General Terms and Conditions
Dettendorfer Wertstoff GmbH & Co. KG
§ 1 Scope of application
- The scope of these General Terms and Conditions includes all our offers, legal transactions and other services. They apply to entrepreneurs, legal entities under public law, special funds under public law and consumers.
- Collateral agreements, additions or amendments to these General Terms and Conditions must be made in writing.
- Our General Terms and Conditions apply exclusively; we do not recognize any terms and conditions of the contractual partner that are contrary to or deviate from our General Terms and Conditions unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we provide delivery or services in the knowledge of terms and conditions of the contractual partner which are contrary to or deviate from our General Terms and Conditions.
§ 2 Conclusion of contract
- If the order of the contractual partner is to be qualified as an offer according to § 145 BGB, we can accept this within 2 weeks.
- Unless otherwise agreed in writing, our offers are always subject to change and non-binding.
- Agreements made orally, by telephone, by fax or by e-mail, such as orders, quotations, order changes, cancellations, etc. shall only become binding for us when they have been confirmed by us in writing. Silence on our part does not constitute consent. We are, however, entitled in individual cases to accept a contract verbally or by implication, as well as by actual compliance.
- Several debtors of a service are considered to be joint debtors.
§ 3 Place of performance
- Place of performance is the company headquarters in 83109 Großkarolinenfeld. Deviating agreements made in individual cases regarding the place of performance remain unaffected by this.
§ 4 Performance
- We are entitled to use a third party to fulfil our performance obligations.
- We do not assume any liability for possible delays in the processing of orders or delayed pickups. The contractual partner expressly agrees not to assert any claims for compensation in this connection, regardless of their nature or legal basis.
- If a congruent hedging transaction was made by us for the fulfilment of the contract and if we are not supplied by the pre-supplier or not in accordance with the contract, we are entitled to withdraw from the contract with respect to the contractual partner after becoming aware of the circumstances. If we do not withdraw from the contract, we shall be released from our obligation to perform for the duration of the untimely or incorrect order processing.
- Events of force majeure – regardless of whether they occur at our premises or those of our suppliers – entitle us to postpone order processing for the duration of the hindrance and a reasonable start-up period or to withdraw from the contract with regard to the part not yet fulfilled. The contractual partner can demand a declaration from us as to whether we wish to withdraw or deliver within a reasonable period. If we do not make such a declaration, the contractual partner may withdraw from the contract. Circumstances which make it considerably more difficult or temporarily impossible for us to process the order are equivalent to force majeure, such as transport obstructions, operational disruptions or industrial action.
- We are only obliged to take over those wastes and recyclable materials for which we are entitled to dispose of at the respective time and which comply in all points with the quality and acceptance criteria according to the offer.
- Before handing over the waste, the contractual partner must submit all legally required documents – in particular required consignment notes – in the sense of the currently valid version of the Closed Substance Cycle and Waste Management Act and the regulations based on it. The contractual partner shall declare the material to be disposed of exactly in accordance with the respective applicable statutory provisions, DIN standards and limit values, in particular with regard to type, composition, hazardousness, quantity and origin. Any hazards possibly associated with the treatment and any necessary precautions must be communicated to us without being asked. For the determination of the quantity of the delivered material, the weighing by our acceptance point – insofar as the weighing is carried out by us – is decisive.
- By signing the order and delivery note, the contractual partner confirms the correctness and completeness of the information contained therein. The contractual partner shall be liable to us for all damages and additional costs arising from a deviation from the agreed quality and acceptance criteria and/or defective declaration of the material accepted. The contractual partner shall also be liable for damage incurred during delivery or collection as a result of the use of unsuitable or defective containers and vehicles.
- In order to ensure continuous operation, all collections/deliveries must be notified in writing at least one day before collection/delivery. Acceptance of the material from the contractual partner is subject to the above specifications. Costs for empty runs for which the contractual partner is responsible shall be borne by the contractual partner.
