General Rental Terms and Conditions
§ 1 Scope of Application
(1) The rights and obligations of both parties for all present and future rentals of office, residential, sanitary, WC, material, shipping and crew containers, sewage tanks, corresponding accessories and furniture, as well as for all transactions related thereto between Oswald Matt Group and the Lessee, shall be governed by the following General Rental Terms and Conditions (GRT).
(2) These GRT shall also apply if Oswald Matt Group does not object to conflicting or deviating General Terms and Conditions (GTC) of the Lessee, or if Oswald Matt Group carries out the rental to the Lessee without reservation despite being aware of the Lessee’s GTC. Oswald Matt Group does not recognize conflicting or deviating GTC of the Lessee unless Oswald Matt Group has expressly agreed to them in writing.
(3) Deviations from these GRT as well as ancillary agreements shall only be effective if agreed in writing by the parties. This applies in particular to any agreement waiving the written-form requirement.
(4) Should any provision of these GRT be or become wholly or partially invalid, the validity of the remaining GRT shall not be affected thereby. The parties already now undertake to replace the invalid provision with a valid one that comes closest to the economic intent and purpose of the invalid provision.
§ 2 Offer and Conclusion of Contract
(1) All offers by Oswald Matt Group are non-binding and merely invitations to the Lessee to submit an offer to Oswald Matt Group by placing an order. The Lessee shall be bound by its offer to Oswald Matt Group for 14 days.
(2) A rental relationship comes into existence only upon written order confirmation by Oswald Matt Group or — if no such confirmation is issued — upon the handover of the rental object by Oswald Matt Group to the Lessee.
(3) The content and scope of the services owed by Oswald Matt Group shall be defined by the written order confirmation issued by Oswald Matt Group.
(4) Oswald Matt Group expressly reserves the right to provide the Lessee with a functionally equivalent rental object instead of the one ordered, provided that it is suitable for the use intended by the Lessee in a comparable manner and is reasonable for the Lessee.
§ 3 Rental Period
(1) The rental relationship begins on the date noted in the written order confirmation. If the handover of the rental object occurs at a later point in time for reasons attributable to Oswald Matt Group, the rental period begins only upon the actual handover to the Lessee.
(2) Unless otherwise agreed in writing, the minimum rental period is 30 calendar days.
(3) If the Lessee fails to comply with its obligation to take delivery of the rental object on the agreed day, Oswald Matt Group shall be entitled to terminate the rental contract without notice and to rent out the rental object elsewhere.
(4) The rental relationship ends upon expiry of the agreed rental period. If no rental period has been agreed, the rental relationship ends by written notice to the other contracting party. Subject to the minimum rental period set out in paragraph 2 or in the written order confirmation, the notice period for both parties is 21 days. The timeliness of the notice depends on receipt of the notice of termination by the other contracting party. The right of both contracting parties to terminate for good cause remains unaffected.
(5) If the Lessee continues to use the rental object after expiry of the rental period, the rental relationship shall be extended for an indefinite period, unless one contracting party declares its opposing intention in writing to the other party within 2 weeks. For the Lessee, the period begins upon the continuation of use; for Oswald Matt Group, it begins at the point in time at which Oswald Matt Group becomes aware of the continuation.
§ 4 Transport, Handover, Change of Location and Return of the Rental Object
(1) Unless otherwise agreed in writing, Oswald Matt Group transports the rental object — for a fee agreed in the individual contract — to the place of handover noted in the order confirmation. Upon handover of the rental object, the risk passes to the Lessee.
(2) Upon handover of the rental object to the Lessee, the Lessee is obliged to inspect the rental object and any accessories for freedom from defects, operability and completeness, and to confirm these points as well as the time of acceptance in a handover protocol or by the signed delivery note.
(3) The Lessee shall assemble or set up rented furniture or accessories at its own expense.
(4) Prior to any change of location of the rental object, the written consent of Oswald Matt Group must be obtained. A change of location means any relocation of the rental object. A change of location may only be carried out by Oswald Matt Group or a third party commissioned by Oswald Matt Group and shall be invoiced separately to the Lessee.
