General Terms and Conditions of Sale and Delivery of b & m GmbH, 88094 Oberteuringen (AGB)
I. General
| 1. | The sale, deliveries and related services (Clause 3) are based on these GTC ́s. Verbal ancillary agreements, subsequent amendments to the contract, the acknowledgment of the customer’s terms and conditions as well as the assurance of the characteristics of the delivery item require the written confirmation of the company b & m GmbH, hereinafter referred to as the “Company”, in order to be valid. | |
| 2. | Incorrect transmission of telegraphic, telex or telephone orders as well as instructions are at the risk of the customer. | |
| 3. | The company will take over installation and installation work as well as other ancillary services in connection with the delivery of the delivery item if this is agreed in writing. These T&Cs also apply to this, unless special conditions have been agreed for such services in individual cases. |
II. Conclusion of Contract
| 1. | Offers of the company are subject to change with regard to price, quantity, delivery times and delivery ability. The company reserves ownership and copyright rights to offers, drawings, technical information and other documents; they may only be made available to third parties with the prior consent of the company. | |
| 2. | The customer is bound by his order six weeks after receipt by the company. The conclusion of the purchase contract, insofar as it exceeds the contract amount of € 1,500.00, takes place by written confirmation of the company. The written order confirmation of the company is decisive for the scope of the deliveries, unless the customer immediately objects to any deviations from the order. Amendments and additions to the contract are only binding on the company if they are confirmed by the company in writing. | |
| 3. | Technical data, operating costs, consumption values, performance, weights, dimensions, etc. are only approximate values, unless they have been expressly assured by the company in writing. | |
| 4. | The company reserves the right to make changes to the design, form and material of the delivery item, provided that the delivery item is not fundamentally changed as a result and the changes are reasonable for the customer. | |
| 5. | The transfer of rights and obligations of the customer under the contract to third parties requires the prior written consent of the company. |
III. Prices
| 1. | In the absence of a special agreement, the prices are net without discount. Customs and any other costs, such as transport, packaging, insurance and, for example, for consular certificates and certificates of origin, are at the expense of the customer. General delivery conditions: FCA D – 88094 Oberteuringen, Ziegelmüllerstraße 6 (Incoterms 2020). | |
| 2. | Upon delivery of the delivery item in the Federal Republic of Germany, the customer must also pay VAT in the respective statutory amount. | |
| 3. | In all other respects, the provisions under item no. IV. executed payment terms of the company. |
IV. General Terms and Conditions of Payment
| 1. | Payments are to be made without any deduction in € – unless otherwise agreed – within thirty days of the invoice date net by bank transfer to the account of the company shown on the invoice. Bank charges are at the expense of the customer. | |
| 2. | Payments can only be made to the company’s account or to persons with a written power of attorney for collection from the company. Bank fees and costs of letters of credit are at the expense of the customer. Deposits do not bear interest. Money orders, cheques and bills of exchange are accepted only by special agreement and only on account of payment, with the calculation of all collection and discount charges. | |
| 3. | The customer can only offset against claims of the company or assert a right of retention if the customer’s counterclaim is undisputed or if a legally binding title exists. | |
| 4. | If payments are made later than agreed, the company may charge flat-rate interest at a rate of 5% above the base rate, without prejudice to any other contractual rights. We reserve the right to assert higher damages for delay. In addition, dunning costs are claimed. |
V. Retention of title
| 1. | All deliverables shall remain the property of the Company until all obligations arising from the Company’s business relationship with the Purchaser have been fully fulfilled (goods subject to retention of title). | |
| 2. | Any treatment and processing of the goods subject to retention of title as well as their connection with third-party goods by the customer or third parties is carried out on behalf of the company. Newly created items that are classified as goods subject to retention of title within the meaning of No. 1, the company is entitled to co-ownership in accordance with the value of the delivery item. | |
| 3. | The company is revocable with a resale of the goods subject to retention of title by the customer in the course of its proper business operations and subject to the provision in No. VI. He is prohibited from pledging or transferring security. In order to secure the entire claims of the company arising from the business relationship with the customer, the customer assigns his claims from the resale of the reserved goods to the company in the amount of the company’s purchase price claim. The customer is entitled and obliged to collect the claims assigned to the company until further notice. If the customer stops making payments, this direct debit authorization expires even without express revocation. | |
