General terms of business
1. General - Area of Validity
1.1 All our deliveries and services are based solely on our Terms of Business and any separate contractual agreements. We do not recognise any terms of business of the customer which are contrary to or which deviate from our Terms of Business, unless we have expressly agreed to their validity in writing. Our Terms of Business also apply if we carry out the delivery to the customer without reservation in the full knowledge of any terms of the customer which are contrary to or which deviate from our Terms of Business.
1.2 All agreements which are reached between us and the customer with a view to the fulfilment of a contract are set out in writing in this contract.
1.3 These Terms of Business only apply in relation to companies as defined in Art. 310 Para. 1 of the German Civil Code (BGB).
2. Offer - Offer Documents
2.1 Our offers are not binding.
2.2 If the customer's purchase order is to be qualified as a tender according to Art. 145 of the German Civil Code (BGB), we can accept this within 2 weeks.
2.3 We reserve all rights of ownership and authorship/copyright to illustrations, drawings, calculations and other documents. This also applies for those written documents that are marked "Confidential". The customer requires our express written agreement before forwarding these to third parties.
3.1 Unless otherwise stated in the order confirmation, our prices are "ex factory" excluding packaging. A separate charge will be made for packaging.
3.2 Our prices are exclusive of statutory value-added tax. When the invoice is issued, this will be shown separately in the invoice at the statutory level at the time.
4. Payment - Late Payment
4.1 Unless otherwise stated in the order confirmation or the invoice, payment becomes due immediately the invoice is received, net (without deduction).
4.2 No discount may be deducted unless it has been agreed specifically in writing.
4.3 If the customer does not keep to the agreed payment deadline, we will charge interest at the statutory level from the expiry of the payment deadline. We reserve the right to submit proof of additional damages. We are not obliged to make any further delivery until any due amounts have been paid unless the customer provides security here. If a due payment is not made through the fault of the customer, all outstanding invoices will also become due immediately without any deduction of discounts.
4.4 The customer only has a right to offset payments if his counterclaims have been legally determined, are undisputed or are recognised by us. In addition, he is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
4.5 If the customer's asset situation deteriorates considerably after the conclusion of the contract and if this places our claim to payment at risk, we are entitled to refuse to provide any services until the payment has been effected or security has been provided.
5. Object of the Contract
5.1 Our information about dimensions, weights, performance/capacity or material are given with care but are not binding unless they are expressly designated as binding. No guarantee of properties above and beyond a possible guarantee granted under an individual contract will be issued. The same applies for all construction/design information and proposals. We reserve the right to make changes based on further technical developments.
5.2 The contractually assured properties of the item purchased are based solely on the written agreements. Ideas that the customer may have expressed unilaterally will not be considered.
5.3 Models, tools and other devices required for the fulfilment of an order always remain our property, even if we charge a proportion of the costs.
6. Delivery Period - Delivery - Late Delivery
6.1 The start of the delivery period specified by us assumes that all commercial and technical questions have been fully clarified between the contracting parties.
6.2 Compliance with our delivery obligation also assumes that the customer has fulfilled his obligations properly and promptly, such as obtaining the necessary official certificates or approvals or the payment of an agreed down-payment. If this is not the case, the delivery period will be extended by an appropriate period. The defence of the non-fulfilled contract is reserved.
6.3 The delivery period is kept if the object of the delivery has left our factory by the expiry of the period or readiness for dispatch has been notified. If there is to be an acceptance, the acceptance date is decisive – unless there is a justified acceptance refusal – or alternatively the notification of readiness to accept delivery.
6.4 If the customer is delayed in the acceptance or if he culpably violates other obligations of cooperation, we are entitled to demand reimbursement of any damages caused to us including any additional expenditure. We reserve the right to make further claims.
6.5 If the situation set out in (4) exists, the risk of the accidental loss or deterioration of the object of the delivery passes to the customer at the moment when the customer fell behind with the acceptance or at the moment of debtor's delay on the part of the customer.
6.6 We are liable for late delivery in accordance with the provisions of the law if the basic contract represents a fixed transaction as defined in § 323 Para. 2 No. 2 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB). We are also liable in accordance with the provisions of the law if, as a result of a delivery delay which is our fault, the customer is entitled to claim that he is no longer interested in the further fulfilment of the contract.