(5) Unless otherwise agreed in writing, Oswald Matt Group transports the rental object away again from the agreed return location. The Lessee ensures that the rental object to be collected is freely accessible and walkable for Oswald Matt Group or a third party commissioned by Oswald Matt Group at the time of collection, and that any furniture or accessories located in the rental object that are also to be collected are secured ready for transport.
(6) If it is agreed that the return transport is to be carried out by the Lessee, the Lessee must return the rental object to Oswald Matt Group at the registered office of Oswald Matt Group, Gewerbegebiet Tiefenhäusern 7, 79862 Höchenschwand-Tiefenhäusern, within business hours (Monday–Friday 7:30 a.m. to 4:30 p.m.) upon expiry of the rental period.
(7) Upon return of the rental object, the Lessee must notify Oswald Matt Group or a third party commissioned by Oswald Matt Group in writing of any damage or defects of the rental object. In this regard, third parties and/or their vicarious agents are not entitled to carry out a binding acceptance of the rental object and/or to make legally binding declarations vis-à-vis the Lessee regarding any compensation claims on the part of Oswald Matt Group. After collection and return transport, or after the return, Oswald Matt Group carries out an inspection of the rental object and the accessories rented along with it for any damage and completeness (binding acceptance).
(8) The Lessee must ensure that the access routes to the location of the rental object are sufficiently paved and that the location of the rental object can be approached and driven on with heavy-load vehicles of the following dimensions for the purpose of delivery, collection and/or change of location of the rental object:
Length: 20 meters
Width: 5 meters support width
Height: 5 meters
Weight: 40 tons
Turning circle: at least 20 meters
Further technical descriptions can be viewed at www.container-lion.com/container-ladekrantransport.php. The Lessee must obtain any necessary special-use permits at its own expense.
(9) Any crane that may be required is — unless otherwise agreed in writing — to be provided by the Lessee at its own expense.
(10) If the delivery, collection and/or change of location of the rental object is hindered or made more difficult by the Lessee, the Lessee must reimburse Oswald Matt Group for the personnel costs and further damage incurred as a result.
(11) Should the delivery, collection and/or change of location of the rental object by Oswald Matt Group not be possible at the respective agreed time due to force majeure, industrial action, or similar circumstances over which Oswald Matt Group has no influence, Oswald Matt Group shall inform the Lessee of this without delay. The obligations of Oswald Matt Group shall be suspended for the duration of these disruptions, as shall the effects of default if Oswald Matt Group is already in default at the time these events occur.
(12) If it is agreed that the Lessee carries out the delivery, return transport and/or change of location of the rental object itself or through third parties commissioned by it, the Lessee shall ensure proper execution. In such a case, the risk passes to the Lessee upon handover of the rental object to the Lessee, its carrier or vicarious agents. In the case of return transport by the Lessee, the risk passes to Oswald Matt Group upon handover of the rental object to Oswald Matt Group.
§ 5 Assembly and/or Disassembly of the Rental Object
(1) Oswald Matt Group does not owe the assembly and/or disassembly of the rental object.
(2) If it is agreed in writing that Oswald Matt Group also carries out the assembly of the rental object, this is generally done according to the Lessee’s instructions. However, Oswald Matt Group is entitled to carry out the assembly in deviation from the Lessee’s instructions for objective reasons.
(3) The Lessee must hand over to Oswald Matt Group plans of pipes, lines, etc. laid in the ground before the start of assembly. Otherwise, the Lessee bears any resulting damage.
(4) In the event of official or other requirements that necessitate deviations from the standardized assembly for Oswald Matt Group, Oswald Matt Group is not obliged to assemble despite an agreement, unless Oswald Matt Group has separately committed in writing to an assembly while being aware of the existence of such requirements. The Lessee bears any additional costs incurred.
(5) Oswald Matt Group undertakes the connection to supply and disposal lines only if this is separately agreed in writing.
(6) Electricity and water connections required for assembly and/or disassembly, as well as waste containers for waste arising during assembly and/or disassembly, must be provided by the Lessee. The Lessee bears the costs for electricity and water as well as the waste containers and the disposal of the waste.
