(1) These terms apply only to companies (§ 14 BGB). They also apply to all future transactions with the customer.
(2) Our conditions of sale apply exclusively. Opposing or conditions deviating from these Terms and Conditions from the customer are not recognized, even after unconditional contract execution.
(3) All agreements made between us and the customer for the purpose of executing this contract are set forth in writing in this contract or in a contract amendment. A repeal or amendment applies only to the particular contract.
(4) If the interpretation of trade terms is in doubt, INCOTERMS apply in their latest version.
2. Conclusion of the contract
(1) Our offers are non-binding. Likewise, technical descriptions and other information in offers, brochures and other information are also non-binding.
(2) For all illustrations, drawings, calculations, specifications and other documents, we reserve ownership rights and copyrights. These may not be made accessible to third parties.
(3) After we have received a signed order from the customer, it is confirmed in writing, orally or by telephone, or if we cannot, we will reject acceptance within two weeks. This shall be sufficient if the rejection letter has a postmark showing despatch within this period.
(4) Information referred to in paragraph 1, and in public statements made by us, by other producers and assistants (§ 434 I 3 BGB) are only part of the specification, if expressly referred to in this contract or in the order confirmation.
(5) Oral agreements, promises, representations and warranties in connection with the contract shall be binding only upon our written confirmation.
3. Prices and Payment
(1) Unless otherwise agreed, our prices are "ex warehouse" net and standard packing included. Additional expenses, such as insurance will be borne by the purchaser. If we have taken over the installation, erection or commissioning, and there is nothing else otherwise agreed in writing, the Purchaser shall pay, besides the agreed remuneration, any additional costs such as travel expenses, etc.
(2) If there are any alterations after the offer or order confirmation in the time to delivery within four months of the costs incurred by us for delivery, e.g. by subsequent introduction of or increase in the goods expenses, duties, taxes or other costs, particularly EU duties and anti-dumping or countervailing duties and changes in currency parities, we reserve the right to adjust the quoted or agreed price accordingly.
(3) Payments of the purchase price are due immediately upon receipt of goods, within 30 days from the invoice date be made in cash or by bank transfer. They are valid as of the date on which we can freely access the money. If paid within 14 days, we offer a 2% discount. In the recipient country the customer has to bear the fiscal levied taxes or duties.
(4) Other payment forms require special written agreement. This means that the costs incurred for both sides are borne by the purchaser.
(5) The customer has the right to offset or hold back payment only on undisputed or legally established demands or claims
4. Delivery and cooperation obligations
(1) The scope of our delivery obligation arises solely from this contract. Design, shape and colour changes based on technical improvements or on legal requirements remain within our rights, provided that the changes are not materially or otherwise unacceptable for the customer. The purchaser assumes full responsibility for the documents supplied by him, such as drawings, models and prototypes.
(2) If partial deliveries are acceptable to the customer, they can be made and invoiced.
(3) The delivery period begins with the date of our order confirmation. If until then all execution details are not clarified, it is postponed until final clarification. Specifying deadlines is generally subject to contractual cooperation with the Purchaser. Compliance with our delivery obligation requires the timely and proper fulfilment of his obligations. If the customer subsequently desired changes and the documents (e.g. permits and approvals required) are not furnished by the Purchaser in time, an appropriate extension of the delivery period is permitted. The delivery period shall be deemed met if the goods are ready to be delivered within the agreed time and we have communicated this to the customer.
(4) If we ourselves do not receive goods which are required, despite having placed congruent orders with reliable suppliers, we are released from our obligation and can cancel the contract.
(5) If the customer delays the order call-up, acceptance or collection or a delay in shipment or delivery from it is his fault, we shall be, without prejudice to further claims, entitled to claim a lump sum equal to the usual local storage costs, regardless of whether we store the goods with us or a third party. The purchaser has the right to prove that no or lower damages have occurred.
(6) In case of unauthorized cancellation of the contract by the purchaser we are entitled to claim 20% of the gross value of the contract as lump-sum compensation (damages instead of performance). The same applies if the contract is cancelled by us for no valid reason. The purchaser has the right to prove that no or lower damages occurred.
(7) Excluded from the rules set out above in Para 6 are goods or services that have been manufactured to specific requirements of the customer or delivered. In this case we reserve the right to make further claims for damages.
(8) If we are also committed to execute installation and commissioning of equipment, the customer has to make all the preparations necessary. He has to provide a suitable site in a timely manner. Resulting from non-compliance with this obligation, any expenses or additional costs will be borne by the purchaser.
5. Delays in delivery
(1) If the agreed deadline cannot be met due to uncontrollable circumstances with us or our suppliers (such as natural disasters, war, riots, governmental edicts, lack of energy, labour disputes, etc.), it may be reasonably extended. In such a case, we will inform the customer immediately. If the impeding circumstances are still present one month after the expiry of the agreed delivery time, each side can withdraw from the contract. Any further claims against anyone of us for the non-liable delay in delivery are excluded.
(2) If the purchaser suffers damages in case of default, he is entitled to charge for each completed week, lump-sum compensation of the amount of 3% of the contract value, up to a maximum of 10% of the contract value. The purchaser may also grant a reasonable extension thereof of not less than 15 working days. After its expiry, he is entitled to rescind the contract or claim damages in lieu of performance. The liability for damages is limited to 50% of the damage occurred.
(3) Paragraph 2 shall not apply if the delay was intentional, gross negligence or a significant violation of duty. It also does not apply if a short selling deal was agreed.
6. Place of fulfilment and Transfer of Risk
Place of fulfilment is our business address. Unless the order confirmation states otherwise, delivery "ex warehouse" is agreed. This applies regardless of who bears the costs, even if delivery is made in parts. If delivery is delayed due to circumstances for which the customer is responsible, the risk is transferred to him with the notification of readiness to deliver.
