AGB
General Terms and Conditions of VICTOR Europe GmbH
1 Validity of these provisions
1.1 These Terms and Conditions of Sale and Delivery shall apply exclusively to the entire business relationship, including future business relationships, between us and the entrepreneurial contractual partner (hereinafter referred to as ‘Customer’). Deviations from these Terms and Conditions of Sale and Delivery require an express agreement. Terms and conditions of purchase or other terms and conditions of the customer are not accepted.
1.2 If a framework agreement exists between the Customer and us, these Terms and Conditions of Sale and Delivery shall apply both to this framework agreement and to the individual order.
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2 Offers, product descriptions
2.1 Our offers are subject to change and non-binding until the contract has been concluded.
2.2 Orders placed by the customer are binding for the customer. A contract is concluded with our written order confirmation or the execution of the delivery/service by us.
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2.3 Verbal information and information in our documents do not contain any guarantees; dimensions, performance descriptions and other information on the quality of the delivery item are for specification purposes and do not constitute any guarantees. We also do not assume any guarantee for the properties of samples or specimens. Insofar as the materials to be used by us are contractually specified, we only guarantee compliance with the specification and not the suitability of the materials for the contractual purpose. We are only obliged to provide information in the event of their obvious unsuitability.​
3 Delivery date, delivery
3.1 Our obligation to deliver and the delivery period are subject to the reservation that we ourselves are supplied properly, completely and in good time. Delivery dates and deadlines are approximate. If the customer fails to clarify all details of the order in good time and if the customer fails to provide all preliminary services in good time, the delivery dates shall be extended accordingly. Delivery dates shall be deemed to have been met upon notification of readiness for dispatch.
3.2 We are entitled to make partial deliveries insofar as these are reasonable for the customer.
3.3 The customer must check and acknowledge the delivery note. Any objections must be notified to us immediately in writing. Otherwise the acknowledged delivery quantity shall be deemed to have been recognised. Excess and short deliveries of up to 10 % of the ordered quantities shall be accepted by the customer as being in accordance with the contract.
3.4 Delays in delivery due to operational disruptions, official measures or force majeure shall lead to a reasonable extension of the delivery period. The same applies to delays in delivery caused by the aforementioned events at our suppliers. Force majeure shall also apply in the event of industrial action including strikes and lawful lockouts in our company or at our suppliers. If such events subsequently make delivery impossible or unreasonable for one of the parties, both parties are entitled to withdraw from the contract.
3.5 If the customer suffers damage as a result of a delay in delivery for which we are responsible, the customer may demand compensation for this up to a maximum of 5% of the value of the affected part of the total delivery. In the event of a delay in delivery, the customer may withdraw from the contract after setting a reasonable grace period in writing if performance is not effected within the grace period. Otherwise, clause 9 of these terms and conditions shall apply to liability in the event of delay or impossibility.​
4 Dispatch and transfer of risk
4.1 Delivery shall be made from our Horst warehouse. We shall arrange for the goods to be dispatched to the customer in his name and at his risk. This shall also apply if we bear the costs of transport and/or insure the transport or assemble or set up the delivery item at the customer's premises on the basis of individual agreements.
4.2 We shall take out transport insurance at the customer's request and expense. When selecting the transport insurer, we shall only be liable for our own customary care.
4.3 Delivery items notified as ready for dispatch must be called off immediately when the delivery date is reached. If dispatch is delayed as a result of circumstances for which the customer is responsible, the customer shall be in default from the date of notification of readiness for dispatch. The risk shall then pass to the customer. We shall then be entitled to store the goods at the risk and expense of the customer.
4.4 If the consignment to the customer is not prepaid by us, the recipient is obliged to pay the freight on delivery. If we are obliged to bear the transport costs on the basis of an individual agreement, the customer may in this case deduct the freight paid by him when settling the invoice. If we are obliged to bear the transport costs under an individual agreement, this shall apply at most to the distance between our works and the destination stated in the confirmation. Any increase in the freight costs due to subsequent changes to the mode of transport, the transport route, the destination or similar circumstances affecting the freight costs shall be borne by the customer. In the case of deliveries to stations closer than indicated in the confirmation, the freight shall be borne by us in accordance with the aforementioned principles at most up to the actual destination.
