The general terms and conditions of the companies of ZGS FOMACON Trade GmbH & Co KG, based in Düsseldorf, are listed below.
A. Area of validity
The following terms and conditions apply exclusively to all (including future) contracts between us and the customer. Conflicting or deviating terms and conditions of the customer shall not be recognized unless we agree to them in writing in individual cases. Our General Terms and Conditions shall also apply if we provide a service to the customer without reservation or objection in the knowledge that the customer's terms and conditions conflict with or deviate from these General Terms and Conditions or the customer's own terms and conditions are congruent with ours.
B. Contract conclusion
Our offer is subject to change unless otherwise stated. We can accept or reject orders from customers within a period of three weeks after receipt of the order by us. The customer waives receipt of our declaration of acceptance. If the order has not been placed in writing, we can demand that the customer confirms the order in writing.
C. Regulations for rental agreements
- Rental object We reserve the right to provide another rental object that is comparable in terms of its function instead of the rental object specified in the rental agreement.
- Rental period
2.1 The rental period is generally calculated by the week. The minimum rental period is one week. If no other rental period has been contractually agreed, the rental period shall commence when the rental item is handed over to the customer. If the rental agreement has been concluded for an indefinite period, the customer may terminate the rental agreement in writing with one week's notice to the end of the seventh day following receipt of the notice of termination, or, if the rental period is exceptionally calculated in days, with three days' notice to the end of the third day following receipt of the notice of termination.
2.2 The customer is obliged to tolerate the rental item remaining at the place of use for a period up to the end of the third day following the end of the contract and to protect the rental item against theft, destruction and deterioration. The customer shall bear the risk of accidental loss and accidental deterioration of the rental object during the rental period and until collection within the aforementioned extended tolerance period.
2.3 If the customer does not return the rental object in good time at the end of the rental period, in particular if he continues to use the rental object, the rental agreement shall not be extended as a result. § 545 of the German Civil Code is excluded.
- Rental costs
Unless otherwise contractually agreed, the agreed rent is net rent. The statutory value added tax will be added to the invoice if necessary.
3.1 Additional costs
Additional costs for delivery and collection as well as assembly and dismantling will be invoiced unless otherwise contractually agreed.
3.2 Default of payment and retrieval of the panels
If the customer defaults on payment more than 30 days after the invoice date (as evidenced by the invoice date), we are entitled to collect our panels at any time. In principle, we are entitled to withdraw from the rental contract/order or from the project execution in the event of late payment by the customer of our invoices or partial invoices and to dismantle or collect the panels provided on a rental basis at any time, including from ongoing projects. Furthermore, the customer shall bear the resulting damage and additional expenses.
- Warranty
4.1 The customer shall only have claims due to a defect in the rental item if and insofar as we are responsible for the defect.
4.2 Immediately after handover, the customer must visually inspect the rented item and, if feasible, carry out a functional test with regard to defects and completeness and must immediately report defects and the absence of parts of the rented item in writing. If the customer fails to report a defect or the absence of parts of the rental object, the rental object shall be deemed approved unless the defect or the absence of parts of the rental object was not recognizable. If a defect or the absence of parts of the rental item becomes apparent later, the customer must report the defect or the absence of parts of the rental item immediately in writing, otherwise the rental item shall be deemed approved. The rental item shall not be deemed approved if we know that a defect exists or that parts of the rental item are missing. If the rental object is deemed to be approved, the customer is not released from the obligation to pay the rent in full due to the defect or missing part of the rental object, nor can the customer demand compensation in accordance with Section 536 a BGB or terminate the rental agreement without notice.
4.3 In the event of a defect, we shall be entitled, at our discretion, to replace the rented item with one that is comparable in terms of function to the rented item or to repair it. If we do not remedy a defect within a reasonable period of time or refuse to remedy the defect, the customer may terminate the rental agreement in writing without notice.
