Terms and conditions

OEG Oel- und Gasfeuerungsbedarf Handelsgesellschaft m.b.H.
General Terms and Conditions for Sale & Delivery *

 

1 Scope of application

The following terms apply to all our supplies and services to our customers (being exclusively commercial customers). They also apply to future supplies and services including any spare part supplies. OEG does not recognize any conflicting, deviating or additional Terms and Conditions of the customer. We herewith expressively contradict to such customer's terms. They shall only be deemed to have been agreed by us if expressively confirmed to them or parts of them in writing. This shall also apply for the unconditional delivery and/or provision of services by OEG does not imply acceptance of any therefrom conflicting, deviating or additional terms and conditions of the Customer. Unconditional acceptance of our services/delivery by the customer implies acknowledgement of our General Terms and Conditions by the same customer.

 

2 Contract closure

1. Our catalogues and other product descriptions are for information purposes only, and do not constitute an offer legal terms. The declaration of intent to enter into a contract shall be made by the customer. 
We reserve the right to accept the customer's contact proposal within a two-week period.

2. The contract shall not come into effect until we have provided a written confirmation of the order, or the goods have been delivered or handed over.

 

3 Prices and terms of payment

1. The prices we have specified must be paid by direct debit using a SEPA direct debit mandate (payment on which we grant a 2% discount), or otherwise by cash on delivery. Bills of exchange are not accepted. Cheques are only accepted in exceptional cases, with our express consent and on account of payment.

2. Failure on the part of the customer to settle due payments within latest 30 days following receipt of an invoice or equivalent demand for payment shall constitute a default. We reserve the right to bring about the default at an earlier date by issuing a reminder, to be served after the due date. In divergence from Clauses 1 and 2, the customer shall be in default if it is agreed that for the payment to be made on a fixed or determinable calendar date and the customer fails to pay by such date at latest.

3. If the customer is in default, we are entitled to:

a) charge annual interest at 9 percentage points above the base interest rate, notwithstanding any higher losses of which proof must be provided,

b) immediately assert all our claims to the full amount on the customer arising from this or other transactions, even if individual instalments are not yet due,

c) withhold goods or other services relating to this or other transactions until all claims to which we are entitled on the basis of this or other orders have been settled in full by the customer,

d) demand the provision of reasonable security.

4. If we are entitled under the conditions laid down by law to compensation in lieu of performance, we shall be entitled to claim same at a flat-rate of 30% of the purchase price.
The customer shall retain the right, however,  to demonstrate that we have not incurred any damage or that we have only incurred less damage to a degree below said flat-rate amount. We are entitled to provide evidence that the losses we have incurred are higher than the flat rate. In either case, the proved damage must be balanced, not the flat-rate amount.

5. Set-off against our claims is excluded, unless the counter claims have been non-appealably established, are uncontested or have been recognised by us.

 

4 Deliveries

1. The specified delivery dates are always non-binding unless expressly agreed otherwise.

2. The goods shall be shipped at the customer’s expense. Unless agreed otherwise, we ship at our risk. As such, we shall take out transport insurance, the cost of which shall be charged to the customer at a rate of €1.95 upon delivery of the goods.

 

5 Retention of title

1. The goods remain our property until all and any present and future claims arising from the business relationship have been met in full, including incidental claims, compensation claims and cashing of cheques and bills of exchange. During the course of normal business operations, the customer is entitled to process and sell the reserved goods provided he is not in default with its payment obligations. Pledging the goods or assigning them by way of security shall not be permitted.

2. If the item delivered is firmly mounted to other items, the customer shall assign its title to the newly produced items to us – insofar as we have not already by law acquired co-ownership in proportion to the reserved goods – and shall store same on our behalf with all due care expected of a prudent businessman. Title to these items shall merely serve us as security up to the value of the goods that are subject to retention of title.

3. Receivables from any resale of the goods and articles manufactured from them are here and now assigned to us, if applicable to the extent of our co-ownership title in proportion to the other parties’ rights. Upon request, the customer shall notify us as to the debtor for the assigned receivables and the respective amounts, and inform the debtor about this assignment. Pending our revocation, the customer may collect the assigned receivables. The amounts collected are to be paid over to us up to the amount of our share and up to the claim to the purchase price, as applicable.

4. In the event of reserved goods being installed by the customer firmly in real property, the customer here and now assigns to us the payment claim thus created up to the amount of the invoiced value of the reserved goods along with all ancillary rights, including the right to be granted a debt-securing mortgage with priority over all other debts. If the Customer has sold the claim by way of genuine factoring, our claim shall thus be due immediately, and the customer shall claim in the context of factoring , then our demand shall fall due immediately and the customer shall assign its subsequent claim vis-à-vis the factor to us and shall forward its sales proceeds to us without delay. We accept this assignment.

5. If the security interests exceed our claim by more than 110%, we hereby undertake to release upon request from the customer securities up to a suitable coverage limit; if there are multiple securities, the choice shall be made at our discretion.

6. Should the customer act in breach of the contract – in particular default on payments – we reserve the right to withdraw from the contract and reclaim the goods.

 

6 Defects/Warranty/Returns

1. This contract refers exclusively to the object of purchase featuring the properties and characteristics and intended use as specified in the manufacturer’s product description, which are known to the customer. Corresponding product descriptions are made available to the customer prior to the conclusion of the purchase contract. Other or further properties and/or features, or any usage beyond the specified intended use, shall only be deemed to have been agreed if expressly confirmed by us in writing.

