General Terms of Business of the Company BVM Brunner GmbH & Co. KG


valid from August, 1 st, 2017

Section 1 Scope

The following terms of business shall apply to all, also future, deliveries and performance by the company BVM Brunner GmbH & Co. KG. They shall be regarded to be recognised with the awarding of the order, at the latest, however, with the acceptance of our performance. Terms of business to the contrary shall not be valid in respect of us without our express written confirmation, even if we do not raise express objection.

 

Section 2 Offer and conclusion of the contract

(1) Our offers are made without obligation. The contract shall come into effect either with our express confirmation or with the delivery of the ordered goods. In the case of doubt, our written confirmation of order shall be authoritative for the contents of the contract, in the case of no confirmation of order our written offer.
(2) The documents accompanying our offer, especially illustrations, drawings, indications of weights and dimensions and other technical descriptions, shall only be regarded to be approximations, unless they have expressly been denoted to be binding by us. All indicated dimensions regarding packaging materials (wrapping materials, corrugated cardboard blanks, etc.) shall especially be non-binding before the successful conclusion of a test run of the machines which are to be fabricated by us. We reserve title and copyright to all samples, drawings and the other offer documentation. They may not be made accessible to third parties and must be sent back at our request if the order is not awarded.  

 

Section 3 Delivery period, delay in delivery

(1) Delivery periods shall only be regarded to be approximations if they are not expressly denoted to be binding in our confirmation of order. If the deadline is exceeded and in all other cases in which we do not render a due performance as owed, we shall be entitled to a reasonable additional period to effect performance or subsequent performance, which shall be at least 4 weeks and which must be set in writing.
(2) Impediments to performance for which we are not responsible shall result in a corresponding extension of the delivery periods. This shall especially be applicable in the case of faulty deliveries to us, in the case of failure to make deliveries to us and in the event of force majeure, war, natural disasters, traffic disruptions, operational breakdowns, obstructed imports, energy and raw material shortages, official action and industrial disputes. We are entitled to withdraw from the contract if the impediment to performance continues for an indefinite period and the purpose of the contract is endangered.

 

Section 4 Shipment and passing of risk

(1) All deliveries and performance shall be effected for the orderer’s account and risk. In the case of shipment of the goods, the risk of the accidental loss and deterioration shall pass to the orderer with the dispatch of the goods; this shall also be applicable in the case of part deliveries and carriage-paid delivery.
(2) If the dispatch of the goods is delayed due to a reason for which we are not responsible, then risk shall already pass to the orderer with the notification of the readiness for shipment. This shall also be applicable if we make use of a right of retention to which we are entitled.

 

Section 5 Delay in acceptance by the orderer

If the orderer does not accept our performance or the goods upon delivery, then we are entitled to set an additional period of 2 weeks and to withdraw from the contract after this period and to demand damages. In the latter case, without proof compensation in the amount of 30 % of the agreed price is to be paid, in which respect the orderer is, however, entitled to prove that no loss at all or a markedly lesser loss has arisen. On the other hand, the assertion of a greater loss than 30 % also remains reserved if we furnish proof of a greater loss.  

 

Section 6 Prices and payment

(1) Unless otherwise agreed in writing, our prices are applicable plus the respectively valid rate of turnover tax and plus any costs for packaging, freight, duty, insurance and other ancillary charges.
(2) The offsetting against counter-claims is not permissible, unless such claims are undisputed or have been recognised by declaratory judgment. The same shall also apply accordingly to the exercise of a right of retention.

 

