General Delivery and Payment Terms of
Breitfeld und Schliekert GmbH (B2B)
§ 1 Scope of Application, Deviating Terms, Future Transactions, Individually Negotiated Terms
1. These general delivery and payment terms (hereinafter “GTC”) apply to all contracts concluded by us and the buyer, including our offers and confirmations of acceptance (order confirmations) and any side agreements and repair services, if the buyer is an entrepreneur and enters into the contract in exercise of the buyer’s trade, business or profession within the meaning of Sec. 14 German Civil Code (Bürgerliches Gesetzbuch, hereinafter “BGB”).
2. The GTC apply exclusively. Any buyer terms conflicting with or deviating from these GTC will not be accepted, unless they have been specifically approved by us.
3. In ongoing business relationships, the GTC also apply to all future transactions.
4. Any individually negotiated agreements with the buyer as well as any terms in our offers and order confirmations deviating from these GTC shall take precedence over these GTC.
§ 2 Conclusion of Contract, Product Information, Drafts, Samples etc., Verbal Agreements, Cost Estimate
1. Unless expressly referred to or agreed as binding, our offers always remain subject to change and do not obligate us to accept any order. A valid contract will come into effect upon our confirmation of the order in writing, but at the latest upon the buyer’s acceptance of the delivery.
2. All offer-related materials, such as images, drawings, information about weights and dimensions, are as accurate as possible. They should be treated as approximate only and, in particular, not as quality specifications, unless stated or agreed otherwise.
3. We reserve the title and copyrights to all drafts, samples, models and similar; they may not be made available to any third party. Nor may they be copied or otherwise used for replication purposes, whether or not they are protected by industrial property rights. Any breach of this clause will render the buyer liable for damages.
4. Any verbal agreements with our sales representatives are subject to our written consent.
5. If no order is placed, cost estimates will be charged with a handling fee.
§ 3 Additional special terms for contracts concluded in the online shop
1. The languages available for the conclusion of a contract are German and English.
2. The presentation and advertising of products in our online shop shall not constitute a binding offer of B&S for the conclusion of a contract of sale, but merely an invitation for the buyer to submit an offer.
3. To place an order in our online shop, the buyer must enter the requested number of the products to be ordered in the field “shopping cart” and add the products to the buyer’s shopping cart by clicking on the shopping cart symbol. To submit an order, the buyer must go to the shopping cart where the button “place order” is provided. By clicking on the “place order” button the buyer places a legally binding order (offer within the meaning of Sec. 145 BGB).
4. The buyer may correct any mistakes in the shopping cart, either by deleting the complete content of the shopping cart by clicking on the button “empty shopping cart” or by changing the number of products in the field “products in shopping cart” and updating the shopping cart by clicking on the update button provided, or by deleting a product entirely from the shopping cart by clicking on the button provided for this purpose, before activating the button “place order”.
5. We will confirm the receipt of any order placed in our online shop by email without delay. The email confirmation merely serves as information for the buyer but is not a binding acceptance of the order by B&S, unless the email confirmation, by way of exception, not only confirms that the order has been received but also expressly states that the order has been accepted.
6. A valid contract will come into effect only upon our acceptance of the order placed in the online shop by way of an acceptance confirmation or delivery of the goods ordered.
§ 4 Prices, Payment Terms, Deterioration of Financial Capacity
1. The prices are governed by our price list as applicable on the day of order.
2. Unless stated or agreed otherwise, all prices are in EURO, ex warehouse Karben, plus shipping, packaging and insurance costs. Our prices are net prices which are subject to the applicable value-added tax.
3. Unless otherwise stated or agreed, payments must be credited to our bank account within 14 days after invoicing and delivery, without any deductions. Cheques will be accepted on account of performance. Any cost incurred by cheque deposits will be borne by the buyer.
4. Reduced prices are only valid for orders within the applicable promotion period and may not be combined with other discounts and/or price reductions.
