1 Scope of terms and conditions
- These General Terms and Conditions of Sale, Delivery and Payment (hereinafter referred to as “GTC”) shall apply to the entire business relationship between the company BIRKAN GmbH, 82279 Eching am Ammersee, hereinafter referred to as “the Supplier” for short, and its customers, hereinafter referred to as “the Purchaser” for short. These GTC only apply if the Supplier is an entrepreneur (section 14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
- Unless otherwise stipulated in framework or individual contracts, the Supplier‘s offers, deliveries and services shall be made and performed exclusively on the basis of these GTC. These GTC shall consequently also apply to all future business relationships, even if not repeatedly and expressly agreed in each specific case.
- Any deviating terms and conditions of the Purchaser shall only become part of the contract if and to the extent that the Supplier has expressly agreed to their application. This requirement for consent shall apply in all cases, for example even if the Supplier makes delivery to the Purchaser without reservation in the knowledge of the Purchaser‘s general terms and conditions (terms and conditions contrary to or deviating from these GTC). Counterconfirmations issued by the Purchaser that refer to the latter’s general terms and conditions of business or purchase are thus hereby contradicted.
- Individual agreements reached with the Purchaser in specific instances (including ancillary agreements, additions and amendments) shall in all cases take precedence over these GTC.
- References to the validity of legal provisions merely provide clarification. Such legal provisions shall also apply, even if such clarification is not provided, unless they are specifically modified or expressly excluded in these GTC.
2 Offers, conclusion of a contract
- All offers are made by the Supplier without obligation and are non-binding. This also applies if catalogues, technical and other documentation or product descriptions – including in electronic form – have been provided to the Purchaser. The same applies to brochures, flyers, drawings, illustrations and other documents. The Supplier reserves title and copyrights to such documents. This also applies to written documents that are designated “confidential” by the Supplier. The Purchaser must obtain the Supplier‘s express written consent before transferring such documents to third parties.
- Orders for goods placed by the Purchaser shall be deemed binding offers of contract that may be accepted by the Supplier by order confirmation or by delivery of the goods.
- Oral agreements, changes, additions or warranted characteristics are only effective if confirmed in writing by the Supplier.
- The documents on which the offer, the order confirmation or the delivery are based, such as drawings, illustrations, details of dimensions and weights and other delivery details, are generally only to be understood as approximate values, unless they are expressly designated as binding.
- Unless otherwise agreed, samples are non-binding samples for visual appraisal. They remain the property of the Supplier and must be surrendered immediately upon the Supplier‘s request. All technical advice, information and recommendations are subject to change. Drawings, illustrations, dimension and weight sketches etc. are also non-binding, remain the property of the Supplier and must be surrendered without delay at the Supplier‘s request.
3 Prices and terms of payment
- Unless otherwise stated, the Supplier remains committed to the prices quoted in its offers for a period of 14 days of the offer date.
- Unless otherwise agreed, prices are “ex works”, including normal packaging and excluding shipping and transport costs. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser.
- Statutory value-added tax is not included in the Supplier‘s stated prices and is invoiced additionally at the statutory rate on the invoice date.
- Prompt payment discounts may only be deducted if this has been agreed specifically in writing.
- Unless otherwise agreed in specific contracts (e.g. if not otherwise stated in the order confirmation), the net purchase price shall be due for settlement at no discount within 30 days of the invoice date. The statutory provisions relating to default in payment apply. The place of performance for settlement of the purchase prices is the registered office of the Supplier.
- Payments made by the Purchaser to the Supplier shall in any case be set off in accordance with section 366 para. 2 German Civil Code (BGB). The Supplier is entitled to assign claims arising from the business relationship with the Purchaser.
- If the Purchaser defaults on timely payment, the Supplier shall be entitled to claim default interest in the amount of 9 percentage points p.a. above the respective discount rate of the Deutsche Bundesbank. The Supplier shall be entitled to claim higher damages if it is able to prove that such higher damages have been caused by delay.
- Regardless of other stipulations made by the Purchaser, the Supplier shall be entitled to first accredit payments to older outstanding debts of the Purchaser. If costs and interest have already been incurred, the Supplier shall be entitled to first accredit such payments towards costs, then towards interest and finally towards the main supplies or services (section 367 para. 1 German Civil Code (BGB)).
- The Purchaser shall only be entitled to offset claims against counterclaims that are recognised by non-appealable declaratory judgement, undisputed or that have been recognised by the Supplier.
4 Delivery and delivery times
- The Supplier shall provide a best estimate of the delivery date at the time the order is accepted. The delivery time is only binding if it has been explicitly referred to as such.
- The delivery time shall be extended appropriately if the Purchaser delays or omits any necessary or agreed cooperation on its part. Changes to the delivered goods initiated by the Purchaser (e.g. arising from changes in order and delivery locations) shall also lead to a reasonable extension of the delivery time.