| 4. | At the request of the customer, the company will release the securities to which it is entitled under the above provisions – at its discretion – to the extent that their value exceeds the claims to be secured from the business relationship by 20%. | |
| 5. | The customer is obliged to carefully store the reserved goods for the company, to keep them in technically perfect condition and to have any necessary repairs carried out immediately. The reserved goods must be repaired – except in emergencies – in the company’s workshop or in the workshops authorized by the company. Only original b&m parts are to be used. | |
| 6. | During the period of retention of title, the Purchaser shall, at the request of the Company, insure the goods subject to retention of title against all risks in the amount of the existing residual debt to the extent specified by the Company, with the proviso that the rights arising from the insurance are vested in the Company. The company is entitled to the customary security certificate. | |
| 7. | In the event of seizures or other impairments of the owner’s interests, the customer must notify the company immediately. |
VI. Default
| 1. | If the Purchaser fails to comply with its payment and insurance obligations or the obligations arising from the retention of title, including the assignment of claims; if, as a result of the customer’s conduct, the company receives one of the notices from the insurer provided for in the insurance certificate; the customer ceases to make payments; fails to cash a cheque or bill of exchange; he applies for insolvency proceedings; the entire remaining debt is due immediately, even if bills of exchange with a later maturity date are in progress; any right of sale of the purchaser pursuant to V No. 3 shall expire. | |
| 2. | If the entire remaining debt is not paid immediately, the customer’s right of use to the goods subject to retention of title expires. After the expiry of a grace period of 14 days set by the company and in the event that the customer stops making payments or insolvency proceedings are filed, the company is then immediately entitled to demand the return of the goods subject to retention of title to the exclusion of any right of retention and to collect them from the customer. The possession of goods subject to retention of title in which there are co-ownership rights of third parties is carried out by the company at the same time on behalf of the co-owners. All costs arising from the possession and utilization of the goods subject to retention of title shall be borne by the customer. The company is – possibly. in agreement with the co-owners – is entitled, without prejudice to the payment obligations of the customer, to exploit the reserved goods with accessories taken into possession in the best possible way by private sale or public auction. The proceeds after deduction of costs shall be paid to the purchaser, unless they are due to a third party or claims existing by the company to cover them. |
VII. Delivery
| 1. | Delivery periods are only binding if they have been expressly confirmed as binding by the company. | |
| 2. | The delivery period begins on the day on which the agreement on the order has been reached in writing between the customer and the company. The delivery deadline is met if the goods have left the factory or warehouse within the deadline. If the shipment or collection is delayed for reasons beyond the company’s control, the deadline shall be deemed to have been met upon notification of readiness for shipment within the delivery period. | |
| 3. | The delivery period shall be extended appropriately in the event of events beyond the Company’s control (e.g. strikes, lockouts, operational disruptions and delays caused by suppliers as well as cases of force majeure, pandemic, epidemic). The company is also not responsible for the aforementioned events if they occur during a delay. If the delivery is delayed by more than six months due to such events, both the customer and the company are entitled to withdraw from the contract. | |
| 4. | If the company is in default by more than six weeks, the customer has the right to set the company a reasonable grace period. If the delivery is not made by the expiry of the grace period, the customer may withdraw from the contract by written declaration and reclaim any advance payments with 5% interest. In the event of partial delay in performance, the right of withdrawal is limited to the partial performance insofar as this can be reasonably expected of the customer. | |
| 5. | If the company is in default due to gross negligence, it will compensate the customer for any damage incurred with 0.5% of the price of the delayed delivery, but not more than 5% of the value of the goods, for each completed week of delay. This also applies in the case of slight negligence, but no compensation for loss of profit / use is provided here. | |
| 6. | The Company reserves the right to offer the Purchaser a delivery item of another similar item or type if the ordered item or type is no longer manufactured on the scheduled delivery date. There is no obligation for the company to deliver the originally ordered delivery item or for damages due to non-performance. The company will try to deliver the replacement goods as far as possible at the same price as the ordered goods. | |
| 7. | If the customer causes a delay in the shipment or delivery of the delivery item, the company is entitled to charge the customer for the additional costs incurred as a result. |
VIII. Liability and Warranty
| 1. | The Company shall be liable for defects in the delivery, including the absence of warranted characteristics, as follows: | |