(7) Should the assembly and/or disassembly not be possible at the respective agreed time due to force majeure, industrial action, or similar circumstances over which Oswald Matt Group has no influence, Oswald Matt Group shall inform the Lessee of this without delay. The obligations of Oswald Matt Group shall be suspended for the duration of these disruptions, as shall the effects of default if Oswald Matt Group is already in default at the time these events occur.
(8) If the assembly and/or disassembly of the rental object is hindered or made more difficult by the Lessee, the Lessee must reimburse Oswald Matt Group for the personnel costs and further damages incurred as a result.
§ 6 Rent, Ancillary Costs, Payment Terms and Default of Payment
(1) The amount of the rent is noted in the order confirmation and is understood to be plus the applicable statutory value-added tax.
(2) All further costs that may arise, e.g. for transport, change of location, assembly, disassembly and the final-cleaning flat fee, are likewise noted in the order confirmation or a subsequent agreement, are likewise understood to be plus the applicable statutory value-added tax, and are invoiced separately to the Lessee by Oswald Matt Group.
(3) The rent and the further costs stated in the order confirmation are due immediately and payable in advance without deduction to the account of Oswald Matt Group stated in the order confirmation. For partial months, the rent is settled on a pro-rata, date-specific basis. The day on which the amount is received in the account of Oswald Matt Group is decisive for the timeliness of payment. Payments are applied exclusively in accordance with § 366 of the German Civil Code (BGB).
(4) The operating costs and other costs such as electricity and water costs that are connected with the rental, use or operation of the rental object are borne by the Lessee.
(5) After the return of the rental object, Oswald Matt Group carries out a basic cleaning. Should the rental object be exceptionally heavily soiled (e.g. paint splatters, etc.) or littered, the cleaning is not covered by the final-cleaning flat fee. Oswald Matt Group will then invoice the Lessee separately for the further cleaning costs.
(6) Oswald Matt Group is entitled to offset deposits paid against outstanding claims of Oswald Matt Group after expiry of the rental period.
(7) Bills of exchange and checks are accepted by Oswald Matt Group only by separate written agreement and only on account of performance.
(8) The Lessee is entitled to rights of set-off and retention only if its counterclaims are undisputed or have been finally established by a court of law. The exercise of a right of retention is otherwise only available to the Lessee if its counterclaim is based on the same contractual relationship with Oswald Matt Group.
(9) If the Lessee is in default of payment, Oswald Matt Group charges consumers default interest of 5% and entrepreneurs 8% above the respective base interest rate. Oswald Matt Group remains entitled to prove a higher loss.
§ 7 Security Rights of the Lessor
(1) By way of security, the Lessee assigns to Oswald Matt Group, in the amount of all present and future claims of Oswald Matt Group against the Lessee arising from the business relationship, all present and future claims of the Lessee against its clients with respect to those services for the provision of which the Lessee uses the rental object. Oswald Matt Group accepts the assignment.
(2) Oswald Matt Group is obliged to release the securities or claims assigned by way of security on a pro-rata basis to the extent that the realizable value of the securities and claims assigned by way of security exceeds the claims to be secured by more than 20%. The selection of the securities to be released is the responsibility of Oswald Matt Group.
(3) Oswald Matt Group is only entitled to disclose the security assignment to the third-party debtors once the rental relationship has been terminated for good cause, the Lessee is in default of payment, or an application has been filed to open insolvency proceedings over the assets of the Lessee. In this case, Oswald Matt Group is entitled to dispose of the claims and to collect them from the third-party debtors. The Lessee is obliged to name the third-party debtors to Oswald Matt Group in writing upon request.
§ 8 Duty to Give Notice of Defects and Claims for Defects
(1) Claims of the Lessee on account of obvious defects are excluded if and to the extent that the Lessee has not given notice of the defect to Oswald Matt Group upon handover.
(2) Defects arising during the rental period must be reported to Oswald Matt Group in writing without delay. Defects for which the Lessee is responsible are remedied by Oswald Matt Group at the Lessee’s expense. Defects for which the Lessee is not responsible are remedied by Oswald Matt Group at its own expense.
(3) To the extent that the Lessee is not responsible for a defect of the rental object and a resulting impairment of use or loss of use of the rental object, and the Lessee has complied with its statutory notification duties and those regulated in these GRT for defects vis-à-vis Oswald Matt Group, the Lessee is only entitled to make a corresponding reduction of the rent.
