1. General, court of jurisdiction, applicable law
1.1 Only the following terms and conditions apply for deliveries or other services; they apply only to companies within the meaning of § 310 para. 1 BGB.
1.2 Any deviating terms and conditions on the part of the buyer which the supplier has not approved explicitly do not apply even if they are not expressly rejected by the supplier.
1.3 Any agreements, changes, or supplemental understandings require written confirmation.
1.4 The place of fulfillment of any obligations that arise from this contractual relationship directly or indirectly, including the payment obligation, is Cologne.
1.5 The place of jurisdiction is Cologne if the buyer is a merchant. The supplier is also entitled to assert a claim before a court that is responsible for the headquarters or a branch of the buyer.
1.6 The law of the Federal Republic of Germany applies; application of the UN Convention on Contracts (CISG) is excluded.
2. Offers, scope of services, and conclusion of contract
2.1 All offers are subject to change
2.2. The confirmation of order exclusively determines the scope of the contractually owed services.
2.3 For customer-specific products, deviations of up to +/- 10% from the ordered quantity are permitted insofar as this cannot be avoided due to technical reasons and is reasonable for the buyer.
2.4 Partial deliveries are permitted insofar as they are reasonable for the buyer.
2.5 The buyer is obligated to accept the gods without prejudice to the buyer’s rights regarding liability and warranty.
2.6 In the case of default of payment or imminent insolvency or other essential deterioration in the financial situation of the buyer, the supplier may demand cash payment prior to delivery, or withdraw from the contract, or claim damages after setting a reasonable period for payment regarding outstanding deliveries from any ongoing contract under discontinuation of the payment term.
3. Delivery periods, acceptance, and dispatch
3.1 The supplier is committed to upholding the specified delivery periods. The delivery-date information is provided according to a best estimate but is not binding unless it is an exact fixed date agreed on in the order confirmation.
3.2 The delivery period begins with the dispatch of the order confirmation. A reasonable extension of this period applies only if the buyers does not submit in a timely manner the documents, permits, etc. that it is to procure or it does not meet the contractual and payment obligations necessary for its order. If the delivery is delayed on the basis of events that the supplier could not prevent with reasonable care, events such as acts of God, operation disturbances, labor disputes, or failures or delays in delivery to the supplier for which the supplier is not responsible, the delivery period will be extended for the period necessary to deal with the reason for the delay. In this case, the supplier will notify the buyer of the delay as soon as possible. If the delivery is unreasonable for the supplier as a result of such a hindrance, or if the hindrance lasts longer than 8 weeks, the supplier may withdraw from the contract. The buyer has the same right if the acceptance of the order has become unreasonable as a consequence of the delay. The buyer is required to prove this. The supplier is also not responsible for the aforementioned circumstances if they occur during an already existing delivery delay.
3.3 The delivery period is upheld if the delivery item has left the factory by the delivery deadline or the buyer has been informed that the delivery is ready to dispatch.
3.4 If the supplier’s delivery is delayed, the buyer must give the supplier a reasonable deadline for delivery. Any claim on the part of the buyer for delayed delivery is excluded before expiration of this deadline.
3.5 If the buyer has placed an order on demand, the delivery item (or all delivery items in the case of multiple orders) must be purchased within 12 months calculated from the time of the order. Any interim price increases also apply to orders on demand.
4. Transfer of risk
Delivery is “ex works.” The risk transfers to the buyer upon acceptance, on the day of unjustified refusal of acceptance, upon inaction on the part of the buyer, or after expiration of the deadlines in the previous paragraph 4.5, or after expiration of a separately agreed acceptance deadline. If the dispatch of the delivery item to the buyer or a third party is agreed upon, the risk is transferred to the transporter (freight forwarding, rail, etc.) when the delivery item is provided to the transporter for delivery. The risk is transferred in any case upon use of the delivery item. If the supplier takes goods backs for cause, the buyer bears the risk until the goods are received by the supplier. The risk is also transferred according to the aforementioned conditions if a cost-free delivery is agreed upon by the supplier and buyer. This only changes the obligations for transport costs at the expense of the supplier.
5. Reservation of proprietary rights
5.1 In principle the sold goods remain property of the supplier until fulfillment of all requirements from the business relationship. If the value of the collateral on the party of the supplier exceeds its requirements by more than 20%, the supplier will release the excess collateral upon request by the buyer.
