General Terms and Conditions
for OLYMP GmbH & Co. KG, Hohenheimer Straße 91-97, 70184 Stuttgart
Telephone 0711 2131-0, Fax 0711 2131-222
(1) These terms and conditions of business apply to an individual acting as Contractor on completion of the contract and to legal entities of public law or a special fund under public law.
(2) All deliveries and services shall be based on these conditions and any separate contractual agreements. Any other terms of purchase of the Customer do not become part of the contract either by acceptance of the order nor due to lack of objection.
2. Quotations, Conclusion of Contract
(1) Our quotations are subject to alteration. This also particularly applies to the terms and scope of delivery stated therein. The Customer is bound to his request for four weeks after signature.
(2) A contract comes into being - unless otherwise explicitly agreed - upon our written order confirmation or upon delivery or service in accordance with the Customer's request.
(3) We reserve the right to modify goods with regard to design and form during the delivery period as long as the subject matter of the contract and its appearance are not subject to unreasonable change for the Purchaser. All indications of quantity, measure and weight are subject to customary tolerances.
3. Prices, Payment terms and Default
(1) Our prices - unless otherwise stated - are in EURO and in the case of delivery of goods ex warehouse, inclusive of the necessary packing; freight costs will be invoiced separately.
(2) All prices are stated exclusive of the legally applicable rate of Value Added Tax.
(3) Additional requests are charged separately. Accessories for installation, such as pipes, lead pipe connections, angle valves etc., are not included in our prices. We do not undertake installations.
(4) We charge a night supplement per installer and hour for installation hours after 8 pm. If an installation cannot be carried out on an agreed date, for example if the work to be carried out by the Purchaser's tradesmen is not completed or if our installers are required to make an additional journey, the Purchaser will bear the extra costs.
(5) We reserve the right to alter our prices accordingly if, following the conclusion of the contract, costs go up or down, particularly as a result of wage agreements, changes to the price of materials or changes in the interest rate.
(6) Unless otherwise stated in the order confirmation, all invoices are to be paid within 30 days of the date on the invoice without any deduction. If we do not receive the payments by the aforementioned deadline, the Customer shall be in default of payment without reminder.
(7) In all cases of payment default we are entitled to suspend further deliveries or services wholly or in part, to demand immediate payment of all outstanding debts (irrespective of the maturity of any accepted bills of exchange) and revoke previously granted payment terms. If any significant deterioration in the financial situation of the contractual partner occurs after conclusion of the contract, we are further entitled to effect further deliveries and services only with prepayment. The right to claim for other damages arising from default remains unaffected.
4. Set-off, Retention, Assignment
(1) The Customer's right to offset counterclaims shall only exist if these counterclaims are legally established, undisputed or are recognized by us.
(2) The Customer has right of retention only if their counterclaim is based on the same contractual relationship.
(3) The Customer is not entitled to assign their claims directed against us unless a monetary claim is concerned that is assigned within the framework of a trading transaction.
5. Deliveries, Delivery and service period, Default
(1) Deliveries shall be made ex works or ex warehouse and at the Customer's expense and risk. If so agreed we will arrange transport insurance at the Customer's expense.
(2) Delivery and service periods result from agreement between parties. Our compliance with this requires that all commercial and technical queries between parties have been clarified and that the Customer has met all their obligations, for example making an advance payment. Failing this, delivery time is increased accordingly. This does not apply if we are responsible for the delay.
(3) Delivery time is deemed to have been observed if the purchased goods have left the works or warehouse within the delivery time or the Customer has been advised that the goods are ready for dispatch.
(4) Where an acceptance is required - except for justified refusal of acceptance - the date of acceptance, alternatively the notification of readiness for acceptance, is definitive.
(5) If the goods are not available because the goods were not delivered to us by our own suppliers for reasons for which we are e not responsible, we are entitled to rescind from the contract. In such a case, we will inform our customer immediately and propose the delivery of a comparable product, if possible. If a comparable product is not available or the customer does not give its consent with being delivered with a comparable product, we will repay the consideration which the costumer has already paid to us. In the case of a delayed delivery of the product by our own supplier, our delivery time shall be prolonged for the same time unless we are responsible for the delay. We will inform the customer immediately about any such delay.
