Business and delivery conditions of stud welding technology bsk + BTV GmbH
(Valid from 01.01.2005)
- 1 Scope
The following General Terms and Conditions of Business shall apply exclusively – even if no reference is made to them in individual cases – to all our offers, deliveries, services, work performances and rentals, and in particular also to future transactions. They supplement our special contracts, such as rental contracts, as long as nothing to the contrary is agreed in these special contracts. Deviating agreements require our written confirmation to become effective. The cancellation of the aforementioned written form clause can only be made in writing. Deviating conditions of the customer shall not apply even if we do not expressly object to them in individual cases.
- 2 Offers and conclusion of contract
(1) Our offers and cost estimates are always non-binding and subject to change. Our written order confirmation is decisive for the conclusion of the contract. Dimensions, weights, illustrations and drawings or other information are only binding for the execution if this is expressly confirmed in writing. The technical data of our own products and those in our commercial program are subject to change.
(2) Our order confirmation alone shall be authoritative for the scope of the order. Subsequent supplements, amendments or other ancillary agreements require our written confirmation to be effective.
(3) Unless expressly stated otherwise by us, the provisions of DIN 267, medium version, shall be deemed to have been agreed for the weld studs and pins with regard to surface finish, dimensional accuracy, etc.
- 3 Prices
(1) The agreed prices are net prices in Euro without packaging, freight and insurance. Value added tax at the respective statutory rate is added to the prices.
(2) The numbers of items, quantities and weights determined by us shall be decisive for the calculation if the recipient does not immediately object.
(3) If order-related costs change significantly after conclusion of the contract, the contracting parties shall be obliged to agree on an adjustment of the prices. A change is material if the charges change by more than 20% in each case. If an agreement fails, we are entitled to withdraw from the contract within two weeks after the failure of the negotiation.
- 4 Terms of payment
(1) The invoice amount shall be due for payment strictly net upon delivery. The granting of rebates and discounts requires a separate written agreement. Payments are to be made free to our paying agent. Payments to one of our business accounts are equivalent to cash payments as soon as we can dispose of the credit balance. Bills of exchange or checks shall only be accepted on account of payment and to the exclusion of any liability for timely or proper presentation and protest. All expenses and other costs incurred shall be borne by the customer. Bills of exchange and checks shall not be considered as payment until they have been cashed.
(2) If the customer is in default of payment, we shall be entitled to charge default interest in the amount of 8% above the base interest rate without separate proof. However, the customer is entitled to prove that we have not incurred any damage or that our damage is significantly lower than the lump sum.
(3) In the case of payment by installments, the entire remaining amount shall become due immediately if the Purchaser is in arrears with 2 installments in whole or with respect to a not insignificant part or if the Purchaser is in arrears with an amount equal to one installment in a period extending over more than 2 installment dates.
(4) Offsetting shall only be permitted with undisputed or legally established claims. A right of retention of the purchaser is excluded, unless it is based on the same contractual relationship.
(5) We shall be entitled to demand partial payments for services rendered.
§ 5 Delivery
(1) We deliver ex our factory or distribution warehouse, unless expressly agreed otherwise.
(2) Stated delivery dates are only non-binding guidelines unless they are expressly designated as binding.
(3) The delivery period shall commence with the dispatch of the order confirmation, but not before the provision of the documents, approvals, releases to be procured by the Purchaser and before receipt of an agreed down payment.
(4) The delivery period shall be deemed to have been complied with if, by the time of its expiry, the object of the order has been dispatched or the Purchaser has been notified of its readiness for dispatch.
(5) Unforeseen events beyond our control (e.g. operational disruptions, strike, lockout at our company, at one of our suppliers or at a transport company) shall extend the delivery period accordingly. The same applies in the event of subsequent changes to the order.
(6) Correct and timely self-delivery remains reserved. We are entitled to early deliveries and partial deliveries as well as to partial invoicing. Furthermore, we shall be entitled to modify or deviate from the agreed subject matter of the order if such modification or deviation is reasonable for the customer.
(7) In the event of a delay in delivery, the Purchaser may, after having set us a reasonable deadline for performance, withdraw from the contract with respect to the part not yet performed. The customer may only withdraw from the entire contract if he has no interest in the partial performance.
(8) If delivery is delayed at the request of the Purchaser or if the Purchaser is in default of acceptance, the costs incurred by the storage shall be charged to the Purchaser as of the calendar month following the notification of the provision of the ordered items. However, we shall be entitled to dispose otherwise of the subject matter of the order after expiry of a reasonable period of time and to supply the customer again with a reasonably extended delivery period.
(9) We shall not be in default if the Customer is in arrears with the provision of information required for the performance of the contract.
- 6 Transfer of risk
(1) The risk shall pass to the customer when the order items leave our factory or warehouse, regardless of whether they are transported by our own or third-party means of transport.
(2) If delivery is delayed due to a circumstance for which the Purchaser is responsible, the risk shall pass to the Purchaser upon notification of the provision of the ordered items. This shall also apply if partial deliveries are made or if we have assumed other services, e.g. shipping costs, delivery or installation.
(3) Unless specifically requested by the Purchaser, a delivery shall not be insured against breakage and transport damage, fire, theft or the like. If the purchaser requests the conclusion of an insurance policy, this shall be concluded at the purchaser’s expense.