5.2 The buyer may neither pledge nor transfer for collateral the delivered items that are under reservation of proprietary rights. The buyer must inform the supplier immediately in the case of garnishment, confiscation, or other disposal by third parties.
5.3 The buyer is entitled to sell the goods that are under reservation of proprietary rights in the course lawful business. If the buyer sells these goods for its part without receiving the complete purchase price in advance or step by step against transfer of the purchased item, the buyer must agree to a retention of proprietary rights with the customer under these conditions. The buyer already hereby assigns to the supplier its claims from this further sale as well as the rights from the reservation of proprietary rights agreed to by it. Upon request by the supplier, the buyer is obligated to inform the purchaser of the assignment and to provide it with the information and documents that are necessary for the exercise of its rights over against the purchaser.
5.4 If the case of breaches of obligation on the part of the buyer, particularly default of payment, the supplier is entitled to withdraw and demand return; the buyer is obligated to return. The return or assertion of reservation of proprietary rights requires no withdrawal on the part of the supplier; in these actions or in a seizure of goods for which the proprietary rights are reserved, there is no withdrawal from the contract unless the supplier expressly declares such withdrawal.
6. Notice of defects and liability for defects
6.1 The buyer must inform the supplier in writing immediately of any defects, and at the latest within 14 days of transfer of the goods to the buyer, or in the case of hidden defects upon their discovery. This written notice must include a detailed specification of the individual defects that are alleged.
6.2 Complaints about open defects may only be made before the handling or processing of the delivered goods. Claims based on defects do not exist for merely insignificant deviations from the agreed condition, for merely insignificant impairments of usability, for natural wear and tear or damage that arises after transfer of risk in the course of faulty or negligent use or excessive strain which is not provided for in the contract.
6.3 In the event of duly claimed defects, the supplier is entitled to deliver a new defect-free item or remedy the defect within a reasonable period of time. If the subsequent performance fails, the buyer may withdraw from the contract or reduce the purchase price.
6.4 For claims for damages, point 9 (liability) also applies. Any further claims or claims other than those stipulated in point 7 on the part of the buyer against the supplier and its vicarious agents due to material defect are excluded.
6.5 Claims on the basis of defects expire after 12 months. This does not apply insofar as the law stipulates longer periods, e.g. in the case of right of recourse for delivery in accordance with §§ 478, 479 BGB.
6.6 If the buyer prompts a review of the delivered goods and indicates a defect for which the supplier would be responsible in accordance with the preceding paragraphs, the buyer must bear the incurred costs if it turns out that there is no defect.
7. Goods will only be accepted in return shipments, returns, and credits involving non-defective goods after discussion with and approval from our sales division. The name of our processing officer who approved the return must be listed on the return papers. If this information is missing from the return delivery, the goods will be sent back immediately at a charge. Returned goods must also be in good condition; the return shipment must be free of charge for us. We will not take back specially produced goods under any circumstances. 10% of the merchandise value will be subtracted from the credit as partial compensation for the necessary quality check, cleaning/disenfection of the goods, and restocking. Credits may be redeemed only for further deliveries of goods.
8.1 Claims for damages and reimbursement on the part of the buyer, regardless of the reason from which these claims may arise, are excluded, especially claims arising from the violation of contractual obligations and from unlawful acts. This does not apply insofar as liability is mandatory, e.g. according to the Product Liability Act, in cases of intent, gross negligence, due to injury to life, limb, or health, or for violation of essential contractual duties. However, the claim for damages for the violation of essential contractual duties is limited to contract-typical, foreseeable damages unless intent or gross negligence is involved or there is injury to life, limb, or health. A change of the burden of proof to the disadvantage of the buyer is not associated with the proceeding provisions.
8.2 The supplier is not liable for damages that arise due to the following reasons: unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, failure to the comply with the operating manual, incorrect or negligent handling, natural wear and tear, chemical, electrochemical, or electrical influences provided they are not based on intent or gross negligence on the part of the supplier, unauthorized modifications or repair work.
8.3 Consultation provided to the buyer, particularly regarding the use of the delivery item, is binding for the supplier only if the supplier has provided or confirmed such consultation in writing.
9. Intellectual property rights
The supplier retains the intellectual property rights for drawings, sketches, price quotes, its other offers and order confirmations, as well as the attached documentation. The buyer may use these only for the agreed purpose and may not reproduce or make these available to third parties without the supplier’s consent. These documents and all copies of them must be returned to the supplier upon request.
Cologne, January 2017 BartelsRieger Atemschutztechnik GmbH