(6) If dispatch or acceptance of the purchased object is delayed for reasons for which the Customer is responsible, the Customer will be charged for any costs arising from the delay starting one month after notification of the readiness for dispatch or acceptance. Without prejudice to further claims, we may dispose of the purchased object after fruitless expiry of a reasonable grace period, including storing the purchased object at the Customer's risk and expense and/or effecting delivery to the Customer with a reasonably extended deadline.
(7) Delivery time shall be extended reasonably if the non-compliance with the time of delivery is attributable to force majeure, labour disputes or other events which are beyond our control. This also applies if such circumstances affect our suppliers.
We shall inform the Customer as soon as possible at the beginning and the end of such circumstances. If the time of delivery is extended by such events by more than one month, both parties have the right to withdraw from the agreement in exclusion of further claims.
(8) We shall be liable in accordance with the statutory provisions if the delay in delivery results from an intentional or grossly negligent contractual violation on our part. We are not liable if the delay in delivery is based on slight negligence unless the delay in delivery for which we are to blame results from the culpable violation of an essential contractual obligation. Our liability in this case shall be limited to foreseeable and typically occurring damages. Any fault of our legal representatives or vicarious agents shall be deemed to be attributable to us
(9) If we are in default and the Customer grants us - subject to legal exceptions - a reasonable grace period for service and this grace period is not observed, the Customer is entitled to withdraw from the agreement within the framework of statutory provisions.
(10) (10) Partial deliveries are permissible, as long as they are reasonable for the Customer.
(11) 11) Call-off orders are subject to a maximum lead time of one year, commencing on the date of the order confirmation. After this period has expired, goods not yet accepted shall be delivered and invoiced to the Customer after previous notification in writing.
(12) (12) Further claims arising from delay in delivery are determined exclusively in accordance with Section 6 of these conditions.
6. Default of acceptance, passing of risk and acceptance
(1) Should the Customer default in regards to the acceptance, or should he culpably breach other obligations to co-operate, we shall be entitled to demand the damage incurred by us, including possible additional expenses.
In the case of us being entitled to demand compensation instead of the service, we may request 25% of the agreed price as compensation, plus payment for performances, which have already been provided, as well as any materials used, without requiring proof.
Further claims remain unaffected.
(2) The risk of the accidental destruction or the accidental deterioration of the sales item is transferred to the Customer, as soon as they default on the acceptance or the debt. This also applies from the day of notifying the shipment or readiness of acceptance, should the shipment be delayed or omitted, or if the acceptance is omitted for reasons, for which we are not responsible. We obligate ourselves to take out the insurance requested by the Customer at the Customer’s expense.
(3) The damage and compensation risks are transferred to the Customer upon loading the sales items at our warehouse or, in the case of a direct delivery to the Customer, at the sub-supplier’s factory, even if partial deliveries are being carried out, or if we have taken on other services, such as delivery costs, or delivery, assembly and unloading. An agreed acceptance is to be carried out by the acceptance date, and, where possible, after receipt of our notification in regards to the readiness for acceptance. The Customer cannot refuse acceptance in the case of minor defects.
(4) Shipment is to be carried out to our best ability, and in the quickest and most cost-effective manner, but without guarantee. Any additional costs incurred due to special shipment requests received by the Customer shall be at their expense.
(5) Any required packaging material shall be charged at its original cost. The costs for rail containers shall be met by the ordering party.
Should the packaging include backer crates or boxes, these shall be charged at their original cost and shall be redeemed at the Customer’s request.
As regards to material and legal defects of the new sales items, we shall guarantee the following under the exclusion of further claims – subject to no. 8 of these terms and conditions.
7.1 Material defects
(1) As far as the defect of a sales item is the result of circumstances, which took place before the transfer of risks, we shall be obliged to choose either mending or re-delivery. Any replaced items shall become our property and are to be handed over to us by the Customer immediately. Any expenses necessary for mending or re-delivering the item, such as transport, travel, work and material costs, shall be met by us, as long as they do not increase based on the fact that the sales item has been taken to a place, which is not the place of execution.
