General Bussiness Terms - Products
- Scope of application
The following terms and conditions apply to all contracts, deliveries and other services of:
Differing rules of the party to the contract hereby expressly. All special agreements require written confirmation from us. BORMATEC has the right to change these terms and conditions including all possible arrangements with reasonable notice or supplement. Detailed orders will be processed according to the still valid old general terms and conditions.
Our offers are non-binding. Small deviations and technical changes to our illustrations or descriptions are possible. The current catalog is invalid with the publication of a new edition.
- Conclusion of contract
- If the customer makes an offer for conclusion of a contract with us, the contract is only deemed consummated upon receipt of our acknowledgement of the order in writing or, in default of such order acknowledgement, upon receipt of our invoice at the latest or upon delivery to the customer if such delivery takes place earlier. Our order acknowledgement resp. invoice is solely decisive and binding as regards the scope and contents of the contract.
- The customer is bound to his offer for a period of 4 weeks from receipt of the offer by us.
- IWhere the customer places an order on the basis of a previous offer issued by us, the contract is deemed consummated with the placement of the order in writing. If the customer’s order deviates from our offer, the contract is only deemed consummated upon our acknowledgement of the order.
- Payment, prices
- Our prices in the Shop are ex works or ex warehouse incl. VAT and exclusive of packaging, freight, postage, value guarantee and transport insurance, unless it has been explicitly agreed otherwise. Deliveries to non-EU countries will be charged without VAT. If delivery to a destination abroad was agreed, customs clearance, customs duties and the costs of the export licence, are at the customer’s expense. Cash discount, rebates or bonuses are only allowed if specifically agreed in writing.
- Our demands are upon receipt of order confirmation / invoice due immediately unless otherwise agreed.
- Payment is to be made in EURO without deduction and at no charge or expense to us to the bank designated by us.
- Partial delivery
We reserve the right to partial delivery if this is advantageous for a speedy settlement.
- Goods that are in stock comes within 8 days for delivery.
- A grace period to be granted to us must be at least 4 weeks.
- Risk and cost pass to the customer upon collection of the goods.
- In the event of a delay in delivery which is due to industrial action or extraordinary unforeseeable events such as governmental action, traffic disturbance or the like we are released from the obligation to deliver for the duration of such events and, where delivery is rendered impossible, we are completely released from our obligation to deliver if and to the extent that we are not responsible for such disturbance.
- If we are unable to deliver because we do not receive any deliveries from our suppliers even though we have entered into congruent covering transactions, we are released from our obligation to duly perform under the contract and we are free to withdraw from the contract. We will inform the customer to that effect without undue delay. Already paid services we will refund immediately the customer. Further claims available to the customer in such a case not to.
- Return of goods
- If the customer is at fault of non-acceptance of the purchased goods, we may claim a compensation for non-acceptance in the amount of 25% of the purchase price; we reserve the right to claim further damages. The customer may however present evidence to prove that we have incurred less damage only.
- Returned goods will only be accepted following written announcement and prior acknowledgement of acceptance by us. Return shipments are at the customer’s risk and expense unless the goods returned are defective. Returned goods will only be accepted following written announcement and prior acknowledgement of acceptance by us. Return shipments are at the customer’s risk and expense unless the goods returned are defective.
BORMATEC guaranteed that the goods sold at the time of transfer of risk in materials and workmanship and the contractually assured characteristics. Upon receipt, the customer must inspect the goods immediately for defects and quality. In the case of obvious defects, these must be within 10 days of discovery in writing to us, also hidden defects. Otherwise, the guarantee accounts for these deficiencies. The warranty is 24 months from delivery. With complaints the purchase date will be established with an invoice. The complaint article must be send to us with a copy of the invoice, sufficient postage.The warranty does not cover normal wear and tear. The warranty is void if the customer modifies the product. BORMATEC during the warranty period is entitled to free repair A partial or complete replacement is allowed. If deficiencies are not corrected within a reasonable time, the buyer has the right to change or decrease. The provisions of § 476a BGB.
- Defective goods
- If the delivered goods are defective, the customer may only claim remedy of the defect. Substitute delivery is excluded because it is usually associated with unreasonable costs and no substantial disadvantage to the customer results from such exclusion of substitute delivery. However, we may, at our choice, also deliver non-defective goods.
- If such subsequent satisfaction fails or does not take place within an adequate period fixed by the customer, the customer may withdraw from the contract or reduce the purchase price. We may try a subsequent satisfaction at least two times. The customer may only claim compensation of damages on the conditions set out in sec. 10.
- If the customer, having complained about a defect and having fixed a period for subsequent satisfaction which has expired without result, fails to make clear which of the rights stipulated in sec. 9.1 and sec. 9.2 he claims, we may fix a 3-week period in writing within which the customer must make clear which of the aforesaid rights he opts for. If such period has expired without result, the right to opt for either of the said rights is transferred to us.
- The inspection and complaint obligations under § 377 HGB (German Commercial Code) apply with the proviso that the customer is to give notice of apparent defects within one week from delivery which period is deemed observed if the written notice of defect is dispatched before the expiry of the period. Approval of initial samples by the customer does not release him from, or restrict his obligation to inspect the goods and give notice of defect, if any.
