- 1.1 The contracts shall be concluded exclusively in accordance with German law to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
- 1.2 All offers and agreements for deliveries and services of Bruckmann Steuerungstechnik GmbH, hereinafter referred to as BSG, are exclusively based on these General Terms and Conditions. They shall apply for the duration of the business relationship, even without renewed express agreement for future orders. Deviating or supplementary terms and conditions of the purchaser, which are not expressly accepted in writing by BSG, are not binding for BSG, even if the purchaser objects or declares that he only wishes to fulfil on his terms and conditions. All individual provisions shall take precedence, in particular those of the purchase order and the negotiation protocol, as well as the specifications including preliminary remarks.
- 1.3 The contract shall be concluded by BSG's order confirmation in writing, by telex or by fax or, in the case of small consignments, by BSG's invoice.
- 1.4 Supplements, amendments and ancillary agreements to the contract or these GTC must be made in writing to be effective. This shall also apply to any waiver of the written form requirement. Insofar as written form is stipulated in the contract or the GTC, transmission by telecommunication shall suffice. The right to subsequently demand an original in accordance with Section 127, Paragraph 2, Sentence 2 of the German Civil Code (BGB) remains unaffected. Verbal subsidiary agreements at the time of conclusion of the contract shall only be effective if they have been confirmed in writing by the customer. This shall also apply to amendments to the contract after it has been concluded.
- 1.5 These GTC do not apply to contracts with consumers pursuant to § 13 BGB.
- 2.1 Offers of BSG are subject to change; prices are subject to change. Offers are made in accordance with the generally recognised rules of technology at the time the offer is made. The price does not include all supplies and services not expressly listed in the offers/service specifications. The services and deliveries of a special kind, e.g. travel, measurement, etc., provided for the purpose of submitting a cost estimate/offer shall be charged to the customer even if the requested services are not performed or are performed only in a modified form.
- 2.2 Documents and information are entrusted to the contracting party; they may only be used for the agreed purpose and may only be made accessible to third parties with the prior written consent of BSG.
- 2.3 BSG shall be entitled to subcontract the services assigned to it unless the parties agree otherwise in one of the overriding contractual bases.
The prices, in particular offer, order and mutually agreed or legally determined settlement sums, contractual penalties and securities are to be understood as net prices ex works in Uedem.
If the customer is liable for tax in accordance with §§ 13 b UStG, 48 b EStG, the respective amount is to be understood as plus the statutory value added tax.
The customer may only offset counterclaims if these are undisputed or have been legally established.
The cost price for packaging - irrespective of the type and extent of the packaging - and shipping shall be added to the prices, whereby the packaging shall not be taken back.
If the Customer is in default of payment or if there are reasonable doubts about the Customer's solvency or creditworthiness, BSG shall be entitled - without prejudice to other rights - to demand advance payments for deliveries not yet made and to make all claims arising from the business relationship due immediately. The delivery obligations shall be suspended as long as the Customer is in default with a due payment. In the event of default in payment, BSG shall also be entitled to demand interest on arrears in the amount of 9 percentage points above the respective base interest rate, insofar as claims for payment are concerned.
Unless otherwise agreed, handover or acceptance shall take place at BSG's works. This is also the place of transfer of risk. In the case of deliveries without assembly, this shall apply as soon as they have been handed over to the person carrying out the transport, have left BSG's works for the purpose of dispatch or have been collected. If delivery or shipment is delayed at the request of the Purchaser, the risk shall pass to the Purchaser upon notification of readiness for shipment.
If a shipment is made at the request of the Purchaser, it shall be made at the Purchaser's expense and risk. Insofar as delivery and assembly are carried out by BSG, the Purchaser shall - unless otherwise agreed - bear all ancillary costs required in this respect, such as travel expenses, transport of the necessary tools, removal, etc. . Services not expressly estimated in the offer which are necessary for the execution of the order or which are carried out at the request of the Purchaser shall be invoiced additionally. In the case of packaging in cellico and rail containers, the rental fee shall be charged. Dispatch shall generally be at BSG's discretion, unless otherwise agreed. If no instructions for shipment have been received from the Buyer, shipment shall be effected at BSG's discretion by rail, post/DHL, GP parcel service or other suitable means of transport.