In order to undertake all of the apparently required improvements or re-deliveries, the Customer is to give us the required time and opportunity after notifying us; otherwise we shall be released from liability for any consequences caused thereby. The Customer may only mend defects themselves or through a third party, or demand the reimbursement of necessary expenses in urgent cases, where operational safety is at risk or in order to avert unreasonably large damage, whereby we are to be notified immediately.
(2) The Customer is to inspect each delivery in accordance with § 377 of the Commercial Code (HGB) immediately after the delivery and is to notify us of any defects as soon as possible. Notifications of defects may only be taken into account, if they are submitted in writing without delay, but one week after receiving the goods at the latest. The receipt of the notification of defect shall be definitive. Later notifications of defects are excluded. The delivery shall be considered as authorized thereafter. This does not apply to hidden or unobvious defects. The loss of claims arising from defect does not occur, if the defect could not be recognized during the one-week notification period, or during the correct and immediate checking for defects. Should a notification of defects be claimed, payments may only be withheld by the Customer to such an extent, as is appropriate in regards to the defects, which have occurred.
(3) Should the mending or re-delivery have been unsuccessful, the Customer has the right to reduce the purchase price or to withdraw from the contract in accordance with the legal regulations.
(4) The defect liability is excluded, if and to the extent the defect is caused by (i) a change or a damage by the customer after delivery (ii) using, storing, assembling or maintain the product in an improper war or not in accordance with our guidelines or (iii) by a change, adaptation or reconditioning by the Customer or by a third party, which has not been authorized by us, or (iv) the utilization of improper operating resources, chemical, electrochemical or electric influences etc unless we are also to blame. The same applies in a case of excessive use of the product. Any warranty is also excluded as regards the usual wear and tear.
The warranty is also excluded as regards to used items, unless agreed otherwise in advance.
7.2 Defects of titles
The guarantee in regards to defects of titles is based on the legal regulations.
The period of limitation for defect claims is 1 year, calculated from the time of the risk transfer.
7.4 Further entitlements
For such entitlements, no. 8 of the terms of conditions shall apply.
8. Compensation for defects and other liabilities
(1) Unless otherwise agreed in this provision, all claims as regards compensation of the Customer of whatsoever nature, including compensation of expenses and indirect damages are excluded. This shall apply in particular but not limited to claims relating to all breaches of duties resulting from the contract as well as from unlawful act. The exclusion of liability applies also if we use employment executive personal or other persons for performing our obligation.
(2) Deviating from para (1). of these Section 8 we are liable for whatsoever reason only – and this applies also if we use executive personal or other persons for performing its obligation – in the event that:
(a) we have acted with intend or gross negligence,
(b) we fraudulently have concealed the defect or has guaranteed the quality of the goods,
(c) damages for injuries to life, body or health occur for which we are responsible; as well as
(d) we do not fulfill our substantial contractual obligations (“cardinal duties”) i.e.
(aa) in the event of material violation of obligation which jeopardize the achievement of contractual purpose, or
(bb) in the event of the violation of duties – the fulfillment of which enables the proper performance of the contract in the first place and the observance on which the Customer may regularly rely (“Cardinal Duties”).
(3) In the event that Section 8 para (2) (d) of these General Terms and Conditions applies – violation of Cardinal Duties - our liability shall be limited in case of slight negligence to the typically foreseeable damage. The violation of Cardinal Duties is in particular but not limited not given if damage is caused by fitting the supply lines onto walls, floors and ceilings, when our assembly operators are not being provided with detailed building plans etc., from which the position of the supply lines could be seen. In the absence of such plans, the Customer shall carry the risk of damage, if they insist on still carrying out the work.
(4) The exclusion of liability does not apply for claims arising from the Product Liability Act. The preceding provisions shall not affect the burden of proof to the disadvantage of the customer.