- Use of the rental object
5.1 Subject to the provisions of § 536 a (2) of the German Civil Code, the customer is not entitled to modify the rented item without our prior written consent, and in particular is not entitled to remove or conceal attached serial numbers, manufacturer's plates or other identification or test marks.
5.2 During the rental period, the customer must notify us immediately of the destruction of the rental object, any deterioration beyond normal wear and tear and any accident in connection with the rental object. If we refuse to consent to the transfer of use of the rental object or subletting of the rental object to a third party, the customer shall not be entitled to terminate the contract due to the refusal.
5.3 The rental object may not be removed from the place of use. The customer must allow us, our representatives and insurers access to the place of use and the rental object during normal working hours.
5.4 In addition, the rules of the terms of use apply, which can be viewed at www.zgs.ag.
- Delivery and collection of the rented item/return of the rented object
6.1 If we have taken over the delivery and collection of the rental object and/or its assembly and dismantling, the customer must ensure that the place where the rental object is to be used (place of use) is accessible and drivable for trucks with a permissible total weight of up to 40 tons and that the place of use is suitable for the assembly and use of the rental object. The customer must provide us with electricity, water and storage facilities at the place of use free of charge, insofar as this is necessary for delivery and collection as well as assembly and dismantling. If the customer does not fulfill the aforementioned obligations and delivery or assembly of the rental object cannot take place for this reason, we shall not be obliged to wait longer than a maximum of two hours at the place of use for the aforementioned conditions to be met. If delivery and/or assembly cannot take place in such a case, the customer shall be obliged to bear the costs of further delivery and assembly attempts and shall pay the contractually agreed rental fee as compensation for each day by which the delivery of the rental object or its assembly is delayed. The customer reserves the right to prove that we have incurred no or significantly less damage. We are not prevented from claiming further damages.
6.2 At the end of the rental period, the customer must return the rental object in a clean condition or, if we have assumed responsibility for collection, make it available for collection or dismantling in a clean condition and freely accessible. We shall not be obliged to wait longer than two hours for the item to be ready for dismantling or collection. The customer shall bear the additional costs of a renewed dismantling or collection attempt as well as any cleaning of the rental object carried out by us, insofar as this is necessary. For each day after expiry of the rental period on which the customer does not return the rental object or does not make it available for dismantling or collection, the customer shall owe the contractually agreed rental fee for one day as compensation. The customer reserves the right to prove that we have incurred no or significantly less damage. We are not prevented from claiming further damages.
6.3 In the event of excessive soiling of the floor protection systems provided to you, we shall charge a flat cleaning fee of EUR 15.00 plus 19% VAT per item for cleaning the same (different flat cleaning fees per item and model can be found in the current price list and the terms of use). The customer agrees that we may take the floor protection systems from the rental location and carry out the cleaning elsewhere in order to avoid further damage. It is not necessary for us to request the customer to clean the floor protection systems provided to him in order to avoid cleaning costs.
6.4 In the event of damage to the rented floor protection systems, we will determine and document the damage. If a repair is possible, we are entitled to carry this out for a flat rate of EUR 60.00 per person and hour plus 19% VAT, which will be charged to the customer. We are entitled to provide evidence of higher damages, the customer is entitled to provide evidence of lower damages. If a repair is not possible, we will dispose of the floor protection system and the customer is obliged to pay the replacement value.
6.5 We reserve the right to supply alternative models with the same characteristics instead of the contractual products.
6.6 The terms of use for our products also form part of the contract.
- References
We are entitled to state our services as a reference for our company in advertising measures, stating the name of the customer and giving details of the type and scope of the service and publishing photographs of our service.
D. Regulations for purchase contracts
- Purchase price
1.1 Unless otherwise contractually agreed, the purchase price is understood to be the net price, excluding packaging, delivery and assembly of the purchased item and statutory VAT. VAT, if applicable, shall be shown separately on the invoice at the statutory rate on the date of invoicing.