Transport insurance shall only be taken out at the request of the Purchaser. This shall be paid by him. Partial deliveries and partial performance are permissible.
In the event of delivery and installation by BSG, the risk shall pass on the day of acceptance at the Purchaser's own premises. If dispatch, assembly or acceptance at the Purchaser's own premises is delayed by the Purchaser or if the Purchaser is in default, the risk shall pass to the Purchaser.
The Purchaser shall provide the legal, structural and technical prerequisites necessary for delivery and assembly, unless otherwise agreed in the contract.
The customer shall be in default of acceptance if he does not collect the goods or arrange for their dispatch within 7 days after he has been notified of the completion or readiness of the goods. Upon default of acceptance, the risk of accidental deterioration and accidental loss shall pass to the customer.
If the Purchaser is in default of acceptance, BSG shall also be entitled to demand compensation for the damage incurred by it. After expiry of two weeks after notification of readiness for collection, BSG further reserves the right to store the goods elsewhere or to sell them elsewhere at the Customer's expense.
Delivery periods refer to the date of dispatch of the goods. They shall be deemed to have been complied with if the goods leave the factory on this date or, if delivery is possible, notification is given that the goods are ready for dispatch. BSG shall not be responsible for delays in delivery and performance due to force majeure or other unforeseen events for which BSG is not responsible and which make delivery or performance not only temporarily significantly more difficult or impossible, even if they occur at BSG's suppliers or their sub-suppliers, even in the case of bindingly agreed delivery dates. In such cases BSG shall be entitled either to postpone the delivery date or the performance for the duration of the hindrance or to withdraw from the contract. Claims for damages, for whatever legal reason, are excluded in the event of force majeure and other unforeseeable events for which BSG is not responsible.
The agreed delivery period shall always apply after clarification of all technical and commercial details. BSG shall not be responsible for a delay in the delivery period if the Purchaser fails to provide the documents, approvals and releases required for the execution of the order in due time.
BSG shall be liable for delays in performance in cases of intent or gross negligence on the part of BSG, a representative or vicarious agent in accordance with the statutory provisions. In cases of gross negligence, however, the liability shall be limited to the foreseeable damage typical for the contract if none of the exceptional cases listed in clause 5.6 of this provision applies.
Insofar as BSG culpably fails to meet the delivery deadline, the Purchaser shall be entitled - unless otherwise contractually agreed - to claim compensation for each full week of delay in the amount of 0.5 % - but not more than a total of 5 % - of the value of the part of the total performance which was not delivered on time and therefore could not be put into useful operation. The Purchaser shall assert the claim in writing without delay. In all other respects BSG's liability for delay in performance shall be limited to 5 % of the value of the delivery/service for damages in addition to performance and to 10 % of the value of the delivery/service for damages in lieu of performance. Further claims of the Purchaser shall be excluded - even after expiry of any deadline set. The above provisions shall not apply in the event of liability for injury to life, limb or health.
Further claims for damages by the customer, of whatever kind, are excluded in all cases of delayed delivery. Excluded from this are intent, gross negligence or liability that cannot be excluded by law, such as liability for injury to life, body or health.
Production-related excess and short deliveries of up to 10% of the ordered quantity are permissible.
All invoices are payable from the date of invoice within 14 days of receipt on the account of BSG with a 2% discount, otherwise 30 days net. The prerequisite for the deduction of a discount is that the Purchaser has paid all invoice amounts due. Any assembly costs - in this respect reference is made to the service conditions - are due immediately and without deduction as pure labour costs, expenses and/or outlays.
If the payment deadlines are exceeded, BSG shall be entitled to charge default interest in the amount of 9% above the respective base interest rate of the Deutsche Bundesbank. Bills of exchange and cheques shall only be accepted on account of performance and subject to reservation. Discount and bill charges shall be invoiced in the amount incurred.