(4) Oswald Matt Group assumes no liability for the fact that the intended purpose envisaged by the Lessee can be achieved.
§ 9 Obligations of the Lessee
(1) The Lessee is obliged to treat the rental object with care and to use it properly and in accordance with the contract.
(2) The Lessee must inform Oswald Matt Group without delay of the need for repairs. Maintenance and servicing work as well as any repairs are carried out exclusively by Oswald Matt Group or a third party commissioned by Oswald Matt Group. A repair by the Lessee itself or the commissioning of third parties by the Lessee is permitted only with the written consent of Oswald Matt Group. Consent by Oswald Matt Group may exceptionally be given orally if there is imminent danger.
(3) Oswald Matt Group or a third party commissioned by Oswald Matt Group is entitled to enter the rental object after prior notice in order to satisfy itself of the condition of the rental object.
(4) Any transfer of use to third parties requires, in order to be permissible, the prior written consent of Oswald Matt Group.
(5) If a third party levies execution against the rental object, the Lessee is obliged to inform Oswald Matt Group of this without delay and to mark the rental object as the property of Oswald Matt Group.
(6) It is incumbent on the Lessee to obtain all necessary official permits, in particular any required building permits, at its own expense, and to point out to Oswald Matt Group any risks known to it.
(7) The Lessee ensures that the location of the rental object has a sufficiently dimensioned, load-bearing and level subsurface, and that any necessary foundations have been created. The bearing points must comply with the specifications of Oswald Matt Group. The Lessee bears the risk of the structural stability of the rental object.
(8) The Lessee is obliged, at its own expense and risk, to ensure that all electrical installations are/are to be carried out professionally, as well as all supply and disposal connections that may be necessary.
(9) If containers with sanitary installations are rented in which the water supply is provided externally, the Lessee itself ensures that the water quality required for the intended use is available.
(10) The Lessee must heat containers up until immediately before their collection or return transport, so that a minimum temperature of 5° Celsius prevails in the container.
(11) The Lessee is obliged to ventilate the rental object sufficiently so that no condensation or mold formation occurs.
(12) The Lessee is obliged to clean the rental object thoroughly at its own expense during the rental period regularly in accordance with the type and extent of use, and to empty sewage tanks regularly at its own expense, in particular, however, before collection or return.
(13) Container roofs may not be used as storage areas. The Lessee must keep container roofs free of leaves and snow regularly, in particular, however, before collection. Gutters and similar devices must be cleaned by the Lessee regularly. The Lessee is obliged to ensure sufficient underventilation of the containers.
(14) The rental object must be returned swept clean. Items brought into the rental object by the Lessee must be removed before the return to Oswald Matt Group. Otherwise, Oswald Matt Group is entitled to dispose of the items at the Lessee’s expense.
(15) The Lessee is obliged to report any theft or damage of the rental object to Oswald Matt Group without delay. In the event of theft or damage caused by third parties, the Lessee must report the matter to the police without delay.
§ 10 Liability of the Lessor and Scope of Liability
(1) To the extent that the Lessee is entitled to contractual or statutory claims for damages against Oswald Matt Group, its legal representatives and/or vicarious agents, the liability of Oswald Matt Group is limited to intent and gross negligence as well as the breach of material contractual obligations.
(2) If the breach of material contractual obligations is not based on intent or gross negligence, the scope of liability is limited to compensation for the foreseeable damage typical of the contract.
(3) The foregoing limitations of liability do not apply insofar as Oswald Matt Group is liable on a mandatory basis, e.g. for damages arising from injury to life, body or health, or for claims under the Product Liability Act.
§ 11 Liability of the Lessee
(1) During the rental period as well as in the event of use of the rental object after the agreed rental period, the Lessee is liable until return for any damage to the rental object for which it is responsible and/or for any loss, theft and destruction of the rental object, including any accessories, for which it is responsible, as well as for any resulting consequential costs such as towing costs or loss of rental income. The loss-of-rental-income damage corresponds to one daily rent for each day on which the rental object is not available to Oswald Matt Group for renting out. The Lessee reserves the right to prove that Oswald Matt Group incurred no damage or a lesser damage.
