1. GENERAL PROVISIONS
1.1. Our Order and Delivery Conditions, which form the basis for all agreements, delivery contracts and offers, shall be deemed to be accepted upon placement of an order or acceptance of the delivery. Contrary terms and conditions of the client or of the supplier are invalid, even if we do not expressly object to them; they shall only apply if they have been expressly accepted by us in writing in an individual case.
1.2. Should individual provisions of this Agreement be invalid, this shall not affect the validity of the remainder of the Agreement.
2.1. The information contained in brochures, price lists, catalogues, circulars and other printed material or in documents pertaining to the offer, particularly figures, descriptions, technical data and performance specifications are non-binding.
2.2. No liability is assumed for the accuracy of technical data and other information in manufacturing brochures or drawings. Technical changes are reserved. Any deviations are to be accepted accordingly, if they are reasonable for the client. Our offers are subject to change and non-binding.
2b. CONTENT AND CONCLUSION OF THE AGREEMENT
2b.1 The seller shall offer to the client in the online shop www.siegmund.com new and used welding systems and clamping table systems for sale.
2b.2 Your order constitutes an offer to Bernd Siegmund GmbH to conclude a purchase agreement. The payment method selected by you in the order process shall either be confirmed or rejected by us in the order confirmation. We reserve the right to exclude certain payment methods depending on the result of your data check (identity and credit rating). If a transaction is possible for us via the payment method selected by you, the order confirmation shall constitute acceptance of your offer by us, whereupon a purchase agreement shall legally come into effect. Should we reject the payment method selected by you in the order process, a new offer with a different payment method shall be made by us in the order confirmation. If you agree to this, you can accept this offer by email or transfer the invoice amount directly to us. In the latter case, your transfer shall also be considered acceptance. The contracting party is Bernd Siegmund GmbH.
3. CONSUMER RIGHT TO CANCELLATION
A consumer is any natural person who enters into a legal transaction for purposes which cannot predominantly be attributed either to his commercial or independent professional activity.
3.1 Cancellation policy
You have the right to cancel this Agreement within fourteen days without giving reasons. The cancellation period amounts to fourteen days from the date,
- on which you or a third party designated by you, who is not the carrier, have taken possession of the goods, if you have ordered one or more goods within the scope of a single order and these are delivered as a whole;
- on which you or a third party designated by you, who is not the carrier, have taken possession of the last good, if you ordered several goods within the scope of a single order and these are delivered separately;
- on which you or a third party designated by you, who is not the carrier, have taken possession of the last partial shipment or the last item, if you ordered one good, which is delivered in several partial deliveries or items;
To exercise your right of cancellation, you must inform us (Bernd Siegmund GmbH, Landsberger Strasse 180,
86507 Oberottmarshausen, Email address: email@example.com, Fax number: +49(0) 82 03 / 96 07-33) by means of an unambiguous declaration (e.g. a letter, fax or email) of your decision to cancel this Agreement. You may use the sample cancellation form attached under section 5 para. 3, although this is not mandatory.
To meet the cancellation deadline, it is sufficient to notify us that you intend to exercise your right of cancellation before the cancellation deadline.
3.2 Consequences of cancellation
If you cancel this Agreement, we must refund all payments that we have received from you, including delivery costs (except for the additional costs resulting from your having chosen a different type of delivery from the most reasonable standard delivery offered by us), without undue delay and at the latest within fourteen days from the date on which we received notification that you are cancelling this Agreement. For this refund we will use the same means of payment that you used for the original transaction, unless something else was expressly agreed with you; on no account will you be charged fees due to this repayment.
We can refuse the refund for goods eligible for parcel shipping until we have received the goods again or until you have provided evidence that you have sent back the goods, whichever is earlier.
We shall collect goods that are not eligible for parcel shipping.
