1. We deliver only on the terms of our conditions of sales, delivery and payment, as shown below, even where permanent business relations exist, and a reference is not explicitly made. Contrary conditions of the customer have no validity for us. Non-refusal of confirmations of contract which refer to contrary terms and conditions of the customer shall not be regarded as an agreement. By accepting our delivery, the customer declares his agreement irrevocably with the exclusive validity of our sales, delivery and payment conditions.
2. All quotations submitted by us are conditional. Our confirmation of order is binding for the contract contents unless we receive a written contradiction within 14 days of the date of our confirmation of order.
3. Collateral agreements made before or during the conclusion of the contract in all cases require an agreement in writing, in order for them to have contractual force.
4. If INCOTERMS are agreed for foreign business, then the definitions defined and published by the international chamber of commerce are valid.
B. Prices and Payments
1. Our prices from the Wolfratshausen factory exclude packaging, freight and insurance, provided that no special agreements have been made. In the domestic market the applicable value added tax is added to the prices agreed upon.
2. Subject to a confirmation of contract which might state otherwise, our invoices are to be paid within 10 days of the date of invoices, without deduction.
3. For deliveries to customers who are located outside the Federal Republic of Germany, or for deliveries intended for export from the above-mentioned regions, delivery of the goods shall only take place if advance payment has been made, or if an irrevocable letter of credit from a German bank or savings bank in the domestic market authorised as a guarantor for debts has been submitted. Only for long-term business relationships may specially negotiated conditions apply.
4. Checks are only accepted on account of payment.
5. If circumstances are known to us which put into question the creditworthiness of the customer, all our demands shall immediately be due for payment. Our rights from § 321 BGB remain unaffected.
6. The customer is not authorized to exercise the right of retention where our demands are concerned or to set off counterclaims, insofar as these are not explicitly recognized by us or confirmed to be legally valid.
C. Delivery, Transfer of Risk and Acceptance
1. The dispatch is always made at the cost and at the risk of customer, unless this has been otherwise defined when the order was awarded. Deliveries are only insured against damage in transit if this is the explicit wish of the customer, who shall incur the costs thereof.
2. The risk passes on to the customer as soon as the goods leave our factory, even when partial deliveries are involved. In case the customer collects the goods himself, the risk passes on with the notification that the goods are ready for shipping.
3. Delivered objects are to be accepted by the customer, even if they display minor defects, regardless of his rights from section F. of these sales, delivery and payment conditions.
D. Delivery Time
1. Binding dates for deliveries or services (delivery dates) must be agreed explicitly as such in writing. An agreed period for deliveries or services (delivery period) only begins with the arrival of our confirmation of order at the customer, but not before the submission of technical details to be supplied by the customer, and for foreign orders, only after the provision of the letter of credit in accordance with Section B clause 3 of these sales, delivery and payment conditions. Agreed modifications or extensions to the original size of the order made after the conclusion of the contract may defer or shift the original delivery deadlines or dates appropriately.
2. The delivery deadline is met if the object of delivery has left our factory by the time it expires or if the customer has been informed that the goods are ready for shipment. Partial deliveries are allowed.
3. Disruptions to deliveries and services due to force majeure or as a consequence of labour disputes, intervention by the authorities, stoppages, difficulties in procuring materials or energy supplies, or any other unforeseeable and unusual circumstances which are not our fault, irrespective of whether these circumstances occur in our company or at our subcontractors, extend the delivery time by the duration of the obstruction. Not covered by this are cases in which we have met our date obligation despite the foreseeability of these circumstances, or in which possible and reasonable measures to prevent or ward off the disruption to services have not been taken, or in which the prevention itself has been caused by us. In accordance with the above-mentioned provisions, the circumstances mentioned are also not our responsibility if they occur during an already existing delay. We may only refer to these provisions if we immediately notify the customer when such disruptions occur, and what their expected duration will be.
4. If damage arises to the customer due to a delay which is our responsibility, then he is liable to due compensation. The amount of compensation is limited to 0.1 % for each complete week of delay – single days are calculated proportionately -, but at the most, to 1 % of the value of the contract. Our liability in accordance with Section G, clause 2 and 3 of these sales, delivery and payment conditions, remains unaffected by this.
E. Retention of Title
1. The delivered goods remain our property (reserved goods) until the complete fulfilment of all our demands from the business relations with the customer, even if individual items have already been paid for. For an open invoice, the reserved property is considered to be a security for our balance demand.
