General business terms

Conditions of Delivery and Payment of Borbet Vertriebs GmbH

A. General

1. The general statutory regulations regarding return of goods and cancellation apply to natural persons. We explicitly point out to the regulations of the German Civil Code (BGB) and to the Remote Sales Act.

2. The following conditions of delivery and payment are applicable to persons acting in the scope of their commercial or self-employed activities (business persons) as well as legal entities under public law or special funds under public law and apply to all future deliveries and services of Borbet Vertriebs GmbH (referred to as "BV" in the following). Opposing general terms and conditions of the respective contract partner are expressly contradicted. Such terms and conditions of a contracting partner do not obligate us even if we have not expressly objected to them after receiving them or we perform services for this contracting partner without reservation with knowledge of terms of the contracting partner that contradict our conditions of payment and delivery.

3. Thus, deviations from our conditions of delivery and payment are only valid if they are written in the respective contract and confirmed by us in writing.

B. Conclusion of the Contract

Our offers are always subject to change. Conclusions of contracts and other agreements, in particular also oral ancillary agreements and promises from employees or representatives are only binding after our written confirmation.

C. Prices

1. Should nothing to the contrary be agreed to in the contract confirmation, our prices are considered "ex works". Packaging, freight, postage, insurance, and delivery fees will be charged separately.

2. The statutory value-added tax is not included in our prices; it is listed separately in the statutory amount on the day of invoicing on the invoice.

3. All prices in brochures and catalogues are non-binding. Principally, the prices valid on the day of delivery are authoritative insofar as nothing else arises from our order confirmation.

D. Payment Conditions

1. Insofar as nothing else arises from the order confirmation, invoices issued by us are payable without deduction by the 15th of the month following the date of invoicing. A trade discount in the amount of 2% is granted for payment within 10 days of invoice date. Prerequisite for granting of the trade discount is, though, that the contracting partner is not in arrears with other payments to BV.

2. In the event that the term of payment pursuant to section 1 is exceeded, the contracting partner is in arrears. In this case we are entitled to charge interest on arrears in the amount of 8% p.a. above the respective base rate of the European Central Bank. We reserve the right to claim additional damages on account of arrears. §353 of the German Commercial Code (HGB) remains unaffected.

3. In the case of partial deliveries or partial services, BV can refuse fulfilment of the services from the contract remaining to be performed in the event of payment arrears of the contracting partner until the overdue receivables have been paid. Furthermore, in such cases, BV is entitled to demand payment against delivery for the remaining services to be performed in deviation from the provisions above in section 1.

4. Non-adherence to payment conditions, the commencement of arrears, or other circumstances that reduce the creditworthiness of the contracting partner entitle BV to make all receivables from the ongoing business relationship due immediately.

5. The contracting partner is only entitled to set off with counterclaims if the counterclaims are legally determined, undisputed, or recognised by us. The contracting partner is only allowed to exercise a right of retention if its counterclaim is based on the same contractual relationship.

E. Delivery Periods and Dates

1. Delivery periods and dates are only valid as approximations unless they are expressly designated as binding in writing by us. The delivery period begins with the day of our order confirmation, but not before clarification of all technical and commercial details and presentation of any needed permits. Any changes in the executed of the subject of the delivery demanded by the contracting partner within the delivery period interrupt and prolong the delivery period in the corresponding manner.

2. In the case of unforeseen events, such as delivery delays on the part of the supplier, strikes, lock-outs, materials shortages, official measures, and other force majeures, the delivery period is prolonged for the period of time between the beginning and end of the reason for the hindrance.