5 Prices and price changes
5.1 The prices are ex our warehouse in Horst plus the VAT applicable at the time the contract is concluded. Subsequent changes to the scope and time of delivery by the purchaser shall entitle us, if we accept them, to a reasonable adjustment of the price.
5.2 We shall charge the customer for packaging at cost price. Disposal costs for packaging material, which are unavoidably incurred at our expense in accordance with the relevant statutory provisions, shall be invoiced to and paid by the customer.
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5.3 If the statutory VAT rate increases between conclusion of the contract and actual delivery, the agreed gross purchase price shall increase accordingly.
5.4 If the customer purchases the goods from us at list price and the list price changes between conclusion of the contract and actual delivery, the agreed purchase price shall change accordingly. Any agreed discounts shall also be taken into account with regard to the changed purchase price. If the purchase price agreement is not based on the list price, we shall be entitled to subsequently adjust the purchase price appropriately if the cost factors for the goods or for other agreed services change significantly. If such a price adjustment leads to a considerable price increase, the customer is entitled to withdraw from the contract.
6 Terms of payment, offsetting and right of retention
6.1 According to our current price list, payment must be made within 10 days after provision and invoicing less 3% discount or within 30 days after the due date and receipt of the invoice or after receipt of the consideration net cash. If the goods are dispatched cash on delivery, the costs of cash on delivery shall be borne by the customer. Partial deliveries may be invoiced separately.
6.2 The date of receipt in our bank account shall be decisive for fulfilment, the timeliness of payment and the accrual of any agreed discounts.
6.3 We are not obliged to accept cheques and bills of exchange. Payment by cheque and/or bill of exchange shall only be made on account of performance.
6.4 Even if a term of payment has been agreed, we may demand immediate payment of all claims and/or make deliveries dependent on advance payments or suitable securities if a significant deterioration in the customer's income and financial circumstances has occurred or such a deterioration is expected for the future due to objective circumstances. In the event of a deferral or instalment payment agreement, all claims against the customer shall become due immediately if the customer finally refuses payment or is more than 14 days in arrears with a due payment. This shall not apply if the amount in arrears is less than 10% of the outstanding claims.
6.5 In the event of default by the customer, we may, subject to further claims, demand interest on the outstanding amount at a rate of 8 percentage points above the base interest rate (§247BGB) and a share of the costs of EUR 2.50 per reminder.
6.6 Offsetting by the customer with counterclaims is excluded unless the customer's claims are undisputed, recognised or legally established. Furthermore, the customer is only authorised to exercise a right of retention if his counterclaim is based on the same legal relationship.
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7 Liability for defects
7.1 The customer is obliged to inspect the delivered goods immediately at his own expense and to notify us immediately in writing of any defects, incorrect deliveries, obvious incorrect deliveries that cannot be authorised or shortfalls in quantity. A preclusive period of seven days from receipt of the delivery shall apply to the notification. Hidden defects must be reported to us in writing without delay, at the latest seven days after discovery. An inspection of the notified defects by us does not constitute a waiver of the assertion of the delay with regard to the complaint.
7.2 Any quality defects in a partial delivery shall not entitle the customer to reject the remainder of the completed quantity, unless the customer can prove that acceptance of only part of the delivery is unreasonable for him in view of the circumstances.
7.3 Damage caused by external influences, improper handling, faulty operation, normal wear and tear or corrosion shall be excluded from the warranty, as there is no defect in this case.
