Terms and Conditions of Sale
of CW Cleaning Solutions GmbH, Cologne
contract conditions for all concluded purchase agreements about a bike wash system between CW Cleaning Solutions GmbH (hereinafter referred to as “Supplier”) and private or commercial customers (hereinafter referred to as “Customer”).
Status of as June/2016
§1 Scope and definitions
(1) The following conditions exclusively apply to the contractual relation between CW Cleaning Solutions GmbH (hereinafter “Supplier”) and the customer (hereinafter “Costumer”) in the currently valid version at the point in time of order. Differing conditions will not be recognised unless the supplier expressly agrees to their application in writing.
(2) The costumer is consumer as far as he concludes legal transactions for purposes that can be attributed neither to his commercial business activity nor his self-employed occupation. An entrepreneur is a natural person or a legal entity or a partnership with legal capacity that in concluding the contract is acting in the execution of its commercial or independent business activity.
§2 Conclusion of contract, purchase contract and maintenance contract
(1) The presentation of products and services does not constitute a binding offer with the consequence of concluding a contract. Our offers towards entrepreneurs are non-binding. The presentation of our products in our quotation serves only as a submission of a purchase contract offer. Modifications of our products, which are technically necessary or appropriate, are reserved. Dimensions, illustrations and drawings serve only as an advance information for the costumer and are not binding until the supplier has not confirmed them in writing. Information about characteristics and performances of the products are not binding.
(2) By ordering, the costumer makes a binding offer to conclude a purchase agreement. If the supplier wants to accept the offer, shall be at his discretion. If the supplier does not carry out an order, he will immediately inform the costumer. The supplier accepts the offer by delivering the product or by confirming in written the acceptance of the order.
(3) The Supplier reserves the right to correct errors. If the supplier’s offer or order confirmation should contain spelling mistakes or printer’s errors or if the prices contain mistakes due to technically transmission errors, he is entitled to the challenge, but he must prove his mistake to the costumer. Any payments already made shall be returned immediately.
(4) The offers of the supplier towards entrepreneurs are always subject to chance and non-binding. Prices are quoted ex works and including packaging. The supplier reserves the right towards entrepreneurs to modify his prices according to cost decreases or increases based on changes in material prices that took effect after the parties entered into the contract. The supplier will prove these changes in price, if so required by the entrepreneur. The entrepreneur is obligated to pay all extra charges, taxes, freight charges or any increase to these which directly or indirectly affect the purchased item, unless contradicted by any compelling legal requirements.
§3 Maintenance contract
By concluding the purchase contract about a new bike wash system, the costumer also concludes with the supplier a separate maintenance contract over a period of at least two years. The maintenance contract includes maintenance and service work and must be compensated separately with regard to contributions in kind and work performances. The details are laid down in the maintenance contract.
The costumer is obligated to exclusively use and maintain the bike wash system in the way intended by the operating and maintenance instructions. In order to demonstrate compliance with the guideline of the operating and maintenance instructions, the costumer shall keep a maintenance and operating log. At request of the supplier these reports must be disclosed at any time and without delay. If the costumer does not keep the maintenance and operating log with accuracy and completeness, he will lose his warranty and guarantee rights.
§4 Delivery and product availability
(1) If there are no copies of the chosen product available at the time of ordering, the supplier will notify without delay the costumer of this fact in the order confirmation. Is the unavailability of the product permanent, the supplier will not confirm the order. In this case the contract will not be concluded.
(2) If the product ordered by the costumer is only temporarily unavailable, the supplier will inform the costumer of the estimated delivery time in the order confirmation. In case of a delay of delivery of more than two weeks, the consumer has the right to rescind the contract. Moreover, the supplier is also entitled to withdraw from the contract. In this case the supplier will reimburse any payments made by the costumer.
(3) To entrepreneurs applies in addition:
(a) The delivery of products shall be subject to their availability. The delivery time is not binding. Partial deliveries are permissible.
(b) Concerning delay in delivery, the customer is only entitled to recind the contract, if he set an appropriate period of grace. If the delivery occurs within this period, all rights resulting from the delay will not apply to the costumer. Upon expiry of the period of grace the costumer is only entitled to rescind from the contract.
(c) Claims for damages due to non-performance or delayed delivery are excluded.
(d) In any case the claims for damages shall be limited by the product value of the claimed delivery.
§5 Retention of title
(1) Up to entire payment the delivered products remain in the property of the supplier.
(2) Before change of ownership a pledge, a chattel mortgage, a processing or alteration without the consent of supplier is not allowed.
