Delivery and Payment Terms and Conditions
The following terms and conditions shall apply to the exclusion of all other general business terms and conditions regarding commercial relations with companies pursuant to § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law ("Customer"). Agreements which amend or supplement these terms and conditions, side agreements as well as the Customer‘s terms and conditions shall only be effective, if confirmed by us in writing. Commercial agents and sales representatives shall not make or accept any declarations binding on us.
2. Offers, Documents
Our offers are not binding. Technical specifications in brochures, catalogues, printed matter, advertisements, circulars and price lists correspond to the status at the time of printing and are approximations. The documentation comprised by the offer does not constitute a warranty of quality or durability. Such merely serve as an orientation for the Customer and may not be passed on to third parties.
3. Applications (Orders)
Applications are binding for the Customer. We shall only be bound by our written confirmation.
4. Prices and Payment
All prices shall apply ex works Rosenfeld excluding packaging, postage, freight and insurance. We reserve the right to change prices for continuous obligations if individual costs increase, especially due to collective agreements and changes in material or electricity costs. We will proceed in the same way in case of cost reductions. In these cases, the price shall change according to the changed cost factors. If the price changes by more than 5%, either party may withdraw from the contract. Deliveries of goods must be paid to our account within 10 calendar days from the date of invoice with 2% discount, within 30 calendar days net (the credit note is decisive). Agents, sales representatives, consultants and commercial travellers are not authorized to collect payments or to agree on deferments. The Customer is only entitled to offset or withhold payment, even if a notification of defects has been made, if the respective counterclaims have been finally determined by a court or if such are uncontested. Default of payment or circumstances that may reduce the creditworthiness of the Customer result in the immediate maturity of all our claims without consideration of accepted bills of exchange. In these cases, we are also entitled to deliver only against advance payment or provision of security as well as to withdraw from the contract after a reasonable grace period and demand compensation for damages.
5. Surcharges for Small Orders, Excess and Short Deliveries
For small orders, the following processing surcharges apply: Up to EUR 50.00 = EUR 10.00; EUR 50.01 to EUR 100.00 = EUR 7.50. In case of special designs, deviations in quantity of up to 10% shall be permitted for each delivery.
6. Reservation of Title
We reserve the title to the delivered goods ("Reserved Goods") until the purchase price has been paid. In the case of a permanent business relationship, ownership shall not pass to the Customer until all our claims against the Customer arising from the business relationship have been settled. Any processing shall be carried out by the Customer for us. If the Reserved Goods are processed with other items not belonging to the Customer, we shall acquire co-ownership of the new item in the ratio of the value of the Reserved Goods (invoice amount) to the other processed items at the time of processing. If the Reserved Goods are combined or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the Reserved Goods (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the combination or mixing is carried out in a way that one of the Customer's items is to be regarded as the main item, it is agreed that the Customer hereby transfers to us co-ownership of the new item in the ratio of the value of the Reserved Goods (invoice amount) to the other combined or mixed items at the time of combination or mixing. We accept the transfer of ownership. The Customer may sell the Reserved Goods in the ordinary course of business. Any other dispositions are prohibited. The Customer assigns to us in advance the claims to which the Customer will be entitled from the resale of the Reserved Goods, regardless of whether such goods have been further processed, combined, mixed or not, in the invoice amount of the Reserved Goods. The Customer is revocably entitled to collect the assigned claims. Our right to collect the claims remains unaffected. We will not collect the claims ourselves and will not revoke the collection authorization as long as the Customer fulfils its payment obligations and is not in default of payment. For justified reasons, the Customer must notify its debtors of the assignment and provide us with the information and documents required to assert our rights. Without undue delay, the Customer must inform us about any impending or completed third parties access to the Reserved Goods or to the assigned claims. Insofar as the third party is not in a position to reimburse us for any out-of-court or court costs incurred for a lawsuit to protect our property, the Customer shall be liable for the loss we incurred.
