General Terms and Conditions

1. Scope

1.1 These General Terms and Conditions of Sale (GTC) apply to all our business relationships between VINFERNIA UG (limited liability) & Co. KG, Blasewitzer Straße 41, 01307 Dresden, and our customers ("Buyer"). The General Terms and Conditions of Sale apply to both natural and legal persons. Legal persons, provided that the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a public law special fund within the meaning of § 310 paragraph 1 BGB.

1.2 Our General Terms and Conditions of Sale apply exclusively. Deviating, opposing or supplementary General Terms and Conditions of the buyer shall only become part of the contract to the extent that we have expressly agreed to their validity. This requirement for consent also applies if the buyer refers to their terms and conditions in the context of the order and we have not expressly objected to the terms and conditions.

1.3 These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable goods ("Goods"). It does not matter whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). The General Terms and Conditions of Sale apply, unless otherwise agreed, in the version valid at the time of the buyer's order or in the version last communicated to them in text form, as a framework agreement also for similar future contracts, without us as the seller needing to refer to them on a case-by-case basis (Note: for precautionary reasons, the General Terms and Conditions of Sale should in any case be attached to the order confirmation).

1.4 Individual agreements made in individual cases with the buyer (including side agreements, supplements, and amendments) and information in our order confirmation take precedence over these General Terms and Conditions of Sale. The content of such agreements shall be determined, subject to contrary evidence, by a written contract or our written confirmation.

1.5 Legally significant declarations and notifications from the buyer regarding the contract (e.g. notifications of defects, setting deadlines, withdrawal or reduction) must be made in writing, that is, in written and text form (e.g. letter, email, fax). Further statutory form requirements and additional evidence (if there are doubts about the legitimacy of the declarant) remain unaffected.

1.6 If references are made to the applicability of statutory provisions, it should be noted that these only have a clarifying significance. The statutory provisions apply - even if no corresponding clarification has been made - within the limits in which they are not amended or excluded by the General Terms and Conditions of Sale.

2. Offer and Conclusion of Contract

2.1 Our offers are non-binding and subject to change. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), as well as other product descriptions or documents (including in electronic form). We reserve ownership and copyright rights to all documents provided to the buyer in connection with the order placement. These documents may not be made accessible to third parties unless we give the buyer our express written consent.

2.2 When the buyer places an order for the goods, this constitutes a non-binding contractual offer in accordance with § 145 of the German Civil Code (BGB). In the event that nothing else arises from the order, we are entitled to accept this contractual offer within two weeks of its receipt by us.

2.3 The acceptance of the contractual offer by the buyer can be declared either in writing (e.g. by an order confirmation) or by the delivery of the goods to the buyer. In the event that we, as the seller, do not accept the buyer's offer within the period specified in clause 2.2, any documents sent to the buyer must be returned to us immediately..

3. Prices and Payment Agreements

3.1 Unless otherwise agreed in writing in individual cases, our current prices at the time of the conclusion of the contract apply ex warehouse, plus the statutory value-added tax. If no fixed price agreement has been made, reasonable price changes due to changes in wage, material, and distribution costs for deliveries that occur 3 months or later after the conclusion of the contract are reserved.

3.2 In the context of a sale by dispatch, the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the buyer.

3.3 Payment of the purchase price must be made exclusively to the account specified on the reverse side. The deduction of discounts is only permitted with a special written agreement.

3.4 Unless otherwise agreed, the purchase price is due and payable within fourteen days from the invoice date and delivery or acceptance of the goods. However, we are entitled, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment at any time. We will declare a corresponding reservation at the latest with the order confirmation.

3.5 The buyer is in default if the aforementioned payment period expires. During the default, the purchase price shall be subject to interest at the applicable statutory default interest rate according to § 288 paragraph 2 of the German Civil Code (BGB) at a rate of nine percentage points above the respective base interest rate (see Annex 1). We reserve the right to assert further default damages. Our claim for commercial maturity interest according to § 353 of the German Commercial Code (HGB) remains unaffected in relation to merchants.

3.6 If it becomes apparent after the conclusion of the contract that our claim for payment of the purchase price is jeopardised due to the buyer's lack of performance capability (e.g. due to an application for the opening of insolvency proceedings), we are entitled to refuse performance according to the statutory provisions and, if necessary after setting a deadline, to withdraw from the contract (§ 321 BGB). In contracts where the production of non-replaceable items (custom-made products) is owed, we can declare a withdrawal immediately. The statutory provisions regarding the dispensability of setting a deadline remain unaffected in this respect.

4. Right of retention

The buyer is only entitled to set-off or retention rights if their claim has been legally established or is undisputed, and their counterclaim is based on the same contractual relationship. In the event that defects occur in the context of the delivery, the buyer's counter-rights, particularly in accordance with clause 8.6 sentence 2 of these General Terms and Conditions of Sale, remain unaffected.

