General Terms and Conditions of Delivery and Payment
I. Scope of Application
1. The following terms and conditions of sale apply to all contracts concluded between the buyer and us for the delivery of goods. They also apply to all future business relationships, even if they are not expressly agreed upon again. Any deviating terms and conditions of the buyer that we do not expressly accept are not binding on us, even if we do not expressly object to them. The following terms and conditions of sale apply even if we execute the buyer's order without reservation despite knowing that the buyer has conflicting or deviating terms and conditions.
2. All agreements made between the buyer and us for the execution of the purchase contracts are recorded in writing in the contracts.
II. Terms of Payment
1. The purchase price is due for payment immediately upon receipt of the invoice by the buyer, unless a different payment term is specified in the terms and conditions. A cash discount is only permitted with a special written agreement between us and the buyer. A payment is only considered made when we have access to the amount. In the case of check payments, payment is only deemed to have been made when the check is cashed.
2. If the buyer defaults on a payment, the statutory provisions apply.
3. The buyer is only entitled to offset, even if complaints about defects or counterclaims are asserted, if the counterclaims have been legally established, acknowledged by us, or are undisputed. The buyer is only entitled to exercise a right of retention if their counterclaim is based on the same contractual relationship.
III. Delivery and Performance Time
1. Delivery dates or deadlines that have not been expressly agreed as binding are solely non-binding information. The delivery time specified by us only begins once the technical issues have been clarified. Likewise, the buyer must fulfill all obligations incumbent upon him properly and on time.
2. If the underlying purchase contract is a fixed-term transaction within the meaning of Section 286 Paragraph 2 No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB), we are liable in accordance with the statutory provisions. The same applies if the buyer is entitled to assert the cessation of his interest in further contract fulfillment as a result of a delivery delay for which we are responsible. In this case, our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional breach of contract for which we are responsible, whereby any fault on the part of our representatives or vicarious agents is attributable to us.
We are also liable to the buyer for delays in delivery in accordance with the statutory provisions if this is due to an intentional or grossly negligent breach of contract for which we are responsible, whereby any fault on the part of our representatives or vicarious agents is attributable to us. Our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional breach of contract for which we are responsible.
3. In the event that a delivery delay for which we are responsible is based on the culpable breach of a material contractual obligation, whereby the fault of our representatives or vicarious agents is attributable to us, we shall be liable in accordance with the statutory provisions, provided that in this case, liability for damages is limited to the foreseeable, typically occurring damage.
4. We are entitled to make partial deliveries and partial services at any time, provided this is reasonable for the customer.
5. If the buyer defaults on acceptance, we are entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the buyer culpably violates his or her duty to cooperate.
IV. Transfer of Risk - Shipping
1. Upon the occurrence of default of acceptance or default by the debtor, the risk of accidental deterioration and accidental loss passes to the buyer.
2. If shipment is delayed at the request or due to the fault of the buyer, we will store the goods at the buyer's expense and risk. In this case, notification of readiness for shipment is equivalent to shipment.
V. Warranty/Liability - Statute of Limitations
See detailed General Terms and Conditions (available upon request)
VI. Retention of Title
1. The delivered item remains the property of the seller until all claims against the buyer arising from the business relationship have been fulfilled.
2. While the retention of title exists, the customer is prohibited from pledging or transferring the item as security. Resale is only permitted to resellers in the ordinary course of business and only under the condition that the equivalent value of the delivered item is paid to the buyer.
The buyer must also agree with the buyer that the buyer only acquires ownership upon this payment.
Point 3 – 10: See detailed General Terms and Conditions (available upon request)
VII. Return, Storage Costs
1. The return of ordered goods by the Seller as a gesture of goodwill requires the Seller's prior written approval.
2. The goods must be returned to the Seller at the Buyer's expense. A credit note will be issued to the Buyer for the returned goods, from which the costs for re-storage will be deducted.
VII. Place of Performance, Jurisdiction, Applicable Law
1. The place of performance and jurisdiction for deliveries and payments (including check and bill of exchange claims) as well as all disputes arising between us and the buyer from the purchase contracts concluded between us and the buyer is our registered office. However, we are also entitled to sue the buyer at his or her place of residence and/or business.
2. The relationship between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods and the Law on the Formation of International Sales Contracts for Movable Goods is excluded.
Braungardt Ersatzteilevertrieb GmbH As of: May 2008