You must send back or hand over the goods eligible for parcel shipping to us immediately and in any case at the latest within fourteen days from the date on which you informed us that you were cancelling this Agreement. The deadline is satisfied if you send the goods eligible for parcel shipping before expiry of the fourteen day period.
We shall bear the costs of sending back the goods.
You must only pay for any loss of value of the goods if this loss of value is attributable to unnecessary handling by you for checking the quality, features and functionality of the goods.
3.3 Sample cancellation form
To: Bernd Siegmund GmbH, Landsberger Strasse 180,
86507 Oberottmarshausen, Email address: firstname.lastname@example.org, Fax number: +49 (0) 82 03 / 96 07-33
I/we (*) hereby cancel the agreement I/we (*) have concluded to purchase the following goods (*)/receive the following service (*)
- Ordered on (*)/ Received on (*)
- Name of consumer(s)
- Address of consumer(s)
- Signature of the consumer(s) (only for written communication)
(*) Delete as appropriate.
4. TIME OF DELIVERY AND PERFORMANCE, ACCEPTANCE
4.1. The delivery time is only deemed to be agreed as approximate. A warranty shall only be given by us in the event of express written acceptance. In this case, the client must set a reasonable grace period for us in writing if we are in default, if there is no instance of force majeure or comparable events. After fruitless expiry of the term, it can withdraw for those quantities and services that were not reported as ready for dispatch by the end of the grace period.
4.2. The delivery period shall begin, if it has been expressly guaranteed under the Agreement, on the date that the order confirmation is dispatched and shall be considered satisfied if the goods have left the factory or warehouse by the end of the delivery period or readiness for dispatch of the goods is communicated with possibility of use. In the event of early delivery, this date and not the originally agreed date shall apply.
4.3. Subject to correct and punctual delivery by our own suppliers.
4.4. Unless otherwise agreed, acceptance tests shall take place in the factory or warehouse of Bernd Siegmund GmbH or its subcontractor. If the Agreement contains no details regarding this, the tests shall be carried out in a way that corresponds to general practice in the country of manufacture of the industry concerned.
5.1. Price adjustment with respect to contractors
If the costs, particularly the labour and material costs, underlying the price calculation have not changed between formation of the Agreement and delivery, the prices or payments quoted in the order confirmation are binding. If the costs increase accordingly, Bernd Siegmund GmbH can adjust the price with respect to contractors in proportion to the increased costs. If the object of the Agreement underlies a continuous obligation, the client shall have the right to withdraw from the Agreement by written declaration to Bernd Siegmund GmbH within 14 days after notification of the price increase with respect to the quantities not yet accepted.
5.2. The prices and payments quoted in the order confirmation, in the absence of special agreements, shall apply ex works or ex stock of Bernd Siegmund GmbH or its subcontractor, however packaging and transport insurance are excluded.
5.3. If the statutory VAT in the respective applicable amount is not accounted for in prices and payments, it is not included in the prices and payments.
6. INVOICE SHIPPING
6.1. By placing the order, you agree to the electronic dispatch of invoices. Electronic invoices will be sent to the client by email in PDF format to the email address given.
At the express request, the invoice can be sent by mail. For this, the client will be charged a fee of EUR 1.00 plus VAT.
6.2. On the recipient side, the client must ensure that all electronic mailings of the invoice by email can be properly delivered by Bernd Siegmund GmbH to the email address provided by the client and that technical equipment such as filter programs or firewalls are adapted accordingly. Any automated electronic replies to Bernd Siegmund GmbH (e.g. an out-of-office notice) cannot be taken into account and do not prevent valid delivery.
6.3. The client must inform Bernd Siegmund GmbH immediately in writing and legally of any change in the email address to which the invoice is to be sent. Invoices sent by Bernd Siegmund GmbH to the email address last announced by the client are deemed to have been received if the client has not notified Bernd Siegmund GmbH of a change in its email address.
6.4. Bernd Siegmund GmbH is not liable for any damage resulting from an increased risk of sending the invoice electronically by email compared to sending it by mail. The client bears the increased risk of access by unauthorized third parties due to the storage of the electronic invoice.
