General business terms of Berchtold GmbH & Co KG
1.1 Our offers, services and deliveries take place exclusively on the basis of these business terms and conditions, which are to be treated as accepted latest with the acceptance of the goods or service. Counter confirmation detailing a company’s own business terms is contradicted expressly hereby.
1.2 Written individual agreements have priority over these business terms.
2.1 Our offers are always voluntary and non-binding. This is also true of all offers on the Internet sales platform.
2.2 Technical and design deviations from descriptions and data in brochures, catalogues and written documents to the extent they are considered reasonable by the customer as well as changes during the course of technical progress will remain reserved, and no rights can be derived against us from such changes.
3.1 All prices are valid from our head office in Esslingen. Only our legal representatives are authorized to negotiate prices without any special written power of attorney; negotiating on the basis of apparent authority or authority by estoppel or action according to § 50 onwards of the German Commercial Code (HGB) is expressly not sufficient for this. Individual price agreements according to the previous sentence with not-authorized or empowered persons must be confirmed by an authorized or empowered person according to the previous sentence.
3.2 Price information directed exclusively towards industrial customers is to be understood as exclusive of legal VAT in case of doubt.
4. Delivery and service times
4.1 The deadlines and periods mentioned by us are not binding, unless something else was agreed to expressly.
4.2 All delivery promises and deadlines are subject to the correct and timely delivery to our company.
4.3 Delivery and service delays due to force majeure and/or due to events that make delivery/service essentially difficult or impossible for us, e.g. operational disturbances, strikes, material procurement difficulties, official orders etc. entitle us to postpone the delivery by the duration of the hindrance plus a reasonable start-up period, or even to withdraw from the contract fully or partially by reason of the not-yet-fulfilled part. We shall inform the customer about the contingencies, and in case of withdrawal, return all received considerations without any delay.
4.4 Moreover, we shall be deemed to have caused a delay only if the customer sets a grace period of minimum one month in writing. In case of delay, the customer can claim delay compensation of 0.5% for each completed week of delay, maximum however 5% of the value of the invoice for deliveries and services affected by the delay. Any other claims, especially any kind of compensation claims are excluded.
5. Guarantee and maintenance
5.1 The guarantee for new goods is 24 months from the date of risk transfer for consumers and 12 months for companies. For used goods, the guarantee is 12 months for consumers and no guarantee for companies.
5.2 We are obligated to perform repairs or replacement delivery only if the customer has completely fulfilled all his contractual obligations.
5.3 Agreements on a specificquality are only authorized by organs of the company or by persons authorized to exercise these powers in writing, an apparent authority or authority by estoppel or acting on the basis of § 50 onwards of the HGB is not sufficient for this.
5.4 We will be liable according to the legal provisions for intent or gross negligence. In case of minor negligence, we shall be liable only if an essential contractual obligation (cardinal obligation) is violated or there is a case of delay or impossibility. In case of a liability due to minor negligence, the liability will be limited to damages that are foreseeable or typical, maximum however up to the agreed compensation. In case of liability for minor negligence, this liability restriction will also be applicable to an initial inability on our part. Liability for a specific quality, due to fraudulent intent, for physical injury, defect of title, according to the product liability law and the Federal Data Protection Law will remain unaffected.
5.5 In case of damage to machines, power blackouts, strikes, operation or movement disturbances that prevent fulfilment or render fulfilment impossible, we shall not accept any liability for the duration of each liability, provided the disturbance was substantial and unforeseeable.
5.6 All other or further claims of the customer against us – irrespective of the legal basis of the claim or non-contractual claims will not be entertained. This will apply especially to possible consequential damages including all losses suffered by the employer attributable to interruptions in operation or production failure.
5.7 The period of limitation for non-essential contract violations is limited to two years.
5.8 All claims directed against us cannot be ceded without written approval and can be raised only by the customer himself.
6. Retention of title
6.1 We reserve ownership rights on the delivered goods till the full payment is made for the goods, against companies till all our demands and still-to-be-raised demands are paid fully, irrespective of the legal reasons.
6.2 Processing or restructuring will always take place for us, though without any obligation for us. If our co-ownership is dissolved through combination, it is agreed as of now that co-ownership of the customer on the uniform item will be transferred to us proportionally (value of invoice). The customer will retain our co-ownership free of charge. Goods of which we are the co-owners is denoted below as goods subject to retention of title.
6.3 The customer is authorized to process and sell the goods subject to retention of title in proper business transactions, as long as he is not in default. Pledges or assignment of securities are inadmissible. The arising claims resulting from the further sale or another legal argument concerning the goods subject to the retention of title, the customer hereby assigns to us in full extent for the sake of safety. We shall authorise the customer in a revocable manner, to collect the claims assigned to usfor his own account and in his own name. At our request, the customer is obligedto disclose the assignment and present the required information and documents
6.4 In case third parties access goods subject to retention of title, especially in case of seizure, the customer must indicate that the property belongs to us and inform us about such access by third parties immediately. The accruing costs will be borne by the customer.
6.5 If the customer acts contrary to the contract, especially if he delays payment, we are authorized to take back the goods subject to retention of title at the cost of the customer or if necessary, to demand the assignment of restitution claims of the customer to a third party. The withdrawal or seizure of the goods subject to retention of title by us will not be treated as withdrawal from the contract, unless the repayment law is applied.
7.1 Unless something else is agreed upon, our invoices will be due for payment with immediate effect without any deduction.
7.2 We are entitled to settle customer payments against their older dues first, even if there are provisions to the contrary. If there are costs and interests to be paid, the payments will first be used to settle costs, then interests and last the main demand.
7.3 If the customer delays payment, we are authorized to charge interest from the concerned date at the customary rate of interest, minimum however, at the legally valid rate.
7.4 If the customer does not fulfil his payment obligations according to the contract, or if he stops the payments, or if we receive information about other circumstances which put a question mark on the credit-worthiness of the customer, we are authorized to treat the total remaining debt as due, to demand advance payment or security deposits.
7.5 The customer is only authorised to set-off against its own claims, if the counter claims are undisputed or ready for judgement in an already pending court case or have been legally established as final.
8. Property rights and copyright
8.1 The customer must inform us in writing without any delay if he is pointed to a violation of industrial property rights and copyrights by a product delivered by us. We alone are authorized and obliged to defend the customer against claims of the owner and to regulate these claims at our own cost, provided the claims are attributable to direct violation by a product delivered by us. We will in principle make every possible effort to procure to the customer the right to use the product. If this is not possible for appropriate economic conditions, we will either modify the product so that it no longer violates any property rights, or take the product back and refund the cost price after deducting a nominal amount for the already accomplished usage.
8.2 If the customer has modified the product or integrated it into a system, or if we have designed the product according to the instructions of the customer, and this results in the violation of property rights, the customer must defend us against or free us from claims of the owner of the violated rights.
9.1 The export of goods delivered by us to non-EU countries would require our written approval, even if the customer himself is obliged to observe the legal import and export provisions.
10. Place of fulfilment, place of jurisdiction and applicable law
10.1 Esslingen is agreed as the place of jurisdiction for all transactions with customers who are non-consumers according to § 13 of the German Civil Code (BGB).
10.2 The law of the Federal Republic of Germany will be applicable on an exclusive basis. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded expressly.