3. In the event that performance is significantly impeded or made impossible, BV is entitled to withdraw from the contract without payment of damages. In such a case, the ordering party can demand that we declare whether we will withdraw or deliver within a reasonable period. If we do not make a declaration, the ordering party can withdraw from the contract. The ordering party cannot refuse partial deliveries or partial performances unless it has a just interest in their refusal. 4. In the event that BV is in arrears, the contracting partner must set a reasonable grace period for subsequent fulfilment for BV in writing. If the subject of the delivery is not delivered in part or in full within this grace period, the contracting partner is entitled to withdraw after expiry of the period with regard to those ordered amounts that were not delivered by expiry of the grace period; in this respect shipment by BV is considered delivery. Should damages arise for the contracting partner on account of delivery arrears for which BV is responsible, BV shall replace verifiably arising damages, at the most, though, 5% of the net value of goods of the delayed or omitted delivery or service. This limitation does not apply, though, insofar as BV has mandatory liability on account of wrongful intent or gross negligence. The statutory right of the contracting partner to withdrawal after expiry of a grace period set by BV remains unaffected.

5. BV is released from adherence to any delivery period should the contracting partner be in payment arrears from earlier orders or regarding a partial delivery of an order or fails to fulfil other contractual duties.

6. In the event of shipment of goods, the day of the dispatch is considered the day of delivery; in all other cases the day on which the contracting partner receives the announcement of readiness to ship is authoritative.

F. Shipment/Assumption of Risk

1. Shipment occurs at the cost of the contracting partner to it or to a third party according to its information.

2. In the even of shipment, the risk is transferred to the contracting partner as soon as the goods to be delivered have left BV's plant. The corresponding applies if the goods to be delivered are shipped by a sub-supplier immediately to the contracting partner upon request of BV. This regulation also applies in the case of partial deliveries or if BV has assumed services ofanother kind.

3. If the shipment is delayed by circumstances for which the contracting partner is responsible, then the risk is transferred to it on the day of announcement of readiness to ship.

4. BV is entitled to insure the goods to be shipped against transport risks at the expense of the contracting partner. A duty with regard to this only exists for BV on the basis of a separate written agreement.

G. Warranties

1. The contracting partner is to inspect delivered goods immediately after receipt and make written notice of any defects immediately, at the latest within 8 work days after receipt at the destination. Hidden defects are to be reported immediately after being found. Non-adherence to the period for notice of defects results in exclusion of the contracting partner from claims of any kind with regard to the defects not reported or reported late if the contracting partner is a business person or a legal entity under public law.

2. BV is to be given the opportunity to inspect the reported defects according to its choice either on the spot or at a branch of BV. The inspection by BV is to occur immediately insofar as the contracting partner proves an interest in immediate handling. Without the agreement of BV, nothing on the criticised goods may be changed, otherwise the contracting partner loses its claims to warranty.

3. In the event of provable defects of material or workmanship, BV can, according to its choice, rectify the defect at no charge or, against return of the defective goods, either provide a replacement at no charge or credit the invoiced value or grant the contracting partner a discount with reasonable consideration for its interests.

4. Should BV not fulfil its chosen duty to subsequent performance (replacement delivery or subsequent improvement) or not do so in a contractual manner or should the subsequent performance fail, the contractual partner is entitled to a price reduction or withdrawal from the contract according to its choice in the scope of the statutory regulations.

5. Other or further claims of the contracting partner, in particular for reimbursement of processing expenses, installation and disassembly expenses, and damages that do not concern the subject of delivery itself (consequential damages of the defect) are excluded insofar as legally allowed.

6. Should the contracting partner send boundary samples for inspection, BV is only liable for the delivery being carried out pursuant to the inspected boundary samples with consideration for any corrections (determination of characteristics by means of boundary samples).

7. The warranty claims regulated in this section solely relate to defects of deliveries or services of BV that were already at hand upon transfer of risk to the respective contracting partner or relate to defects of material and/or workmanship that already existed at the time of the transfer of risk. The hereby resulting warranty claims of the contracting partner become time barred 12 months after transfer of risk. In the event of used objects of purchase, all liability for material defects is excluded unless the existence of the defect was concealed fraudulently.

H. Warranty Claims

1. Claims of a contracting partner on account of infringement of a guarantee are only considered if the BV has expressly confirmed a warranty of characteristics or durability in writing and in doing so designated the respective warranty as such. The written confirmation can also be replaced by the handover or pre-formulated written warranty conditions.