All claims by the Customer, irrespective of the legal grounds, shall expire after one year. In the case of intentional or malicious behaviour, as well as in regards to claims in accordance with the law on product liability, the legal deadlines shall apply. The start date of the limitation shall be determined in accordance with the legal regulations.
10. Reservation of proprietary rights
(1) We shall reserve the proprietary rights in regards to the sales items until all demands against the Customer have been fulfilled, including all additional demands resulting from the business relationship with the Customer.
Upon payment by means of submission of cheques, change or transfers, the fulfillment will only be considered effective when the respective amounts have been received by us for good.
(2) The Customer is obliged to treat the sales items with care. We are entitled to insure the sales items against theft, breakage, fire, water and other damage at the expense of the Customer, unless the Customer provides evidence that they have taken out insurance themselves. The Customer already transfers all claims against the insurers to us at this point in regards to the above-mentioned damage occurrences.
(3) The Customer may only sell on, link, mix or process the delivered items with our prior written consent, especially in the case of pledges or transfers by way of security. We may, however, withdraw this authorization, should they be in default in regards to payments, or should they have demonstrated significant behaviour in breach of the contract.
In the case of seizures, confiscations or other orders through third parties, he is to notify us immediately. Should the third party be unable to reimburse the court and non-court costs of a claim to us in accordance with § 771 of the civil process order (ZPO), the Customer shall be liable for the incurred deficit.
(4) In the case of a major breach of obligations by the Customer, especially in regards to a payment default, we are entitled to demand the sales items following a prior warning, and the Customer is obliged to release the items. This does not represent a withdrawal from the contract. This also applies to any seizures carried out by us.
The release entitlement does not apply to goods, which are subject to the reservation of proprietary rights, and for which the Customer has already paid, or if the payment default is caused by circumstances, for which the Customer is not responsible.
If the reserved goods are returned in the aforementioned manner, we are entitled to utilize the returned reserved goods after threatening to do so with an appropriate notice period, and to offset the proceeds of sale against the purchase price demands. We are obliged to ensure an appropriate utilization. In the case of such a utilization, this shall represent a withdrawal from the contract.
(5) In the case of a sale of the reserved goods, the customer shall already transfer his claims up to the final invoice amount (including VAT) to us at this point, which he would receive from the sale to his buyers or third parties and irrespective of whether the sales item was sold on without or after processing.
He is also entitled to collect these demands, even after the transfer. Our entitlement to claim the demands ourselves shall remain unaffected by this. We do obligate ourselves, however, to not confiscate the demands, as long as the Customer does not default on the payments and if there are no other factually justifiable reasons, such as a stopping of payments or the submission of an application to open insolvency proceedings. Should such factually justifiable reasons exist, we shall be entitled to revoke the confiscation authorization and may request that the Customer discloses information on the transferred demands and the debtors, as well as to make all statements required in regards to carrying out the confiscation, to hand over the documents linked therewith and to notify the debtors and third parties of the transfer.
(6) The processing, alteration, connection or mixing of the sales item for the buyer shall also be carried out on our behalf. In the case of processing, altering, linking or mixing the sales item with other items not owned by us, we shall acquire co-ownership in the new item in due proportion of the value of the sales item to the other items created through the processing, alteration, linking or mixing at the time of carrying out these processes.
In regards to the item created through processing, altering, linking or mixing, the same shall apply as for the sales items delivered under reservation of proprietary rights.
(7) Should the processing, alteration, linking or mixing be carried out in such a way that the buyer’s item will become the main item, it is herewith agreed that the Customer shall transfer the proportionate co-ownership to us. This share is calculated based on the proportion of the value of the sales item (invoice amount incl. VAT) to the other items at the time of the mentioned processes.
The Customer shall therefore maintain the therewith-created sole ownership or co-ownership for us.
(8) In order to secure our demands, the Customer shall transfer his demands against a third party to us, which are accrued through linking the sales items with a property, if the sales items become an essential part of the property through linking it.
(9) We oblige ourselves to release the securities to which we are entitled at our choice and upon the Customer’s request, as long as the realisable value of our securities exceeds the demands to be secured by more than 10%, and under the condition that the over-collateralisation does not only exist on a temporary basis.