(2) The Lessee indemnifies Oswald Matt Group against any claims by third parties that are made during or after the end of the rental period on the basis of the status of perpetrator of the disturbance by conduct or by condition.
§ 12 Insurance Cover
(1) The Lessee must insure the rental object for the duration of the rental period at its own expense in favor of Oswald Matt Group against fire, water, storm and hail damage, as well as against burglary, theft and vandalism. If the Lessee fails to comply with this obligation, it must reimburse Oswald Matt Group for all damages resulting from this breach of duty. Oswald Matt Group is entitled, but not obliged, to take out corresponding insurance at the Lessee’s expense if the Lessee does not provide written proof of the conclusion of such insurance to Oswald Matt Group no later than upon handover of the rental object. The Lessee assigns its claims against the insurer to Oswald Matt Group as a precaution. Oswald Matt Group accepts the assignment.
(2) The rental object is not insured by the Lessor.
(3) The Lessee must furthermore take out, at its own expense, liability insurance against the risks arising from the use of the rental object. If the Lessee fails to comply with this obligation, it must reimburse Oswald Matt Group for all damages arising from this. Oswald Matt Group is entitled, but not obliged, to take out corresponding liability insurance at the Lessee’s expense if the Lessee does not provide written proof of the conclusion of liability insurance to Oswald Matt Group no later than upon handover of the rental object. The Lessee assigns its claims against the insurer to Oswald Matt Group as a precaution. Oswald Matt Group accepts the assignment.
§ 13 Final Provisions
(1) The place of performance and place of jurisdiction for all claims arising from the contractual relationship is — if the Lessee is an entrepreneur, a legal entity under public law, or a special fund under public law — Höchenschwand-Tiefenhäusern. However, Oswald Matt Group is also entitled to sue the Lessee at its general place of jurisdiction.
(2) The place of performance for all claims is the registered office of Oswald Matt Group, Gewerbegebiet Tiefenhäusern 7, 79862 Höchenschwand-Tiefenhäusern.
(3) The contractual relations between the parties shall be governed exclusively by the law of the Federal Republic of Germany, excluding the conflict-of-laws provisions.
Oswald Matt Group
General Sales and Delivery Terms and Conditions
§ 1 Scope of Application
(1) The rights and obligations of both parties for all present and future sales and deliveries, as well as for transactions related thereto between Oswald Matt Group and the Buyer, shall be governed by the following General Sales and Delivery Terms and Conditions (GSDT).
(2) These GSDT shall also apply if Oswald Matt Group does not object to conflicting or deviating General Terms and Conditions (GTC) of the Buyer, or if Oswald Matt Group carries out the delivery to the Buyer without reservation despite being aware of the Buyer’s GTC. Oswald Matt Group does not recognize conflicting or deviating GTC unless Oswald Matt Group has expressly agreed to them in writing.
(3) Deviations from these GSDT as well as ancillary agreements shall only be effective if agreed in writing by the parties. This applies in particular to any agreement waiving the written-form requirement.
(4) Should any provision of these GSDT be or become wholly or partially invalid, the validity of the remaining GSDT shall not be affected thereby. The parties already now undertake to replace the invalid provision with a valid one that comes closest to the economic intent and purpose of the invalid provision.
§ 2 Offer and Conclusion of Contract
(1) All offers by Oswald Matt Group are non-binding and merely invitations to the Buyer to submit an offer to Oswald Matt Group by placing an order. The Buyer shall be bound by its offer to Oswald Matt Group for 14 days.
(2) A contract comes into existence only upon written order confirmation by Oswald Matt Group or — if no such confirmation is issued — upon delivery of the goods by Oswald Matt Group.
(3) The content and scope of the services owed by Oswald Matt Group shall be defined by the written order confirmation issued by Oswald Matt Group.
(4) Information and statements on construction, suitability and use, as well as advice on application-related questions, are always given without obligation and to the exclusion of any liability.
(5) If, after conclusion of the contract, changes arise with regard to content and scope, or to samples provided or approved manufacturing and planning documents, changes and additions to the contract require the written form. The changes to be made are subject to a charge.
