General conditions of payment and delivery of Bedrunka & Hirth GmbH Bräunlingen
1. Scope of validity
1.1 The following terms and conditions are applicable to all our offers, sales, deliveries and services and shall form part of the contract unless a separate contractual agreement is concluded in writing. They shall not apply if our contract partner is a private individual and does not act in a professional or commercial capacity. They shall also apply to all future business relationships, even if they are not expressly agreed as being applicable to future orders.
1.2 We hereby expressly reject any and all deviating or supplemental General Terms and Conditions of the Buyer. These shall also not apply if the Buyer has based his order or other declaration upon them or has rejected the applicability of our General Terms and Conditions.
2. Offers and conclusion of contract
2.1 Our offers are non-binding and may therefore be revoked by us prior to delivery for acceptance by the customer and for 2 working days thereafter, unless they have been described as binding in writing. An effective contract therefore comes into existence only through our order confirmation or the despatch of the goods.
2.2 Dimensions, weights, illustrations, drawings and other documents belonging to our non-binding offers shall remain our property and are indicative only. They shall become a binding part of the contract only with our express written confirmation.
3. Doubtful creditworthiness
3.1 If, after concluding the contract, we become aware of circumstances that cause us to have doubts about the Buyer’s ability to pay, we may make further deliveries contingent upon the Buyer making advance payment for the goods. We can require the Buyer to make advance payment within an appropriate period and withdraw from the contract if the advance payment is not paid on time; the Buyer can furnish us with collateral in the form of a bank guarantee instead of the advance payment. If we have already delivered the goods, the purchase price shall immediately become due for payment in full, regardless of any agreed payment deadlines.
3.2 Reasons for doubting the Buyer’s ability to pay include the initiation of insolvency proceedings over the Buyer’s assets or the failure to make payments to us or third parties on time.
4.1 All prices are net, ex works, without packaging, unless agreed otherwise. The prices applicable on the day of delivery shall always apply. In the case of fixed-price arrangements, we are also entitled to bill proportionately for any increase in the price of materials, salary increases and the like. The prevailing rate of statutory VAT shall be added to all prices.
4.2 Unless agreed otherwise in the offer or order confirmation, packaging shall be charged for separately.
4.3 Shipping / transfer of risk
All risks shall transfer to the Buyer upon handover to the haulier and not later than when the goods leave the factory or warehouse. We are at liberty to choose the shipping method.
4.4 Goods reported as available for despatch on the agreed date must be collected without delay, failing which, we are entitled to store the goods at our own discretion at the Buyer’s expense and risk and to charge for them as delivered ex works or ex warehouse. The same shall apply if shipping cannot take place due to traffic stoppages or other circumstances beyond our control.
4.5 Statutory value added tax is not included in our prices and the rate applicable on the billing date shall be indicated separately on the invoice.
4.6 If a delivery within the internal market of the EC was treated as tax-free within the scope of the intra-community supply of goods, even though the prerequisites for this were not met, the delivery shall nevertheless be deemed tax-free if the utilisation of the tax exemption is based on the incorrect information provided by the Buyer and we were unable to identify the incorrect nature of this information, even with the due care of a prudent merchant. In this case, the Buyer shall owe the unpaid tax.
4.7 If more than 4 months pass between the date on which the contract is concluded and the date of delivery, without this being due to a delay in delivery for which Bedrunka+Hirth is responsible, and if our applicable price list has changed during this time, we may demand the list price applicable on the date of delivery instead of the agreed purchase price. We will send the Buyer an appropriately amended order confirmation prior to delivery. In this case, the Buyer may withdraw from its order in respect of the goods for which the price has been increased. The Buyer must declare its intention to withdraw by not later than on the fifth day after receiving the amended order confirmation. This declaration may
be sent by fax or email.
5. Delivery time
5.1 All indicated delivery dates are non-binding and are agreed as indicative only, unless we have expressly described them as binding. For non-binding delivery dates, a delivery within 14 days of the indicated delivery date shall in any event still be deemed to be a timely delivery.
5.2 If we are unable to adhere to an expressly agreed deadline or fall behind for other reasons for which we are responsible, the Buyer shall grant us an appropriate grace period. If this grace period expires without success, the Buyer shall be entitled to withdraw from the contract.
