General Terms and Conditions
§ 1 Scope of General Terms and Conditions
1.Our terms and conditions apply exclusively; deviating terms and conditions of the buyer are not recognised unless we have expressly agreed to such in writing. Our terms and conditions apply, even if we accept without reservation contrary or deviating business and delivery conditions of the delivery to the buyer. 2. Our terms and conditions apply only to companies within the meaning of § 310 paragraph 1 BGB. 3. Our terms and conditions apply to all future business with the buyer.
§ 2 Formation of Contract
1. All orders require our written confirmation. The sale contract comes into effect with the confirmation or delivery (delivery). Only the written order confirmation is valid. Verbal, telephone, telegraph agreements and arrangements by email are only binding if they are subsequently confirmed in writing. 2. Special features: a. We sell goods from first class raw materials, but we cannot guarantee the chemical and physical properties of the products which we sell. b. Slight deviations from the samples submitted are unavoidable in terms of hardness, color and dimensions. Any claims arising from this will not be accepted in cases where the deviations are not unreasonable. c. Technical changes in form, color, content, size and / or weight are reserved to the extent to which they are reasonable. d. For goods that are produced according to drawings, specifications and form of the Buyer, the Buyer shall assume liability for infringement of intellectual property and patent rights of third parties. To the extent which we deliver our own drawings, samples or models, they are only binding on the external shape and technical design. A responsibility regarding suitability for the intended purpose, however, will be rejected. e. Special production produced goods cannot be exchanged or returned, unless the goods were incorrectly manufactured by us. Commercial quantity variances are valid as approved by both sides.The stipulated unit price for the piece remains the same. Color, surface and thickness tolerance in the usual fluctuations are reserved. f. The supply of raw materials and intermediate goods for processing or contract processing is at the cost and risk of the Buyer as is the return of the finished product.
§ 3 Acceptance of Goods
1. The cost of acceptance and the shipment of goods to a location other than the place of performance are the responsibility of the Buyer. The choice of shipping route and the mode of transport is at our discretion. 2. If goods are kept by the manufacturer’s warehouse for the exclusive disposal of the Buyer or if they are sold for production without shipping provisions (orders on call), they must be accepted by the Buyer within 6 weeks after notification of completion.
4 Transfer of Risk and Delivery
1. The risk of loss, degradation and of the consignment are transferred to the Buyer in all cases as soon as the delivery item leaves our business area and storage rooms. This applies also for free shipping. 2. This also applies to the dimensions, weights and quantities identified our shipping department. We reserve the right to carry out orders as partial deliveries (Normal commercial quantity deviations are allowed.) 3. Breakdowns, a shortage of semi-finished products, traffic delays or other acts of force majeure which affect or hinder manufacturing and delivery release us from the extent the obligation to deliver for the duration of the problem. 4. Correct and timely delivery remain reserved. 5. If the dispatch of the goods is delayed for a reason for which we are not responsible, in particular by default of acceptance, the risk is already transferred to the buyer with the receipt of notice of readiness. The same is true if we make use of a retention option.
§ 5 Purchase Price and Extra Costs
1. The prices named in our order confirmation plus the statutory revenue tax are decisive. Insofar as more than four months lie between the conclusion of contract and the agreed delivery time, the prices at the time of delivery apply. 2. Packaging costs, rental and wear charges for packaging materials and the cost of the possible return of packaging materials are charged to the Buyer. 3. Compelling reasons, such as material, raw material price increases, changes in wage rates and possibly increasing the cost of production can lead to price changes during the contract period. The Buyer us entitle to withdraw from the contract within 10 days of receipt of such notification. must be immediately release to make. The cancellation must be in writing. a. For separate shipping instructions of the customer (express, express freight, forwarding, etc.) the associated additional costs will be charged. b. The minimum net order value is EUR 50, -. For orders under this order value, we charge a small quantity-fee of EUR 10, -.
§ 6 Payment Conditions
1. Deductions require a separate written agreement. 2. Unless the order confirmation states otherwise, the purchase price is payable net (without deductions) within 14 days from the date of invoice. The statutory provisions regarding the consequences of delay in payment apply. 3. We only accept bills of exchange and checks on account of payment. The discount, the expenses and all costs associated with the recovery of the bill or check amount as they related to the costs are to be borne by the purchaser. Accordingly, all credits for bills and checks will be subject to receipt. 4. The buyer has the right to offset only if his counterclaims have been established, undisputed or acknowledged by us. He is also authorised to use the right of retention insofar as his counterclaim is based on the same contract.
§ 7 Delivery Time
1. The delivery period starts only when all the details of the execution are made clear(this includes, among other things, presenting the requested sample for the setting up the ordered machines and equipment ) and both parties agree on all the terms of their business. The delivery time ends on the day on which the goods leave the supplier, unless fixed delivery dates have been agreed upon. Fixed delivery dates are valid only if they are in writing and accepted by us. 2. Adherence to the delivery time is mandatory to meet the contractual obligation of the Buyer and especially the agreed payment terms. 3. Unforeseen events for which we are not responsible, disruptions to business, shortage of raw materials, shipping locks, war, factory lock-outs or if due to new knowledge of changes, extend the delivery time accordingly and could cause a delivery delay. The same occurs when regulatory or other necessary approvals from third parties are required for the deliveries or if information required of the Buyer does not arrive in due time or if the Buyer requires a change to the delivery after the order confirmation. 4. Insurance against damage is only at the request and cost of the Buyer.