The customer shall be in default without further reminder 1 day after the due date. The Purchaser shall also not be entitled to refuse payment in whole or in part in the event of defects if he refuses acceptance of the performance or acceptance of the work. As long as BSG has not received the remuneration in full, the Purchaser may not assert claims and rights due to defects.
BSG shall retain title to all items delivered by it (reserved goods) until the customer has settled all claims arising from the business relationship. The reservation shall extend to the new products created by processing the reserved goods. The processing shall be carried out for BSG as manufacturer. In the event of processing, combining or mixing with materials not belonging to BSG, BSG shall acquire co-ownership in the ratio of the invoice value of its reserved goods to the invoice values of the other materials. In the event of breach of duty by the Customer, in particular in the event of default in payment, BSG shall be entitled, even without setting a deadline, to demand the surrender of the delivery item and/or to withdraw from the contract. The Purchaser shall be obliged to surrender the goods. The demand for surrender shall not constitute a declaration of withdrawal unless this is expressly declared. Pledging or transfer of ownership by way of security is prohibited during the existing retention of title. In the event of attachments, seizures and other dispositions by third parties, the Purchaser shall draw attention to BSG's ownership and inform BSG without delay. If insolvency proceedings are instituted against the Purchaser's assets, BSG shall be entitled to withdraw from the contract and may demand the return of the delivery item.
As long as the Customer is willing and able to duly fulfil his obligations towards BSG, he may dispose of the goods owned or co-owned by BSG in the ordinary course of business. The Customer hereby assigns to BSG all claims arising from the sale of goods subject to retention of title, including bills of exchange and cheques, as security for BSG's claims arising from the business relationship. In the event of the sale of goods in which BSG has co-ownership, the assignment shall be limited to the share of the claim corresponding to the co-ownership share. In the event of processing within the scope of a contract for work and services, the claim for remuneration for work and services shall be assigned to BSG here and now in the amount of the proportionate amount of the Purchaser's invoice for the co-processed goods subject to retention of title. The Purchaser shall only be authorised to resell or otherwise use the goods subject to retention of title if it is ensured that the claims resulting therefrom are transferred to BSG. If the assigned claim is included in a current account, the Buyer hereby assigns to BSG a part of the balance (including the corresponding part of the closing balance) from the current account corresponding to the amount of this claim. If interim balances are drawn and their carrying forward is agreed, the claim to which BSG is entitled from the interim balance for the next balance shall be treated as assigned to BSG in accordance with the above provision.
The Purchaser shall be authorised to collect the claims assigned to BSG until revoked.
As long as BSG retains title, the Purchaser shall handle and store the goods subject to retention of title with care, insofar as he can dispose of them, and shall carry out necessary and customary inspection, maintenance and upkeep work at his own expense. For the duration of the retention of title, the customer may neither pledge the goods subject to retention of title nor assign them as security. Access by third parties to the reserved goods, for example by way of attachment or seizure, as well as damage or destruction must be reported to BSG immediately in writing or by fax. The Purchaser shall bear all costs necessary for the cancellation of the seizure and for the replacement of the reserved goods, insofar as they cannot be collected by third parties.
In the event of a breach of the obligation to handle the reserved goods with care and other duties of care by the Purchaser and in the event of default in payment of secured claims, BSG shall be entitled to take back the reserved goods. The taking back shall only constitute a withdrawal from the contract if BSG declares this in writing. After taking back the goods, BSG shall be entitled to realise them, whereby the proceeds shall be credited against the purchaser's liabilities less reasonable realisation costs. The same shall apply in all other cases of breach of contract by the customer.
If the realisable value of the securities exceeds the claims to be secured by more than 20 %, BSG shall release securities to this extent at the Customer's request at BSG's discretion.
If the retention of title is not permissible or only permissible to a limited extent under the statutory provisions applicable in the Customer's country, the aforementioned rights of BSG shall be limited to the legally permissible extent.
Claims for Defects Terms and Conditions of Business shall only apply to the purchase of goods if the Customer has duly fulfilled his obligations to examine the goods and give notice of defects in accordance with §§ 377 of the German Commercial Code (HGB).