(3) By accepting these conditions, the costumer is obligated to assign any claims or rights against third parties, which result from disposal, processing, combination, mixing or other legal transactions, to the supplier involving all secondary and preferential rights. If the costumer surrenders the delivered product in some way to third parties or sells, processes or mixes it regardless of its conditions, all resulting claims against the third party will be immediately assigned to the supplier in the full amount. A costumer, who is entrepreneur, is only entitled to claim reassignment if he redeems the entire liability to the supplier. If a costumer’s claim against his purchaser is already assigned to a third party, his claims of reassignment against the third party will be directly assigned to the supplier.
(4) In the event of access by third parties to products held under retention of title, the customer has to indicate without delay our ownership to the property and will inform us immediately of any access by third parties. Any arising costs due to interventions of the supplier must be reimbursed by the costumer.
(5) The costumer has the obligation to always inform the supplier about the whereabouts of the goods held under retention of title, as long as the supplier has outstanding claims. If the supplier uses the right to have the goods returned, the costumer will authorise him with this to repossess the product subject to retention of title without resorting the courts and for this purpose to enter the place at which the products are stored.
(6) The costumer is obligated to store the products subject to retention of title properly and carefully and insure them sufficiently against loss and damage. The costumer also bears the risk of loss, damage and destruction.
(7) To entrepreneurs applies in addition:
Up to entire repayment of any claims from the business relationships between entrepreneur and supplier the delivered products remain in the property of the supplier. This will also apply if the purchase price for single deliveries has been already paid. The costumer has only the permission to dispose of the products subject to retention of title within regular business management. In case of processing, combination or mixing of the product the retention of title will also apply to such products. The act of processing or reprocessing of goods subject to retention of title is regarded as an act commissioned by the supplier without any liabilities arising for him. In this respect, the supplier is considered as manufacturer in the sense of § 950 BGB. Accepting these conditions the costumer assigns his ownership or co-ownership rights to processed, combined or mixed objects as well as his claims of surrender to the supplier. The costumer stores the product subject to retention of title for the supplier at no charge.
§6 Prices, collection, transport and passing of risk
(1) All prices displayed on the supplier’s website are quoted ex works, excluding the legally valid value added tax (VAT). The costumer shall care for the collection and transport of goods by himself and shall bear all costs resulting therefrom.
(2) The risk shall be passed to the customer as soon as the consignment has been handed over to the person responsible for carriage or has left the supplier’s warehouse for the delivery. The costumer does not assume a warranty arising from any shipping conditions. Packaging that complies with the “Verpackungsverordnung” (packaging ordinance) will not be taken back. The costumer shall ensure proper disposal of the packing material at his own charge.
§7 Payment terms and advance payment
(1) Unless agreed otherwise, the costumer is obligated to pay in advance an amount equal to at least two-thirds of the purchase price plus statutory value added tax to the supplier. With handing over of the product, the costumer shall pay the remaining purchase price of one-third of the purchase price plus statutory value added tax to the supplier. Up to the full payment of the purchase price the supplier has a right of lien and rescission. If the advance payment to the supplier is not made within a month after order confirmation, the contract will be invalid, unless otherwise agreed by the parties. In that case the invalidity of the contract will be disclosed by the supplier to the costumer and is binding.
(2) A set-off is excluded, unless the counterclaims are uncontested between the parties or have been declared final and binding by a court of law.
(3) Bills of exchange or cheques are not accepted as means of payment.
(4) The supplier notifies the costumer as soon as the delivery object is made available. The costumer is obligated to collect the delivery object within 14 days after receipt of notification of its being available. If the products have not been collected within the set period, the supplier will have the right to charge, for each commenced day, storage fees in the amount of 0,1 % of the net value of the delivery, but no more than 5 %. In case of default of acceptance or culpable breach of a duty to cooperate by the costumer the supplier is entitled to claim any resulting damage including possible additional expenditures. The supplier’s right for further claims remains reserved.
(5) In the event of delayed payment, all claims from business relationship immediately become due, even if they are deferred.
§8 Warranty for defects, defect complaint and guarantee
(1) The supplier is liable towards consumers for defects according to the relevant statutory provisions, especially according to the § 434 et seq. BGB.
(2) An additional guarantee for the products delivered by the supplier will be only available, if expressly indicated in the order confirmation for the respective product.
(3) To entrepreneurs applies in addition:
(a) The supplier warrants for the flawless quality of the product ex works. The costumer must immediately inspect the product for any defects after receipt. The inspection obligation refers to the entire delivery including also accessories and spare parts.