5. Delivery Period and Delivery Delay

5.1 The delivery period is agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period is approximately 3 to 6 weeks from the conclusion of the contract.

5.2 In the event that we are unable to meet contractually agreed delivery periods for reasons for which we are not responsible, we must inform the buyer of this circumstance without delay and simultaneously communicate the expected or new delivery period. If a delayed delivery cannot occur due to unavailability of the service even within the newly announced delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the buyer (in the form of payment of the purchase price) must be refunded immediately. Unavailability of the service is, for example, the case when there has been a delayed self-supply by our supplier, when we have concluded a congruent covering transaction, when there are other disruptions in the supply chain (for example, due to force majeure), or when we are not obliged to procure in the individual case.

5.3 Whether there is a delay in delivery on our part as the seller is determined by the statutory provisions. However, a reminder from the buyer is a prerequisite for a delay in delivery on our part as the seller. In the event that a delay in delivery occurs, the buyer can claim a flat-rate compensation for their delay damages. The damage flat rate amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total, it is a maximum of 5% of the delivery value of the late delivered goods. We reserve the right to provide appropriate evidence that the buyer has not incurred any damage or only a lesser damage than the aforementioned flat rate.

5.4 The rights of the buyer according to clause 9 of these General Terms and Conditions of Sale and our legally stipulated rights, particularly in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonable performance and/or subsequent performance), remain unaffected.

6. Delivery, transfer of risk, acceptance, delay in acceptance

6.1 Delivery is made ex warehouse. The warehouse is also the place of performance for the delivery as well as the place for any subsequent performance. In the event that the buyer wishes to have the goods sent to another destination (dispatch purchase), they must bear the costs of dispatch. In the event that nothing has been contractually agreed, we can determine the method of dispatch (packaging, shipping route, transport company) ourselves.

6.2 Upon delivery of the goods to the buyer, the risk of accidental loss and accidental deterioration passes to the buyer. In the case of a sale by dispatch, the risk of accidental loss of the goods, the accidental deterioration of the goods, as well as the risk of delay, passes upon delivery of the goods to the carrier or freight forwarder. In the event of a contractual agreement for acceptance of the goods, this is decisive for the transfer of risk. Further statutory provisions of contract law remain unaffected. The same applies to the delivery or acceptance of the goods if the buyer is in default of acceptance.

6.3 In the event that the buyer is in default of acceptance or our delivery is delayed for other reasons attributable to the buyer, we have a claim against the buyer for compensation for the damage incurred, including additional expenses (e.g. storage costs). If this is the case, we will charge the buyer a flat-rate compensation of 20 EUR per calendar day (starting with the delivery period or, if no delivery period is specified, with the notification of the readiness for dispatch of the goods). Our statutory claims (compensation for additional expenses, reasonable compensation, termination) as well as the proof of higher damage remain unaffected.

6.4 The proof of higher damage and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The buyer retains the right to prove that we have incurred no damage or only a significantly lower damage than the aforementioned flat rate.

7. Retention of title

7.1 We reserve ownership of the delivered goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) has been made.

7.2 Until full payment of the secured claims has been made, the goods subject to retention of title may not be pledged to third parties or transferred as security. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) access the goods belonging to us. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO), the buyer shall be liable for the loss incurred by us.

7.3 In the event of a breach of contract by the buyer, particularly in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with statutory provisions and/or demand the return of the goods on the basis of the retention of title. The demand for return does not simultaneously include a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and to reserve the right of withdrawal. In the event that the buyer does not pay the due purchase price, we must have set the buyer a reasonable deadline for payment without success before asserting these rights. This only applies if such a deadline setting is not dispensable under statutory provisions.

7.4 The buyer is authorised, until revoked in accordance with clause 7.4.c, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply additionally:

a) The products resulting from the connection, mixing or processing of our goods are subject to retention of title for their full value, with us being regarded as the manufacturer. In the event that, in the case of a connection, mixing or processing with third-party goods, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the connected, mixed or processed goods. Furthermore, the same applies to the resulting product as to the goods delivered under retention of title. The buyer also assigns to us, for security purposes, any claims arising from the connection of the retained goods with a property against a third party. In this case, we accept the assignment.

b) The buyer already assigns to us, at this point in time, in total or to the extent of our possible co-ownership share in accordance with clause 7.4.a, for security purposes, the claims arising from the resale of the goods or the product against third parties in the amount of the final invoice amount agreed with us (including VAT). We accept the assignment. The obligations of the buyer listed in clause 7.2 also apply in relation to the assigned claims.

c) The buyer remains authorised, alongside us, to collect the receivable. As long as the buyer meets their payment obligations to us, there is no deficiency in the buyer's ability to perform, and we do not assert the retention of title by exercising a right in accordance with clause 7.3, we undertake not to collect the receivable. If we assert the exercise of a right in accordance with clause 7.3, we may require the buyer to disclose the assigned receivables and their debtors, as well as for the buyer to provide all necessary information for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment. Furthermore, we are entitled to revoke the buyer's authority to resell as well as their authority to process the goods subject to retention of title.

d) In the event that the realisable value of the securities exceeds our receivables by more than 10%, we will release securities of our choice at the buyer's request.

