General terms and conditions
BVM BRUNNER GMBH & Co. KG
§ 1 Scope of application
The following terms and conditions shall apply to all deliveries and services of BVM BRUNNER GMBH & Co. KG. They shall be deemed to have been accepted by placing the order, at the latest, however, upon acceptance of our performance. Any conflicting terms and conditions do not apply to us without our express written confirmation, even if we do not expressly object to them.
§ 2 Offer and conclusion of contract
(1) Our offers are subject to confirmation. The contract is concluded either with our express confirmation or with the delivery of the ordered goods. In case of doubt, our written order confirmation is decisive for the content of the contract; in the absence of an order confirmation, our written offer is decisive.
(2) The documents belonging to our offer, in particular illustrations, drawings, indications of weight and dimensions and other technical descriptions, are only approximate unless they are expressly designated by us as binding. In particular, all specifications of dimensions for packaging materials (wrapping materials, corrugated cardboard blanks, etc.) are non-binding prior to the successful completion of a test run of the machines to be manufactured by us. We reserve the property rights and copyrights to all samples, drawings and other offer documents. They may not be made accessible to third parties and must be returned to us at our request if the order is not placed.
§ 3 Delivery time, delay in delivery
(1) Delivery times are only approximate unless they are expressly marked as binding in our order confirmation. In the event of failure to meet a deadline and in all other cases in which we do not perform a due service as owed, we shall be entitled to a reasonable period of grace for performance or subsequent performance, which shall be 4 weeks at least and must be set in writing.
(2) Impediments to performance for which we are not responsible shall lead to a corresponding extension of the performance deadlines. This applies in particular to a lack or absence of self-delivery, force majeure, war, natural disasters, traffic or operational disruptions, obstructed imports, shortages of energy and raw materials, official measures 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 at risk.
§ 4 Shipment and transfer of risk
(1) All deliveries and services shall be made at the risk and for the account of the customer. In the event of dispatch of the goods, the risk of accidental loss and deterioration shall pass to the customer upon dispatch of the goods; this shall also apply to partial deliveries and free delivery.
(2) If the dispatch of the goods is delayed for a reason for which we are not responsible, the risk shall pass to the customer upon notification of readiness for dispatch. This shall also apply if we exercise a right of retention to which we are entitled.
§ 5 Default of acceptance by the purchaser
If the customer does not accept our performance or the goods upon delivery, we are entitled to set a grace period of 2 weeks and thereafter to withdraw from the contract and claim damages. In the latter case, compensation amounting to 30 % of the agreed price shall be payable without proof, although the customer shall be entitled to prove that no damage or significantly lower damage has been incurred. On the other hand, we also reserve the right to claim higher damages than 30 % if we provide evidence of higher damages.
§ 6 Prices and payment
(1) In the absence of a special written agreement, our prices are exclusive of the applicable value added tax and any costs for packaging, freight, customs, insurance and other ancillary charges.
(2) Offsetting with counterclaims, insofar as they are not undisputed or legally established, is not permitted. This also applies accordingly to the exercise of a right of retention.
§ 7 Retention of title
(1) We retain title to all goods and machines delivered until the customer has paid all claims arising from the business relationship. In the case of claims from current account, the reserved property secures our balance claim.
(2) Until all our claims have been paid in full, any processing or treatment of the delivery item by the customer shall be carried out for us as manufacturer within the meaning of § 950 German Civil Code (BGB), but without any obligation on our part. If a new item is produced from the goods subject to retention of title delivered by us together with goods delivered by a third party subject to retention of title, we shall be entitled to co-ownership of this new item in the proportion resulting from the ratio of the value of the goods delivered by us and the processing value to the value of the finished product. In the event that the goods delivered by us are combined with other goods, we shall acquire co-ownership of the uniform good in the ratio of the invoice value of our reserved goods to the value of the other items.
(3) The customer shall keep the goods that are our property by way of security in safe custody for us free of charge. He is obliged to insure these goods adequately against theft, fire, water and other damage and to provide us with evidence of these insurances upon request. Any claims for insurance benefits are hereby assigned to us in advance to the extent that they are attributable to the goods owned by us.