§ 3 Delivery
(1) Unless otherwise agreed in writing, delivery of the goods is made ex warehouse, i.e. at the registered office of Oswald Matt Group, Gewerbegebiet Tiefenhäusern 7, 79862 Höchenschwand-Tiefenhäusern. Unless otherwise agreed in writing, the Buyer must collect the goods there within ten calendar days of receipt of a notice of readiness from Oswald Matt Group, within business hours (Monday–Friday 7:30 a.m. to 4:30 p.m.). If a sale by dispatch is agreed, the goods are shipped to another destination at the Buyer’s expense. In this case, Oswald Matt Group selects the type and route of dispatch, the transport company and the packaging. Oswald Matt Group takes out transport insurance only at the written request and at the expense of the Buyer.
(2) Delivery periods are noted in the written order confirmation and are non-binding, unless they are expressly designated there as binding.
(3) Compliance with the delivery periods presupposes that all details of the order have been clarified, all permits that may be required have been obtained by the Buyer and are available, all technical questions have been clarified by the Buyer, all necessary documents, approvals or services are available, and the Buyer has also fulfilled its other contractual obligations in good time.
(4) Furthermore, compliance with the delivery periods presupposes the correct and timely self-supply of Oswald Matt Group, provided that Oswald Matt Group is not responsible for the failure of supply, the incorrect supply or the delay of the supply to itself. Oswald Matt Group must inform the Buyer of such occurrences without delay and communicate a probable new delivery period. Oswald Matt Group is obliged to inform the customer without delay if the goods are also not available after expiry of the new delivery period or if self-supply of Oswald Matt Group is no longer to be expected. In such a case, Oswald Matt Group is entitled to withdraw from the contract and will, where applicable, refund any consideration already received from the Buyer to the Buyer without delay.
(5) Delivery periods are deemed to have been met if the respective notice of readiness on the part of Oswald Matt Group reaches the Buyer by expiry of the respective delivery period. If a sale by dispatch is agreed, the delivery period is also deemed to have been met if the goods have been dispatched to the Buyer before expiry of the respective delivery period, or if readiness for dispatch has been notified to the Buyer.
(6) Should delivery periods not be capable of being met due to force majeure, industrial action, or similar circumstances over which Oswald Matt Group has no influence, Oswald Matt Group shall inform the customer of this without delay. The delivery obligations shall be suspended for the duration of these disruptions, as shall the effects of default if Oswald Matt Group is already in delivery default at the time these events occur.
(7) If Oswald Matt Group is in delivery default and a subsequent delivery period set by the Buyer has also expired, Oswald Matt Group may inquire of the Buyer in writing whether it insists on performance of the contract. If the customer does not respond to this inquiry, Oswald Matt Group shall be released from the delivery obligation if the inquiry referred to this legal consequence.
(8) Insofar as it is reasonable for the Buyer, Oswald Matt Group is entitled to early delivery as well as to partial delivery. Oswald Matt Group is entitled to invoice partial deliveries immediately.
§ 4 Passing of Risk
(1) At the latest upon handover of the goods, the risk of accidental loss as well as accidental deterioration of the goods passes to the Buyer.
(2) In the case of a sale by dispatch, the risk of accidental loss as well as accidental deterioration of the goods passes to the Buyer upon handover to the forwarder, the carrier or any other person designated to carry out the dispatch, if the Buyer is an entrepreneur. This also applies to deliveries “free house”. If the Buyer is a consumer, the risk of accidental loss as well as accidental deterioration passes to the Buyer, even in the case of a sale by dispatch, only upon handover of the goods.
(3) The passing of risk also occurs if the Buyer is in default of acceptance of the goods.
§ 5 Remuneration, Payment Terms
(1) All prices stated by Oswald Matt Group are net prices and are understood to be plus the applicable statutory value-added tax.
(2) All prices stated by Oswald Matt Group are furthermore understood to be plus any necessary packaging costs.
(3) All invoice amounts are due for payment immediately and without deduction. Payments are applied exclusively in accordance with § 366 BGB.
(4) Bills of exchange and checks are accepted by Oswald Matt Group only by separate written agreement and only on account of performance.
