General conditions of sale
The following "General Terms and Conditions of Sale apply to commercial business transactions. Orders shall only become binding with regard to the type and scope of the delivery once the supplier has confirmed the order. Amendments and supplements must be made in writing. In the case of permanent business relations, these terms and conditions shall also apply to all future business transactions. Should individual provisions be or become invalid, this shall not affect the remaining provisions. The purchaser's terms and conditions of purchase shall only bind the supplier if they have been expressly accepted by him. The purchaser's conditions of purchase are expressly rejected; they do not become part of the contract.
All offers are always subject to change without notice. Orders shall only be deemed accepted if they have been confirmed in writing by the supplier. Agreements with representatives or employees of the supplier require written confirmation in order to be effective. The prices are net cash plus freight and packaging ex works or ex warehouse plus applicable value added tax. An agreed discount deduction presupposes the punctual fulfilment of all obligations of the customer towards the supplier.
The stated delivery periods and dates are non-binding for the supplier. The supplier does not assume any liability for timely transport. The delivery periods shall commence on the date of the Supplier's order confirmation, but not before complete clarification of all details of the order and the provision of any necessary domestic and foreign official permits and/or certificates. Delivery periods and dates refer to the time of notification of readiness for dispatch. Delivery periods and dates shall be extended by the period during which the Purchaser is in default with his obligations under this or any other contract, plus a reasonable start-up period, notwithstanding the Supplier's rights arising from the Purchaser's default. In the event of default, the Purchaser shall be entitled to grant the Supplier a reasonable grace period. Only after expiry of this grace period may the Purchaser declare rescission, but only to the extent that deliveries have not yet been made within this grace period. Claims for damages are excluded. This shall not apply in the event of intent, gross negligence on the part of the legal representative or executive staff or culpable breach of essential contractual obligations. Claims for damages shall be limited to the reasonably foreseeable damage typical for the contract. Events of force majeure at the supplier's or his subcontractors' premises shall reasonably extend the delivery period. This also applies to official interventions, energy and raw material supply difficulties, strikes, lockouts and unforeseeable delivery difficulties, insofar as the supplier is not responsible for them. The Supplier shall keep the Purchaser's impairments to a minimum.
Transfer of risk, dispatch and acceptance
The supplier shall designate the forwarding agent or carrier. Unless otherwise agreed, the route and means of shipment shall be at the discretion of the supplier. Goods declared ready for dispatch on the agreed date must be called off immediately. Otherwise the supplier is entitled to store them at the expense and risk of the purchaser at his own discretion - if necessary outdoors - and to invoice them as delivered ex works or ex warehouse. In the case of carriage paid delivery, the means of transport shall be unloaded immediately. Waiting times shall always be borne by the customer. The risk shall pass to the Purchaser in any case - including confiscation - upon handover to the forwarding agent or carrier or upon loading onto the Supplier's vehicles, but at the latest upon leaving the factory or warehouse - e.g. also in the case of carriage paid delivery. In the case of delivery free to point of use, the agreed price shall always be understood to be free to truck on a road accessible at ground level. Unloading shall be the responsibility of the customer, who must await delivery on the announced delivery date; otherwise unloading, storage and any return transport shall take place at the expense and risk of the customer. If there are insignificant defects in the delivery items, these are nevertheless to be accepted by the customer without prejudice to any rights. Insurance will only be taken out at the request and expense of the customer.
Scope of delivery
Changes to the delivery and technical specifications are permissible to the extent that the intended success of the service owed is not impaired. If price increases become necessary as a result, these must be agreed in advance with the customer. For the time of the delivery permissible subsequent calculations, price increases and levies are considered as agreed.
Warranty and Liability
The Supplier's products shall be free from material defects if they exhibit the agreed quality at the time of transfer of risk; this shall also apply in the event of insignificant defects or minor deviations in quantity. The Purchaser shall be obliged to inspect the products thoroughly for defects upon receipt and to notify the Supplier immediately in the event of defects. Incorrect assembly instructions / instructions for use shall not give rise to any claims for material defects. A guarantee for the correctness of advertising statements of suppliers or primary material suppliers is not assumed. Justified material defect claims are based on supplementary performance. Subsequent performance shall be effected, at the supplier's option, either by remedying the defect or by supplying defect-free products. The claim for subsequent performance is limited to services at the registered office of the customer. If the supplementary performance fails twice, the customer may withdraw from the contract or reduce the purchase price. Claims for damages are excluded. This does not apply in the case of a guarantee expressly designated as such, in the case of intent, gross negligence on the part of the owner or executive staff, or culpable breach of essential contractual obligations, or in the case of damage resulting from injury to life, limb or health, which is attributable to negligence or intent or gross breach of duty on the part of a legal representative or vicarious agent. Warranty claims and recourse claims shall become statute-barred one year after delivery of the delivery item. The same applies to claims under a right of recourse. Claims for damages against suppliers shall be limited to the scope of product liability insurance, but at least to A 5.1 million. Mandatory product liability law remains unaffected.