6.7 We are furthermore liable in accordance with the provisions of the law if the delivery delay is caused by a deliberate or grossly negligent violation of the contract which is our fault. If the delivery delay is not due to a deliberate violation of the contract which is our fault, our liability for damages compensation is limited to the foreseeable damages which would typically occur.
6.8 We are also liable in accordance with the provisions of the law if the delivery delay which is our fault is due to the culpable violation of a major contractual obligation; however, in this case, the liability for damages compensation is limited to the foreseeable damages which would typically occur.
6.9 The customer's further statutory claims and rights are reserved.
6.10 In the case of delivery "free at building", "free at site", or "free at area of use", the customer must ensure that the place of receipt of the item can be easily accessed by the means of transport in question and that suitable auxiliary equipment (e.g. crane, forklift, etc.) are available.
6.11 Events outside our area of decision-making or influence or other events which make delivery on time difficult and which are also not the fault of the customer – e.g. war or state of emergency, flooding, embargo, traffic problems, labour disputes, operational breakdown, lack of material or energy or similar – entitle us to postpone the delivery appropriately, without this giving rise to any claims against us on the part of the ordering party. If the obstacle to the performance/service lasts longer than 3 months, both we and the customer are entitled to withdraw from the contract.
7. Transfer of Risk - Packaging
7.1 The risk is transferred to the customer once the object of the delivery has left the factory even if partial deliveries are made or we have taken over other performance/services such as the dispatch costs or delivery. If there is to be an acceptance, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, or alternatively after our notification of readiness for acceptance. The customer may not refuse the acceptance if there is a defect which is not material.
7.2 If the dispatch or acceptance is delayed or does not take place due to circumstances which are not our fault, the risk is transferred to the customer from the day of the notification of the readiness for dispatch or acceptance.
7.3 Partial deliveries are permitted if they are acceptable for the customer.
7.4 The type of packaging, type of dispatch and dispatch route are determined by us unless otherwise agreed.
7.5 Unless the order confirmation states otherwise, the delivery is agreed "ex factory".
7.6 Transport packaging and other packaging in accordance with the Packaging Order will not be taken back, except for pallets and grid boxes. The customer is obliged to take care of the disposal of packaging at his own expense.
7.7 If the customer wishes, we will provide transport insurance for the delivery; the customer will bear the costs of this.
8. Liability for Defects
8.1 Customer's damages claims assume that the customer has properly fulfilled his inspection and complaint obligations in accordance with §§ 377 and 381 II of the German Commercial Code (HGB).
8.2 In the event of a defect for which we are to blame, subsequent fulfilment of our obligation will be, as we choose, through repair or replacement with a new item free from defects. In the event of subsequent fulfilment, we are obliged to bear all expenditure required for the rectification of the defect, especially transport, travel, labour and material costs, provided that these are not increased by the fact that the object of the delivery has been taken to a location other than the place of fulfilment and we thus have to pay disproportionately high costs as defined in § 439 Para. 3 of the German Civil Code (BGB).
8.3 The customer has, within the provisions of the law, a right to withdraw from the contract if we – taking into consideration statutory exceptions – allow a deadline set by him for the repair or replacement due to a material defect to pass without action. If the defect is not material, the customer only has a right to a reduction in the agreed payment. The right to a reduction in the agreed payment is otherwise excluded. No guarantee is undertaken particularly in the following cases: unsuitable or inexpert use, incorrect assembly by the customer or by third parties, natural wear and tear, faulty or negligent handling, incorrect maintenance – in so far as we are not responsible for these cases.
8.4 We are liable in accordance with the provisions of the law if the customer makes claims for damages compensation which are based on deliberate intent or gross negligence including the deliberate intent or gross negligence of our representatives or agents. If we or our representative or agent are not charged with any deliberate contract violations, the liability for damages compensation is limited to the foreseeable damage which would typically occur.
8.5 We are liable in accordance with the provisions of the law if we culpably violate a major contractual obligation; in this case, however, the liability for damages compensation is limited to the foreseeable damage which would typically occur.
8.6 If the customer has a claim to reimbursement of the damage instead of the performance/service, our liability is limited to reimbursement of the foreseeable damage which would typically occur.