6.5. The client can revoke the participation in the electronic sending of the invoice by email at any time. After the written termination has been received and processed by Bernd Siegmund GmbH, the client will in future receive invoices by mail to the postal address last announced to Bernd Siegmund GmbH. Bernd Siegmund GmbH reserves the right, for an important reason, to independently change the delivery of the invoice via email to the postal address last announced to Bernd Siegmund GmbH.
7. TERMS OF PAYMENT
7.1. All payments to Bernd Siegmund GmbH must occur without delay within 10 days net after delivery, unless otherwise agreed in writing.
7.2. The client may only offset its own claims against our claims if the counterclaims are uncontested or legally established. The client can withhold services owed by it only on account of justified counterclaims from the same contractual relationship.
7.3. If the client falls behind with a payment, the statutory regulations shall apply.
7.4. Acceptance of bills of exchange and cheques shall only occur as conditional payment. If cheques are accepted, the credit shall only take place subject to collection of the cheque amount and at the time at which Bernd Siegmund GmbH can freely dispose of the equivalent in its account. If bills of exchange are accepted by Bernd Siegmund GmbH, the client shall bear the expenses, costs and risk for timely presentation and protesting.
7.5. Payments from Bernd Siegmund GmbH to a supplier shall be performed on the 25th of the month following delivery. The time of delivery to Bernd Siegmund GmbH shall determine the start of the payment period.
8. TRANSFER OF RISK, DISPATCH, FREIGHT
8.1. If the client is a contractor, the risk for loss or damage of the goods beyond its control shall pass to the client upon handover to the freight forwarder or carrier, but at the latest upon the goods leaving our warehouse or factory or that of our subcontractor for delivery to the place of destination. This shall also apply if the delivery is made in partial deliveries or we have undertaken other services in addition to the delivery. Bernd Siegmund GmbH shall, at the client’s request, insure the shipment against theft, breakage, transport, fire, and water damage, as well as other insurable risks at its own cost.
8.2. If dispatch of the delivery is delayed due to an action in which the client is involved, in particular because of self-collection by the client, the risk shall transfer to the client from the date of readiness for dispatch.
8.3. Partial deliveries from Bernd Siegmund GmbH are permitted.
9. RETENTION OF TITLE
Bernd Siegmund GmbH shall only deliver on the basis of the retention of title set out below. This also applies for all future deliveries even if Bernd Siegmund GmbH does not refer expressly to this.
9.1. If the client is a contractor, Bernd Siegmund GmbH shall reserve title to the delivered item until complete fulfilment of all claims (including balance claims from an existing current account relationship), which are due to it from the business relationship against the client now or in the future.
9.2. If the client is a consumer, Bernd Siegmund GmbH shall reserve title to the delivered item until complete payment of the purchase price for these goods. While the retention of title is in force, the purchaser may not sell the goods or otherwise dispose of ownership.
In the event of behaviour of the buyer that is contrary to the Agreement, particularly for delay in payment, we are entitled to demand the reserved goods or to request assignment of the claims for surrender against third parties, if we have withdrawn from the Agreement in accordance with the statutory regulations. We are entitled to use the reserved goods after taking them back. After deduction of a reasonable amount for the costs of realisation, the realisation proceeds are to be offset with the amounts owed to us by the client.
Seizure of the reserved goods by Bernd Siegmund GmbH does not constitute withdrawal from the Agreement.
9.3. The client is obliged to treat the purchased item with care as long as ownership has not yet passed to it. If maintenance and inspection work must be carried out, the client shall carry out such work promptly at its own expense. As long as ownership has not yet been transferred, the client must inform Bernd Siegmund GmbH immediately and in writing if the item delivered is seized or subjected to other interference by third parties. If the third party is not in a position to reimburse the legal and extrajudicial costs of legal action under section 771 ZPO (Code of Civil Procedure), the client is liable for the loss incurred by Bernd Siegmund GmbH.
