§ 1 General, Area of Application
1) Our terms and conditions of delivery shall apply exclusively; we do not recognize any contrary conditions or conditions deviating from our terms and conditions of delivery, unless we have expressly approved of their validity in writing. Our terms and conditions of delivery shall also apply if we, knowing of contrary conditions or conditions of the contractual partner deviating from our terms and conditions of delivery, carry out the delivery without reservation.
2) Our terms and conditions of delivery shall only apply to companies as defined by § 310 Para. 1 BGB (German Civil Code).
3) Our terms and conditions of delivery shall also apply to all future business with our contractual partner.
4) All data provided by BSW, including but not limited to customs data, are to be handled confidentially.
§ 2 Prices, Payment of Service
1) Provided that nothing to the contrary is indicated on the order confirmation, our prices shall apply ex works, excluding packing. This will be invoiced for separately.
2) The statutory value added tax is not included in our prices; it is separately indicated on the invoice in the statutory amount on the day the invoice is raised.
3) The deduction of discount shall require written agreement. Freight and other proven incidental costs are not deductible.
4) Provided that nothing to the contrary is indicated on the order confirmation, payment for our service shall be due net (without any deduction) within 30 days from the date of the invoice.
5) The statutory provisions governing the onset of default and the legal consequences of delayed payment shall apply.
6) Our contractual partner shall only be entitled to rights of set-off if his counterclaims are legally established, uncontested or acknowledged by us. He shall not be entitled to any right of retention as a result of contested counterclaims.
7) For small purchase orders of up to EUR 500,00 net, we shall charge an extra flat rate of EUR 125,00 per order. For purchase orders valued from EUR 501,00 to EUR 1.000,00 net we shall charge an extra flat rate of EUR 80,00 per order.
§ 3 Delivery Schedule, Transfer of Risk
1) Our obligation to perform the contract at the time of delivery specified by us shall only arise once all technical questions have been clarified. The obligation assumes that our contractual partner himself meets his contractual obligations properly and promptly.
2) We reserve the right to withdraw from the contract in the event of defective or unpunctual delivery by our subcontractors. This shall only apply to the eventuality that non-delivery is beyond our control, especially upon conclusion of a suitable covering operation with our subcontractor. In this instance we shall inform our contractual partner immediately about the non-availability of our service and grant him immediately counterperformance.
3) Should our contractual partner be in default in taking delivery or should he be in breach of any other reciprocal duties, we shall be entitled to demand compensation for the loss we have incurred, including any additional expenditure. Any further claims shall be reserved. In these instances, the risk of an accidental loss or accidental deterioration in our service shall be transferred to the contractual partner at the point in time in which he defaults in taking delivery.
4) Provided that nothing to the contrary is indicated on the order confirmation, delivery shall be agreed as being “ex works” and the place of performance our registered office.
§ 4 Liability for Defect
1) With deficiencies in service our contractual partner shall be initially entitled to subsequent performance, as we so choose, either by remedy of the defect or by supply or manufacture of a non-defective item. In the event of subsequent performance, we shall be obliged to bear the costs of all expenditure required for this purpose, in particular transport, route, labour and material costs, insofar as these do not increase as a result of the items supplied being conveyed to a site other than the place of performance.
2) lt subsequent performance should come to nothing, our contractual partner may, as he so chooses, either demand a cut in payment (reduction) or annulment of the contract (rescission). Our contractual partner shall not have the right to rescind the contract, however, in the event of only slight non-conformity with the contract, especially with only minor defect or if construction work is the object of the express warranty.
3) Our contractual partner may only assert a contractual warranty claim if he has properly discharged his duty to examine and make a complaint in respect of a defect in accordance with § 377 HGB (Commercial Code). The notification of defect should be made to us in writing. With obvious defects the determining period pursuant to § 377 HGB shall end no later than 2 weeks after receipt of our service. The contractual partner must bear the full burden of proof for all conditions of a claim, in particular for the defect itself, for the time the defect was detected and for the punctuality of the notification of defect.
4) Should, because of a defect, our contractual partner choose to rescind the contract after subsequent performance has failed, he shall not be entitled to make any additional claim for damages. Should our contractual partner choose to claim for damages after subsequent performance has failed, the goods supplied shall remain with him if this is feasible. The compensation shall be limited to the difference between the payment and the value of the defective item. This shall not apply it we have caused the breach of contract with intention to deceive.
5) The limitation period for warranty claims for deliveries on our part, shall be one year from delivery of the goods. With work performance as defined by § 634 a Para. 1 Subpara. 1 BGB (German Civil Code) the limitation period shall be one year and with work performance as defined by § 634 a Para. 1 Subpara. 2 BGB five years, commencing in each instance with acceptance of the work, provided that another provision is not affected by the introduction of VOB/B (Contracting Rules for the Award of Public Works Contracts, Part B).