§ 5 Delivery, Force Majeure, Delivery by Instalments
1. All delivery dates and times are without commitment, unless stated or agreed otherwise.
2. In any event of force majeure or other unforeseen circumstances, such as disruption of business operations, lawful strike or employee lockout etc., which temporarily prevent us, through no fault of our own or attributable to us, from delivering the goods by the date or within the time agreed, these delivery dates/times will be postponed and extended by the duration of the interference caused by such circumstances. If performance is delayed by more than four months as a result of such interference, both parties may withdraw from the contract. Nothing in this shall prejudice any statutory rights of withdrawal as may exist.
3. We may render delivery by instalments, where reasonably acceptable for the buyer.
4.Shipments and services (the fulfilment of contract) shall be under the proviso that fulfilment is not being restricted by any national or international regulations, particularly export control regulations and embargoes or any other restrictions. The contract partners shall obligate themselves to provide all information and documentation needed for the export/ domestic shipment/ import. Delays caused by export checks or licensing procedures shall override any lead times or deadlines stipulated. If any required licenses for certain items cannot be obtained, the contract shall be considered as not concluded regarding the items in question; because of this and of above mentioned transgression of deadlines, any claims for damages shall be excluded.
§ 6 Shipment, Insurance, Passage of Risk
1. If the goods are shipped, the packaging will be billed at cost. Absent any special agreement, we will choose the shipping method and the means of transport. At the buyer’s request, the deliverables will be insured at the buyer’s expense.
2. Unless agreed otherwise, delivery will be at the buyer’s risk. The risk shall pass to the buyer as soon as the goods have been consigned to the forwarding agent, including in the event that delivery carriage paid has been agreed. If shipping is delayed for reasons outside our control or if the buyer fails to timely accept the goods although they were offered to the buyer, the risk will pass to the buyer upon notice that the goods are ready for shipping.
3. ADEME unique ID FR208938_01JTKL - Registration with Citeo for packaging
§ 7 Reservation of Title
1. The goods delivered remain our property until all our claims under the contract and all other claims we may subsequently acquire, on any legal ground whatsoever, against the buyer in direct connection with the goods delivered have been settled in full. Furthermore, the goods remain our property, as goods subject to reservation of title (hereinafter “Reserved Goods”), until all other claims (including all unsettled balances from current account) which we now acquire or will acquire against the buyer, on any legal ground whatsoever, have been settled. In the event of a current account, the Reserved Goods serve to secure our unsettled balances.
2. Any processing or transformation of the Reserved Goods in the ordinary course of business will be undertaken on our behalf such that we are deemed the manufacturer within the meaning of Sec. 950 BGB, without imposing any obligation on us. Processed goods are Reserved Goods as defined in this § 7. If our goods are processed, combined or mixed by the buyer with other goods not owned by us, we will be entitled to joint ownership of the new product at the proportion of the value of the Reserved Goods relative to the value of the other goods, at the time of processing, combining or mixing. If the buyer acquires sole ownership of the new product, we are in agreement with the buyer that the buyer will grant us joint ownership of the new product at the proportion of the value of the processed, combined or mixed Reserved Goods relative to the value of the new product, and will keep the new product safe for us at no charge.
3. The buyer has the right to process and resell the Reserved Goods in the ordinary course of business, unless the buyer is late with payment or has suspended payment not only temporarily. As long as we remain the proprietor of the Reversed Goods, we may revoke the right of processing and of resale on justified grounds. The buyer herewith assigns to us by way of security and in full, and we herewith accept the assignment of, all claims (including all claims from current account) accruing to the buyer from the resale of the Reserved Goods or on any other legal ground (insurance, tortious act) relating to the Reserved Goods.
4. We authorise the buyer to collect the claims assigned to us until such right is revoked. We may revoke the right to collect such claims on justified grounds. We are authorised to directly collect the amounts due, but we agree not to collect the amounts due as long as the buyer meets its payment obligations.
