General terms and conditions
1. General, scope of application
1.1 These General Terms and Conditions of Sale apply to all business relations of BORBET Vertriebs GmbH, BORBET GmbH, BORBET Solingen GmbH, BORBET Thüringen GmbH and BOR-BET Sachsen GmbH with customers (hereinafter referred to as: "Buyer") who are not consumers (Section 13 BGB [German Civil Code]).
1.2 The General Terms and Conditions of Sale shall apply in particular to contracts for the sale and/or delivery of movable items (hereinafter also referred to as: "Goods") regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). The respective version of these General Terms and Conditions of Sale shall also apply as a framework agreement for future contracts for the sale and/or de-livery of movable items with the same Buyer, without us having to refer to them again in each individual case; we will notify the Buyer immediately of any changes to our General Terms and Conditions of Sale in this case.
1.3 Our General Terms and Conditions of Sale shall apply exclu-sively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement shall apply in all cases, for example even if we carry out the delivery to the Buyer without reservation in full knowledge of the Buyer's general terms and conditions.
1.4 Individual agreements made with the Buyer in individual cases (including side agreements, supplements and amendments) shall take precedence over these General Terms and Conditions of Sale. A written contract or our written confirmation is decisive for the content of such agreements.
1.5 Legally relevant declarations and notifications of the Buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or price reduction) must be made in writing, i.e. in written or text form (e.g. by letter, email or fax). Legal formal requirements and further evidence, in particular in cases of doubt as to the legitimacy of the person making the declaration, remain unaffected.
2. Conclusion of contract
2.1 Our offers are subject to alteration and non-binding. This shall also apply if we have provided the Buyer with catalogues, techni-cal documentation (e.g. drawings, plans, calculations, cost esti-mates, references to DIN standards), other product descriptions or documents – including in electronic form – in which we reserve ownership rights and copyrights.
2.2 Any order for Goods by the Buyer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 2 weeks of its receipt by us.
2.3 Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the Goods to the Buyer. 2.4 Other agreements, in particular verbal side agreements and assurances by employees or representatives, shall only become binding upon our written confirmation.
3. Conclusion of contract for webshop orders
If the Buyer orders Goods via our webshop, the following conditi-ons shall apply in addition:
3.1 The presentation and advertising of Goods in our online shop does not constitute a binding offer to conclude a purchase agreement.
3.2 The buyer can select the brand "BORBET" from our online product range and place it in the shopping cart by clicking on the button "Add to cart". The Buyer uses the "Proceed checkout" but-ton to submit a binding request to purchase the goods in the shopping basket. Before sending the order the Buyer can change and see the data at any time. However, the application can only be submitted and transmitted if the Buyer has accepted these Terms and Conditions by clicking on the "Accept General Terms and Conditions of Sale" button and thereby included them in their application.
3.3 We will then send the Buyer an automatic acknowledgement of receipt via
email in which the Buyer's order is listed again and which the Buyer can print using the "Print" function. The automatic acknow-ledgement of receipt merely documents that the seller has recei-ved the Buyer's order and does not constitute acceptance of the application. A contract is only concluded when we accept the Buyer's order by means of a declaration of acceptance or by de-livering the items ordered.
3.4 Contracts with the Buyer are concluded exclusively in German or English, irrespective of whether the Buyer places the order via the German-language or English-language page of the online shop. If the Buyer’s order is placed via our German-language website, then the German version of these general business terms and conditions applies exclusively. If the Buyer’s order is placed via our English-language website, then the English version of these general business terms and conditions applies exclusively.4. Delivery date and late delivery
4.1 The delivery date is agreed individually or stated by us upon acceptance of the order.
4.2 If we are unable to comply with binding delivery dates for reasons for which we are not responsible (non-availability of performance), we shall immediately inform the Buyer thereof and at the same time inform the Buyer of the expected new delivery date. If the service is also not available by the new delivery date, we shall be entitled to withdraw from the contract in whole or in part; we will reimburse any consideration already rendered by the Buyer without delay. In particular, the non-availability of the ser-vice in this sense shall be deemed to be the failure of our supplier to deliver to us on time if we have concluded a matching hedging transaction, if neither we nor our supplier are at fault or if we are not obliged to procure in individual cases.
4.3 Any delay in delivery by us shall be determined in accordance with the statutory provisions. In any case a reminder by the Buyer is required.
4.4 The Buyer's rights pursuant to Section 8 of these General Terms and Conditions and our statutory rights in particular in the event of exclusion of the obligation to perform (e.g. due to impos-sibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
5. Delivery, passing of risk, acceptance, default of acceptance
5.1 Delivery shall be made EX WORKS (INCOTERMS 2010), Hal-lenberg for deliveries by BORBET GmbH, Neuching and Mede-bach for deliveries by BORBET Vertriebs GmbH, Solingen for deliveries by BORBET Solingen GmbH, Bad Langensalza for de-liveries by BORBET Thüringen GmbH and Kodersdorf for de-liveries by BORBET Sachsen GmbH, which shall also be the place of performance for delivery and any subsequent performance. The Goods shall be shipped to another destination (mail order purch-ase) at the request and expense of the Buyer. Unless otherwise agreed, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) oursel-ves.
5.2 The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon handover. In the case of a sale involving the carriage of goods, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the freight forwarder, carrier or other person designated to carry out the shipment already upon delivery of the goods to same.
6. Prices and payment terms
6.1 Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract are EX WORKS (IN-COTERMS 2010), Hallenberg for deliveries by BORBET GmbH, Neuching and Medebach for deliveries by BORBET Vertriebs GmbH, Solingen for deliveries by BORBET Solingen GmbH, Bad Langensalza for deliveries by BORBET Thüringen GmbH and Kodersdorf for deliveries by BORBET Sachsen GmbH, plus sta-tutory value added tax.