7.4 For goods that are defective at the time of the transfer of risk, we shall, at our discretion, either replace or repair the goods free of charge. If we allow a deadline set for subsequent delivery or rectification to elapse fruitlessly through our fault, if subsequent fulfilment has finally failed or if we refuse it or if it is impossible for us or unreasonable for the customer, the customer may withdraw from the contract or reduce the purchase price. If there is only an insignificant defect and the goods can be utilised by the customer without disadvantage, he shall only have the right to reduce the purchase price. This right is limited to the partial delivery concerned, provided that such a limitation is not unreasonable for the customer due to the nature of the goods. If the specified performance quantities are not achieved, the purchaser shall only be entitled to a reasonable reduction in price after the failure to remedy the defect. This shall not apply if the performance parameters are expressly warranted or if acceptance of the delivery item is unreasonable under the given circumstances.
7.5 Warranty claims shall become time-barred one year after the start of the statutory limitation period. The limitation period in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected by the provisions of the two preceding sentences. Claims for damages due to injury to life, limb or health caused by defects or under the Product Liability Act are also not restricted by these provisions. These provisions also do not limit other claims for damages under warranty law in the event of gross negligence, intent or breach of material contractual obligations (for the term ‘material contractual obligations’, see provisions under Section 9 ‘Liability’) on our part.
8 Retention of title
8.1 The delivered goods (goods subject to retention of title) shall remain our property until full payment of all our claims arising from the business relationship with the customer existing at the time of conclusion of the respective contract. In addition, the goods subject to retention of title shall remain our property until full payment of our future claims.
8.2 Pledges or transfers by way of security of the reserved goods to third parties and the assignment or pledging of entitlements thereto are excluded. In the event of seizure and confiscation by third parties, including the assertion of liens such as landlord's liens and other impairments of our security rights, we must be notified immediately. The costs of any intervention by us shall be borne by the customer, unless they can be obtained from the third party in question.
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8.3 If the customer acquires the reserved goods for the purpose of direct resale, the customer shall be entitled to sell them in the ordinary course of business. If the reserved goods are not intended for direct resale, resale is not permitted without our prior consent. Resale shall also be inadmissible if the resulting claim is covered by earlier dispositions of the purchaser in favour of third parties, for example by a blanket assignment. The claims arising from the sale of the reserved goods are hereby assigned to us in full with effect from the time they arise, together with all ancillary and security rights. We hereby accept the assignment. If goods subject to retention of title are sold together with other goods, the assignment shall be in the amount that we have invoiced to the customer for the goods subject to retention of title in question on a pro rata basis. In the event that we are only entitled to a co-ownership share in the reserved goods, the assignment shall be made in the amount corresponding to the value invoiced by us to the customer for the reserved goods delivered by us and contained therein, which established the co-ownership share. All assignments shall be made in each case with first priority for us. If the customer includes the claims from a resale of reserved goods in a current account relationship existing with its purchasers, the respective recognised balance claims and the final balance claim shall be assigned to us to the extent that they contain individual (partial) claims which would have been assigned in accordance with the above provisions if they had not been claims to be included in the current account. Any other assignment, pledging or other encumbrance of these claims or parts of claims is not permitted.
8.4 As long as the customer fulfils its payment obligations to us, it may collect the claims for itself in the ordinary course of business. The assignment of the claim is excluded. This shall not apply in the event of assignment for the purpose of debt collection by way of factoring, if at the same time the obligation of the factor is established to effect the consideration in the amount of our share of the claim directly to us as long as we still have claims against the customer.