- 7 Retention of title
(1) We reserve title to all items ordered until full payment of all current and future claims arising from the business relationship with the Customer. This shall apply irrespective of the legal basis and the time of origin of the claims, i.e. in particular also for claims arising from bills of exchange, checks, instructions or the balance to be settled by the customer from an existing current account relationship.
(2) The Customer may neither pledge nor assign by way of security an object of the order which is subject to retention of title. In the event of seizure, confiscation or other dispositions by third parties, he must notify us immediately. He may only resell objects of the order subject to retention of title in the ordinary course of business, provided that the claim from the resale is transferred to us. In the event of resale, the customer hereby assigns to us his claims arising from the resale of objects of the order, including the corresponding claims arising from bills of exchange or checks, together with all ancillary rights. In the event that an object of the order is sold together with other goods not belonging to us for a total price, the assignment shall only be made to the amount that we have charged the customer for the object of the order sold together with it, including value added tax. A special declaration of assignment for the individual case of sale is not required.
(3) The Purchaser shall collect the claims from the resale in trust as long as we agree thereto. At our request, he shall inform his purchasers of the assignment, simultaneously notifying us.
(4) In the event of processing, combination or mixing of an object of the order with other items not belonging to us, the Purchaser hereby assigns to us a co-ownership share in the new item in the amount of the sales price charged to the Purchaser including value added tax. The customer shall store the new item for us free of charge.
(5) If the value of the securities given to us exceeds our claims by more than 20% in total, we shall be obliged to release securities of our choice to this extent at the request of the customer.
(6) In the event of a breach of duty by the customer, in particular in the event of default in payment, we shall be entitled to take back the object of the order after withdrawal from the contract and the customer shall be obliged to surrender it. In this case, the customer shall reimburse the costs of taking back the goods. For the use of delivered and returned items, we shall be entitled to an amount as compensation for use and to compensate for any reduction in value that has occurred that corresponds to the standard market rental price for the period of use. However, the customer is entitled to prove that we have not incurred any damage or that our damage is significantly lower than the lump sum.
- 8 Lien
To secure our claims, we shall be entitled to a contractual lien on the subject matter of the order that has come into our possession.
The contractual lien may also be asserted on account of claims arising from orders previously executed or other services previously rendered, insofar as these are related to the subject matter of the order. We shall only be entitled to a contractual lien for further claims arising from the business relationship insofar as these claims are undisputed or a legally binding title exists and the object of the order belongs to the customer.
- 9 Warranty / Guarantee
(1) The warranty period shall be one year and shall commence with the delivery of the objects of the order. Warranty claims are excluded for used items unless we have given a guarantee.
(2) Obvious defects in the item itself or in the assembly instructions, if any, incorrect deliveries and deviations in quantity must be claimed in writing immediately after the defect is discovered, but no later than 7 working days after receipt of the order items.
(3) Within the scope of our warranty obligation, we shall, at our discretion, remedy defects in the subject matter of the order or replace the subject matter of the order. Replaced parts become our property. We shall not bear the additional costs of rectification of defects or replacement delivery which have arisen due to the fact that the customer has taken the object of the order to a place other than the original place of delivery after delivery.
(4) Should the rectification of defects or replacement delivery – which may have to be repeated at least twice – finally fail, the Purchaser may, at its option, demand a reduction of the remuneration or withdraw from the contract if the defect is substantial. Any further claims of the Purchaser shall be governed by § 10.
(5) If a notice of defect proves to be unfounded, the customer shall bear the costs incurred by our recourse in accordance with the rates generally charged by us at that time.
(6) Guarantees regarding of the condition of the subject matter of the order shall only be effective if we issue a written guarantee declaration.
- 10 Liability
(1) Liability for personal injury shall be governed by the statutory provisions.
(2) Other claims for damages or claims for reimbursement of futile expenses of the Purchaser based on a breach of our contractual or statutory obligations are excluded. In particular, we shall not be liable for loss of profit, loss of savings, any other
pecuniary loss or for damage caused to the object of the order itself.
(3) The aforementioned exclusion of liability shall not apply if the damage has been caused by us or by our vicarious agents intentionally or through gross negligence or if we have assumed a guarantee for a certain quality of the object of the order. If we violate essential contractual obligations, we shall also be liable for simple negligence, unless the damage is atypical for the contract and not foreseeable.
(4) If we have caused damage only through simple negligence, the liability for property damage shall be limited to EUR 1,500,000 per claim and
EUR 3,000,000 per calendar year in total, the liability for financial losses is limited to EUR 50,000 per claim and EUR 100,000 per calendar year in total.
(5) The Customer’s right to withdraw from the contract shall not be limited by the above provisions. The same applies to liability under the Product Liability Act.
- 11 Ineffectiveness of individual provisions
The invalidity of individual provisions of these terms and conditions shall not affect the validity of the remaining provisions.
- 12 Choice of Law, Place of Performance and Jurisdiction
(1) German law shall apply to all legal relationships existing with us. German law shall also be applicable for the application of these General
Terms and conditions shall prevail.
The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG – “Vienna Sales Convention”) is excluded.
(2) In business transactions with merchants, legal entities under public law and special funds under public law, 51103 Cologne shall be the place of performance and jurisdiction for both parties. This shall apply to all present and future claims arising from the business relationship, in particular also to actions in proceedings relating to bills of exchange and deeds. We are also entitled, at our discretion, to bring an action at the headquarters of the customer.