5.3 If performance becomes temporarily impossible or considerably more difficult for us, whether in full or in part, due to force majeure or for other extraordinary circumstances beyond our control, the agreed delivery time shall be extended by the duration of the obstacle to performance. The same applies to a deadline for the rendering of service set by the law or by the Buyer, in particular for grace periods set in the event of default.
5.4 Prior to the expiry of the delivery time or the performance deadline extended in accordance with para. 3, the Buyer shall not be entitled to withdraw nor to receive compensation. If the obstacle to performance lasts longer than 3 months, both the Buyer and we shall be entitled to withdraw from the contract if the contract has not yet been executed. If the Buyer is entitled to withdraw from the contract in accordance with the contract or the law (e.g. due to a lack of interest) without setting a grace period, this right shall remain unaffected.
5.5 In the event of a delay in delivery that is not based on intent or gross negligence, claims for compensation of all kinds shall be precluded.
6. Shipping and transport risk
6.1 Delivery shall be ex warehouse, which is also the place of performance for the delivery and any supplementary performance. Upon demand from the cus-tomer and at the customer‘s cost, the goods shall be sent to a different destination (sales shipment). Unless agreed otherwise, we reserve the right to determine the type of shipment (in particular the transport company, dispatch route, pack-aging).
6.2 The risk of accidental destruction and accidental deterioration of the goods shall transfer to the customer upon transfer of the goods at the latest. For mailorder purchases, however, risk of inadvertent destruction and inadvertent deterioration of the goods and the risk of delay shall transfer to the customer upon delivery of the goods to the haulier, freight carrier or other persons or organisations charged with transporting the goods. Insofar as acceptance is agreed, this shall be decisive for the transfer of risk. Moreover, the statutory provisions of the work and services contract law shall apply correspondingly to the agreed acceptance. Transfer or acceptance also applies if the customer is late accepting the goods.
6.3 If the customer is late accepting the goods, if they omit a duty of cooperation or if our delivery is delayed for other reasons attributable to the customer, we reserve the right to demand compensation for resulting damages, including additional costs (e.g. storage costs).
6.4 Unless otherwise expressly agreed in writing, we are authorised to make partial deliveries to a reasonable extent.
6.5 We will charge EUR 7.50 for each notification of delivery requested by the customer that is made by telephone, fax or email.
7. Terms of payment
7.1 Our invoices are payable within 10 days from the invoice date with a 2% discount or within 30 days in full.
7.2 The Buyer shall be in default, without any warning by ourselves, if it does not pay the purchase price within 30 days of becoming due and receipt of the invoice or an equivalent demand for payment.
7.3 If the Buyer is late making a payment, all of its payment obligations arising from the business relationship with us shall immediately become due. In this case, we are entitled to demand interest in the legally established amount with effect from the relevant moment. The Vendor reserves the right to provide proof of further damage.
7.4 The Buyer is entitled to set-off, even if complaints or counterclaims are asserted, only if the counterclaims have been legally established, acknowledged by the Vendor or are not in dispute. The Buyer is authorised to exercise its right of retention if its counterclaim is based on the same purchase agreement.
8.1 Information about the properties of goods, as well as references to technical standards in catalogues or other advertising media and our price lists, are for descriptive purposes only and do not form the basis for any guarantee of quality without explicit reference in the order confirmation or in the contract.
8.2 We are not obliged to provide any warranty if the Buyer has not immediately complained about an apparent fault in writing. In the case of hidden faults, which could not be discovered even with careful execution of the obligations of the customer pursuant
to Art. 377 German Commercial Code, the complaint shall be raised immediately after the fault has been found. If the product has a fault for which we are responsible and the Buyer complains about it promptly in writing, we will undertake to rectify the fault - to the exclusion of the right of the Buyer to withdraw from the contract or to reduce the purchase price - unless we are entitled to refuse rectification on the basis of a statutory regulation. For each individual fault, the Buyer shall grant us an appropriate period of time in which to effect rectification.
8.3 Rectification can take the form of the elimination of the fault or the delivery of a new product, at the Buyer’s option. We are entitled to reject the method of rectification chosen by the Buyer if it is associated with disproportionately high costs. During rectification, a reduction in the purchase price or withdrawal from the contract by the Buyer are precluded. Rectification is deemed to have failed after the second unsuccessful attempt. If rectification has failed or the Vendor has rejected the rectification overall, the Buyer can demand a lowering of the purchase price (reduction) or declare its withdrawal from the contract, at its option.