(4) The customer undertakes not to dispose of the goods subject to retention of title, in particular not to pledge or assign them by way of security, except in the ordinary course of business. in the event of resale of the goods subject to retention of title, the customer hereby assigns to us its respective purchase price claim arising therefrom as security for our claim. Upon request, we shall be provided with a detailed list of the assigned claims, stating the third-party debtors as well as the respective amount of the claim and the invoice date.
(5) If the customer does not fulfil his payment obligations towards us or if his financial circumstances deteriorate considerably, we shall be entitled to demand the return of the goods subject to retention of title or to take back the goods which are our property; the exercise of this right shall not be deemed a withdrawal from the contract. In this case, we shall be entitled to utilise the goods in the best possible way for the customer. If an application for the opening of insolvency proceedings is filed against the customer or if the goods subject to retention of title are seized, the customer must notify us immediately.
(6) If the value of the securities existing for us exceeds our total claim not only temporarily by more than 20 %, we shall release securities in the corresponding amount at the request of the customer.
§ 8 Liability for defects in performance, liability for ancillary obligations and other liability
(1) The delivery of used goods shall be made to contractors to the exclusion of the warranty.
(2) Insofar as the customer is a merchant, claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). The complaint must be made in writing.
(3) Insofar as there is a defect in the purchased item, we shall be entitled, at our discretion, to remedy the defect or to deliver an item free of defects. If subsequent performance is impossible or unreasonable, we are entitled to refuse it. Should subsequent performance be impossible, the contractual partner is entitled to reduce the price or withdraw from the contract.
(4) Unless otherwise stated below, further claims of the contractual partner are excluded, irrespective of the legal grounds, also with regard to our fault in the fulfilment of ancillary contractual obligations and, in each case, irrespective of the type of damage. The above provisions shall also apply in the event of delivery of another item or a smaller quantity as well as in the event of reimbursement of expenses.
(5) Claims for supplementary performance, compensation for damages or reimbursement of expenses shall become statute-barred one year after the transfer of risk. The claims for reduction and the exercise of a right of withdrawal are excluded insofar as the claim for subsequent performance is time-barred.
(6) In the event of breaches of duty outside the liability for defects, the statutory right of withdrawal shall neither be excluded nor limited. The contractual partner may withdraw from the contract if the entire performance becomes impossible, as well as in the event of incapacity. Withdrawal is excluded if the contractual partner is predominantly responsible for the circumstance entitling him to withdraw or if he is in default of acceptance. In these cases, we retain our claim to the consideration.
(7) Claims in the event of a delivery recourse according to §§ 478,479 German Civil Code (BGB) remain unaffected.
§ 9 Limitations of the exclusion of liability
(1) Excluded from the exclusion of liability are claims for damages based on intent or gross negligence on our part or on the part of our vicarious agents. Furthermore, liability for damages arising from culpable injury to life, limb or health remain unaffected.
(2) Insofar as we culpably violate an essential contractual obligation, liability shall not be excluded, but shall only be limited to the foreseeable damage typical for the contract.
(3) Furthermore, the exclusion of liability shall not apply in cases in which liability exists under the Product Liability Act or in the event of the assumption of a guarantee or fraudulent concealment of defects if a defect covered thereby triggers our liability.
(4) The contractual partner is obliged to avoid and reduce conceivable damage, in particular by taking appropriate measures and insurance. The contractual partner is independently obliged to take into account the rights of third parties and legal provisions.
(5) The declaration of conformity expires in the event of modifications to the machines after delivery, which have not been carried out by BVM specialist personnel.
§ 10 Final provisions
(1) The place of performance for all services under this contract is Reutlingen, Germany. The place of jurisdiction for all disputes arising from the contractual relationship with our customer shall be – to the extent permitted by law – the courts having jurisdiction for Reutlingen, Germany.
(2) The legal relationships between us and our contractual partners are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) Should individual provisions of these terms and conditions or of the concluded contract be or become invalid in whole or in part, the remainder of the contract shall remain valid.