In the event of the sale of used goods, any liability for material defects shall be excluded.
In the case of the sale of newly manufactured goods, in cases of entrepreneurial recourse of the customer against BSG after successful reduction or return by a consumer, § 478 BGB shall apply with the proviso that BSG, in the case of a reduction by the consumer, shall only assume the reduction rate that was applied in the relationship between the customer and the consumer or the further intermediary.
The customer may only assert the following rights if BSG has been notified in writing of the defect within the limitation period and the goods have been made available to BSG without delay upon request.
In the case of justified and timely notices of defects, the defect shall be remedied at BSG's discretion by rectification or subsequent delivery. In the event of rectification, BSG shall decide whether this shall be carried out by repair or replacement of defective parts. The expenses necessary for the purpose of subsequent performance shall be borne by the Purchaser insofar as they are increased by the fact that the delivery item has been taken to another location.
BSG shall be entitled to remedy the defect several times. If BSG does not remedy the defect within a reasonable period of time or if the remedy has failed, the Purchaser may, at its option, withdraw from the contract or reduce the remuneration appropriately (reduction).
In the case of unjustified notices of defects which have caused an extensive inspection, the costs of the inspection may be charged to the Purchaser.
The limitation period for claims for defects is one year from the transfer of risk. The limitation periods shall also apply to all claims for damages in connection with the defects, irrespective of the legal basis of the claim. The limitation period of 12 months shall also not apply if a defect was fraudulently concealed by BSG. In this case, the statutory limitation periods that would apply without the fraudulent intent shall apply, excluding the extension of the period in the event of fraudulent intent pursuant to Section 634 a (3) of the German Civil Code (BGB). Insofar as this provision refers to claims for damages, claims for reimbursement of futile expenses are also included.
Any claims for defects shall be excluded if the goods are installed, used or stored contrary to the operating instructions or instructions of BSG or otherwise improperly or if maintenance, repairs, changes or modifications are carried out on the goods or parts thereof by the Purchaser or third parties without the consent of BSG, unless the Purchaser proves that these circumstances are not the cause of the defect complained of.
Statements made by BSG in connection with this contract (e.g. performance descriptions, reference to DIN standards, etc.) do not contain any assumption of a guarantee. The assumption of a guarantee requires an express written declaration by BSG.
Claims for damages - irrespective of the type of breach of duty and including tortious acts - shall be excluded, except in the case of wilful misconduct or gross negligence.
In the event of a breach of material contractual obligations (cardinal obligations), BSG shall be liable for negligence, but only up to the amount of the foreseeable damage typical for the contract. Claims for loss of profit, saved expenses, from claims for damages by third parties and for other indirect and consequential damages cannot be demanded in this case.
The limitations and exclusions of liability in paragraphs 1 and 2 do not apply to damages resulting from injury to life, body or health.
Insofar as the liability of BSG is excluded or limited, this shall also apply to employees, representatives and vicarious agents of BSG.
Designs prepared and made available by BSG shall remain its intellectual property. The ownership and copyright of plans, drawings and ideas embodied in the delivery arise in the person of BSG. BSG reserves the right to offer documents, cost estimates and similar information - also in electronic form. BSG shall retain the ownership and copyrights to offer documents, cost estimates and similar information - also in electronic form.
If the property rights of third parties are infringed during the manufacture of the goods according to drawings, samples and other information of the Buyer, the Buyer shall indemnify BSG against all claims of the third party.
The separate service conditions, which are also part of the General Terms and Conditions, shall apply to assembly work.
Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. The parties undertake to amend, supplement or replace invalid provisions in such a way that the economic purpose of the provision is achieved as far as possible. The invalid clause shall be replaced by a permissible clause which does not lie under the law or case law and which regulates the economic and legal meaning in the closest, maximum permissible manner.
Amendments, supplements and the cancellation of these terms and conditions must be made in writing. This also applies to a waiver of the written form requirement.
The place of jurisdiction for all disputes arising from this contract shall be Kleve. BSG shall, however, be entitled to sue the Purchaser at any other admissible place of jurisdiction.