- The contractual partner shall ensure that when collecting the materials, immobilization times exceeding the usual loading time of 45 minutes do not occur. In case of exceeding this time we are entitled to charge a demurrage fee.
- Upon acceptance of waste intended for disposal, such waste shall pass into our possession if we are acting as a dealer. As far as we are acting as agents, we do not acquire possession or ownership of the waste.
§ 5 Prices
- Our prices are quoted in Euro and exclude all taxes, fees and charges existing at the time of the conclusion of the contract. Statutory value-added tax is not included in our prices; it is shown separately on the invoice at the statutory rate on the day of invoicing. This does not apply to end consumers. Our prices to end consumers are inclusive of VAT and other price components.
- We are entitled to increase the agreed prices in the event of changes in the underlying cost bases over which we have no control to the extent of these changes. This applies in particular to changes in wage costs due to changes in collective agreements or due to internal agreements, to changes in other costs associated with the provision of services (such as for materials, energy, transport, external work, etc.) and to changes in fees, taxes and charges.
- Order changes or additional orders can be invoiced by us at reasonable prices without further conditions.
§ 6 Payment
- Unless otherwise agreed in writing, all invoices are due for payment net without deduction immediately upon receipt of the invoice. A cash discount deduction is only permissible by express written agreement.
- We are entitled to issue partial invoices at our own discretion. We are entitled to request the contractual partner to make a corresponding advance payment.
- If there are justified doubts about the solvency or creditworthiness of the contractual partner, we are entitled, irrespective of any fault on the part of the contractual partner, at our own discretion to withhold deliveries or services until the agreed counter-performance has been rendered, to withdraw from the part of the contract not yet fulfilled or – also in deviation from the individually agreed terms of payment – to demand cash in advance, cash payment, cash on delivery or another suitable partial or complete provision of security. If the contractual partner refuses to comply with the demand for security, we are also entitled to withdraw from the contract immediately without further conditions. In this case, the contractual partner, who is not entitled to any claims for compensation as a result of our withdrawal, is obliged to fully reimburse our actual expenses.
- If the contracting party does not make any payment when due, the outstanding amounts shall bear interest from the due date at 5 percentage points above the base rate p.a. This shall not affect any further claims, in particular for compensation for interest on arrears and compensation for higher interest rates. In the event of any delay in payment, the contractual partner is further obliged to reimburse us for all costs incurred in connection with the collection of outstanding invoice amounts – including legal costs.
- Payments made to us shall be credited first against costs, then against interest and then against our oldest due claim, irrespective of any repayment provision to the contrary by the contractual partner.
- The contractual partner is not entitled to withhold payments in full due to improper performance, but only in respect of a reasonable part. If we offer the contractual partner an appropriate security deposit, this right of partial retention or refusal to pay shall also lapse.
- The contractual partner shall not be entitled to set off counterclaims of any kind, unless such counterclaims have been legally established by a court of law or have been expressly acknowledged by us in writing.
- Claims directed against us may not be assigned by the contractual partner to third parties without our prior written consent.
§ 7 Warranty and compensation
- The contractual partner shall be obliged to immediately inspect the service provided by us and shall notify us in writing of any defects within five days of performance, giving precise details of the defect, the date of dispatch and, in the case of deliveries, the carrier and the delivery note number, if these are obvious. In this case the contractual partner must leave the goods untouched for us to inspect. If the contractual partner processes the delivered materials despite obvious defects, a possible warranty claim against us will not apply. If the notification of obvious defects does not follow in due time, all warranty claims, claims for damages and other claims of the contractual partner expire. Non-obvious defects of any kind whatsoever are to be notified by entrepreneurs immediately after their discovery, at the latest, however, before the expiry of one year from delivery. This shall not apply to defects to which § 438 para. 1 no. 2 BGB applies.
- We do not accept any liability for possible delays in the execution of the order or delayed deliveries/collections. The contractual partner expressly agrees not to assert any claims for compensation in this connection, regardless of their nature or legal basis.