5. If the buyer fails to meet its payment obligations and we therefore are authorised to directly collect the claims, the buyer shall submit to us upon our request a list indicating all goods under reservation of title, the assigned claims, the debtors’ names and addresses, and the amount of each claim. If so requested by us the buyer is obliged, and we have the right, to notify the debtors of the assignment.
6. The buyer shall effect and maintain adequate insurance cover for the Reserved Goods against theft, burglary, water and fire damage. The buyer herewith assigns to us, and we accept the assignment of, all claims relating to our property or co-owned property that the buyer will be entitled to against its insurance company in the event of any insurance claim. After the expiration of a deadline set by us for the buyer, we may insure the Reserved Goods against theft, breakage, fire, water and other damage.
7. The buyer shall handle the Reserved Goods with care and maintain them in good condition, and report any loss, destruction or damage to us without delay. The buyer will mark the Reserved Goods as our property.
8. While the reservation of title remains in effect, any pledging, assignment for security purposes, letting or other transfer or change of the Reserved Goods that adversely affects our security interests, shall be subject to our prior written consent. In the event of any third-party intervention, such as compulsory enforcement, the buyer must inform us without delay and provide us with all documents required to safeguard our rights, and notify the third party of our reservation of title. The buyer shall bear all necessary costs incurred by the reversal of the third-party intervention in our property and its recovery, except costs that may be collected from a third party.
9. If the buyer is late with payment or otherwise fails to meet its obligations under the reservation of title, we may demand the buyer to release the purchased goods. Our taking back of the Reserved Goods shall not constitute a withdrawal from the contract.
10. At the buyer’s request and in our discretion, we must waive the reservation of title or release security collateral once the buyer has fulfilled all claims relating to the Goods or if the realisable value of all security collateral provided to us by way of reservation of title, assignment for security purposes and advance assignment exceeds the total sum of claims against the buyer by more than 10 %.
§ 8 Warranty, Non-Conformity Report
1. To the exception of claims for damages based on lack of conformity, warranty rights become time-barred 12 months after delivery of the goods to the buyer. Nothing in this shall prejudice the rights deriving from Sec. 478, 479 BGB.
2. The buyer shall inspect the goods promptly upon delivery and report any obvious lack of conformity in writing without delay but at the latest 14 days after receipt of the goods. Any hidden lack of conformity also must be reported in writing without delay but at the latest one week after its discovery. If no such report is made the delivery will be deemed in conformity with the contract and accepted.
3. Any lack of conformity reported by the buyer in a timely manner as set out in § 8(2) of these GTC will entitle the buyer to have the non-conformity remedied at no charge or to be supplied with a product free of any non-conformity (cure), at our discretion.
4. The warranty does not extend to any lack of conformity caused by (a) damage, improper connection or improper operation by the buyer, (b) the installation of third-party products or materials unless recommended by us, (c) excessive stress by use contrary to the instructions for use, (d) uncommon contamination that is unforeseeable when the goods are used as intended and, in particular, are cleaned and serviced in compliance with the instructions for use, and/or (e) uncommon mechanical, chemical or other outside influence that is unforeseeable when the goods are used as intended.
5. The buyer may claim damages for lack of conformity except where our liability has been disclaimed or limited under § 9 of these GTC. Any rights or remedies based on non-conformity further or other than those provided in this § 8 shall be excluded.
6. Nothing in this § 8 shall be deemed to prejudice the buyer’s rights based on any lack of conformity which we have fraudulently concealed or which is covered by a guarantee of quality or durability.
§ 9 Liability, Time Bar
1. We accept unlimited liability for any loss or damage caused by intent and by gross negligence. In the event of a breach by ordinary negligence of a material obligation or of a secondary obligation whose breach will put the achievement of the contractual purpose at risk, or whose fulfilment is essential for the due and proper implementation of the contract, and on whose fulfilment the buyer could reasonably rely (hereinafter “material secondary obligation”), our liability shall be limited to losses characteristic for and foreseeable at the time of conclusion of the contract.