6.2 In the case of a sale involving the carriage of goods (clause 4.1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. The Buyer shall bear any customs duties, fees, taxes and other public charges.
6.3 The purchase price is due and payable within 14 days of in-voicing and delivery, unless otherwise agreed.
6.4 The Buyer shall be in default upon expiry of the aforementio-ned payment deadline. The purchase price shall accrue interest at the applicable statutory default interest rate during the period of default. We reserve the right to assert further claims for damages caused by default. Our claim against merchants to commercial interest on arrears (Section 353 HGB [German Commercial Code]) remains unaffected.
6.5 The Buyer shall only be entitled to set-off or retention rights to the extent that their claim is legally established or undisputed. In the event of defects in the delivery, the Buyer's reciprocal rights shall remain unaffected, in particular in accordance with Section 7.4 sentence 2 of these General Terms and Conditions of Sale.
6.6 If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk due to the Buyer's inabili-ty to pay (e.g. by filing for insolvency), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). The statutory provisions on the su-perfluousness of setting a deadline shall remain unaffected.
7. Retention of title
7.1 Until full payment of all our current and future claims from the purchase agreement and an ongoing business relationship (secured claims), we reserve title to the sold Goods.
7.2 The Goods subject to retention of title may not be pledged or assigned as security to third parties before full payment of the secured claims has been made. The Buyer shall notify us imme-diately in writing if and to the extent that access by third parties to the Goods belonging to us occurs.
7.3 In the event of breach of contract by the Buyer, in particular non-payment of the purchase price due, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and demand return of the Goods on the basis of retenti-on of title. If the Buyer fails to pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the Buyer a reasonable deadline for payment or if such setting of a deadline is superfluous under the statutory provisions.
7.4 The Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the full value of the pro-ducts resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If the ow-nership rights of third parties remain in force in the event of pro-cessing, mixing or combination with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product as a whole or in the amount of our possible co-ownership share pursuant to the preceding paragraph. We accept such assignment. The obligations of the Buyer mentioned in clause 6.2 shall also apply with regard to the assigned claims.
(c) The Buyer shall remain authorised to collect the claim in addi-tion to ourselves. We undertake not to collect the claim as long as the Buyer meets their payment obligations towards us, is not in default of payment, no application for the institution of insolvency proceedings has been made and there is no other defect in their ability to pay. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provi-des all information necessary for collection, hands over the rele-vant documents and informs the debtors (third parties) of the assignment.
7.5 If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
8. Defect claims of the Buyer
8.1 The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects in title (including incor-rect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below.
8.2 The Buyer's defect claims require that the Buyer has complied with their statutory obligations to inspect and give notice of de-fects (Sections 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be no-tified thereof in writing without delay. In all cases, obvious defects must be reported in writing within 7 working days of delivery and defects not identifiable during inspection within the same period of time after discovery thereof. If the Buyer fails to properly inspect the Goods and/or give notice of defects, our liability for the defect not reported or not reported in a timely manner or not properly shall be excluded in accordance with the statutory provisions.
8.3 If the delivered item is defective, we may initially choose whe-ther we shall render subsequent performance by remedying the defect (subsequent improvement) or by supplying a defect-free item (replacement delivery). Our right to refuse subsequent per-formance under the statutory prerequisites shall remain unaffec-ted.
8.4 We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purch-ase price proportionate to the defect.
8.5 The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected Goods for inspection purposes. In the event of a re-placement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent perfor-mance does not include the removal of the defective item or its installation if we were not originally obliged to install it.
8.6 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as any dismant-ling and installation costs, in accordance with the statutory provi-sions, if a defect actually exists. Otherwise, we shall be entitled to demand reimbursement from the Buyer for the costs incurred as a result of the unjustified demand to remedy the defect (in particular inspection and transport costs), unless the Buyer could not have identified the absence of a defect.
8.7 Any claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with clause 8 and are otherwise excluded.
9. Miscellaneous liability
9.1 Unless otherwise stated in these General Terms and Conditi-ons of Sale, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obliga-tions in accordance with the relevant statutory provisions.
9.2 In the event of intent or gross negligence, we shall be liable for damages - irrespective of the legal basis. In the case of simple negligence we shall only be liable
a) for damages resulting from injury to life, limb or health,
b) for damages arising from the breach of an essential contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for foreseeable damages typical for this type of contract.
9.3 The liability restrictions resulting from clause 8.2 do not apply if we have fraudulently concealed the defect or guaranteed the quality of the Goods. The same applies to the Buyer's claims under the Product Liability Act.
10.1 The prescription period for claims arising from material de-fects and defects of title shall be one year from date of delivery.
10.2 Special statutory provisions regarding prescription shall remain unaffected (in particular Section 438 (1) no. 1, (3), Sections 444, 445b BGB).
10.3 The aforementioned prescription periods of the sales law are also valid for contractual and non-contractual claims for damages of the Buyer, which are based on a defect of the Goods, unless the application of the regular statutory prescription period (Sec-tions 195, 199 BGB) would lead to a shorter prescription period in individual cases. Claims for damages on the part of the Buyer pursuant to clause 8.2 sentence 1 and sentence 2 (a) as well as pursuant to the Product Liability Act shall, however, prescribe exclusively in accordance with the statutory limitation periods.
11. Applicable law and place of jurisdiction
11.1 German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods shall apply to the contractual relationship.
11.2 The sole - also international - place of jurisdiction is Arnsberg.