- The Supplier shall not be responsible for delays in delivery and performance due to force majeure or other events which the Supplier cannot avert despite exercising reasonable care under the circumstances, even in the case of bindingly agreed deadlines and dates. Such delays shall entitle the Supplier to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw in whole or in part from the part of the contract that is not yet fulfilled. If the hindrance lasts longer than three months and the goods are also not available within the new delivery period, the Purchaser shall be entitled, after a reasonable period of grace, to withdraw from the contract with regard to the part not yet fulfilled. An individual case of non-availability of the service shall be deemed to be in particular the failure of the Supplier to obtain the supplies it requires, provided that the Supplier is not itself at fault. The Purchaser shall not be entitled to derive claims for damages if the delivery time is extended or if the Supplier is released from its obligations.
- Compliance with the Supplier‘s obligation to supply shall be contingent on the Purchaser duly fulfilling its duties in good time.
- The Supplier shall be entitled to make partial deliveries and render partial services at any time to a reasonable extent.
- If the Purchaser defaults on acceptance or culpably infringes any other duties, the Supplier shall be entitled to demand compensation for the damages, including any additional expenses, incurred as a result. The Supplier reserves the right to assert more extensive claims or rights.
- Where the preconditions of paragraph 4.6 apply, the risk of accidental loss or incidental deterioration of the purchased item shall pass to the Purchaser at the moment at which the Purchaser defaults on acceptance or payment.
- The time of default in delivery is determined by law. Default is only deemed to have occurred if a demand for delivery has been issued to the Purchaser. If the Supplier defaults on timely delivery, the Purchaser may demand lump sum damages for default amounting to 0.5% of the net price for each completed week, amounting in total to 5% of the delivery value of the delayed goods. The Supplier reserves the right to demonstrate that the Purchaser has suffered either no loss at all or lower losses than the lump sum.
- The rights of the Purchaser under clause 6 of these GTC and the statutory rights of the Supplier, including but not limited to exclusion of the obligation to perform, but especially in the event of impossibility or unreasonableness of performance, remain unaffected.
5 Shipping, passage of risk
- Unless otherwise agreed, delivery shall be made ex Supplier‘s warehouse, which is also the place of performance. The goods shall be shipped to another destination at the Purchaser‘s request and expense. Unless otherwise agreed, the Supplier shall be entitled to determine itself the type of shipment, in particular the transport company, the shipping route and the packaging.
- Unless otherwise agreed, loading and shipping shall be uninsured and at the Purchaser‘s risk.
- Transport insurance may be taken out at the Purchaser‘s express request, the costs of which shall be borne by and invoiced to the Purchaser separately.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser at the latest upon handover. In the case of sales shipment (delivery to a place other than the Purchaser‘s premises), the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the forwarding agent, the carrier or other shipper upon delivery of the goods. If acceptance has been agreed, this shall be the decisive point in time for the passage of risk. In all other respects, the statutory provisions for the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Goods shall also be deemed to have been handed over or accepted if the Purchaser defaults on acceptance.
- If the Purchaser defaults on acceptance of delivery, if it fails to cooperate as agreed or if delivery is delayed for any other reason for which the Purchaser is responsible, the Supplier shall be entitled to demand reimbursement for the resulting losses, including additional costs (e.g. storage costs). In addition, the Supplier shall be entitled to assert further statutory claims.
6 Claims for defects
- Claims for defects asserted by the Purchaser are contingent on the latter duly complying with its inspection and notification duties under section 377 of the German Commercial Code (HGB). If a defect becomes apparent, either during inspection or at a later time, the Purchaser shall notify the Supplier thereof in writing without delay. Notification shall be deemed to have been given without delay if it is given within two weeks, whereby timely dispatch of the notification shall suffice to comply with the time limit. Irrespective of this obligation to inspect and give notification of defects, the Purchaser must give written notice of obvious defects within 2 weeks of delivery; here too, timely dispatch of the notification is sufficient to meet the deadline. The Supplier‘s liability is excluded if the Purchaser fails to duly inspect and/or to notify the Supplier.
- If modifications or repairs are carried out on the goods without the Supplier‘s express consent, all claims for defects shall be excluded if the Purchaser does not refute a corresponding substantiated assertion that only one of these circumstances could have caused the defect.
- Only the immediate Purchaser is entitled to assert claims for defects against the Supplier; such claims are not assignable.
- The Purchaser‘s for defects shall be limited, at the Supplier‘s discretion, to rectification of the defect or replacement delivery. The Supplier may refuse the form of subsequent performance chosen by the Purchaser pursuant to section 439 para. 3 German Civil Code (BGB).
If the Purchaser does not indicate the form of subsequent performance required, the right of choice shall pass to the Supplier upon expiry of a 14-day period. The Supplier may make the subsequent performance owed contingent on the Purchaser paying the due purchase price. However, the Purchaser shall then be entitled to retain a proportionately reasonable part of the purchase price.
- The Purchaser shall give the Supplier the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. If replacement delivery is made, the Purchaser must return the defective item to the Supplier as required by law. Subsequent performance includes neither removing the defective item nor re-installing it, if the Supplier was not originally required to install it.
