General sales, delivery and payment terms and conditions for Bohnenkamp AG (As of January 2014)
I. Offers and contract acceptance
* 1 . Offers will always be non-binding unless otherwise termed in writing.
* 2. Orders, including those submitted to our travelling representatives and agents, will, irrespective of the customer’s legal obligation, only become legally binding upon us by means of and in accordance with our written order confirmation.
* 3. Order confirmations, side agreements and amendments as well as oral and telephonic agreements will only be valid upon express written confirmation by us. This written form requirement cannot be waived by oral agreement.
* 4. The following general sales, delivery and payment terms and conditions will apply to all our sales or other types of deliveries. Possible other terms and conditions or counter-confirmations by the customer shall only become binding upon us if and insofar as we have explicitly agreed to them. Our failure to comment on such deviating terms and conditions should not be construed as acceptance of such terms and conditions. Such deviating terms and conditions or counter-confirmations by the customer are hereby explicitly disclaimed.
* 1. Prices stated in price lists, offers, order confirmations, etc. are not fixed prices. We will always apply the pricing which is current at the date of delivery. Estimates for repairs will always be as accurate as possible, but are always non-binding.
* 2. All prices are in Euro and cover delivery from store or from factory excluding packaging.
* 3. Deliveries are sent unstamped. If deliveries are sent carriage paid the delivery charges will be charged to the customer.
* 1. Unless there is express agreement on a specific delivery mode the delivery mode will be at our discretion. The shipping risk will be borne by the customer, including for carriage paid shipments.
* 2. Transport insurance will only be provided at the explicit request of and cost assumption by the customer.
* 3. Packaging will be charged at net cost. If the packaging materials are returned to us carriage paid within three weeks of delivery, two thirds of this cost will be credited back to the customer, provided the packaging materials are received by us in a flawless condition.
* 4. Stated delivery times and delivery dates are always non-binding estimations.
* 5. Delivery times will be measured from the time of the order confirmation and after any and all technical queries have been answered.
* 6. Our compliance with the stated or agreed delivery times depends on the fulfilment of the customer’s contractual obligations, especially the customer’s compliance with the agreed payment terms and conditions and our timely receipt of all required documentation to be provided by the customer.
* 7. If the delivery deadline is exceeded by more than four weeks, the customer will be entitled to cancel the order if the delivery does not take place within a grace period of an additional four weeks.
* 8. In cases of force majeure such as war or exceptional circumstances, official decrees, civil unrest, transport disruption or lack of transportation, strike or lock-outs, operational disruption or material shortages affecting us or our suppliers, or if other circumstances outside our sphere of influence make it impossible for us to deliver, or delay delivery, or make delivery substantially more difficult, we will be entitled to either withdraw from the contract or to extend the delivery time for the duration of the hindrance. We will retain this right in the aforementioned circumstances even if these circumstances occur at the same time as other pre-existing delivery delays.
* 9. We have the right to make partial deliveries provided that this has been expressly agreed upon.
* 1 . All goods delivered by us will remain our property until such time as all our claims against the customer resulting from this business relationship with us are settled (reservation of title).
* 2. The customer is entitled to process or exploit these goods subject to reservation in the course of the customer’s business. The customer shall process or exploit goods subject to reservation in a manner that will not cause any claims against us. We will be considered the manufacturer of any intermediate or final products created by such processing or exploitation and will retain or acquire ownership of such.
* 3. If the goods subject to reservation are combined or mixed with other items that do not belong to us, we will have co-ownership of the new so-created item, specifically, in the proportion of the value of our property to the value of the other processed goods at the time of the processing. By combining or mixing our delivered goods with other goods the customer thereby assigns to us ownership or co-ownership of any items created by such combining or mixing. The customer shall safeguard the items for us with due business diligence.
* 4. Nos. 2 and 3 hereof will also apply if the newly created items are more valuable than the individual processed goods, however, the processed goods will only be used as security for the value of the goods delivered by us subject to reservation.
a) The customer is only entitled to re-sell items and goods delivered by us in the course of regular business activities. Other uses, especially the pledging of goods or their transfer as security, are not permissible without our prior express written consent.
b) In the case of re-sale of the items or of items that were created by processing or exploiting the original items, the customer shall establish agreements with his buyers to the effect that ownership of the items, even in the case of processing or exploitation by the buyers, will always remain with us, whereby the processor or exploiter will become the custodian. This will also apply to items where our ownership or co-ownership arises pursuant to No. 3 .
c) Re-selling must cease at any time if we withdraw our consent to such re-selling.
d) Machines and tools must not be sold on by the customer, as they are merely provided by us for use at the customer’s facilities.
a) Receivables the customer is entitled to due to the re-sale of items delivered by us or the sale of new items created by the processing or exploitation of our items or arising from any other legal basis concerning said items must be assigned to us immediately and in the amount of the value of our original items, or in the case of processing or exploitation of our items together with items that are not our property in the amount of the value of the processed or exploited items subject to reservation, regardless of whether these items are sold to one or multiple purchasers and regardless of whether they are sold individually or together with other items. This will also apply to items where our ownership or co-ownership arises pursuant to No. 3. The assignment of these receivables serves the purpose of securing our claim of the respective amount against the customer.