8.7 Liability for culpable death, injury or damage to health is unaffected; this also applies for compulsory liability under the Product Liability Act.
8.8 Unless otherwise stated in the above, liability is excluded.
8.9 The period of limitation for defects claims is 12 months taken from the transfer of risk; for all other claims, the period of limitation is 18 months starting from the knowledge of the damage and who caused it.
8.10 The period of limitation in the case of a delivery recourse claim under §§ 478, 479 of the German Civil Code (BGB) remains unaffected; it is 5 years taken from the delivery of the defective item and expires at the latest two months after the time in which the customer met the consumer's claims.
9. Overall Liability
9.1 There is no further liability for damages compensation other than that set out in § 8, irrespective of the legal nature of the claim made. This applies in particular for claims for damages compensation arising from defaults on conclusion of the contract, other violations of obligations or tortious claims for the reimbursement of material damage according to § 823 of the German Civil Code (BGB).
9.2 If liability for damages compensation in respect of us is excluded or limited, this also applies in respect of the personal liability for damages compensation of our employees, staff, representatives and agents.
10. Securing Reservation of Ownership
10.1 We retain the unlimited ownership of the object of the delivery until all payments from the delivery contract have been received. If the customer behaves contrary to the contract, and in particular if payment is late, we are entitled to take back the object of the delivery after an appropriate deadline has been set. The taking back of the object of the delivery by us does not represent a withdrawal from the contract unless we have expressly stated this in writing. If the customer is more than 10 working days late with due payments, he is obliged to return the object of the delivery at our request.
10.2 We are entitled to insure the object of the delivery at the customer's expense against theft, breakage, fire, water and other damage unless the customer himself has demonstrably taken out insurance.
10.3 In the event of seizures or other interventions on the part of third parties, the customer must inform us immediately in writing so that we can take action according to § 771 of the Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us the legal and extrajudicial costs of an action according to § 771 of the Code of Civil Procedure (ZPO), the customer is liable for our loss.
10.4 The customer is entitled to sell on the object of the delivery in the ordinary course of business; however, he assigns to us here and now all claims in the sum of the final invoice amount (including VAT) of our claim which arise for him from the sale in respect of his buyers or third parties, irrespective of whether the object of the delivery has been sold on without or after processing. The customer remains authorised to collect this claim even after assignment. Our entitlement to collect the claim ourselves is unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations out of the received revenues, does not fall behind with payment and in particular does not submit any application for the initiation of bankruptcy, composition or insolvency proceedings and does not stop payment. However, if this is the case, we can demand that the customer informs us about the assigned claims and their debtors, provides all information for collection, hands over the relevant documents and informs the debtors (third parties) about the assignment.
10.5 The processing or remodelling of the object of the delivery is always undertaken for us. If the objective of the delivery is processed with other objects which do not belong to us, we acquire shared ownership in the new item in proportion to the value of the object of the delivery (final invoice sum including VAT) compared with the other objects processed, at the time of the processing. For the item created by the processing, the same applies otherwise as for the object delivered subject to reservations.
10.6 If the object of the delivery is inseparably mixed or combined with other objects which do not belong to us, we acquire shared ownership of the new item in proportion to the value of the item delivered by us (final invoice sum including VAT) compared with the other mixed or combined items at the time of the mixture or combination. If the mixing or combination is carried out in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer will transfer proportionate shared ownership to us. The customer will hold the resultant sole ownership or shared ownership for us.
10.7 The customer also assigns to us the claim to secure our claims against him which arise for him through the connection of the item delivered by us with a site against the third party.
10.8 We undertake to release the securities due to us on the request of the customer in so far as the realisable value of our securities is more than 10% higher than the claims to be secured; we are responsible for selecting the securities to be released.
11. Venue - Place of Fulfilment
11.1 If the customer is a commercial entity, our company's registered office is the venue; however, we are entitled also to take legal action at his registered office.
11.2 The law of the Federal Republic of Germany applies; application of UN purchasing law is excluded.
11.3 Unless otherwise stated in the order confirmation, our registered office is the place of fulfilment.
General Terms of Business issued 4. September 2012 - BLECH-TEC GmbH