2. With reservation of the respective concrete warranty promises and/or warranty conditions, contracting partners can only make claims on account of infringement of a warranty insofar as the contracting partner was to protect against those particular damages that arose with the guarantee.

I. General Limitations of Liability

1. The liability of BV is based solely on these general conditions of delivery and payment. All claims not expressly ceded in these conditions, in particular also claims for damages on account of impossibility, arrears, infringement of contractual ancillary duties (including consulting and the provision of information), culpa in contrahendo, unlawful acts - also insofar as such claims are in conjunction with claims on account of defects of the contracting partner - are excluded. This does not apply insofar as the claims are based on a wilful or grossly negligent action/omission on the part of BV or a legal representative or agent or that BV, its legal representatives, or its agents have negligently infringed contractual cardinal duties or material contractual duties in another manner or if culpable injury to life, limb, or health of a third party is in discussion.

2. All claims against BV, regardless of legal grounds, become time barred in one year at the latest unless there is wilful or fraudulent conduct for which BV is responsible; in these cases the statutory time barring limits are applicable.

3. Limitations of liability pursuant to these general terms and conditions do not apply to claims from the product liability act.

J. Retention of Title

1. BV retains title to the goods delivered by it until fulfilment of all claims existing against the contracting partner from the ongoing business relationship. This also applies if the price for certain deliveries designated by the contracting partner has been paid. Any processing and finishing occurs for BV without it being obligated or without the loss of ownership by BV hereby arising. Should the contracting partner combine the goods subject to retention of title with other goods, BV is entitled to co-ownership of the item in the relationship of the invoiced value of all connected goods. The new item is considered subject to retention of title in the sense of these conditions to this extent.

2. The contracting partner is entitled to sell the goods subject to retention of title in the regular course of business. Other disposals are prohibited for it.

3. The contracting partner assigns all claims arising for it from use of the goods subject to retention of title in advance to BV. If the goods subject to retention of title are sold with other objects that do not belong to BV or if they are used as materials in the execution of contracts for work, then the assignment only includes that portion of the revenue that corresponds to the proportion of co-ownership that BV has for the goods subject to retention of title.

4. The contracting partner is only authorised to collect the assigned receivables in regular business operations.

5. Seizures of third parties of the goods subject to retention of title or the assigned receivables are to be reported by the contracting partner to BV without delay. The expenses for intervention are to be borne by the contracting partner.

6. The authorisation of the contracting partner to dispose of the goods subject to retention of title and to collect assigned receivables lapses in the event of non-compliance with the payment conditions as well as in the event of protests in conjunction with cheques or bills of exchange. In this case, BV is entitled to take possession of the goods subject to retention of title. The thereby arising expenses are to be borne by the contracting partner. The taking of possession only constitutes withdrawal from the contract if this is expressly declared by BV. Upon request of BV, the contracting partner is also obligated to provide BV with all necessary information and documents required for claiming the assigned receivables.

7. Should the value of the collateral available to BV exceed its receivables by a total of more than 10%, BV is obligated upon request of the contracting partner to release the excess collateral according to its choice.

K. Place of Fulfilment, Legal Venue, Applicable Law

1. Place of fulfilment for all deliveries and services of BV is the domicile of BV.

2. The legal venue is based on the domicile of BV, which is entitled, though, to make claims against the contracting partner at its domicile or other legally allowable legal venues. This also applies to bills of exchange and cheque liabilities.

3. German law as applicable to residents is solely applicable for the deliveries and services of BV. The application of laws on the international sale of movable goods and the conclusion of international sales contracts for moveable goods is excluded.

L. Personal Data

1. BV is entitled to save and process personal data of the contracting partner using electronic data processing.

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Borbet GmbH

Hauptstr. 5
D-59969 Hallenberg-Hesborn

Tel: +49 (0) 29 84 / 30 10
Fax: +49 (0) 29 84 / 30 11 10
E-Mail: info@borbet.de