7. Delivery Dates, Delay
If we are prevented from rendering our services on time by unforeseeable events or events for which we are not responsible and which are unavoidable despite reasonable care, the performance period shall be extended appropriately. New deadlines shall be agreed upon mutually. The delivery period shall begin with the dispatch of our written order confirmation, but not before receipt of an agreed advance payment, all documents required for the execution of the order have been provided and all technical details have been clarified. The Customer is obliged to fulfil all conditions incumbent upon it for the timely execution of the transactions. The agreed delivery dates shall be deemed to have been met when we have declared our willingness to perform. Compliance with delivery dates and performance deadlines shall be subject to us having received correct and timely deliveries from our suppliers. We shall notify the Customer of any impending delays as soon as possible. In the event of a delay in delivery, the Customer can demand compensation for any damage caused by the delay in addition to the performance. However, prerequisite for the Customer claiming damages caused by delay is a preceding written reminder setting an appropriate grace period. This claim for compensation in addition to performance shall, however, be limited to 0.5% of the net invoice amount of the relevant delivery for each complete week of the delay, however, to a maximum of 5% of the net invoice amount of the relevant delivery, provided that we are not at fault due to intent or gross negligence and there is no injury to life, body or health. The Customer‘s right to withdraw from the contract after expiry of a reasonable grace period and/or to claim damages for non-performance pursuant to Section 11 remains unaffected.
8. Transport, Transfer of Risk
Deliveries shall be "ex works" (EXW INCOTERMS 2010), unless otherwise agreed in writing. All risk shall pass to the Customer at the latest once the goods leave our premises. This also applies if the shipment is carried out by our own means of transportation. If the delivery is delayed due to circumstances outside of our responsible, all risk shall pass to the Customer from the day the goods are ready for shipment. If the Customer does not accept the goods on the delivery date in accordance with the contract, we shall store them for the Customer at its risk and expense if possible. Such storage shall not release the Customer from its payment obligation, which commences on the date of availability.
9. Obligation to Examine and Give Notice of Defects
The Customer shall inspect our goods and other services and submit written notice of defects without delay, however, no later than five working days as of receipt or performance. Defects that could not be detected during a proper inspection shall be notified to us in writing without delay, however, no later than three working days after detection. If complaints or defect notifications are not made on time, delivery and service shall be deemed to have been approved.
The warranty period shall be 24 months. If the goods/services are defective, the Customer shall be entitled to have the defect remedied or a replacement delivered within a reasonable period. We shall be entitled to choose between defect remediation and replacement delivery. If the defect has not been rectified by a second remedy, the Customer may, if the other prerequisites have been met, withdraw from the contract or reduce the purchase price and claim damages pursuant to Section 11. Defect claims shall lapse if the condition of the goods deteriorates due to improper use or storage, improper transportation or incorrect or negligent treatment by the Customer. The same applies if deterioration results from typical change to the nature and function of the goods (e.g. product-typical wear and tear). In case of rectification, we shall be obliged to bear the correspondingly necessary expenses, in particular transportation and material costs, insofar as these have not been increased by the defective goods having been taken to a place other than the Customer’s commercial branch office, unless the change in location corresponds to the agreed use of the goods. Defect rectification includes neither the removal nor corresponding reinstallation of goods if we have not originally been obliged to do so. In case the goods/services have not been defective, we shall be entitled to reimbursement from the Customer for any costs incurred because of the unjustified request for defect rectification (in particular testing and transportation costs), unless missing defectiveness was not recognizable for the buyer.
We shall be liable without limitation in the event of a culpable injury to life, body or health. We shall also be liable for intent and gross negligence. As far as we are not at fault for intent and no culpable injury to life, body or health occurred, our liability shall be limited to the contract-typical, foreseeable damage. Furthermore, we are liable for culpable violation of such obligations, the fulfilment of which is essential for the execution of the contract and on the fulfilment of which the Customer regularly relies and may rely. However, insofar as we are not at fault for intent and no culpable injury to life, limb or health occurred, our liability is limited to contract-typical, foreseeable damages. We shall also be liable in the event of fraudulent concealment of a defect or if a guarantee is assumed. In case of the latter, the scope of liability is determined by the guarantee declaration. We are also liable in cases of mandatory statutory liability, for example under the German Product Liability Act. In all other cases, our liability - regardless of the legal basis – shall be excluded, unless otherwise stipulated in these terms and conditions. Insofar as our liability is excluded or limited in accordance with the above provisions, this shall also apply to the personal liability of our executive bodies, legal representatives, employees, staff and vicarious agents.
12. Validity Clause
In case individual provisions within these terms and conditions are or become invalid, the remaining provisions shall remain effective.
13. Place of Performance, Place of Jurisdiction, Applicable Law
The place of performance shall be at our registered office. The place of exclusive jurisdiction shall be Balingen, Germany. However, we shall be entitled to sue the Customer at his general place of jurisdiction. The law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Blickle Räder+Rollen GmbH u. Co. KG