- Claims for damages against us which are based on slight negligence are excluded. This exclusion shall not apply to claims for damages based on intent or gross negligence or on a breach of material contractual obligations by us. Furthermore, it does not apply to injury to life, body and health. This exclusion of liability also applies in favour of our institutions, legal representatives, employees and other vicarious agents. Claims under the Product Liability Act shall remain unaffected. The contractual partner must prove the existence of gross negligence.
- The contractual partner shall be liable to us for direct and indirect damages, in particular those arising from the fact that he or personnel commissioned by him have violated the obligations of § 4 paragraph 6 and § 4 paragraph 7 of these General Terms and Conditions. In this respect, he shall indemnify us from all claims of third parties. Furthermore, he shall be liable for all damage to the objects provided by us which can be proven not to have been caused by us.
- In cases where liability on our part arises as a result of defects of third party companies, the contractual partner will first be advised to assert the claims assigned by us to him against the third party – if necessary in court. The contractual partner hereby accepts the assignment. If the enforcement remains unsuccessful, we shall be liable in accordance with the above provisions.
- Insofar as we are entitled to claim damages from the contractual partner instead of performance in accordance with the statutory provisions, this shall amount to a flat rate of 25% of the agreed net price – without taking into account services already rendered and subject to proof of higher damages by us. The contractual partner shall be entitled to prove that no damage at all has occurred or that the damage is significantly lower than the flat rate.
- The limitation period for the contractual partner’s claims for defects is 12 months, calculated from the transfer of risk.
§ 8 Retention of title
- We reserve the right of ownership of the delivery item until receipt of all payments arising from the contract. In the event of conduct on the part of the contractual partner that is in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the delivery. The taking back of the goods by us shall constitute a withdrawal from the contract. After taking back the delivery item, we shall be entitled to sell it; the proceeds of such sale shall be set off against the customer’s liabilities – less reasonable selling costs.
- In the event of seizure or other interventions by third parties, the contractual partner must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the contractual partner shall be liable for the loss incurred by us.
- The contractual partner shall be entitled to resell the delivery item in the ordinary course of business. However, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the delivery item has been resold without or after processing. The contractual partner remains entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. We undertake, however, not to collect the claim as long as the contractual partner meets his payment obligations from the proceeds received, does not fall into arrears and, in particular, no application for the opening of composition or insolvency proceedings has been made or payments have been suspended. If this is the case, we can demand that the contractual partner informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- The processing or transformation of the delivery item by the contractual partner is always carried out for us. If the delivery item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the object resulting from processing as to the object delivered under reservation.
- If the delivery item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the object of the contractual partner is to be regarded as the main object, it shall be deemed agreed that the contractual partner shall transfer proportional co-ownership to us. The contractual partner shall keep the sole ownership or co-ownership for us.
- We undertake to release the securities to which we are entitled at the request of the contractual partner when the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.
§ 9 Applicable law, jurisdiction
- German law shall apply exclusively to all legal transactions concluded between us and our contractual partners. The validity of the UN Convention on the International Sale of Goods (CISG) is excluded.
- The place of jurisdiction for all disputes arising from or in connection with the legal transaction is agreed to be the competent court at the location of the registered office in Großkarolinenfeld. However, we expressly reserve the right to sue the contractual partner at any other place of jurisdiction, in particular at the registered office of the contractual partner.
- When invoicing for deliveries and collections, the contractual partner is obliged to state his VAT identification number and tax number. The value added tax regulations of the respective recipient member state shall apply if either the contractual partner is registered for value added tax in another EU member state or if we are registered for value added tax in the recipient member state.
- If the contractual partner domiciled outside the Federal Republic of Germany or its representative collects goods and transports or dispatches them to the territory outside the Federal Republic of Germany, the contractual partner must provide us with proof of export for tax purposes. If this proof is not provided, the contractual partner must pay the value added tax on the invoice amount applicable to deliveries within the Federal Republic of Germany.