- The warranty period is 12 months. For ex works delivery, such period runs from the collection day advised in our notice of readiness of the goods for collection, or otherwise from delivery of the goods to our customer.
- Claims of the customer for compensation of damages, regardless of the legal cause, as well as claims for reimbursement of futile expenses are excluded unless the damage is caused by a grossly negligent or willful breach of duty or by an at least negligent breach of a contractual duty which endangers the attainment of the contract purpose (fundamental contractual duty) in the latter case, the liability is limited to the amount of the typical foreseeable damage.
- The limitation of liability under the preceding sec. 10.1 also applies to the personal liability of our employees, representatives, agents, executive bodies and vicarious agents or other persons engaged by us in the performance of our obligations.
- The limitation of liability under sections 10.1 and 10.2 does not apply in the case of personal injury, i.e. in the case of a damage as described that constitutes an injury of the body, life or health, in the case of liability under the “German Product Liability Act” and in cases where we have, by way of exception, given a guarantee.
- Statute of limitations
Contractual claims for compensation of damages and claims for reimbursement of futile expenses of the customer become time-barred after 24 months.
- Retention of title
- We retain title to the delivered goods until all claims arising from the business relationship with the customer have been satisfied, including ancillary claims, claims for compensation of damages and payment. The retention of title continues even if certain individual claims are included in a current account and the balance has been struck and acknowledged.
- The customer is obliged to carefully keep the goods subject to retention of title in custody for us, to maintain and repair them at his own expense and insure them against theft, loss and damage as is usual with a diligent businessman. The customer hereby assigns to us all of his future claims, if any, under the insurance policies. We hereby accept the assignment.
- The customer may dispose of the goods subject to retention of title in the ordinary course of business provided that and as long as he timeously fulfills his obligations arising from the business relationship with us. This does not apply if and to the extent that the customer and his purchasers have agreed on a prohibition of assignment of the purchase price claim. The customer has no right to pledge the goods subject to retention of title, transfer title to them by way of security or otherwise put a lien on them. The customer is obliged to secure our rights in the amount of our purchase price claim in the case of resale of the goods subject to retention of title. This may be done by the customer making the transfer of title to the goods in the case of resale dependent on full payment of the goods by the purchaser.
- In case the goods subject to retention of title are resold by the customer, the customer already now assigns to us – with limitation to the amount invoiced for the goods subject to retention of title – all claims arising from the resale including claims for compensation of damages to be provided by third parties, security interest and ancillary rights including cheques and bills of exchange. We hereby accept the assignment. If the goods subject to retention of title are sold together with other items at an all-round price, the assignment is limited to such part of the invoice amount as is equivalent to the amount payable for the goods delivered by us subject to retention of title and resold by the customer together with other items. If goods are sold of which we have acquired the assignment is limited to such amount of the claim as corresponds to our co-ownership share.
- The customer must inform us without undue delay of any execution levied by a third party upon the goods subject to retention of title or the claims assigned to us or other security provided to us, specifying the documents required for intervention; the same applies in the case of any other encroachment whatsoever.
- We undertake to release security to which we are entitled under the preceding provisions at the customers request to the extent that the invoice value of the goods title to which was transferred to us by way of security exceeds our claims to be secured thereby by more than 20%. We may, in our sole discretion, choose the goods to be released.
- The agreement on retention of title continues in force until the customer has satisfied all our claims. If the customer includes the claim into a current account relationship with his purchaser, the customer already now assigns to us the respective balance claim due to him under the current account. The customer continues to be authorized to collect the claim even after it has been assigned to us. This is without prejudice to our right to collect the claim ourselves but we are not allowed to collect the claim as long as the customer duly fulfills his payment obligations. The customer undertakes to provide us with all information and documents required to assert the assigned claims.
- If and to the extent that the retention of title should be invalid under the foreign law of the country where the delivered goods are located, the customer is to provide equivalent security to us upon request. If the customer fails to do so, we may claim immediate payment of all outstanding invoices.
- Data storage
According to § 28 of the Federal Data Protection Act (BDSG), we note that in the context of business data needed by a computer system in accordance with § 33 (Act) processed and stored. Personal information is kept strictly confidential.
- Place of performance, place of jurisdiction, governing law
- The contract language is German.
- The place of performance is our place of business: Fa. BORMATEC, Mooswiesen 17/2, 88214 Ravensburg
- The place of jurisdiction for all disputes arising out of commercial business transactions with merchants whose business requires commercial operation and who are hence required to be entered into the “Handelsregister” (commercial register) and who are subject to all requirements and regulations of the HGB (German Commercial Code) (“Vollkaufleute”) and with legal entities under public law is Siegen in Germany (§ 38 ZPO – German Code of Civil Procedure). However, we are also entitled to sue the customer at the place of general jurisdiction applicable to him.
- German law applies. The application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG – “Vienna Sales Law”) is excluded.
If individual provisions of these terms and conditions or the delivery transaction should be or become invalid in whole or in part, then the validity of the remaining provisions or the remaining parts of such provisions is unaffected thereby.