§ 1 Validity
(1) All our deliveries, services and offers shall be made exclusively on the basis of these General Terms and Conditions of Delivery and Service. These shall form an integral part of all contracts concluded by us with our contractual partners (hereinafter also referred to as "Principal") for the deliveries or services offered by us. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if we have not separately objected to their validity in individual cases. Even if we refer to a letter which contains or refers to terms and conditions of business of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions of business.
§ 2 Offer and Conclusion of Contract
(1) All our offers are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. We may accept orders or contracts within fourteen days of receipt.
(2) The contract concluded in writing, including these General Terms and Conditions of Delivery and Service, shall be solely authoritative for the legal relationship between us and the Customer. The contract, including our General Terms and Conditions of Delivery and Service, fully reflects all agreements between us and the Customer regarding the subject matter of the contract. Oral promises made by us prior to the conclusion of this contract shall not be legally binding and oral agreements shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery and Service, must be in writing in order to be effective. With the exception of managing directors or authorized signatories, our employees are not entitled to make verbal agreements deviating from this. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(4) Our information on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) We retain ownership or copyright of all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Customer. The customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without our express consent. At our request, he shall return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
(1) The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are quoted in EURO ex works plus packaging, the statutory value added tax, in the case of export deliveries customs duties as well as fees and other public charges.
(2) If the agreed prices are based on our list prices and the delivery is to be made more than four months after conclusion of the contract, our list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoice amounts shall be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by us shall be decisive for the date of payment. Cheques shall not be deemed to be payment until they have been cashed. If the customer fails to make payment when due, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been legally established.
(5) We shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the Customer and as a result of which payment of our outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
§ 4 Delivery and Delivery Period
(1) Deliveries shall be made ex works.
(2) Deadlines and dates for deliveries and services promised by us shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.
(3) We may - without prejudice to our rights arising from default on the part of the Customer - demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations towards us.
(4) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. If the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately notifying us in writing.
(5) We shall only be entitled to make partial deliveries if
the partial delivery can be used by the Customer within the scope of the contractual purpose of the delivery,
the delivery of the remaining ordered goods is ensured and
the Customer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear such costs).
(6) If we are in default with a delivery or service or if a delivery or service becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery and Service.
§ 5 Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance
(1) The place of performance for all obligations arising from the contractual relationship shall be at our registered office in 91086 Aurachtal, unless otherwise specified. If we are also responsible for the installation, the place of performance shall be the place where the installation is to be carried out.
(2) The mode of shipment and the packaging shall be subject to our dutiful discretion.
(3) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if we have assumed other services (e.g. shipping or installation). If the dispatch or handover is delayed due to a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the delivery item is ready for dispatch and the Seller has notified the Customer of this.
(4) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
(5) We shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Customer and at the Customer's expense.
(6) Insofar as acceptance is to take place, the object of sale shall be deemed to have been accepted when
the delivery and, if we also owe the installation, the installation has been completed,
we have notified the Customer of this with reference to the acceptance fiction in accordance with this § 5 (6) and have requested the Customer to accept the goods,
twelve working days have elapsed since delivery or installation or the Customer has started to use the purchased item (e.g. has commissioned the delivered system) and in this case [six] working days have elapsed since delivery or installation and
the Customer has failed to take delivery within this period for a reason other than a defect notified to us which makes the use of the purchased item impossible or significantly impairs it.
§ 6 Warranty, material defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items shall be inspected carefully immediately after delivery to the Customer or to the third party designated by him. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the Customer if we do not receive a written notice of defect within seven working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if the notice of defect is not received by us within seven working days after the point in time at which the defect became apparent; however, if the defect was already apparent to the customer at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defect. At our request, a delivery item which is the subject of a complaint shall be returned to us carriage paid. In the event of a justified complaint, we shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects of the delivered items, we shall first be obliged and entitled to rectify the defect or to make a replacement delivery at our discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reduce the price appropriately.
(4) If a defect is due to our fault, the Customer may claim damages under the conditions set out in § 8.
(5) In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. In the event of such defects, warranty claims against us shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery and Service if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against us shall be suspended.
(6) The warranty shall lapse if the Customer modifies the delivery item or has it modified by third parties without our consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
(7) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
§ 7 Industrial property rights
(1) We warrant in accordance with this § 7 that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, modify or replace the delivery item in such a way that no third party rights are infringed any more, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the Customer by concluding a license agreement. If he does not succeed in doing so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the price appropriately. Any claims for damages by the Customer shall be subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers supplied by us, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the Customer or assign them to the Customer. In such cases, claims against us shall only exist in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.
§ 8 Liability for damages due to fault
(1) Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is relevant in each case.
(2) We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in good time, to ensure that it is free from defects that impair its functionality or usability more than insignificantly, and advisory, protective and custodial obligations that are intended to enable the Customer to use the delivery item in accordance with the contract or are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from significant damage.
(3) Insofar as we are liable on the merits for damages in accordance with § 8 (2), this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
(4) In the event of liability for simple negligence, our liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 25,000.00 per case of damage, even if a breach of material contractual obligations is involved.
(5) The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
(6) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 shall not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 Retention of title
(1) The retention of title agreed below shall serve to secure all our respective existing current and future claims against the Customer arising from the business relationship existing between us and the Customer concerning the delivery of bellows, technical fabrics or bent wire parts (including balance claims from a current account relationship limited to this delivery relationship).
(2) The goods delivered by us to the Customer shall remain our property until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions shall hereinafter be referred to as "goods subject to retention of title".
(3) The Customer shall store the goods subject to retention of title for us free of charge.
(4) The Customer shall be entitled to process and sell the Retained Goods in the ordinary course of business until such time as the realization event occurs (paragraph 9). Pledges and transfers of ownership by way of security are not permitted.
(5) If the reserved goods are processed by the Customer, it is agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall acquire direct ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on our part, the customer shall already now transfer its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to us as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, we shall, insofar as the main item belongs to it, transfer to the Customer pro rata co-ownership of the uniform item in the ratio specified in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the Customer hereby assigns to us by way of security the claim against the purchaser arising therefrom - in the event of our co-ownership of the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. We revocably authorize the customer to collect the claims assigned to us in his own name. We may only revoke this collection authorization in the event of realization.
(7) If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the Customer shall immediately notify them of our ownership and inform us thereof in order to enable us to enforce our ownership rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable to us for this.
(8) We shall release the goods subject to retention of title and the items or claims replacing them if their value exceeds the amount of the secured claims by more than 30%. The selection of the items to be released thereafter shall be at our discretion.
(9) If we withdraw from the contract in the event of a breach of contract on the part of the Customer - in particular default in payment - we shall be entitled to demand the return of the reserved goods.
§ 10 Final Provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between us and the Customer shall be, at our option, our registered office or the registered office of the Customer. In such cases, however, our registered office shall be the exclusive place of jurisdiction for actions against us. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between us and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain regulatory gaps, those legally effective regulations shall be deemed agreed to fill these gaps which the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery and Performance if they had known about the regulatory gap.
The Client acknowledges that the Seller stores data from the contractual relationship in accordance with Section 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the performance of the contract.
Berger Industrietechnik GmbH & Co. KG