(b) The product has to be stored properly in an appropriate place, which resists frost and weather and must be also protected from loss, destruction and damage. Defect complaints of any kind must be raised immediately, at the latest within 7 days after receipt of the product by the costumer, but in any case, before the product has been passed on, used, processed or treated. The defect complaint must be addressed directly to the supplier, not towards a representative, and must be raised with the exact statement of the defects claimed. In addition, the costumer shall send a sample of the faulty product to the supplier. Defect complaints, which do not correspond to these requirements or are raised after using, processing or treating the product, will not be taken into account with the consequence that the warranty does not apply. The costumer bears the full burden of proof that the claimed defect has been already present at the time of passing the risk.
(c) If the defect complaint has been raised in time and justified, the supplier will take the faulty parts of the product back as far as the product is still in the condition of delivery. Subject to possibilities of delivery, the supplier will replace the faulty product free of charge with another product. The supplier is also entitled to reimburse the purchase price instead of providing a replacement delivery. If the replacement product is also faulty, the costumer has the right, at his choice, to reduce the purchase price or to rescind the contract.
(d) Further claims like compensation of transport, travel, labour, material or any other costs resulted without the explicit consent of the supplier are excluded, as well as claims to compensation for damages due to delay or other indirect or direct damages. If the exclusion of the damage claims is invalid due to special circumstances of the individual case, the amount of the liability for damages will be limited to the amount of the rejected product.
(e) Warranty claims are subject to a limitation period of at the latest 6 months from the delivery of the product. Obvious defects become statute-barred within one month after rejection of the defect complaint by the supplier.
(f) As long as the costumer possesses the product, he bears the risk regardless of the legal reason.
(1) Claims for damages of the costumer are excluded. Exceptions to this are claims for damages of the costumer that are based upon death, physical injury or physical harm or based upon breaches of essential contractual obligations (cardinal duties) as well as liabilities for other damages based upon an intentional or grossly negligent breach of obligation by the supplier, his legal representatives or vicarious agent. Essential contractual obligations are those whose fulfilment is necessary to achieve the objective of the contact.
(2) If damages are caused by simple recklessness, the supplier will only be liable for breaches of essential contractual obligations in cases of damage of a nature that is foreseeable and typical for this type of contract, unless the customer claims damages relating to injury to life, body or health.
(3) The restrictions of the paragraphs 1 and 2 will also apply in favour of the legal representatives and vicarious agents, if the claims will be asserted directly against them.
(4) The regulations of the Produkthaftungsgesetz (product liability law) remain unaffected.
§10 Conditions of rescission
To an entrepreneur applies in addition:
If the Customer rescinds the contract after it has been concluded and prior to the manufacture of the products, the Supplier will be entitled to claim 15 % of the total purchase price as compensation, while the supplier’s right to claim for any damages beyond this remains reserved. In case of a costumer’s rescission of the contract after it has been concluded and during the manufacture of the products, the supplier has the right to claim 20 % of the total purchase price as compensation, while the supplier’s right to claim for any damages beyond this remains reserved. The costumer has the right to prove that the breach of the contractual obligations attributable to him has not led to a damage or has led only to a lower damage. Moreover, he can prove that the breach has not led to a depreciation or led to a depreciation which is essentially lower than the lump sum detailed above.
§11 Notes to the data processing
(1) In the course of processing a contract the supplier collects data on the customer. At the same time, he complies especially with the regulations of Bundesdatenschutzgesetz (Federal Data Protection Act) and Telemediengesetz (Telemedia act). Without consent of the costumer the supplier will collect, process or use data, only if it is necessary for processing the contractual relationship as well as for usage and billing of telemedia.
(2) Without consent the supplier will not use data of the costumer for advertising, market research or public opinion polling.
§12 Final clauses, place of jurisdiction and severabilitiy
(1) The contractual relations between the supplier and the customer are governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods (CISG) shall not apply.
(2) If the costumer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for any and all disputes arising out of or in connection with the contractual relationship between the supplier and the costumer will be the seat of the supplier.
(3) Also in case of legal invalidity of individual regulations or of contradiction of single parts of the contract, the contract remains binding in its other parts. Instead of the invalid terms, regulations shall apply, which correspond as close as possible to the will of the parties and the purpose of these terms. Otherwise the legal regulations shall apply.
The terms and conditions are drafted in more than one language. The versions in other languages than German are for information purposes only and not part of the terms and conditions. Therefore, in the event of any discrepancies between the German and other language versions, only the German version shall apply.