GENERAL DELIVERY AND PAYMENT TERMS
1. General information
1.1. These General Terms and Conditions apply exclusively to the entire business relationship between burgbad and the buyer. Subject to change, these shall also apply to future business relationships between burgbad and the buyer even if not explicitly included again. Other terms and conditions of purchase or other general terms and conditions of the buyer are expressly excluded. These General Terms and Conditions shall also apply exclusively if burgbad carries out the delivery to the buyer without reservation in the knowledge of conflicting or deviating business relationships of the buyer.
1.2. If a framework agreement exists between the buyer and burgbad, these General Terms and Conditions apply both to the framework agreement and to the individual order.
1.3. These General Terms and Conditions do not apply to consumers within the meaning of section 13 of the German Civil Code (BGB).
2.1. Offers from burgbad are subject to change and, unless the circumstances indicate otherwise, are merely an invitation to the buyer to submit concrete, definitive contractual offers to burgbad ("invitatio ad offerendum"). If burgbad provides the buyer with drawings or technical documents for an offered technical purchase item, these remain the property of burgbad.
2.2. burgbad is entitled to accept contract offers from the buyer, e.g. in the form of orders, within 14 days. During this time the buyer is bound to its contractual declaration.
3. Prices, payment terms
3.1. The prices are net prices plus the statutory value added tax applicable at the time. The prices do not include customs, insurance and other costs.
3.2. Invoices are due for payment immediately and without deduction, unless other special agreements have been made. burgbad is entitled to demand advance payments or securities at the expense of the buyer upon conclusion of the contract.
3.3. If the buyer is in default of payment, burgbad shall be entitled to demand default interest in the amount of 9 percentage points above the applicable base interest rate. We reserve the right to assert a claim for any further concrete damage caused by default.
3.4. The statutory periods of limitation apply.
4. Delivery dates
4.1. Unless otherwise stated, delivery times are approximate. Compliance with burgbad's delivery obligations presupposes the timely and proper fulfilment of the buyer's obligations. This means, in particular, that the buyer shall ensure the acceptance of the ordered goods at the delivery address indicated by him/her.
4.2. burgbad is entitled to make partial deliveries and provide partial services if these are reasonable on acceptance, taking into account the situation of burgbad and the buyer's legitimate interests, in particular if the deviation is within the scope of customary commercial tolerances or if the respective delivery items are different, unrelated delivery items.
4.3. In the event of delays in delivery due to the occurrence of unforeseen events for which burgbad is not responsible, in particular operational disruptions, official measures, non-delivery to burgbad or force majeure, any delivery periods shall be extended by the duration of the hindrance. Force majeure shall also apply in particular in the event of industrial action, including strikes and lawful lockouts in the operations of burgbad or at burgbad's suppliers. In these cases, claims for damages by the buyer are excluded, except in cases of intent and gross negligence.
4.4. If the buyer is in default of acceptance or is responsible for a delay in the dispatch of the goods, a storage fee of 5.00 EUR net per loading metre and working day will be charged.1 loading metre corresponds to 5.7 cubic metres. The right of the buyer to prove, in individual cases, that burgbad has not incurred any damage ,or considerably less damage, as a result of the default of acceptance concerned remains unaffected by this. The other rights of burgbad, in particular to withdrawal from the purchase contract, also remain unaffected.
5. Assumption of risk, duty to give notice of defects and duty to examine
5.1. The risk is transferred to the buyer as soon as the item has been delivered to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment, even if partial deliveries are made or burgbad has assumed other services, e.g. the shipping costs.
5.2. Express reference is made to the provisions of sections 377, 378 of the German Commercial Code (HGB).
6. Retention of title
6.1. burgbad retains ownership of the delivery item until all payments from the delivery contract have been received. If the buyer acts in breach of contract, in particular in the event of default in payment, as well as in the event of an application for the opening of insolvency proceedings, burgbad shall be entitled to take back the delivery item and the buyer shall be obligated to surrender it. In the event of seizures or other interventions by third parties, the buyer shall inform burgbad immediately in writing.
6.2. The buyer is entitled to resell the delivery item in the ordinary course of business. However, he/she hereby assigns all claims to burgbad which accrue to him/her from the resale against the buyer or against third parties, irrespective of whether the reserved goods are resold without or after processing. The buyer is authorised to collect these claims even after the assignment. The authorisation of burgbad to collect the claims itself remains unaffected by this; however, burgbad agrees not to collect the claims as long as the buyer properly fulfils his/her payment obligations. burgbad may demand that the buyer informs it of the assigned claims and their debtors, provides all the information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. If the delivery item is resold together with other goods which do not belong to burgbad, the buyer's claim against the collector is deemed to be assigned in the amount of the delivery price agreed between burgbad and the buyer.
6.3. burgbad is entitled to demand appropriate securities for the proper fulfilment of the buyer's obligations. burgbad undertakes to release the securities to which it is entitled insofar as their value exceeds the unsettled claims to be secured by more than 10%.
7. Warranty, compensation
7.1. The statutory warranty period of two years from the transfer of risk applies to new goods. The warranty period for exhibition goods is one year from the transfer of risk.
7.2. Obvious transport damage must be reported to burgbad immediately after receipt of the goods. The buyer shall arrange the necessary formalities with the carrier and, in particular, make all necessary arrangements to safeguard rights of recourse against third parties.
7.3. burgbad shall only be liable for damage which burgbad or its vicarious agents have caused intentionally or through gross negligence. In the case of simple negligence, burgbad shall only be liable in the event of injury to life, body or health and in the event of breach of cardinal duties. A cardinal duty is the obligation whose fulfilment is essential for the proper performance of the contract and on compliance with which the buyer regularly relies or may rely.
7.4. If burgbad is liable for breaches of duty which are based on simple negligence, burgbad's liability is limited to the amount of damages which are typical for contracts of the type in question and which were foreseeable at the time of the conclusion of the contract, or at the latest when the breach of duty was committed. This shall not apply in the event of injury to life, body or health.
7.5. Claims for damages, which do not presuppose fault by law, remain unaffected by this.
8. Obligation to perform, impossibility
8.1. If the entire performance becomes impossible for burgbad before the transfer of risk as a result of a circumstance for which burgbad is responsible, the purchaser may withdraw from the contract. In the event of partial impossibility or partial inability to perform, the above provision shall only apply to the corresponding part. In this case, the buyer may only withdraw from the entire contract if he/she can prove a justified interest in refusing a partial delivery. Further claims of the buyer, in particular claims for damages, are excluded in accordance with the provisions of section 7.
8.2. If the impossibility occurs during default of acceptance or through the fault of the buyer, the buyer remains required to fulfil the contract.
9. Applicable law, legal venue
9.1. The law of the Federal Republic of Germany shall apply to all legal relationships between burgbad and the buyer arising from or in connection with the business relationship established between burgbad and the buyer, excluding the UN Convention on Contracts for the International Sale of Goods.
9.2. If the buyer is a merchant, a legal entity under public law or a special fund under public law and no exclusive legal venue is established, the registered office of burgbad is the place of fulfilment and legal venue for all legal disputes.
Stand: Oktober 2020