The customer is entitled to collect receivables assigned to us until such time as our consent is withdrawn, however, the customer shall transfer the collected amounts to us immediately as long as our claims are outstanding. Furthermore, the customer shall apply separate accounting to the receivables assigned to us and keep such amounts separate on collection if they are not yet due to be transferred to us at the time of collection.
c) We will not exercise our own right to collect as long as the customer meets the customer’s payment obligations properly.
* 7. We undertake to release securities pursuant to this agreement when their value exceeds 20% of the debt they secure.
* 8. The reservation of title pursuant to these regulations will remain intact even when individual receivables have been included in ongoing invoices and the balance has been settled and booked.
* 9. When third parties gain control over goods and items upon which we have an ownership or co-ownership claim or over receivables due to us, the customer shall inform us without delay, notify the third party of our rights and provide us with all required documentation for us to establish our claims.
* 10. The customer shall insure all goods delivered subject to reservation against theft, fire and water damage.
* 1. Deliveries are made cash-on-delivery or pre-paid.
* 2. Payment deadlines require individual separate written agreements.
* 3. Payments are to be made net without deductions. The payment receipt date is the date on which funds become available to us. If a cash discount is agreed upon, it will only be granted if the cash payment is received and available to us by the agreed payment deadline and if all older claims have been settled.
* 4. We explicitly reserve the right to accept bills of exchange and checks. If accepted, they will only be accepted for payment purposes, and shall only be considered paid after bank submission and receipt of funds. Bill of exchange fees shall be borne by the customer.
* 5. When bills of exchange are accepted, no guarantees are made for timely presentation or protest.
* 6. If payment deadlines are not met, we will apply interest at the same rate as interest levied against us when taking out loans, but no less than 2% more than the base rate of the European Central Bank.
* 7. Failure to meet payment deadlines or default of payment entitles us to withhold deliveries.
* 8. Set-off against our claims is only permissible with undisputed or legally valid counter-claims.
* 9. If we become aware of circumstances that render the creditworthiness of the customer questionable after a contract is entered into, all receivables shall become due immediately, including those for which we have accepted bills of exchange or checks that have not yet been deposited. We will be entitled to demand immediate payment in cash or the return of delivered goods. We will then be entitled, at our discretion, to demand prepayment or securities for deliveries yet to be delivered, or to withdraw from the contract in full or in part. In the latter case we will be entitled to damages for nonfulfillment. Our right to withdraw will remain intact if we initially demand prepayment or securities, and the customer fails to meet our demand within the period stated.
* 10. In the case of payment defaults we will be entitled immediately to collect goods delivered by us, as well as items in which we have ownership or co-ownership rights pursuant to Article IV of these terms and conditions. Collected items will be credited to the customer. Credits will be based on invoiced amounts. Our lost profits, costs incurred for delivery and collection of the items as well as depreciation of the goods against the new value will be charged to the customer. Unless the customer provides proof that our loss of profits and the costs of delivery are in fact less, we shall be entitled to calculate them at 25% of the sales price of the goods. Our repossession of goods will only constitute a withdrawal from the sales contract if we expressly state so in writing.
VI. Notification of defects and warranties
* 1. If the customer is a trader according to the commercial code, claims for defects by the customer require the customer to have met statutory inspection and notice requirements. The customer must inspect goods immediately upon receipt whenever practical during standard business operations and, if defects are found, report such defects to us immediately in writing. If the customer fails to file such a report, the goods will be considered as accepted unless the defect is of such a nature that it would not be recognizable during a receipt inspection. If such a defect becomes apparent later on, it must be reported immediately upon discovery, otherwise the goods will be considered as accepted even in light of such a defect. Timely dispatch of the defect report suffices to uphold the customer’s rights.
* 2. We will not grant any warranty with respect to defects caused by natural wear and tear damages, improper or careless treatment, or unsuitable or improper storage or use, or due to disregarding of the processing and usage instructions. If deliveries are made pursuant to drawings, specifications, samples, instructions, etc. submitted by the customer, the customer shall assume the risk of suitability for the intended purpose.
* 3. If delivered items are defective, we will initially be entitled to choose whether we intend to remedy by removing the deficiency (rectification) or by delivering defect-free items (replacement). Our right to refuse remedy in accordance with statutory regulations remains intact. We are entitled to make the provision of owed remedies dependent on payment of the due purchase price by the customer. However, the customer is entitled to withhold a reasonable portion of the purchase price proportionate to the defect. The customer must give us the necessary time and opportunity to provide the remedy, and must, in particular, surrender the demurred goods to us for testing purposes. In case of replacement, the customer must return the defective items in accordance with applicable statutory regulations.