(5) The Buyer is entitled to rights of set-off and retention only if its counterclaims are undisputed or have been finally established by a court of law. The exercise of a right of retention is otherwise only available to the Buyer if its counterclaim is based on the same contractual relationship with Oswald Matt Group.
(6) If the Buyer is in default of payment, Oswald Matt Group charges consumers default interest of 5% and entrepreneurs 8% above the respective base interest rate. Oswald Matt Group remains entitled to prove a higher loss.
§ 6 Retention of Title
(1) If the Buyer is a consumer, the delivered goods remain the property of Oswald Matt Group until full payment of the purchase price.
(2) If the Buyer is an entrepreneur, the delivered goods remain the property of Oswald Matt Group until full settlement of all principal and ancillary claims from the business relationship between Oswald Matt Group and the Buyer, including the principal and ancillary claims from contracts concluded simultaneously or later. In the case of a current account, the retention of title applies to the respective balance.
(3) The Buyer may only sell or further process the delivered goods and the items resulting from their handling and/or processing within the framework of a proper business operation. In the event of resale by the Buyer, the Buyer is obliged to retain title to the goods subject to retention of title vis-à-vis the third party until full payment of the purchase price by the third party. The Buyer assigns to Oswald Matt Group the claims and entitlements accruing to it from the resale of the goods subject to retention of title or from any other legal ground. The assignment is limited to the amount of the purchase price of the goods subject to retention of title. Oswald Matt Group accepts the assignment. The Buyer remains authorized to collect the claims assigned to Oswald Matt Group in trust for Oswald Matt Group. The authority of Oswald Matt Group to collect these claims itself remains unaffected. However, Oswald Matt Group undertakes not to collect the assigned claims as long as the Buyer meets its payment obligations vis-à-vis Oswald Matt Group, does not fall into default of payment, and no application for the opening of insolvency proceedings has been filed. However, the Buyer is obliged to disclose the third-party debtor to Oswald Matt Group upon request and to notify the third-party debtor of the assignment.
(4) The handling and/or processing of the goods by the Buyer is carried out for Oswald Matt Group as manufacturer within the meaning of § 950 BGB, without any liabilities arising for Oswald Matt Group from this. Insofar as the goods are combined, blended or inseparably mixed with other items, the Buyer already now transfers its ownership or co-ownership rights in the new item to Oswald Matt Group in the amount of the purchase price of the goods subject to retention of title that have been processed into the new item.
(5) The pledging or assignment as security of the goods subject to retention of title or of the assigned claims to third parties is not permitted.
(6) The Buyer must inform Oswald Matt Group in writing without delay of any seizures, stating the pledgee, and must mark the goods subject to retention of title as the property of Oswald Matt Group.
(7) The Buyer must notify Oswald Matt Group in writing without delay of theft, damage or destruction of the goods subject to retention of title.
(8) The Buyer is obliged to treat the goods with care until full payment and to insure them against fire, water, storm and hail damage, as well as against burglary, theft and vandalism. The Buyer assigns its claims against the insurer to Oswald Matt Group as a precaution in the amount of the purchase price. Oswald Matt Group accepts the assignment.
(9) The Buyer must, upon request, provide Oswald Matt Group in writing at any time with information on the stock and location of the goods. Insofar as maintenance and inspection work is required, the Buyer must carry this out at its own expense regularly as well as upon justified request by Oswald Matt Group.
(10) In the event of conduct by the Buyer in breach of contract, in particular in the event of default of payment, the breach of any of the foregoing obligations, or in the event that an application for the opening of insolvency proceedings over the assets of the Buyer is filed, Oswald Matt Group is entitled, in accordance with the statutory provisions, to withdraw from the contract and to demand the return of the goods subject to retention of title. After withdrawal has been effected, Oswald Matt Group is entitled to collect the goods subject to retention of title and, for this purpose, to enter the location of the goods subject to retention of title. The Buyer waives the rights that might accrue to it from prohibited self-help.
(11) Oswald Matt Group is obliged to release the securities or claims assigned by way of security on a pro-rata basis to the extent that the realizable value of the securities and claims assigned by way of security exceeds the claims to be secured by more than 20%. The selection of the securities to be released is the responsibility of Oswald Matt Group.