Property right infringement
The Purchaser shall indemnify the Supplier upon first request against all claims of third parties based on actual or alleged infringements of industrial property rights (patent infringements, utility model infringements, copyright infringements, trademark infringements, etc.), insofar as these infringements of industrial property rights are based on facts which have their origin in the sphere of the Purchaser, in particular on drawings, tools or other production aids transmitted to us.
Unless otherwise agreed, purchase price claims are due upon receipt of invoice. Offsetting against purchase price claims is only permissible if the claims are also recognised or have become res judicata. The same applies to the exercise of rights of retention. Maturity interest and interest on arrears shall be charged irrespective of any further claims for damages caused by default at the statutory rate. All claims of the supplier shall become due immediately, irrespective of the term of bills of exchange accepted and credited, if the terms of payment are not complied with or if the supplier becomes aware of circumstances which, in his opinion, are suitable to reduce the creditworthiness of the customer. Irrespective of further legal rights, the supplier is also entitled to make outstanding deliveries only against advance payment. The supplier may also withdraw from the contract, prohibit the resale and processing of the delivered goods and, at the expense of the customer, return the goods requested or take possession of them without the customer being entitled to a right of retention or a similar right. The Supplier shall be entitled to sell the goods taken back by private sale for offsetting against the open claim.
Retention of title
Deliveries shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser have been satisfied, even if the purchase price for specially designated claims has been paid. In the case of a current account, the reservation of title to the deliveries (reserved goods) shall serve as security for the supplier's balance invoice. Any processing or treatment by the customer shall be carried out on behalf of the supplier, excluding the acquisition of ownership in accordance with § 950 BGB (German Civil Code); the supplier shall remain the owner of the object thus created, which serves as reserved goods to secure the claims of the supplier in accordance with the above provision. In the event of processing (combination / mixing) with other goods not belonging to the Supplier by the Purchaser, the provisions of §§ 947, 948BGB shall apply with the result that the co-ownership of the Supplier in the new item shall now be reserved goods within the meaning of these conditions. The customer is only permitted to resell the reserved goods in the ordinary course of business under the condition that he also agrees with his customers a reservation of title as above. The customer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging or assigning them as security. In the event of resale, the Purchaser hereby assigns to the Supplier all claims arising from the resale and other claims against its customers, including all ancillary rights, until all claims of the Supplier have been satisfied. At the Supplier's request, the Purchaser shall be obliged to provide the Supplier with all information and documents required to assert the Supplier's rights against the Purchaser's customer. If the reserved goods are resold by the customer after processing or together with other goods not belonging to the supplier, the assignment of the purchase price claim shall only apply to the amount of the invoice value of the reserved goods of the supplier. If the value of the securities existing for the Supplier exceeds his total claims by more than 10 %, the Supplier shall be obliged to release securities of the Supplier's choice at the Purchaser's request. The supplier must be notified immediately of any seizure or confiscation of the reserved goods by third parties. Any intervention costs arising therefrom shall in any case be borne by the Purchaser. If, in accordance with the above provisions, the supplier makes use of his retention of title by taking back goods subject to retention of title, he shall be entitled to sell the goods by private contract or to have them auctioned. The goods subject to retention of title shall be taken back at the proceeds obtained, at the most, however, at the agreed delivery prices. Further claims for damages, in particular lost profit, remain reserved.
Place of performance, place of jurisdiction and applicable law
Place of performance for the delivery is the place of dispatch. For all present and future claims arising from the business relationship with fully qualified merchants, including claims based on bills of exchange and cheques, the exclusive place of jurisdiction shall be Siegen. The business relationship shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Burbach & Bender GmbH & CO.KG
Am Tiefbau 20