8.4 The Buyer can only bring claims to compensation under the following conditions because of the fault if the rectification failed or we refused to carry out rectification. The right of the Buyer to bring further claims for compensation under the following conditions remains unaffected.
8.5 In accordance with statutory provisions, we are liable without restriction for intentional or grossly negligent breaches of duty as well as for damage caused by an injury to life, limb or health. Moreover, we shall only be liable if the breached contractual obligation is of material importance for achieving the purpose of the contract and only up to the amount of the typically foreseeable loss.
8.6 The limitation of liability in accordance with para. 5 applies accordingly to other than contractual claims for compensation, in particular claims arising from tortious liability, with the exception of claims in accordance with the German Product Liability Act. It further also applies to the benefit of our executives, employees, workers, representatives and vicarious agents.
8.7 If we have issued a guarantee or quality and/or shelf life in respect of the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage that is based on the absence of the guaranteed quality or shelf life but does not occur directly on the goods, if the risk of such damage is apparent from the guarantee of quality and shelf life.
8.8 Any further liability is precluded without consideration of the legal nature of the claim brought. Insofar as the Vendor‘s liability is precluded or limited, this also applies to the personal liability of his executives, employees, workers, representatives and vicarious agents.
8.9 All claims for defects expire 24 months after the transfer or risk, unless any longer periods are mandatorily prescribed pursuant to Articles 438 I (2), 479 I and 634a I (2) German Federal Civil Code.
9. Retention of title
9.1 We shall retain possession of the goods (goods subject to retention of title) until all payments due under the purchase agreement have been received. The delivered goods shall pass into the possession of the Buyer only when the Buyer has fulfilled all of its liabilities under the business relationship, including subsidiary claims, claims for compensation and redemptions of cheques and bills of exchange. In the case of the cheque/bills of exchange procedure, the retention of title in all of its forms listed here shall expire not with the payment by cheque but only with the redemption of the bill of exchange.
9.2 The Buyer shall notify us in writing without delay of all third-party interventions, in particular of enforcement measures and other impairments of its property. The Buyer shall make good all damage and costs we incur, which arise through a breach of this obligation and through necessary measures to protect against third-party interventions.
9.3 If the Buyer does not comply with its obligation to make payment, despite our reminder, we can, without prior notice, demand that the Buyer release the goods that are still in its possession and subject to the retention of title. The Buyer shall bear the transport costs associated with this. The attachment of the matter subject to the retention of title by us always includes a withdrawal from the contract. We are entitled to dispose of the goods subject to the retention of title following their retention. The proceeds of disposal shall be offset against our outstanding claims.
10. Place of fulfilment
The place of fulfilment for payments is Bräunlingen, for our deliveries of goods the place of shipping.
11. Data processing
The Buyer agrees that we may process the data about the Buyer received in connection with the business relationship in accordance with the Federal Data Protection Act for the fulfilment of our business purposes, in particular to store them or transmit them to a credit reference agency, where this is done within the scope of the identified purpose of the contract or required for the preservation of our legitimate interests, and there is no reason to assume that the legitimate interests of the Buyer outweigh the preclusion of the processing of these data, in particular their transmission.
12. Severability clause
Amendments or additions to the contract or these General Terms and Conditions must be made in writing in order to obtain effectiveness. Should a provision of these General Conditions of Delivery and Payment be or become ineffective or unenforceable, this shall not affect the effectiveness of the remaining General Conditions of Delivery and Payment.
13. Jurisdiction and applicable law
13.1 The contractual relationship between the Buyer and ourselves is governed exclusively by the law of the Federal Republic of Germany, even if the Buyer has its place of residence or business abroad. Application of the Uniform Law on the International Purchase of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods is precluded.
13.2 The Buyer is not authorised to cede claims arising from the purchase agreement without the permission of the Vendor
13.3 If the Buyer is a merchant legal entity under public law or a special fund under public law, the place of jurisdiction for both parties - including for complaints regarding cheques and bills of exchange - is Donaueschingen, Germany. We are, however, also entitled to sue the Buyer at its general place of jurisdiction.