1.2 The purchase price is due immediately after invoicing without deduction.
- Retention of title
2.1 The delivered goods remain our property until the customer has paid the purchase price in full.
2.2 The customer is entitled to resell the purchased item in the ordinary course of business; he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) that accrue to him from the resale, irrespective of whether the purchased item has been resold without or after processing.
2.3 The customer shall remain authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. We undertake not to collect the claim as long as the customer meets his payment obligations, is not in default of payment and, in particular, no application has been made to open insolvency proceedings against his assets or he has suspended his payments. If one of the aforementioned circumstances occurs, we can revoke the collection authorization and demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
2.4 The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the purchased 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 purchased item to the other processed items at the time of processing. The provisions of § D 2.2 and 2.3 shall apply accordingly to the item resulting from the processing or transformation.
- Warranty
3.1 The prerequisite for warranty claims by the customer due to a defect in the purchased item is that the customer has fulfilled his inspection and complaint obligations in accordance with §§ 377, 378 of the German Commercial Code.
3.2 If there is a defect for which we are responsible, we shall be entitled to subsequent performance (rectification of the defect or delivery of a defect-free item). If the subsequent performance fails, the customer reserves the right to choose between a reasonable reduction of the purchase price (reduction) or withdrawal from the contract.
3.3 The warranty period is one year from delivery of the purchased item.
E. Further general provisions
- Liability
1.1 Unless otherwise stated below, further claims by the customer - regardless of the legal grounds - are excluded. We shall not be liable for damage that has not occurred to the delivery item itself; in particular, we shall not be liable for loss of profit or for other financial losses of the customer.
1.2 Unless otherwise contractually agreed, we are not obliged to advise the customer or make recommendations within the scope of the contractual relationship with the customer. If we nevertheless give advice or make recommendations, we shall not be obliged to compensate for any damage arising from following the advice or recommendation.
1.3 Claims for damages for only slightly negligent breaches of duty are excluded. If we negligently breach an essential contractual obligation or injure the customer's health, body or life, we shall be liable in accordance with the statutory provisions. The liability for damages is limited to the foreseeable, typically occurring damage, up to a maximum of EUR 50,000.
1.4 No limitation of liability shall apply in the event of intentional or grossly negligent breaches of duty and in the event of claims under the Product Liability Act.
1.5 Insofar as our liability for damages is excluded or limited, this shall also apply to our representatives, employees, workers, staff and vicarious agents.
- Payment modalities
2.1 Unless otherwise agreed, the invoice amount shall be paid net (without deduction) within twenty-one days of the invoice date (as evidenced by the invoice date). For each week of delay in payment, the customer shall pay liquidated damages amounting to 1% of the invoice amount, including any applicable VAT, up to a maximum of 10% of this amount. The acceptance of a payment without objection and/or without reservation does not constitute a waiver of claims for damages.
2.2 Our employees and vicarious agents are not authorized to accept payments to us unless they have written powers of attorney. We are not obliged to accept checks, bills of exchange or cash. Checks and bills of exchange are always accepted on account of performance.
2.3 We reserve the right to have our offers invoiced directly by our service partners. Assembly and transportation services are always invoiced with the first partial invoice. - E-Mail
3.1 The customer agrees to receive newsletters from us from time to time in the form of an e-mail. The newsletter can be canceled at any time (by clicking on the "Unsubscribe" link). We will never pass on e-mail addresses to third parties. - Factoring
4.1 The customer agrees that we assign / sell our receivables to a factoring company and that this company invoices the services rendered by ZGS directly to the customer. - Set-off/jurisdiction/applicable law
5.1 The customer may only offset against our claims or assert a right of retention if the counterclaim is undisputed, disputed but ready for a decision or has been legally established.
5.2 The place of jurisdiction is Düsseldorf. We are also entitled to sue at the customer's place of business.
5.3 German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) - Further provisions
In addition to our GTC, the current terms of use apply, which can be viewed at https://www.zgs-bau.de/images/downloads/Nutzungsbedingungenzgs.pdf. If the terms of use and the GTC do not match, the regulation from our GTC shall apply in case of doubt.