7.5 The buyer is obliged to treat the purchased item with care as long as ownership has not yet passed to them. In particular, they are obliged to insure it at their own expense against theft, fire, and water damage to its full new value (note: only permissible when selling high-quality goods). If maintenance and inspection work needs to be carried out, the buyer must perform this at their own expense in a timely manner.

8. Buyer’s claims for defects

8.1 For the rights of the buyer in the case of material and legal defects (including incorrect and insufficient delivery as well as improper assembly/installation or defective instructions), the statutory provisions apply, unless otherwise specified below. The statutory provisions regarding consumer goods purchases (§§ 474 ff. BGB) and the rights of the buyer from separately issued guarantees, particularly from the manufacturer, remain unaffected.

8.2 Agreements that we have made with buyers regarding the quality and intended use of the goods (including accessories and instructions) regularly form the basis of our liability for defects within the framework of the warranty. A quality agreement includes all product descriptions and manufacturer information that are the subject of the individual contract or were publicly disclosed by us (especially in catalogues or on our website) at the time of the conclusion of the contract. In the event that no quality has been agreed, it is to be assessed according to the provision of § 434 paragraph 3 BGB whether a defect exists. In this context, it should be noted that public statements made by the manufacturer in the context of advertising or on the product label take precedence over statements made by other third parties.

8.3 For goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content to the extent that this is expressly derived from a quality agreement in accordance with clause 8.2. We accept no liability for public statements made by the manufacturer and other third parties.

8.4 We are not liable for defects that the buyer is aware of or grossly negligent in not being aware of at the time of contract conclusion in accordance with § 442 BGB.

8.5 The buyer's claims for defects exist only to the extent that the buyer has fulfilled their statutory obligations to inspect and notify (§§ 377, 381 HGB). If the goods are building materials or other goods intended for installation or further processing, an inspection must be carried out immediately before processing. A written notification to us must be made without delay if a defect becomes apparent during delivery, inspection, or at a later time. Obvious defects must be reported in writing within 14 working days of delivery, and defects that are not apparent must be reported within the same period from the discovery of the defects. In the event that the buyer fails to properly inspect and/or notify us of defects, we exclude liability for defects that are not reported or not reported in a timely or proper manner according to statutory provisions. If the goods were intended for installation, attachment, or installation, this also applies if the defect only became apparent after the corresponding processing due to non-compliance or violation of one of these obligations. In this case, the buyer has no claims for reimbursement of "installation and removal costs."

8.6 If the delivered goods should be defective, we as the seller have the right to choose whether we provide subsequent performance by remedying the defect (repair) or by delivering a non-defective item (replacement delivery). In the event that the type of subsequent performance we choose is unreasonable for the buyer in the individual case, he may refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. Furthermore, we are entitled to make our subsequent performance dependent on the buyer paying the due purchase price. However, the buyer has the right to withhold a portion of the purchase price that is reasonable in relation to the defect.

8.7 For the subsequent performance to be provided, the buyer must grant us the necessary time and opportunity. In particular, the buyer must hand over the item for which he has asserted a defect for inspection purposes. In the event that we carry out a replacement delivery of a non-defective item, the buyer must return the defective item to us in accordance with the statutory provisions. However, the buyer does not have a right to claim a return.

8.8 Unless we have contractually committed ourselves to do so, subsequent performance does not include the removal, dismantling or deinstallation of the defective item, nor the installation, attachment or installation of a non-defective item. Claims of the buyer for reimbursement of "installation and removal costs" remain unaffected.

8.9 We will reimburse the expenses necessary for inspection purposes and for subsequent fulfilment (transport, labour, and material costs as well as any installation and removal costs) in accordance with the statutory provisions and these General Sales Conditions in the event that a defect exists. However, we may demand reimbursement from the buyer for costs incurred due to an unjustified request for defect rectification if the buyer knew or should have known that there was actually no defect.

8.10 The buyer has the right to rectify the defect themselves and to demand reimbursement for the objectively necessary expenses incurred in doing so if there is an urgent case (e.g. in the event of danger to operational safety or to prevent disproportionate damage). The buyer must inform us immediately in the event of self-rectification. If we are entitled to refuse subsequent fulfilment in accordance with the statutory provisions, the buyer has no right to self-rectification.

8.11 The buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline set by the buyer for subsequent fulfilment has expired unsuccessfully or is dispensable under the statutory provisions. However, in the case of a minor defect, the buyer has no right of withdrawal.

