Terms of Sale and Delivery of BIRKAN GmbH
Unless otherwise agreed in writing, the following Terms of Sale and Delivery shall constitute part of the contract whenever an order is placed.
II Offers and prices
- All offers are made without obligation and shall only become binding on us after we have confirmed them in writing. Agreements made verbally or by telephone, as well as undertakings made by field sales representatives, shall only be valid when confirmed by us in writing.
- Unless otherwise agreed, samples are non-binding samples for visual appraisal and shall remain our property. While all technical consultation, information and recommendation is provided to the best of our knowledge, such consultations, informations and recommendations are nonetheless non binding. Any drawings which may be issued by us shall also be non binding and shall remain our property.
- Should prices increase in the period up to the day of delivery, we shall be entitled – regardless of our offer and acknowledgement of order – to adjust the sales prices accordingly.
- Small-volume purchases: We make a surcharge of 15 euros for goods with a net value of less than 100 euros.
- Payment is due for settlement within 30 calendar days of the invoice date at no discharge. If payment is made within 14 calendar days of the invoice date, the contractor shall grant a 2% prompt payment discount on the invoice amount. A prompt payment discount shall only be granted if all payment obligations from previous deliveries have been fulfilled and the invoice amount is received by us in good time by the due date.
- If the baseline date for payment is exceeded, interest on arrears of at least 8% above the applicable Bundesbank discount rate shall be charged even if the preconditions for default are not met. This shall not affect the assertion of more extensive compensatory damages for delay.
- In the event of delay in payment, deferred amounts shall also be payable immediately. Payment obligations shall also immediately fall due for settlement in the event of suspension of payments, the institution of out-of-court or in-court composition proceedings and if proceedings are instituted against the customer’s assets. Rights of retention and offsetting with counterclaims are excluded.
- Cash payment shall be made in the form of either cash or cheques provided that the latter are received by us in sufficiently good time to enable us to cash the same within the payment periods referred to above. Prompt payment discounts shall not be made if payment is made by bill of exchange which we reserve the right to discount. Discount charges and stamp duty on bills of exchange shall be borne by the customer. Bills of exchange shall only be deemed payment after they have been honoured.
- The invoice amounts shall be payable to our stated bank accounts at no postal or other charge.
- Goods worth 250 euros or more are delivered within Germany "free buyer’s address" or, if the goods are for export and worth 500 euros or more, "DAP German border". The goods are delivered at the recipient’s cost and risk at the prices applicable on the day on which the goods are sent.
- Shipment shall be made at the risk and cost of the customer, including where carriage is paid. Shipping costs and packaging shall be charged at cost price.
- Unless the shipping route has been agreed in writing, we shall be entitled to select the shipping route ourselves.
- Delivery dates shall only be valid if explicitly confirmed by the contractor. If the contract is agreed in writing, acknowledgement of the delivery date shall also be made in writing.
- If the contractor defaults on timely performance, the contractor shall initially be granted a reasonable period of grace. In the event of a failure to meet this renewed deadline the customer shall have the right to rescind the contract. §361 of the German Civil Code (BGB) remains unaffected. Compensation for delay shall not exceed the value of the order (own work excluding preliminary work and materials).
- Stoppages – both in the contractor’s operations and in those of one of its suppliers – including but not limited to strikes, lockouts, war, civil commotion and all other instances of force majeure, shall not constitute grounds for terminating the contractual relationship. The principles regarding frustration of contract remain unaffected.
- The recipient must check the shipment for damage upon receiving it. Complaints shall be notified within one week of receipt of the goods and prior to processing, commissioning or use.
- In the case of legitimate complaints, we shall be required to provide substitute delivery, subsequent improvement or a reduction in price at our own discretion. More extensive claims, including but not limited to the assertion of direct or indirect damages, are excluded.
- Complaints shall under no circumstances release the customer from its duty to pay the purchase price. A guarantee for a specific use of the goods shall not be accepted.
- Goods shall only be returned with our written approval.
- We disclaim all warranty for personal injuries, damage to property or stoppages resulting from faults or defects in our goods.
VI Reservation of title
- Title is retained to all deliveries made. The delivered goods shall remain our property pending full payment of all claims arising from the business relationship. Reserved goods shall be processed on our behalf. The customer shall not acquire title to the same.
- In the event that the goods are processed with other objects which we do not own, we shall acquire co-title to the new object based on the ratio of the value of the goods supplied by us to the value of the other goods at the time of their processing. The new object shall be regarded as reserved goods under these terms and conditions.
- The assertion of retention of title in the case of default in payment or if the claim to title is in jeopardy shall not be deemed to constitute withdrawal from the contract. The customer shall notify us immediately should the reserved goods be attached or our ownership rights be endangered in any other way by third parties and shall confirm our title to said goods in writing to us and third parties. The customer shall neither pledge reserved goods nor assign the same as security.
- The customer shall assign its claims from the resale of the reserved goods to us at the time the contract is concluded. The value of such assignment shall be equal to the amount which corresponds with the value of the reserved goods. If goods are resold with other goods which are not our property at a single price, the customer’s receivables from the resale shall be deemed to be assigned to us up to the amount which corresponds with the value of the reserved goods. The value of the reserved goods under these terms and conditions shall be the invoice amount plus a collateral fee of 20%. The customer shall only be entitled to resell the reserved goods subject to the proviso that the purchase price claims are transferred to us. The customer shall not be entitled to dispose of receivables assigned to us in any other way.
- The customer shall ensure that the reserved goods are adequately insured against fire, theft and similar risks.
VII Place of performance, legal venue, other agreements
- These Terms of Sale and Delivery and the legal relationships between the customer and the contractor shall be subject to the law of the Federal Republic of Germany.
- The place of performance is Augsburg. If the customer is a registered trader, corporation under public law, or separate entity under public law, the legal venue for all claims and legal disputes arising from the contractual relationship, including actions on cheques and bills of exchange, shall be Augsburg.
- Should one or several of the provisions of these Terms of Sale and Delivery be ineffective, this shall not affect the validity of the remaining provisions.
Date: January 2015