§ 7 Duty to Give Notice of Defects and Claims for Defects
(1) If the Buyer is an entrepreneur, it is obliged to inspect the delivered goods for defects without delay after receipt and to give notice of any defects within ten working days after receipt of the goods. Otherwise, the goods are deemed approved. Hidden defects that were not detectable despite careful inspection after receipt of the goods must be reported without delay after their discovery, at the latest within ten working days after discovery. If the Buyer fails to do so, the goods are deemed approved as free of defects. Any notice of defects must be given in writing, stating the order data and the invoice and dispatch number of the goods complained of. The receipt of the notice of defects by Oswald Matt Group is decisive for the timeliness of the notice of defects.
(2) Insofar as a defect of the delivered goods exists, the Buyer may, as supplementary performance, demand at its option rectification or subsequent delivery. However, if the Buyer is an entrepreneur, Oswald Matt Group reserves the right to choose between rectification and subsequent delivery. The Buyer must grant Oswald Matt Group the time and opportunity necessary for supplementary performance. It is entitled to remedy defects itself or through third parties commissioned by it only with the prior written consent of Oswald Matt Group. Only in urgent cases, e.g. where operational safety is endangered or to avert disproportionate damage, is the Buyer entitled to remedy the defect itself and to demand from Oswald Matt Group reimbursement of the expenses objectively necessary for this. Oswald Matt Group bears the expenses necessary for supplementary performance, in particular transport, travel, labor and material costs.
(3) Oswald Matt Group may refuse supplementary performance if it is possible only at disproportionately high cost.
(4) If the Buyer is an entrepreneur, claims for material defects in the case of a sale of used goods are excluded, subject to the provisions in § 8.
(5) In all other respects, the statutory material-defect and warranty claims apply.
§ 8 Liability and Scope of Liability
(1) To the extent that the Buyer is entitled to contractual or statutory claims for damages against Oswald Matt Group, its legal representatives and/or vicarious agents, the liability of Oswald Matt Group is limited to intent and gross negligence as well as the breach of material contractual obligations.
(2) If the breach of material contractual obligations is not based on intent or gross negligence, the scope of liability is limited to compensation for the foreseeable damage typical of the contract.
(3) The foregoing limitations of liability do not apply insofar as Oswald Matt Group is liable on a mandatory basis, e.g. for damages arising from injury to life, body or health, or for claims under the Product Liability Act.
§ 9 Limitation Period
(1) If the Buyer is an entrepreneur, the Buyer’s material-defect and warranty claims become time-barred, in deviation from § 438 para. 1 no. 3 BGB, one year from delivery of the goods to the Buyer. If the Buyer is a consumer and the goods are a new item, the statutory limitation period of two years from delivery of the goods to the Buyer applies.
(2) If the goods are a structure or an item that has been used for a structure in accordance with its customary manner of use and has caused its defectiveness, the statutory limitation period of § 438 para. 1 no. 2 BGB of five years from delivery applies.
(3) Statutory special provisions for in rem claims for surrender by third parties (§ 438 para. 1 no. 1 BGB), in the case of fraudulent intent of the seller (§ 438 para. 3 BGB), and for claims in supplier recourse upon final delivery to a consumer (§ 479 BGB) remain unaffected. Likewise unaffected are the statutory limitation periods for claims for damages based on intent or gross negligence, as well as for claims for damages in cases in which Oswald Matt Group is liable on a mandatory basis.
§ 10 Final Provisions
(1) The place of jurisdiction for all claims arising from the contractual relationship is — if the Buyer is an entrepreneur, a legal entity under public law, or a special fund under public law — Höchenschwand-Tiefenhäusern. However, Oswald Matt Group is also entitled to sue the Buyer at its general place of jurisdiction.
(2) The place of performance for all claims is the registered office of Oswald Matt Group, Gewerbegebiet Tiefenhäusern 7, 79862 Höchenschwand-Tiefenhäusern.
(3) The contractual relations between the parties shall be governed exclusively by the law of the Federal Republic of Germany, excluding the conflict-of-laws provisions. In particular, the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.