2. Until the passage of title, the customer must ensure the object of delivery against theft, breakage, fire, water and other damage. The customer immediately cedes to us all rights from the insurance contracts and their claims against their insurers. We accept the assignment.
3. The customer may neither pawn the reserved goods nor acquire them as a security. Where seizures, confiscations or other dispositions are involved, the customer must notify us immediately.
4. If the customer gets completely or partially in arrears with a payment deadline or honouring checks, or if he behaves in any other way which is in breach of contract, then we are entitled to reclaim the reserved goods after a reminder. This also applies if the customer has excessive debts or if payments have been suspended, if an application has been brought for a settlement or insolvency procedure involving his assets, or if there is a fundamental deterioration in his economic situation. The enforcement of the right of ownership, as well as the seizure of the objects of delivery by us, shall not be considered as a rescission of the contract.
5. If our customer is involved commercially in reselling the objects of delivery, then he is entitled to resell the objects of delivery in the proper course of business under his normal conditions, as long as he is not in default of payment. In case the goods are resold, the demand from the corresponding legal transaction shall be assign to us presently in the amount of our invoice value. We hereby accept the declaration of assignment. The customer is authorized to recover these demands, even after the assignment, until we revoke this, which is permissible at any time. Our authority to collect these demands ourselves remains unaffected by this; but we are obliged not to collect the demands as long as the customer meets his payment obligations properly. We can demand at any time that the customer informs us of the demands ceded and their obliges, provides all details required for the collection, hands over the relevant documents and informs the obliges of the assignment.
6. If reserved goods are resold by the customer together with other goods which do not belong to us, then the demand of the customer from the recipient shall be ceded to us immediately in the amount of the delivery price agreed between us and the customer. Processing of or remodelling the reserved goods is always incurred by us, without us taking on any obligation for this. In case of further processing or integration into objects delivered by third parties, co-ownership in the new object remains with us in the proportion of the value of the goods delivered by others to the new object.
F. Warranty and Notice of Defects
1. The customer must carefully check the delivered goods immediately after receiving them and claim any possible notice of defects from us in writing immediately after they have been detected.
2. In case of inadequate delivery or services, the customer has a claim to improvements or cost-free replacement delivery (remedy). Only if the improvement or the replacement delivery is unsuccessful may the customer reduce the remuneration or terminate the contract. A termination is excluded if the defect only slightly reduces the value or the suitability of the purchase object or work. An improvement is normally considered to have failed after the second unsuccessful attempt.
3. A warranty for the quality of the object of purchase or work, in the sense of § 443 BGB, must be explicitly accepted by us in writing, provided a purchase of perishable goods is not involved.
4. A warranty is withdrawn if the object of our delivery has been modified without our authority, especially by external parts being fitted, and it cannot be excluded that the error results from this.
5. The warranty deadline is two years from the delivery of the purchased object or for work services, from the inspection and approval. Wear and tear and the deterioration of cushioning are exempt from warranty. The warranty for rechargeable batteries is equally exempt.
6. We can refuse the elimination of defects as long as the customer is in arrears with his obligations.
1. Compensation claims due to all breaches of duty from the obligation and from unauthorized actions are – particularly with respect to consequential damage – exempt.
2. Our liability for damage due to injury to life, body and health, for claims of the Product Liability Act, for specific warranties in writing, as well as in all cases involving deliberate acts or gross negligence, remains unaffected.
3. For the culpable infringement of fundamental contractual obligations within the meaning of § 307 Paragraph 2 Clause 2 BGB, we are also liable in cases of slight negligence, but only for foreseeable and typically occurring damage, and only up to the amount insured in our liability insurance.
H. Place of Performance, Place of Jurisdiction and Applicable Law
1. The exclusive place of fulfillment for contract partners is our company headquarters, D-82515 Wolfratshausen. We are also entitled, however, to assert claims at every other place of jurisdiction.
2. Legal relations with our customers are subject to the Law of the Federal Republic of Germany, with the exception of the UN convention on contracts for the international sale of goods.
I. Modifications, Invalidity Clause
1. Modifications to these sales, delivery and payment conditions or other contractual agreements are to be put down in writing.
2. If individual parts of these conditions of sale lapse, the validity of the remaining provisions is not affected.
BRUMABA GmbH & Co.KG