7. Deficiencies, complaints
(1) With regard to defects, the first statutory investigation and reporting responsibility of § 377 HGB lies with the customer. Visible defects must be notified in writing within 7 days. Otherwise, the entire delivery is considered approved. The responsibility also includes the accompanying documentation.
(2) For defects, which do not or only slightly affect the use of the goods, the Purchaser may not evoke any other rights.
(3) If the goods, on transfer of risk, show a deficiency, we are entitled and obliged to take remedial action. The remedy is accomplished at our option by repair or replacement, if this is reasonable for the customer. The costs of subsequent performance, in particular transport, travel, labour and material costs, shall be borne by us. The provisions of § 439 paragraph 3 BGB remains applicable. We are entitled to make restitution dependent on whether the customer has paid the full purchase price. The customer is also entitled to retain an appropriate proportion of the purchase price in relation to the discrepancy.
(4) If such remedy fails, if it is unreasonable for the buyer and if in a defined reasonable time set by the buyer it is not done or denied, he shall be entitled, at his option, to terminate the contract, to reduce the purchase price by the deficiency amount (reduction) or - demand compensation instead of performance - within the limits of the following paragraph 8.
(1) Unless these conditions, including the following provisions provide otherwise, we will be liable for a breach of contractual and non-contractual obligations under the relevant statutory provisions.
(2) We shall be liable for damages - for whatever legal reason - in case of intent and gross negligence. We are only liable for ordinary negligence
a) for damages resulting from injury to life, limb or health,
b) damages resulting from the breach of a major contractual obligation, in which case our liability is limited to the replacement of foreseeable, typically occurring damage. An essential contractual obligation in this sense, is any obligation which primarily allows the proper performance of the contract and which the other party may rely on and trust its compliance.
(3) Further contractual and tort claims are excluded. We are not liable in particular for damage not caused to the goods themselves, or for lost profits or other financial damages of the customer.
(4) The obligations imposed by paragraphs 2 to 4 above limitations of liability shall not apply if we maliciously concealed a defect or have given a guarantee for the quality of the goods. The same applies to claims by the customer under the Product Liability Act. Statements about the nature of our products in doubtful cases only constitute a warranty, if we have expressly designated it as such.
(5) If our liability is excluded or limited, this also applies to the personal liability of my employed personnel, representatives and agents.
(1) The claim for remedy by the customer, the statute of limitation subject to § § 438 No. 2, 479 BGB is one year from date of delivery. Accordingly, the right of withdrawal and reduction is excluded by law.
(2) For claims for damages, the statute of limitation subject to § § 438, No. 2, 479 BGB is one year.
(3) For claims under the Product Liability Act and in cases of intent or gross negligence, it remains subject to the legal statute of limitation.
10. Trademark rights, confidentiality
(1) The customer is obliged to check personally when placing the order based on his given specifications which appear to possibly infringe intellectual property rights and if necessary to make us aware that on this order, parts are protected by intellectual property rights. He accepts all liability for claims for this reason that are made against us by titled owners in carrying out his order.
(2) Our trade secrets and any confidential information about us is strictly confidential and may not be disclosed without our express consent to third parties, unless the customer proves that he may legitimately use trade secrets and confidential information.
11. Retention of title
(1) The ownership of the delivered goods remains reserved for us until all our claims against the purchaser in the business relationship, including future demands which may occur from simultaneous or subsequent contracts are settled. This is true even if claims in a current invoice are settled and the balance is drawn and recognized.
(2) The buyer is entitled to resell the goods in the ordinary course of business or process. He is obliged to sell the reserved goods only under retention of title, if it is not paid immediately by third party buyers. Any processing he performs for us, is without liability on our part. During processing, combining or mixing of goods with other goods is basically co-ownership for us of the new item, namely for the processing relative to the value (= gross invoice value including charges and taxes) of goods to the value of the new object, in combination or proportionate to the value of the goods to the value of the other goods.
(3) The Purchaser hereby assigns to us all claims that have accrued from the sale to a purchaser or third parties. To collect these debts, he retains title even after the assignment. Our authority to collect the claims ourselves remains unaffected, but we will make no use of this right, as long as the customer meets his payment and other obligations properly. On request, the Purchaser shall notify the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and inform the debtors of the assignment.
(4) In a breach of contract, in particular default in payment, we are entitled to withdraw and take back the goods. To take back the goods, the customer hereby irrevocably authorizes us to enter his business and storerooms freely and take the goods.
(5) The Purchaser shall, if and as long as we retain ownership, or transfer ownership of goods produced by them without our consent, not pledge or use them as security. Finalising financing agreements (e.g. leasing), which include the assignment of our reserved rights, are not allowed without our prior written consent, unless the contract requires the financial institution to pay the purchase price due to us directly.
(6) In case of seizure or other interventions by third parties, the purchaser must immediately notify us in writing. He is prohibited from making agreements with his customers, which may adversely affect our rights. He is obliged to insure the reserved goods immediately against theft, machinery, fire and water damage.
(7) We undertake to release the securities due to us at the customer's request and at our option, to the extent that the realizable value of the collateral exceeds the secured claims by more than 20% or their nominal value by more than 50%.
(1) The rights of the purchaser under this contract shall not be transferable.
(2) The invalidity of any single provision shall not affect the validity of the others.
(3) If the customer is a business entity, the place of jurisdiction for all disputes with him is at our place of business. This legal fulfilment is not exclusively applicable to Offset Service Hubert Bollmann GmbH.
(4) Only German law to the exclusion of the UN Sales Convention (CISG) is applicable.