- Unless a request for rectification of defects proves to be unjustified, the Supplier shall bear all the expenses necessary for the purpose of rectifying the defect, including but not limited to transport, travel, labour and material costs. If a request for rectification of defects proves to be unjustified, the Supplier‘s costs shall be reimbursed by the Purchaser. If the Supplier is not willing or able to rectify defects or to provide substitute delivery, or if in particular such action is delayed for an unreasonable period of time for reasons for which the Supplier is responsible, or if defect rectification/substitute delivery is abortive in any other way, the Purchaser shall be entitled – at its own discretion – to demand a reduction in the remuneration or rescission of the contract.
- Only in urgent cases, such as a risk to operational safety or to avert disproportionate damage, shall the Purchaser have the right to rectify the defect itself and to demand reimbursement from the Seller of the expenses objectively necessary for this purpose. The Purchaser shall inform the Supplier, if possible in advance, if it intends to rectify itself at the cost of the Supplier. The Purchaser shall not have the right to rectify defects itself at the cost of the Supplier if the Supplier would be entitled by law to refuse corresponding subsequent performance.
- If subsequent performance is abortive, is not successful within a reasonable deadline to be set by the Purchaser, or if by law no deadline needs to be set, the Purchaser shall be entitled at its own discretion to reduce the purchase price or withdraw from the contract. The right to withdraw from the contract is excluded in the case of an insignificant defect.
- The claims for defects shall become statute-barred, insofar as permissible, one year after delivery of the purchased item, otherwise within the statutory limitation period. If a formal acceptance procedure has been agreed, the period of limitation will begin to run upon formal acceptance.
7 Other limitations of liability
- The Supplier‘s liability for damages is limited to intent and gross negligence. In the event of simple negligence, the Supplier shall only be liable for damages arising from injury to life, limb or health and for damages arising from breach of a material contractual obligation. A material contractual obligation is one which must be satisfied in order for the contract to be fulfilled at all and on compliance with which the contractual partner regularly relies and is entitled to rely. In this case liability is limited to compensation for typically foreseeable losses.
- The limitations on liability provided for in 7.1 above shall not apply if the Supplier has fraudulently concealed a defect or has provided warranty as to quality of the goods. The same shall apply to claims of the Purchaser under the German Product Liability Act (ProdHaftG).
The Supplier‘s liability for culpable injury to life, limb or health remains likewise unaffected; this shall also apply to mandatory liability under the German Product Liability Act (ProdHaftG).
- The Purchaser shall only be entitled to withdraw from or terminate the contract as a result of a breach of duty not consisting of a defect if the Supplier is responsible for such breach of duty.
8 Reservation of title
- The Supplier retains title to the purchased and delivered goods pending full payment of all current and future claims arising from the purchase contract and an ongoing business relationship.
- The Purchaser is not authorised to pledge the goods subject to reservation of title to third parties or to assign them by way of security, but is entitled to further sell the goods subject to reservation of title in the orderly course of business. The Purchaser hereby assigns to the Supplier by way of security the claims arising therefrom against its business partners. The Supplier accepts such assignment. Subject to revocation, the Purchaser is authorised to collect the claims assigned to the Supplier for the Supplier‘s account in its own name.
- In the event of breach of contract by the Purchaser, including but not limited to default on payment, the Supplier shall be entitled to withdraw from the contract in compliance with statutory provisions and to demand surrender of the goods on the grounds of reservation of title and withdrawal from the contract. If the Purchaser fails to pay the purchase price, the Supplier shall only be entitled to enforce these rights if it has previously set the Purchaser a reasonable payment deadline and this has expired without result or if the law permits the Supplier to dispense with the setting of such a deadline.
- Title is also reserved to the full value of products resulting from the processing, mixing or combination of goods. In the event that goods are processed, mixed or combined with third-party goods without extinguishing the third party‘s title, the Supplier shall acquire co-title to the new goods based on the ratio of the invoice value of the processed, mixed or combined goods. Otherwise, the newly produced item is subject to the same provisions as those which apply to the goods delivered under reservation of title.
- The Purchaser shall treat the purchased goods with due care and shall, in particular and at its own cost, obtain adequate value-as-new insurance cover against fire, water and theft.
- If the value of the securities existing for the Supplier exceeds its claims not only temporarily by a total of more than 10%, the Supplier shall release securities in the corresponding amount at its own discretion at the request of the Purchaser.
9 Choice of law, place of performance, legal venue and severability
- The place of performance is the Supplier‘s registered office.
- The application and interpretation of these GTC, as well as the conclusion and interpretation of legal transactions with the Purchaser itself, shall be subject exclusively to the law of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
- Insofar as the Purchaser is an entrepreneur, the exclusive legal venue shall be the legal venue responsible for the Supplier‘s registered office. The Supplier also has the right to bring an action before a court that has jurisdiction for the registered office or a branch of the Purchaser.
- Should one or several of the provisions of these GTC be ineffective, this shall not affect the validity of the remaining provisions. The contracting parties are obliged, within the framework of what is reasonable and in good faith, to replace an ineffective provision with a valid provision that provides for the same economic outcome as the ineffective provision, provided that this does not result in a significant change to the content of the contract; the same applies if a matter requiring regulation is not expressly regulated.