9.4. The client is entitled to resell the reserved goods in the ordinary course of business. The client shall assign claims of the customer from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The client remains authorised to collect the claim even after assignment. Bernd Siegmund’s right to collect the claim itself shall remain unaffected by this. However, Bernd Siegmund GmbH shall not collect the claim as long as the client meets its payment obligations from any revenues received, is not in default of payment, and in particular, no application for opening insolvency proceedings has been made, or there is a cessation of payments. If these conditions are discontinued, the client is obliged to provide all information required for the debt collection, to hand over documents and to report the assignment to its debtors.
9.5. The processing and treatment or transformation of the purchased item by the client shall always take place on behalf of and by order of Bernd Siegmund GmbH. In this case, the client’s reversionary right to the purchased item shall continue with the transformed item. If the purchased item is processed with other items not belonging to Bernd Siegmund GmbH, we shall acquire joint ownership of the new item in proportion to the objective value of our purchased item to the other processed items at the time of processing. The same applies in the event of mixing. If mixing occurs such that the client’s item is to be seen as the principal item, it is deemed agreed that the client shall transfer to Bernd Siegmund GmbH proportional joint ownership, and shall hold the sole or joint ownership thus arising for us. To secure the claims against the client, the client shall also assign those claims to Bernd Siegmund GmbH which arise to it against a third party due to the reserved goods being connected with a piece of real estate; Bernd Siegmund GmbH hereby accepts this assignment.
9.6. We are obliged to release the securities due to us if and when the realisable value of our securities exceeds the claims to be secured by more than 10 %; the choice of the securities to be released shall be ours.
10. WARRANTY, NOTICE OF DEFECTS AND LIABILITY TO CONSUMERS
10.1. If the information contained in our brochures, advertisements, websites and other offer documents has not been expressly designated as binding by us, the figures or drawings contained therein shall only be an approximate guide.
10.2. If the object delivered does not have the quality agreed between the client and us or it is not suitable for the use expected according to our Agreement or use in general or it does not have the properties which the client could expect according to our public statements, we are obliged to undertake subsequent performance. This does not apply if we are entitled to refuse subsequent performance on the basis of statutory regulations.
10.3. The client has the choice first of all whether subsequent performance shall take the form of improvement or replacement. However, we are entitled to refuse the form of subsequent performance selected by the client if it is only possible at disproportionate cost and the other form of subsequent performance results in no significant disadvantages for the client. During subsequent performance, reduction of the purchase price or withdrawal from the Agreement by the client are excluded. Improvement shall be considered failed after the second unsuccessful attempt if some other solution does not present itself in particular due to the type of item or defect or other circumstances. If subsequent performance has failed or we have refused the subsequent performance overall, the client can request reduction of the purchase price (decrease) or declare withdrawal from the Agreement at its discretion.
10.4. The client can only assert claims for damages due to a defect on the following terms, if subsequent performance has failed or we have refused subsequent performance. The right of the client to assert further claims for damages on the following terms remains unaffected by this.
10.5. Irrespective of preceding regulations and the following limitations of liability, we are liable unconditionally for damages to life, limb or health which are caused by negligent or deliberate violation of duty by our legal representatives or our vicarious agents, as well as for damages which are included by the liability under the Product Liability Act, as well as for all damages which are caused by deliberate or grossly negligent violations of the Agreement as well as fraudulent intent by our legal representatives or our vicarious agents. If we have made a quality and/or durability guarantee regarding the goods or parts thereof, we are also liable with respect to this guarantee. However, for damages which are caused by lack of the guaranteed quality or durability but which do not occur directly to the goods, we are only liable if the risk of such damage is obviously realised by the quality or durability guarantee.