8.5 The purchaser's right to resell the goods subject to retention of title and the right to collect the claims shall lapse if the purchaser is in default of payment by more than one month, if the purchaser ceases payment, if the purchaser protests a cheque or bill of exchange (insofar as we are the beneficiary of this cheque or bill of exchange in any way), if goods subject to retention of title are seized or if an application is made to open insolvency proceedings or judicial or extrajudicial composition proceedings against the purchaser's assets. We must be informed immediately of the above events. A list of existing goods subject to retention of title must be sent to us. The goods subject to retention of title must be stored separately and returned to us immediately at our request. We are also immediately authorised to collect the claims assigned to us. The assigned claims must be disclosed to us immediately, together with their composition, amount, date of origin and the names and addresses of the third-party debtors. This also applies to all other information required for the ordering and collection of the claims. The third party debtors must be informed immediately by the customer of the assignment. The customer must provide us with a certificate of assignment on request. Any monies received after expiry of the right to collect claims assigned to us shall be received in trust up to the amount of all secured claims and shall be paid out to us immediately or accumulated in a special account labelled ‘Money held in trust for VICTOR Europe GmbH’. The customer agrees with us that the money received is our property. The customer hereby assigns to us the claims arising from the aforementioned account. We accept this assignment.
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8.6 After cancellation of the contract or after setting a reasonable deadline in accordance with § 323 BGB and fruitless expiry of the deadline, we shall be entitled to freely utilise the goods taken back. The proceeds of realisation shall be credited to the customer. Reasonable collection, reconditioning and selling costs shall be deducted from the realisation proceeds. The salaries of our employees deployed for this purpose shall be included on a pro rata basis. Sales costs are to be recognised as 25% of the proceeds from the sale. However, the maximum amount credited shall be the amount that a company at our trading level would normally pay as the purchase price for the reserved goods taken back, taking into account their condition when they are taken back and their location. In the case of goods manufactured by us, the maximum amount credited shall be our direct cost price, disregarding administrative and distribution costs. The amounts credited shall be offset against our claims until the latter have expired.
8.7 The customer is obliged to insure the reserved goods at his own expense to the usual extent, but in any case against fire, storm, water and theft damage, sufficiently at replacement value and to provide us with proof of insurance cover on request. He hereby assigns to us his claims to which he is entitled against the insurance company and/or other third parties in connection with the goods subject to retention of title in the amount of the share attributable to our goods subject to retention of title. We accept the assignment. The other provisions agreed within the scope of this retention of title shall apply accordingly.
8.8 Insofar as our secured claims are not only temporarily secured by more than 110% by goods subject to retention of title and/or assignments or other securities, we shall release security rights up to the above limit at our own discretion at the request of the customer. The valuation of the securities shall be based on the realisable proceeds from the realisation of the securities. Under no circumstances, however, shall a higher value be assumed than the value to be credited to the customer in accordance with the above provisions in the event of repossession or in the event of collection of the claim by us. Receivables shall be valued in accordance with the principles of proper accounting and discounted if necessary. The customer must provide us with the information necessary for this valuation immediately upon request.
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9 Liability
9.1 Claims for damages of any kind - within and outside the scope of liability for defects - e.g. for delay or impossibility, for breach of other contractual obligations, for culpa in contrahendo, for tort or for any other legal reason, in particular for damage not caused to the delivery item itself, are excluded. The above exclusions of liability shall not apply
- in the event of intent or gross negligence on the part of our bodies and employees
- if guarantees of quality and durability are breached,
- if the damaging act causes injury to life, limb or health.
- for liability under the Product Liability Act
9.2 We shall also be liable for culpable breach of material contractual obligations; in this case, liability shall be limited to reasonably foreseeable damage typical of the contract, except in cases of intent and gross negligence. An essential contractual obligation in this sense is to be understood as any obligation whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the customer may regularly rely.
10. Resale
The resale of our products abroad requires our express prior consent due to possibly existing, deviating national regulations.
11 Place of fulfilment, place of jurisdiction, applicable law
11.1 The place of fulfilment for payment and delivery of goods is Horst.
11.2 Hamburg is agreed as the place of jurisdiction for purchasers who are merchants, legal entities under public law or special funds under public law. We may also sue the purchaser at the court responsible for his registered office or branch office.
11.3 German law shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
12. data protection
We are authorised to process and store the data about the customer received in connection with the business relationship - even if these originate from third parties - in accordance with the Federal Data Protection Act and to have them processed and stored by third parties commissioned by us.