2. Any defects found must be reported immediately to us in writing. This also applies to defects that are found following attempted improvement. Defects not deemed latent defects must be reported to us within a period of 5 days following acceptance of the goods. Latent defects must be reported within 5 days following their discovery. If the report has not been sent to us before expiry of the deadline, the goods shall be deemed accepted and free of defects.

3. Our liability for defects is contingent upon the following:

a) the defects must not be due to improper use, incorrect installation or commissioning, negligent treatment, use of unsuitable operating materials or replacement of materials by the customer or a third party, natural wear and tear, defective construction work, chemical, electro-chemical or electrical influences (unless said conditions are not due to our fault);

b) the customer has duly performed its obligation of inspection and notification of defects in accordance with Section 377 of the German Commercial Code (HGB) in conjunction with Item 2 above;

c) the customer has not defaulted on payments, in observance of appropriate warranty retention in accordance with Item 8 below.

4. At our discretion, we shall satisfy the customer’s statutory right to subsequent by means of either subsequent delivery (replacement) or subsequent improvement (repair).

5. The buyer’s claims based on material defects shall become statute-barred one year after the object of purchase has been delivered to the customer. This does not apply wherever a longer liability period is prescribed by law (in accordance with Sections 438, Para. 1 No. 2 (buildings and items used for building), 479 Para. 1 (recourse claim) and 634a Para. 1 No. 2 (constructional defect) of the German Civil Code (BGB)), nor in case of wilful intent, fraudulent non-disclosure of the defect, failure to respect a guarantee of condition or infringement of fundamental contractual obligations (cardinal obligations). The notion of "Fundamental contractual obligations" refers to such obligations of which the fulfillment enables the proper implementation of the contract and the observance of which the contracting party may rely on a regular basis. In such cases, the statutory limitation periods shall apply. This does not affect the statutory regulations for suspension of expiry, suspension or recommencement of deadlines.

6. In any event, the customer’s rights relating to fatal injury, bodily injury or detriment to health, as well as fraudulent concealment of a defect, assumption of a guarantee for a specific property or a procurement risk shall remain unaffected by the above.

7. The customer shall only be entitled to have recourse to us in accordance with Section 478 of the German Civil Code [BGB] insofar as the customer has not reached any agreement with its own customer that exceed statutory claims for defects. We shall only pay expenses such as e.g. wages, materials, transport and travel costs provided these expenses are not increased due to the object of delivery having subsequently been taken to some place other than the customer’s registered place of business, unless such transfer is in line with said objects’ intended use. We shall not refund any expenses for remedying defects which would not have been incurred if the customer had taken adequate and reasonable precautions. If the customer receives a claim due to a defect in the newly manufactured item of delivery, it is its duty to immediately notify us accordingly. The customer must impose an obligation to this effect on its own customer, insofar as its own customer is a company. We reserve the right to settle any claims asserted on the original purchaser by its own customers.
In such cases, settling said customer’s claims shall be deemed settlement of any claims by the purchaser.

8. In the event of complaints about defects, payments may only be withheld by the customer to an amount which is reasonably proportional to the defects that have been found and provided the ordering party’s claims are uncontested or have been declared res judicata. If the notice of defects is not justified, we shall be entitled to demand reimbursement of the expenses incurred, as well as of any inspection and testing costs charged to us by our own and by the purchaser’s suppliers.

9. We shall reject all goods returns other than those we have expressly agreed to in advance and those for goods we are legally obliged to accept due to a justified warranty claim. In the exceptional case that we agree to such a return, the goods must be returned in the original packaging, together with a copy of the invoice, specification of the reason for the complaint and at the customer’s own expense and risk. We reserve the right to charge for the costs of the return.

 

7 Liability

1. Any claims by the customer, regardless of the legal cause, are excluded. This does not apply to malicious concealment of the defect, non-compliance to a guarantee of properties, injury to life, body, health and/or intentional or grossly negligent breach of duty by us or due to breach of contractual duties of which the fulfillment enables the proper implementation of the contract and the observance of which the contracting party may rely on a regular basis. ("fundamental contractual obligations" or "cardinal obligations").
Similarly, claims based on the German Product Liability Act (Produkthaftungsgesetz) are not affected by the above limitation of liability.

2. The claim for damages and reimbursement of expenses for the breach of essential contractual obligations is however limited to the typical, contractual and foreseeable damages insofar as there is no willful intent or gross negligence or liability is to be assumed owing to the injury to life, the body or the health.

3. The afore-mentioned limitations of liability shall equally apply to claims for the refunding of futile expenses (Art. 284 of the German Civil Code (BGB)). The afore-mentioned conditions do not involve a change in the burden of proof for the disadvantage of the buyer.

4. The above limitations of liability shall also apply to our legal representatives, vicarious agents and members of our company.

 

8 Miscellaneous

1. The contractual relationship, including the General Terms of Sale & Delivery, as well as all duties involved, is governed exclusively by German law to the exclusion of the UN convention for the International Sale of Goods (CISG) and the conflict-of-law rule for international civil law (especially the Rome I Regulation), even if the customer's headquarters are located abroad or if the transaction in question involves exporting. 

2. Any legal venue for all and any disputes arising from and in connection with the legal relationships shall be the court having jurisdiction over Hessisch Oldendorf.

3. If any provision in the foregoing terms is ineffective, this shall not affect the validity of the remaining terms of business.

* Do not apply to Switzerland. Please ask for local terms.

No discount for cash on delivery !
As of: August 2016

English translation for information purposes only. The original German version will apply in case of discrepancies or in case of inconsistency between the two versions