§ 8 Liability for Defects and Delivery
1. The buyer must examine the goods received for completeness, damage, obvious defects, condition and their property. 2. The Buyer must communicate to us in writing any obvious defects within a period of two weeks from receipt of the goods; otherwise the enforcement of any claim is excluded. Punctual dispatch is sufficient as compliance with the deadline. 3. The Buyer bears the full burden of proof for all claim requirements, especially for the defect itself, for the time of discovery of the defect and the timeliness of the complaint. 4. We guarantee the defective goods will be either repaired or replaced at our discretion. If supplementary performance is unsuccessful, the Buyer can, at his discretion, reduce the purchase price (reduction) or cancel the contract (withdrawal). In a minor breach of contract, especially with only minor defects, the Buyer shall not have the right to withdraw. 5. If the Buyer choose to withdraw from the contract after a failed subsequent performance because of a legal or material defect, he is not entitled to claim damages for the defect. 6. The warranty period is one year from date of delivery. This does not apply if the customer has not informed us of the defect in due time.
§ 9 Delay in Acceptance by the Buyer
1. We can withdraw from the contract if the Buyer refuses or expressly states that he does not want to accept the goods after a given extension. 2. As indemnification for failure to comply with delayed acceptance we may require 30% of the purchase price or of the wages without deductions, unless the purchaser can prove that damage has not occurred in the amount of the fee. Furthermore, we shall be reserved the right to demand a higher, proven claim for custom products,for example.
§ 10 The Seller’s Right of Withdrawal
In the case of suspension of payment and / or the filing of an application to open insolvency proceedings related to the assets of the buyer, we are entitled to demand advance payments or a security or to take into account the application we made to withdraw from the contract.
§ 11 Retention of title
1.We retain title of the delivered goods until the complete satisfaction of any claims existing or still arising from the business relationship between us and the Buyer. 2.Should the Buyer be processing the goods, such processing takes place for us. In accordance with section 950, Civil Code [BGB], we are thus considered the manufacturers and shall acquire ownership of the interim or final product. Should only parts be processed, we acquire co-ownership of the new object in proportion to the value of the co-owned parts to the total value of the parts at the time of this Agreement. Should parts be processed together with other objects not belonging to the Buyer, we acquire ownership of the new object in proportion to the value of the goods delivered by us to the value of the other objects at the time of processing. Should our title to the goods be lost through processing, the Buyer shall even today transfer to us title to the object created through such processing. Should the goods subject to reserved title be built in by the Buyer as a substantial component of the property of a third party, the Buyer shall already today assign to us the resulting reimbursement claim against hthe third party to the extent of the amount owed to us by the Buyer. 3.The Buyer may dispose of the goods only in the regular course of business; all other dispositions, in particular pledging the goods or transferring them as security, shall be prohibited. The Buyer promises to dispose of the goods only by reserving title on his part; for his receivables arising from such disposition, the Buyer shall contract with his customers against offsetting or retention rights in case of trade transactions or legal transactions with a public body or legal entity under public law. The Buyer already today assigns to us all receivables from his customers resulting from the resale or further processing of the goods delivered by us, and in case of damage or loss of the goods delivered by us the Buyer assigns all claims against insurance companies or other third parties, to the extent of the amount owed to us by the Buyer. If the goods are partly our property and partly the property of third parties, the Buyer shall assign to us receivables from resale at the fraction that corresponds to our co-ownership. Should the value of the receivables assigned to us and/or the goods to which we have title before or after treatment or processing exceed our own claims against the Buyer by more than 20%, we shall at the Buyer's request and at our discretion release claims or goods until the excess falls below the 20% mark. 4.The Buyer shall immediately forward to us payments made for the assigned claims up to the amount of the secured claim. In case of an important reason, in particular in case of default or suspension of payment, opening bankruptcy proceedings, protesting of a bill, or reasonable evidence for the Buyer's excessive indebtedness, we have the right to revoke the authorisation to collect. Furthermore, we may after prior warning and after a reasonable period of time disclose the assignment for security, utilize the assigned receivables and demand the disclosure of the assignment for security by the Buyer against his customer. 5.The Buyer must keep the goods safe and insure them against theft and fire at the Buyer's expense. 6.With the complete payment of all claims under the business relationship, title to the goods delivered with reserved title shall transfer to the Buyer, and he shall be entitled again to all assigned receivables.
§ 12 Limited liability
1.We are liable under the statutory provisions if the Buyer asserts compensation claims based on intent or gross negligence by our agents or representatives. If we are not blamed with deliberate breach of contract, our liability for damages shall be limited to predictable, typically occurring damage. 2.We shall be liable according to statutory provisions if we culpably violate a substantial contractual obligation; however, in that case our liability for damages shall be limited to predictable, typically occurring damage. 3.The above shall not affect liability for culpable negligence leading to death or bodily injury or ill health; this shall also apply to mandatory liability under the Product Liability Act. 4.Unless provided otherwise above, liability is excluded. 5.Any liability for damages in addition to the above is excluded without regard to the legal nature of the claim. This shall apply in particular to damage claims for culpability upon conclusion of contract, other breaches of duty or tortious compensation claims for material damage under section 823, BGB. 6.To the extent in which our liability for damages is excluded or limited, the same shall also apply to the personal liability of our staff, employees, co-workers, agents and representatives.
§ 13 Place of Performance and Jurisdiction
Unless otherwise stated in the order confirmation, our place of performance is our registered office. The jurisdiction for all disputes is our registered office although we are entitled to sue the Buyer at his registered place of business. The laws of the Federal Republic of Germany apply; the validity of the CISG is excluded.
§ 14 The Validity of Contract Provisions
Should any provision of the contract with the customer become entirely or partially invalid, the validity of the remaining provisions shall not be affected. The invalid provision is to be replaced by a valid one which is close to the economic intentions. The same applies should there arise a gap in the contract which needs to be filled.
BIT Bierther GmbH updated: 02/2007