| a) | All those parts which become unusable within six months of the date of the transfer of risk, in particular due to defective construction, poor material or defective workmanship, or whose usability has been significantly impaired, shall be repaired or resupplied free of charge at the discretion of the company. | |
| b) | Defects must be reported to the company immediately in writing, but hidden defects must be reported no later than fourteen days after receipt of the goods. | |
| c) | In order to remedy the defects, the customer must grant the company the time and opportunity required at its reasonable discretion. Otherwise, it is exempt from the obligation to remedy defects. | |
| d) | Liability for defects does not apply to natural wear and tear, nor to damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress or such thermal, chemical, electrochemical or electrical influences that are not required by the contract. | |
| e) | The warranty obligation expires if the delivery item has suffered from improper handling or storage, or if it has been altered or repaired without the written consent of the company, or if non-original B&M parts have been used and the alterations or repairs have led to the defect. Accordingly, the warranty is excluded in the event of incorrect installation or commissioning by the customer or by third parties and in the case of the use of unsuitable equipment and replacement materials. | |
| f) | The Purchaser’s right to assert claims for defects shall in all cases become time-barred in three months from the time of the complaint, but not before the expiry of the original warranty period. If no agreement is reached within this period, the company and the customer can agree on an extension of this limitation period. | |
| g) | With the removal, the parts replaced in fulfilment of this warranty obligation become the property of the company. | |
| h) | The Company shall be liable for repair work and replacement parts to the same extent as for the original delivery item, until the expiry of the warranty period applicable to the original delivery item. | |
| i) | In the case of third-party products, the liability of the company is limited to the assignment of the liability claims to which it is entitled against the supplier of the third-party product. The company’s liability is limited only on a subsidiary basis. | |
| j) | Insofar as the complaint turns out to be justified and within the prescribed period, the company shall bear the costs of the replacement piece, including shipping, as well as the reasonable costs of removal and installation, as well as the costs of any necessary provision of fitters and assistants of the supplier in Germany, from the direct costs incurred by the repair or replacement delivery. In all other respects, the customer shall bear the costs. | |
| k) | If the repair of the defective delivery item requires a disproportionately high effort or if the delivery item is located abroad, the company may, at its discretion, demand the limitation of the defect liability rights to reduction or conversion. | |
| l) | For repairs without legal obligation, the warranty is assumed if this is agreed in writing. | |
| m) | The company does not guarantee that the equipment it supplies complies with foreign regulations without a written agreement. | |
| 2. | Further claims of the customer against the company and its vicarious agents are excluded, in particular a claim for compensation for damage that has not occurred to the goods themselves. This does not apply to the extent that liability is mandatory in the event of personal injury or damage to privately used property under the Product Liability Act or in cases of intent, gross negligence or the lack of guaranteed properties. | |
| 3. | The company’s “warranty conditions” for end users remain unaffected by the above provisions. | |
| 4. | Unless otherwise provided above, the company and its vicarious agents and vicarious agents shall be liable for claims for damages by the purchaser: | |
| a) | Liability for personal injury is based on the statutory provisions | |
| b) | Liability for property damage is limited to € 250,000 per damage event and to € 500,000 in total. | |
| c) | Liability for financial losses is excluded. |
The limitation of liability under b) and the exclusion of liability under c) shall not apply insofar as liability is mandatory for damage to privately used property under the Product Liability Act or in cases of intent or gross negligence.
IX. Data protection In connection with the processing of the order, we store personal data within the meaning of the Federal Data Protection Act and use it exclusively on the basis of the currently valid Federal General Data Protection Regulation.
X. Place of performance and jurisdiction
| 1. | The place of performance for both parts is Oberteuringen, Bodenseekreis. | |
| 2. | The place of jurisdiction for all present and future claims arising from the business relationship, including bills of exchange – as far as legally permissible – is based on the general place of jurisdiction of the company. The company is also entitled to assert its claims before the courts with local jurisdiction for the customer. |
XI. Applicable law
| 1. | The law applicable in the Federal Republic of Germany shall apply exclusively to the mutual legal relations. | |
| 2. | The Uniform Laws on International Sales (Hague Convention) and the United Nations Convention of 11.04.1980 on Contracts for the International Sale of Goods do not apply. |
