the transaction being reversed the customer
shall be required to compensate us for use and enjoyment on the basis of the
normal market hire fee chargeable for such use of similar items.
8.2 In order to safeguard the seller's lien, the customer shall handle the
contractual product with due care. He shall be required, in particular, to
insure adequately, at his own expense, the contractual product against the
risk of loss or damage caused by fire, water or theft in the amount of a new
Where maintenance and inspection work is necessary, the customer at his own
expense shall in good
time and in a proper manner undertake this work himself or arrange for such
to be undertaken. Where the customer's use of the contractual product
requires official requirements and other provisions to be observed, he shall
be required at his own expense to ensure compliance therewith. He shall be
required to take out third-party liability insurance relating to his use of
the product. On request, the customer shall furnish us with proof thereof.
Further, the customer undertakes to have regard to the external parameters
(forces of nature and infrastructure) relevant for use and to take timely
action by way of appropriate measures to prevent damage to the contractual
product and harm to persons and
property from arising. If the customer intends to use the contractual
product under conditions which deviate from the usual or agreed parameters
regarding external conditions, he shall verify its suitability for that
intended use at his own expense and shall arrange for a suitable structural
analysis to be undertaken.
8.3 The customer shall notify us in writing without delay of all third-party
appropriations, in particular of measures in execution of judgment, so that
we may bring an action in accordance with Paragraph 771 of the German Civil
Procedure Code (ZPO) and he shall do likewise with regard to other legal
impairments affecting the purchase product. All losses and expenses incurred
by us which result from an infringement of this obligation and from the
intervention measures necessary to contest third-party appropriations shall
– to the extent that such sums cannot be recovered from the relevant third
parties – be reimbursed by the customer.
8.4 The customer shall not be entitled on a permanent basis to attach the
purchase product to land, such that it forms an essential element of that
land. As collateral, the customer shall assign to us at this stage such
rights vis-à-vis the owner of the land as may accrue to him, in the event of
such attachment occuring nevertheless.
8.5 If the contractual product becomes inseparably intermingled with items
which we do not own, we shall acquire thereby a co-ownership share in the
new item in such proportion as the value of the purchase item to the other
intermingled items at the time of the intermingling.
8.6 Only with our consent shall the customer in the ordinary course of
business be entitled to resell the contractual product. In anticipation of
that situation, as collateral for our debts, he shall at this stage assign
to us, however, in the amount of our invoice total inclusive of VAT, all
those debts as accrue to him from the resale of the contractual product and,
in particular, irrespective of the fact whether the contractual product has
been resold without or following treatment.
8.7 In anticipation of the situation that the customer defaults, for such
period until full satisfaction of his contractual payment obligation
prevails, he shall assign to us as collateral his third party payment claims
as accrue from the use and surrender for use of the contractual product. For
those purposes the customer shall be required to inform us of such claims
and to notify third parties of the assignment thereof. We shall be entitled
of our own volition to notify third parties of the assignment.
8.8 To the extent that the realisable value of our collateral exceeds by
more than 10 % the debts thereby secured, we undertake, at the customer's
request, to release the collateral to which are entitled in accordance with
the preceding paragraphs. It shall be at our discretion to select the
collateral to be released. The customer shall be entitled to replace the
collateral to which we are entitled in accordance with the preceding
paragraphs by provision of an irrevocable, directly enforceable guarantee of
a large European bank payable on first request.
9 Final provisions, choice of law
9.1 The relations between the contracting parties shall be governed
exclusively by the Law of the Federal Republic of Germany. The United
Nations Convention on contracts for the international sale of goods shall
9.2 In the absence of our written agreement the customer shall not be
entitled to assign claims resulting from the sales contract nor in the
absence of our prior consent shall he be entitled in whole or in part to
transfer to a third party his contractual rights and duties.
9.3 If a provision of these standard terms and conditions of sale is or
becomes ineffective, void or unenforceable,
this shall not affect thereby the remaining terms and conditions of sale.
The ineffective, void or unenforceable provision shall be replaced by a
provision with the same business aim. As for lacunae in these provisions the
same rule shall apply.
9.4 In disputes arising out of or in connection with this agreement the
courts in Berlin shall have jurisdiction.
9.5 We shall be entitled to amend these terms and conditions of sale with
prospective effect. If within two weeks of receipt the customer does not
repudiate the amended terms and conditions of sale, the amendments shall be
deemed to take effect.
ZENDOME GmbH, Berlin, 24th October 2006, Company registration HRB 100862 b
Schwedter Straße 34 a, 10435 Berlin firstname.lastname@example.org