8.12 Claims by the buyer for reimbursement of expenses in accordance with § 445a paragraph 1 of the German Civil Code (BGB) are excluded unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 paragraph 5, 327u BGB).

8.13 Claims for damages or claims for reimbursement of the buyer's futile expenses (§ 284 BGB) exist in the event of a defect only in accordance with the provisions of Clause 9 and Clause 10.

9. Limitation Period

9.1 The general limitation period for claims arising from material or legal defects is, deviating from § 438 paragraph 1 no. 3 BGB, one year from delivery. In the event that an acceptance has been contractually agreed, the limitation period begins with acceptance.

9.2 The limitation period is, according to the statutory regulation, 5 years from delivery (§§ 438 paragraph 1 no. 2 BGB) in the event that the goods are a building or a thing that has been used in accordance with its usual purpose for a building and has caused its defectiveness (building material). This is subject to further statutory special regulations on limitation (in particular § 438 paragraph 1 no. 1, paragraph 3, §§ 444, 445b BGB).

9.3 The above limitation periods of the law of sale also apply to contractual and non-contractual claims for damages of the buyer based on a defect in the goods, unless the application of the regular statutory limitation according to §§ 195, 199 BGB would lead to a shorter limitation period in the individual case. Claims for damages of the buyer according to Clause 10.1 and 10.2.a) as well as those under the Product Liability Act shall expire exclusively according to the statutory limitation periods.

10. Other Liability

10.1 We as the seller are liable, unless otherwise provided in these General Terms and Conditions of Sale, including the following provisions, for breaches of contractual and non-contractual obligations according to the statutory provisions.

10.2 In the context of liability for fault, we are liable for damages, regardless of the legal basis, only in cases of intent and gross negligence. In the case of simple negligence, we are liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only:

a) for damages resulting from injury to life, body or health,

b) for damages resulting from the breach of a material contractual obligation (obligations the fulfilment of which enables the proper performance of the contract and on which the contractual partner relies and may rely). However, our liability in this case is limited to the compensation for foreseeable, typically occurring damage.

10.3 The limitations of liability arising in accordance with clause 10.2 also apply to third parties as well as in cases of breaches of duty by persons whose fault we are liable for under statutory provisions. If a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the limitations of liability do not apply. This also applies to claims of the buyer under the Product Liability Act.

10.4 The buyer may only withdraw or terminate due to a breach of duty that does not result from a defect if we, as the seller, are responsible for the breach of duty.

10.5 The buyer's right of termination (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

11. Choice of law and jurisdiction

11.1 These General Terms and Conditions of Sale and the contractual relationship between us as the seller and the buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Sales Convention.

11.2 If the buyer is a merchant within the meaning of the Commercial Code, a legal entity under public law, or a special fund under public law, our registered office in Dresden shall be the exclusive and also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the buyer is an entrepreneur within the meaning of § 14 of the German Civil Code.

11.3 We are also entitled to file a lawsuit at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a priority individual agreement, or at the general place of jurisdiction of the buyer. This shall not affect priority statutory provisions (exclusive places of jurisdiction).

Requirement of Transparency

This requirement means that a clause in AGB is deemed to be disadvantageous in an unreasonable manner if it is not clear and understandable. This requirement means that opaque clauses are to be considered invalid per se, without the need for an additional substantive unreasonable disadvantage to the contracting partner. Furthermore, this also means that the requirement of transparency applies to price provisions and performance-describing clauses, which are generally exempt from content control.

Limitation to Subsequent Performance

The buyer may demand, as a subsequent performance for a defective item, at their choice, the removal of the defect or the delivery of a defect-free item, or, if the conditions are met, also claim damages. Only when the subsequent performance fails, is impossible, or is unreasonable, can the buyer – as a secondary option – assert warranty rights. The clause assigns the choice of the type of subsequent performance to the seller, deviating from § 439 paragraph 1 of the German Civil Code (BGB). The permissibility of the choice of rights is primarily supported by the fact that the seller or the manufacturer regularly engaged by them is closer to the item than the buyer, which is why the entrepreneur's right of choice in the case of a work contract (§ 635 Abs. 1 BGB) is even legally provided for. This model can also be applied, within the limits of reasonableness, to purchase contracts between entrepreneurs.

Limitation of liability

Any exclusion or limitation of liability for damages arising from injury to life, body, or health, which is based on an intentional or negligent breach of duty by the user or an intentional or negligent breach of duty by a legal representative or vicarious agent of the user, is invalid.

Amount of default interest

From the beginning of the default, the buyer owes the seller default interest in addition to the purchase price. If a consumer is involved in the purchase contract, whether as a buyer or as a seller, the interest rate is 5% above the base interest rate. In purchase contracts between entrepreneurs, the interest rate is 9% above the base interest rate.