§ 5 Limitation of Liability
1) We shall only be liable for damages and compensation for pain and suffering where this is due to negligence.
2) With slightly negligent violations of duty, our liability shall be limited to the immediate average damage that is contractually typical and foreseeable from the nature of the goods. With slightly negligent violation of contractual obligations of no consequence, we shall not be liable.
3) The foregoing limitations on liability shall not apply to claims based on product liability or an injury to life, body or health attributable to us.
4) Claims for damage from our customers due to a defect shall be subject to a limitation period of one year from delivery of the goods. This shall not apply if we can be accused of gross negligence, or in the event of an injury to life, body or health attributable to us.
5) Any further liability for damages and compensation for pain and suffering than the liability for defect provided for in § 4 shall be out of the question, irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages due to negligence upon conclusion of the contract, due to other derelictions of duty or due to tortuous claims for compensation for material loss in accordance with § 823 BGB.
6) The provisions appertaining to our negligence shall also apply to the benefit of our vicarious agents and legal representatives, especially our staff.
§ 6 Retention of Title
1) We shall retain title to the object of sale until all payments arising from the business connection with our contractual partner have been received. Should our contractual partner behave in a manner not in conformity with the contract, especially if he defaults on payment, we shall be entitled to rescind the contract.
2) The contractual partner shall be obliged to treat the object of sale with care. In particular, he must undertake to sufficiently insure the same, at his own expense, against damage due to fire, water and theft for the value when new. Inasmuch as servicing and maintenance work should be necessary, the contractual partner must carry this out in good time at his own expense.
3) With attachment or other interventions by third parties, the contractual partner must notify us immediately so that we can institute legal proceedings in accordance with § 771 ZPO (Code ot Civil Procedure). Insofar as the third party is not in the position to reimburse us the court and out-of-court costs of an action in accordance with § 771 ZPO, the contractual part-ner shall be liable for the loss we incur.
4) Our contractual partner shall be entitled to resell or otherwise dispose of the object of sale in the ordinary course of business; he shall, however, assign to us as of now all claims to the amount of the final invoiced sum including value added tax that have accrued to him against his customers or third parties from the resale, and shall do so regardless of whether the object of sale has been resold without or subsequent to processing. The contractual partner shall be authorized to recover the debt even after its assignment. Our authority to recover the debt ourselves shall remain unaffected hereby. We shall undertake, however, not to recover the debt as long as the contractual partner fulfils his payment obligations from the collected returns, is not in arrears and, especially, has made no application to initiate insolvency proceedings or suspension of payments is in force. Should this, however, be the case, we may demand that the contractual partner discloses to us the assigned claims and associated debtors, provides all the necessary details for recovery, hands over the related documents and informs the debtor (third party) of the assignment.
5) The processing or transformation of the object of sale by our contractual partner shall always be carried out on our behalf. Should the object of sale be processed using other objects not belonging to us, we shall acquire the co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of the processing. The same shall also apply to the object created by processing as to the object of sale supplied with reservation.
6) Should the object of sale be mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other mixed objects at the time of the mixing. Should the mixing occur in such a way that the object of our contractual partner is to be regarded as the main object, it shall be deemed agreed that the contractual partner assigns to us co-ownership on a pro rata basis. Our contractual partner shall hold in safe custody on our behalf the solely held or jointly held property thus created.
7) The contractual partner shall also assign to secure our claims against him the claim that has accrued against third parties by combining the object of sale with a plot of land.
8) We shall undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims being secured by more than 10 %; the choice of the securities released shall be incumbent on us.
§ 7 Treatment of Residual Quantities and Packing Materials, Transport Insurance
1) In accordance with the provisions of DIN 14.001 (EG Environmental Audit Regulation 1836/93), we request that our customers dispose of all remaining quantities and packing materials in a proper manner.
2) Should we be obliged to take back packaging of the objects we have supplied on the basis of statutory provisions and should the contractual partner require that we take back packaging, he must give notice of the return in writing within a period of 7 days and make the packaging available to us in our supply depot freed of all residue, bearing the cost of transportation.
3) We do not require a forwarding and storage agent‘s insurance certiticate (SLVS).
§ 8 Choice of Law, Place of Jurisdiction, Substitute Legal Validity
1) All obligations arising from this contract and its initiation shall be subject to German law. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
2) The place of jurisdiction shall be Bad Berleburg. We shall be entitled, however, to also bring an action against our contractual partner at his local court.
3) Court and out-of-court costs of the litigations abroad, in particular in the event of default in payment, shall be borne by our contractual partner.
4) Should individual provisions of the contract with our partner including these terms and conditions of delivery be or become ineffective, either wholly or in part, the validity of the remaining provisions shall not be affected thereby. The wholly or partially ineffective provision shall be replaced by a provision the commercial outcome of which approximates as far as possible to the ineffective provision.