10.6. We are also liable for damages which are caused by slight negligence if this negligence involves the violation of those contractual duties, whose observance is of particular importance for achieving the contractual purpose (cardinal obligations), whose fulfilment facilitates proper implementation of the Agreement facilitates in the first place and upon the compliance of which the contracting party constantly depends and may depend. However, we are only liable if the damage is typically associated with the Agreement and is foreseeable. Otherwise we are not liable for slightly negligent violations of non-essential contractual obligations. The limitations of liability contained in clauses 1 - 3 shall also apply if the liability for the legal representatives, executive employees and other vicarious agents is concerned.
10.7. Further liability is excluded irrespective of the legal nature of the asserted claim. Insofar as our liability is excluded or restricted, this shall also apply to the personal liability of our staff, employees, co-workers, representatives and vicarious agents.
10.8 Warranty rights of the buyer for used items are subject to a statute of limitations of one year. This excludes claims for damages made by the buyer for injury to life, limb or health, if the seller is responsible for violation of duty, and the liability for other damages which are caused by deliberate or grossly negligent violation of duty by the seller, its legal representatives or its vicarious agents.
This period also applies to claims for compensation for consequential damages, if no claims are made under tort.
10a. Warranty, notice of defects, recourse/manufacturer recourse and liability to contractors
10a.1. Warranty rights on the part of the client require that the latter has properly complied with its obligations to examine the goods and to notify defects owed under section 377 HGB (German Commercial Code).
10a.2. The statute of limitations for claims for defects amounts to one year from the transfer of risk; for used goods, the warranty can be completely excluded. Clause 1 shall not apply if longer deadlines are prescribed by law in accordance with sections 438 para. 1 no. 2 (structures and materials for structures), 478, 479 (supplier recourse) and 634 a para. 1 no. 2 (building defects) BGB (German Civil Code) as well as in cases of injury to life, limb or health occurs, for deliberate or grossly negligent violation of duty by us and for fraudulent concealment of a defect.
Our consent is to be obtained before any return of goods.
10a.3. If, despite all care taken, the goods delivered should have a defect which already existed on the date that risk was transferred, we shall repair the goods or deliver a replacement, at our discretion, subject to notification of the defect within the deadline. We are invariably to be given the opportunity to undertake subsequent performance within a reasonable period. Recourse claims remain unaffected without restriction by the preceding regulation.
10a.4. If the subsequent performance fails, the client can, irrespective of any claims for damages, withdraw from the Agreement or reduce payment.
10a.5. Claims for defects shall not apply if there are only minor deviations from the agreed quality, if there are only minor interferences to usability, if there is natural wear and tear or damage, which occur after the transfer of risk as a result of incorrect or negligent handling, excessive loading, unsuitable equipment, defective building work, unsuitable foundations or due to extraordinary external influences, which are not provided for under the Agreement. If improper maintenance work or changes are made by the client or third party, there shall also be no claim for defects for these and the resulting consequences.
10a.6. Claims made by the client related to costs required for subsequent performance, in particular transport, road, labour and material costs, are excluded, if the costs increase because goods delivered by us have been subsequently transferred to a location other than a subsidiary of the client, unless this transfer corresponds to its proper use.
10a.7. The client shall only have recourse claims against us if the client has not made any agreements with its customer going beyond the mandatory statutory claims for defects. Paragraph 6 shall accordingly apply in addition for the extent of the client’s recourse claim against the supplier.
11. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW
11.1. The place of performance for all obligations from the contractual relationship is the registered office of Bernd Siegmund GmbH.
11.2. If the client is a merchant, a legal entity under public law or public-law special funds, the place of jurisdiction for all legal disputes arising from the contractual relationship is determined by the registered office of Bernd Siegmund GmbH, but also by the registered office of the client at its discretion.
11.3. The law of the Federal Republic of Germany shall apply. Application of the uniform laws on the international sale of moveable goods, as well as on the conclusion of contracts for the international sale of moveable goods, in the version of 17/07/1973 in each case, is excluded.