2. We accept no liability for any breach by ordinary negligence of secondary contractual obligations which are not material secondary obligations.
3. The above liability disclaimers and limitations shall not extend to any fraudulent concealment of non-conformity or any guarantee as to quality as may have been issued, to claims of the buyer under the German Product Liability Act, and to injuries to the body or health or loss of life of the buyer. This shall not involve any reversal of the burden of proof to the buyer’s disadvantage.
4. Where our liability has been limited or excluded, this applies equally to the personal liability of our representatives, employees and vicarious agents engaged in the discharge of our duties.
5. To the exception of claims based on tort, the buyer’s claims for damages for which our liability is limited under this § 9 become time-barred one year from the beginning of the statutory limitation period.
§ 10 Voluntary Acceptance of Returns, Repairs, and Cost Estimates
1. After the warranty period according to section 8 of these terms and conditions has expired, if the buyer orders us to repair the item and we accept the order, the buyer has the choice between (a) a repair performed on his premises and (b) a repair following delivery of the item to us.
(a) If we repair the item on-site at the buyer’s premises, the buyer shall be obligated to sign an activity report and, once the repair is completed, to declare in writing that the buyer accepts the repairs as performed by signing an inspection report.
(b) If the buyer returns the item to us, we will prepare an estimate of the cost of the repair. If the buyer orders the repair on the basis of our estimate, the item will first be repaired on our premises and then delivered to the buyer with a corresponding certificate of functionality. Upon receipt, the buyer is required to sign an inspection report in accordance with subparagraph (a) above.
2. If the buyer returns an item that is not defective as outlined under section 8, the buyer shall be responsible for the risk and expense until the item is received by our warehouse. We must be notified of all returns in advance. Receipt of the item does not constitute an acknowledgement of an obligation to accept return of the same. Items being returned must be shipped in their original packaging.
3. If we accept the return of the items, we are entitled to charge a 30% handling fee for inspection, relabeling, and restocking from the amount refunded. Items that were made to order in deviation from their normal design or that were later altered or those that are no longer factory new are excluded from being returned. If repairs are made, the buyer shall cover the cost of the hours invested in performing the repair as well as the expenses incurred for delivery and transport as a result of the exchange or repair.
4. We will charge a processing fee for estimates that do not lead to performance of repairs.
5. With the exception of claims for damages due to defects, repair work shall be covered by a warranty for defects for 12 months from the date the inspection report is signed. The provisions of section 8 of these terms and conditions apply mutatis mutandis.
6. Our warranty obligations pursuant to section 8 of these general terms and conditions remain unaffected by the provisions of this section 10.
§ 11 Place of Fulfilment, Forum, Governing Law, Severability
1. The place of fulfilment of all obligations arising out of contracts between us and the buyer shall be at our registered office in Karben, unless otherwise agreed.
2. The courts at Frankfurt am Main shall have jurisdiction for all disputes arising out of the contractual relationship, if the buyer is a trader or has no general forum in Germany. We have the right, however, to bring legal proceedings against the buyer before any other court having legal jurisdiction. Nothing in this shall prejudice the validity of any statutory provisions on exclusive jurisdiction.
3. The contractual relationship between us and the buyer shall be governed exclusively by the laws of Germany, to the exclusion of the UN Convention on contracts for the international sale of goods (CISG).
4. If any provision of these GTC or of the agreements made is or becomes invalid, nothing in this shall prejudice the validity of the remaining provisions.
Karben, October 2020
Breitfeld & Schliekert GmbH – A Hilco Vision Company
Max-Planck-Straße 30 · D-61184 Karben · Tel. +49 (0) 6039 993 – 0 · Fax. +49 (0) 6039 993 – 37 · www.b-s.de · firstname.lastname@example.org
Geschäftsführer: Frank Thiel · Handelsregister Amtsgericht/Trade Register district court Frankfurt am Main · Nr./No.72028
USt-IdNr./Vat No. DE 165603217 · WEEE-Reg.-Nr./No. DE 64518127