* 4. The remedy will not include the dismantling of the defective items or the installation of defect-free items if we were not initially obligated to provide installation. Expenditures incurred for the purpose of providing the remedy, especially transport, travel, labour and material costs (but not installation and dismantling costs) will be borne by us, but only if defects are indeed present. If, however, a demand for remedy of defects by the customer turns out to be unfounded, we will be entitled to demand compensation from the customer.
* 5. If the remedy fails or if the customer’s appropriate deadline for the remedy expires without the remedy being provided or can be waived pursuant to statutory regulations, the customer is entitled to withdraw from the purchase contract or to reduce the purchase price. However, there is no right to withdraw from the contract for minor defects. The customer’s claims for damages and reimbursement of fruitless efforts will only be acceptable pursuant to Article VI. and are otherwise disclaimed.
* 6. Claims and rights arising from defective goods can only be submitted by the customer during a twelve-month warranty period beginning with the delivery of the goods, unless the customer is a legal entity under public law, a public trust or an entrepreneur pursuing his or her trade or profession at the time the contract is entered into. This does not apply to claims and rights arising from grossly negligent or deliberate disregarding of our duties nor for damages to life, limb or health caused by gross negligence on our side. Dereliction of duties by our legal representative or vicarious agent will be considered dereliction of duties by us.
* 7. If the customer accepts the subject of a contract despite being aware of defects, the customer will only be entitled to damage claims if the customer reserves such claims at the time of acceptance.
VII. Special provisions
* 1. Items sent as samples or items that have become useless due to repair or modification or items that have been replaced must be scrapped or otherwise disposed of unless otherwise explicitly agreed upon.
* 2. Custom items and items that we do not stock regularly (so-called non-common items) are subject to a purchase obligation by the customer.
* 3. Take-back of such items will only occur under special exceptional conditions and upon prior written agreement. If such goods are returned without prior written agreement, the customer agrees that we will either immediately dispose of such goods and credit them to the customer at purchase price, whereby 25% for costs and unrealized profits and possibly freight fees will be deducted, or that we, at our discretion, will return the goods to the customer at the customer’s expense and that we will charge the incurred fees to the customer. The customer is at liberty to provide proof that costs and unrealized profits were less than 25% of the return value of the goods. This does not reverse the burden of proof.
* 4. Effective from March 1, 2014, we will impose a handling fee of EUR 30.00 for each line item returned with written agreement, unless the return is completed within 10 days of the customer’s receipt of the goods. The customer shall bear the transportation fees. The fee will be imposed if the customer cancels orders for goods that have already been delivered, the customer intends to return goods that are no longer needed, the customer has placed a wrong order and has only realized the order was wrong after acceptance, the customer has mistakenly ordered quantities too large, or if the customer otherwise rejects acceptance unwarrantedly. These rules do not apply to returns due to erroneous deliveries by us or justified complaints by the customer. The customer retains the right to provide proof that we have incurred lesser damages. This does not reverse the burden of proof.
VIII. Liability limitation and disclaimer
* 1. These general sales, delivery and payment terms and conditions contain conclusive regulations regarding our liability and warranties for our goods and duties and disclaim any other warranty or damage claims of any kind regardless of the legal basis of such submitted claims, particularly due to breach of duty of a contractual obligation, due to impermissible actions and for damage claims for the customer’s lost profits or other financial losses.
* 2. The liability limitation pursuant to VIII. 1. does not apply for the assumption of a warranty or a procurement risk, for liabilities in accordance with product liability law or for liabilities resulting from harm to life, limb and health or substantial contractual obligations. In case of violation of our contractual duties, and with the exception of deliberate violation, gross negligence and liability resulting from harm to life, limb or health, we will only be liable for reasonably foreseeable, contractually anticipatable damages. This does not constitute a reversal of the burden of proof at the customer’s expense.
* 3. The customer independently decides how to use goods or other services delivered by us. Unless we have confirmed specific characteristics and suitabilities of a product for a contractually agreed use, all use-related technical advice is non-binding. We will only be liable for provided or omitted advice regarding the characteristics or garnishability of the delivered products pursuant to the stipulations under VIII.1 and VIII.2 of these terms and conditions.
* 4. The liability limitation set out in VIII. applies to customers that are a legal entity under public law, a public trust or an entrepreneur pursuing his or her trade or profession at the time the contract is entered into.
IX. Legal venue, applicable law, partial invalidity
* 1. The exclusive - including international - legal venue for disputes including suits concerning bills of exchange and checks is the court of jurisdiction at the registered office of our company, if the customer is a legal entity under public law, a public trust or an entrepreneur pursuing his or her trade or profession at the time the contract is entered into. However, we are also entitled to file suit against the customer at the customer’s legal venue.
* 2. The exclusive law applicable to the legal relations between us and the customer is the law of the Federal Republic of Germany. Uniform purchasing laws based on international purchasing law treaties, particularly the uniform laws on the international purchase of movable goods and on the execution of such purchase contracts (Hague Convention) as well as the UN Treaty on the Purchase of Goods, do not apply.
* 3. If any clause of this agreement is invalid the remaining clauses and agreements will remain intact.