11. Data Processing and Credit Protection Agencies (for example SCHUFA)
(1) We process personal data to the extent such processing is necessary to enter into a contract and/or to execute the contract with the Customer including possible warranties and maintenance. To the extent such processing is necessary to fulfill the contract, we also submit personal data to affiliated companies, sub-companies and authorized persons, as well as cooperation partners. The Customer hereby agrees to such a data processing. We provide the Customer with the information pursuant to Article 13 DS-GVO (General Data Protection Regulation) in writing and there is the possibility to get such information on our homepage (www.olymp.de).
(2) Provided that we finance the purchase price party or in total including the payment by installments, the Customer hereby agrees that we may forward data on the application, acceptance and termination of contracts, which have been agreed and are yet to be agreed, to credit enquiry agencies like for example the SCHUFA Holding AG or the Verband der Vereine Creditreform e.V, and/or that we may receive information on the Customer about the credit rating from such credit enquiry agencies. Such data are required in order to decide whether we enter into a contract, we execute the contract or terminate the contract with the Customer. We may only be obtained such data and forward the necessary personal data to obtain such information, as far as we have legitimate interests and such interests are not overridden by the interests or fundamental rights and freedoms of the Customer. The information according to article 14 General Data Protection Regulation (GDPR) are attached.
(3) If we forward the personal data about entering into a contract, execute the contract and terminate the contract which we have collected in the course of the contractual relationship as well as data about a violation of the contract or a fraudulent behaviour to the Schufa Holding AG, the legal basis for such processing is article 6 para (1) lit. b.) as well as article 6 para 1 lit. f) GDPR. Data may only be processed based on article 6 para 1 lit. f) GDPR to the extent we have legitimate interests and such interests are not overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. The data exchange is useful for comply with the legal duties to execute the credit rating (section 505a and 506 German Civil Code).
(4) Schufa process the data obtained by us and use them for a scoring in order to provide information to its contractual partners in the area of the European Union or Switzerland as well as in other countries to the extent there is an adequacy decision of the European Commission in order to assist the contractual partner by assessing the credit rate.
12. Special Provisions in the Case of Financing
(1) In the case of purchase price financings through us or third parties, we are entitled to request a voluntary disclosure from the Customer in regards to their economic circumstances, if the Customer has defaulted on at least one installment in full or in part and for more than ten days, or if other reasons have led to the assumption that the correct contract management is at risk. In the case of third party financing, our interest in the stated cases can be justified in that we may be burdened with the financed purchase price by third parties in the case of a suspected credit termination after default of payment.
(2) In such cases, where there is a risk to entitlement, the Customer is obliged to provide a voluntary disclosure on their economic circumstances within ten days upon receiving a request by us. Should such a disclosure not be provided in due time, or in an incomplete manner, or should it not lead to a confirmation of the Customer’s creditworthiness, we are entitled to commission a competent company in the name of and at the expense of the Customer. This company will carry out an evaluation of the Customer’s creditworthiness and – where necessary – will propose measures aimed at reinstating the Customer’s creditworthiness.
(3) In the case of financing, the required documents are to be made available to us prior to delivery. The Customer bears any interest and costs arising from financing.
(1) As regards to business connections with traders, judicial public law persons or special public law assets, our registered office shall be the place of execution and the place of jurisdiction as regards to all rights and obligations from and in connection with the contractual relationship. However, we are also entitled to sue the Customer at his main registered office.
(2) In regards to all legal relationships between us and the Customer, the law of the Federal Republic of Germany concerning the legal relationships between domestic parties shall apply exclusively.
(3) Should, for whatever reason, a stipulation of these terms and conditions be or become invalid in general or in regards to a specific case, the validity of the remaining stipulations of these terms and conditions shall not be affected by this. In this case, the dispositive law shall apply. If and as far as the dispositive law does not offer a regulation for the respective contract type or a replacement solution for the clause of the terms and conditions deemed to be invalid, a stipulation shall be agreed instead of the stipulation, which is invalid or has become invalid,
which is as close to the initially intended economic success as possible and which is valid.