General Terms and Conditions of Bornemann GmbH, Wermelskirchen
(last revised: 01.09.2011)
1. General, copyright
1.1 The below terms and conditions apply in business transactions only and are the foundation of all our offers, orders, deliveries and services.
1.2 We reserve the property and copyright to the auxiliary and operating objects, e.g. drafts, drawings, models, films, programs, templates or fixtures to create an offer or to execute an order. These objects do not come with the delivery; this also applies of these auxiliary or operating objects are calculated separately. The costs calculated for this are part of the order.
1.3 Auxiliary and operating objects provided b the customer are returned on delivery of the order. The costs incurred shall be born by the customer. For the period during which the auxiliary and operating objects of the customer are in the property of the contractor, the customer shall be liable for the accidental perishing of the objects.
2. Offers, acceptance of order
2.1 Our offer are always subject to change. A contract comes about in the event of doubt only with and in any event according to the contents of our written order confirmation, if such is provided. Individual agreements remain unaffected.
2.2 Guide prices informed are not binding offers.
2.3 Offers and plants, in particular auxiliary and operating objects of the contractor, may not be made accessible to third parties without our consent.
3. Prices and terms of payment
3.1 Our prices are net without discount or other rebate in the currency stated on the invoice, ex works, exclusive of packaging, freight and insurance and plus the relevant valid statutory value-added tax.
3.2 If the cost factors central to pricing (production material, energy, operating materials, wages, salaries, etc.) change substantially in the period between concluding the contract until the contractually specified time of delivery, we shall be authorised to demand the negotiation of new prices as a change to the prices offered or confirmed in order to offset such cost increases. If no agreement is found, we shall be authorised to withdraw from the contract. If the cost factors stated in sentence 1 fall, the customer shall, in corresponding application of the above provision, be entitled to negotiate a corresponding price reduction and, in lack of an agreement, the right to withdraw from the contract.
3.3 Unless expressly agreed otherwise, payments must be made on delivery within 8 days of receipt of the invoice without discounts. In the event of late payment, we shall charge default interest in the amount of 8 percentage points above the base rate without prejudice to further rights.
3.4 The customer shall only have the right to offset against our claims if its claim is uncontested or has been legally established.
4.1 Unless agreed otherwise, the delivery term shall begin on receipt of the order confirmation. Partial deliveries are permissible inasmuch as they can be expected of the customer.
4.2 If the delivery is delayed for a reason that is our responsibility, the customer shall be entitled to withdraw from the contract after granting an appropriate period of grace. The dispensability of setting a deadline under Section 323(2) German Civil Code shall remain unaffected by this.
4.3 If the delivery is delayed due to unforeseen circumstances, e.g. due to force majeure, strike, lack of raw materials, failure or energy loss, at our end, preliminary suppliers or sub-contractors, the customer, also after granting an appropriate period of grace, shall be entitled to withdraw from the contract.
4.4 If it becomes impossible for us to make the delivery for circumstances under 4.3, we shall be released from the obligation to deliver. If the delivery becomes not expectable from us for circumstances under 4.3, we shall be entitled to refuse the delivery. A compensation claim of the customer does not exist inasmuch as we are not responsibility for the circumstances under 4.3.
5. Warranty claims
5.1 Warranty claims of the party shall become time-barred within one year of delivering the item or acceptance of the work. This deadline shall apply inasmuch as the law does not permit a shortening of the deadlines set out under sections 438 and 634a German Civil Code.
5.2 The goods must be immediately examined after collection, delivery or assembly by the customer. Clear faults must reported to the contractor no later than 8 days after collection, delivery or assembly, hidden faults immediately on detection.
5.3 In the event of deficiency of an item to be delivered or service to be provided, the customer may demand the rectification of the fault or the delivery of a fault-free item at its discretion. The right to withdraw or reduce the purchase price or the wage is ruled out irrespective of Item 5.4.
5.4 The customer reserves the right to reduce the purchase price or withdraw from the contract at its discretion and claim compensation under Item 5.5 if the subsequent fulfilment is unsuccessful or if the contractor refuses both rectification and subsequent delivery or if the subsequent delivery is unacceptable. A rectification shall only be regarded as unsuccessful unless something else – in particular from the type of the item or the fault or other circumstances – arises.
5.5 The contractor shall be liable under the contractual warranty claims – with the exception of damage from injury to life, limb or health – for damage only in the event of intent and/or gross negligence, including intent and/or gross negligence of its representatives and vicarious agents, unless something else is determined below. The liability for simple or minor negligence is ruled out, unless it refers to the breach of an obligation that is integral to the contract within the meaning of the legislation of the German Federal Court of Justice. Inasmuch as the above disclaimer does not apply for a breach of an obligation that is integral to the contract, the customer shall be liable for the typical contractual, foreseeable damage only. Further claims of the customer shall be ruled out. The above liability limitations or disclaimers shall not apply when breaching pre-contract notification and information obligations. The liability of the customer under the Product Liability Act remains unaffected. Contractual penalties shall not be recognised.
6. Liability limitations outside of warranty for defects
The contractor shall be liable for damage outside Item 5.5 – with the exception of damage from injury to life, limb or health – also in accordance with Item 5.5. The above liability limitations or disclaimers shall also not apply when breaching pre-contract notification and information obligations. Contractual penalties shall not be recognised.
7. Retention of title
Goods provided by us shall remain our property until the full payment, also of previous deliveries.
8. Place of performance, jurisdiction
8.1 Inasmuch as the customer is a merchant, a legal entity of public law or public-law special asset, the jurisdiction for both parties shall be the registered office of the contractor. Place of performance shall be our registered office, unless this refers to warranty claims or claims in connection with the reversal of a contract.
8.2 The laws of the Federal Republic of Germany shall apply under exclusion of foreign law and international purchase law. The German version of the contract text shall be authoritative.
9. Severability clause
If one of the above mentioned provisions of these GT&Cs is for some reason invalid, ineffective or inexecutable, the validity of the other provisions and the underlying contract shall remain unaffected.