Section 7 Reservation of title

(1) We reserve title to all supplied goods and machines until the orderer has settled all claims from the business relationship. In the case of claims from a current account, the reserved title shall secure our balance claim.
(2) Until payment in full of all our claims, any treatment or processing of the subject-matter of the delivery by the orderer shall be effected for us as the manufacturer as defined by Article 950 of the German Civil Code, without, however, creating obligations for us. If a new article is created from the goods subject to reservation of title supplied by us together with goods subject to reservation of title supplied by a third party, then we shall be entitled to co-ownership of this new article in the share which arises from the proportion of the value of the goods supplied by us and of the processing value to the value of the finished article. In the case of the joining of the goods supplied by us with other goods, we shall acquire co-ownership of the uniform article in proportion to the invoice value of our goods subject to reservation of title to the value of the other articles.
(3) The goods owned by us by way of security shall be held in safekeeping for us by the purchaser free of charge. The purchaser is obliged to take out adequate insurance for these goods against theft, fire, water and other damage and to furnish us with proof of these insurance policies on request. Any claims to insurance benefits are hereby assigned to us in advance in so far as they refer to the goods owned by us.
(4) The orderer undertakes, except in the ordinary course of business, not to effect any dispositions, especially no pledges and no transfers by way of security, in respect of the goods subject to reservation of title. In the case of the resale of the goods subject to reservation of title, the orderer already now assigns its respective corresponding purchase price claim by way of security of our claim to us. On request, we must be sent an exact list of the assigned claims, duly indicating the third-party debtors as well as the respective amount of the claim and the invoice date.
(5) If the orderer does not meet its payment obligations towards us or if its financial circumstances markedly deteriorate, then we are entitled to demand the surrender of the goods subject to reservation of title or to take back the goods owned by us; the exercise of this right shall not be deemed to be a withdrawal from the contract. We are entitled in this case to exploit the goods in the best possible manner for the purchaser. If an application for the institution of insolvency proceedings is made against the orderer or if the goods subject to reservation of title are attached, then the orderer must inform us accordingly without delay.
(6) If the value of the securities in existence for us exceeds our overall claim on not just a temporary basis by more than 20 %, then we at the orderer’s request shall release securities in the corresponding amount.

 

Section 8 Liability for defects to performance, liability for secondary obligations and other liability

(1) The delivery of used goods shall be effected in the case of business enterprises to the exclusion of warranty.
(2) If the customer is a merchant, claims due to defects by the customer shall presuppose that the customer has complied with his/her examination and defect notification obligations in accordance with Article 377 of the German Commercial Code in a due and orderly manner. The complaint must be made in writing.
(3) If the article of sale is defective, then we are entitled at our option to eliminate the defect or to supply a fault-free article. If the subsequent performance is impossible or unreasonable, then we are entitled to refuse such performance. If the subsequent performance is impossible, then the other contracting party is entitled to reduce the price or to withdraw from the contract.
(4) Unless otherwise stated hereafter, more extensive claims of the other contracting party, irrespective of the cause in law, also regarding our fault concerning the performance of contractual secondary obligations and in each case irrespective of the type of loss, are excluded. The above stipulations shall also apply in the case of the delivery of a different article or a lesser volume as well as in the case of the reimbursement of expenses.
(5) The claims to subsequent performance, damages or reimbursement of expenses shall become statute-barred after one year from the passing of risk. The claims to a price reduction and to exercising a withdrawal right are excluded if the claim to subsequent performance has become statute-barred.
(6) The statutory withdrawal right shall not be excluded or restricted in the case of breaches of duty outside the liability for defects. The other contracting party may withdraw from the contract if the complete performance becomes impossible, similarly in the case of inability. Withdrawal is excluded if the other contracting party is largely responsible for the circumstance which entitles withdrawal to be effected or if the other contracting party is in default in acceptance. We shall in these cases retain our claim to the counter-performance.
(7) Delivery recourse claims in accordance with Articles 478 and 479 of the German Civil Code shall remain unaffected.

 

Section 9 Restrictions of the exclusion of liability

(1) Excluded from the exclusion of liability are claims for damages which are based on intent or gross negligence on our part or on the part of our vicarious agents. Furthermore, liability for losses arising from culpable death, physical injury or damage to health shall remain unaffected.
(2) If we culpably infringe a fundamental contractual obligation, then liability shall not be excluded, but shall merely be restricted to the typical contractual, foreseeable loss.
(3) The exclusion of liability shall furthermore not be applicable in the cases in which liability exists in accordance with the German Product Liability Act or in the case of the assumption of a guarantee or in the case of the fraudulent concealment of defects if an accordingly covered defect gives rise to our liability.
(4) The other contracting party is obliged to avoid and reduce conceivable losses, especially by means of appropriate action and insurance cover. The other contracting party is independently obliged to consider third-party rights and statutory provisions.
(5) Modifications on the machines after delivery, which have not been carried out by BVM service technicians, will void the declaration of conformity.

 

Section 10 Final provisions

(1) Place of performance for all performance arising from this contract is Reutlingen. Place of jurisdiction for all disputes arising from the contractual relationship with our customer are – in so far as is legally permissible – the courts competent for Reutlingen.
(2) The legal relations between us and our contracting partners shall be governed by and construed according to the law of the Federal Republic of Germany to the exclusion of UN sales law.
(3) If individual provisions of these terms of business or of the concluded contract are or become ineffective in whole or in part, then the contract shall remain effective in other respects.