General Terms and Conditions of Sale (except for deliveries to the USA) for BMK GmbH and Dekor-Kunststoffe GmbH
- General, Scope
- These General Terms and Conditions of Sale (GTCS) shall apply to all business relations (except for USA) of the Seller with its customers ("Buyer"). The GTCS shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- The GTCS shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 651 BGB). Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer's order or, in any case, in the version last communicated to the Buyer in text form shall apply as a framework agreement also to similar future contracts without the Seller having to refer to them again in each individual case.
- The GTCS of the Seller shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that the Seller expressly consents to their application in writing. This requirement of consent shall apply in any case, for example even if the Seller carries out the delivery to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions.
- Individual agreements with the purchaser (including ancillary agreements, additions and modifications) shall in any case take precedence over these GTC. The content of such agreements shall, subject to proof to the contrary, be governed by a written contract or the written confirmation of the seller.
- Legally relevant declarations and notifications which are to be made by the Buyer to the Seller after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) require the text form to be effective.
- References to the validity of statutory provisions are only intended to clarify matters. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCS.
- Conclusion of Contract
- Offers made by the Seller are subject to change without notice and are non-binding. This shall also apply if the Seller has provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which the Seller reserves ownership rights and copyrights.
- The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, the Seller shall be entitled to accept this contractual offer within two weeks of its receipt by the Seller.
- The acceptance can be declared either by an order confirmation or by delivery of the goods to the Buyer.
- Delivery period and delay in delivery
- The delivery period shall be agreed individually or stated by the Seller upon acceptance of the order. The delivery period is non-binding.
- If the Seller has agreed on binding delivery periods and is unable to meet them for reasons for which the Seller is not responsible (non-availability of the service), the Seller shall inform the Buyer immediately and at the same time notify the Buyer of the expected new delivery period. If the service is also not available within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; the Seller shall immediately refund any consideration already paid by the Buyer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of the Seller's supplier to deliver on time if the Seller has concluded a congruent hedging transaction, neither the Seller nor its supplier is at fault or the Seller is not obliged to procure in the individual case.
- The occurrence of a delay in delivery by the Seller shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer is required.
- The rights of the Buyer pursuant to § 7 of these GTCS and the statutory rights of the Seller, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonability of performance and/or subsequent performance), shall remain unaffected.
- Delivery, Transfer of Risk, Acceptance, Default of Acceptance
- Delivery shall be ex works or, in the case of warehouse goods, ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the goods shall be shipped to another destination (dispatch purchase). Unless otherwise agreed, the Seller shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser at the latest upon handover. In the case of dispatch purchase to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
- If the Buyer is in default of acceptance in whole or in part, the Seller shall be entitled to store the goods at the risk and expense of the Customer and to invoice them as delivered, including all costs incurred.
- The Seller shall be entitled to charge the Buyer costs for the storage of the goods in the amount of 0.5% of the gross value of the delivery per month or part thereof. The Buyer reserves the right to prove lower storage costs as well as the Seller's right to claim higher damages due to default of acceptance.
- Any obligation of the Seller to perform in advance shall also end upon default of acceptance. From that date he is only obliged to deliver against advance payment of the purchase price including the incurred storage costs.
- Prices and terms of payment
- Unless otherwise agreed in individual cases, the Seller's prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
- In the case of dispatch purchase to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
- The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. However, the Seller shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. The Seller shall declare a corresponding reservation at the latest with the order confirmation.
- Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. The Seller reserves the right to claim further damages caused by default. With respect to merchants, the Seller's claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
- The Buyer is entitled to set-off or retention rights only insofar as his claim is legally established or undisputed. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTCS.
- If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency) that the Seller's claim to the purchase price is jeopardized by the Buyer's inability to pay, the Seller is entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), the Seller may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
- Processing of the order
- If the Seller is provided with paper by the Buyer, it shall be delivered free of charge and inspected in advance by the Buyer prior to delivery. The Seller shall be notified immediately of any defects in the paper or printing. If additional costs are incurred in processing due to variations in the quality of the paper, these shall be borne separately by the Purchaser.
- The Seller shall not be responsible for any changes and deviations in the visual impression or technical behavior of the papers resulting from processing by the Buyer and/or the use of operating and auxiliary materials. The Seller has no influence on other technical properties of the papers, such as the usual width expansion during the impregnation process and accepts no liability for this either.
- Claims for defects of the purchaser
- The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier's recourse pursuant to §§ 478, 479 BGB).
- The basis of the Seller's liability for defects is above all the agreement reached on the quality specifications of the goods. All product descriptions which are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods; it makes no difference whether the product description originates from the buyer, the manufacturer or the seller.
- Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not (§ 434 Abs. 1 S. 2 and 3 BGB). However, the Seller shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements).
- The Buyer's claims for defects shall be subject to the condition that he has complied with his statutory obligations to inspect the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or at a later date, the Seller shall be notified thereof in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Buyer shall notify the Seller in writing of any obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notification is sufficient to meet the deadline. If the buyer fails to carry out the proper inspection and/or notification of defects, the seller's liability for the non-notified defect is excluded.
- If the delivered item is defective, the Seller may initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). The right of the Seller to refuse supplementary performance under the statutory conditions remains unaffected.
- The seller is entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
- The Buyer shall give the Seller the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to the Seller in accordance with the statutory provisions. Supplementary performance shall not include removal of the defective item or re-installation if the Seller was not originally obliged to install the item.
- The expenses required for the purpose of inspection and supplementary performance, in particular transport, travel, labor and material costs (not: removal and installation costs), shall be borne by the Seller if there is actually a defect. Otherwise, the Seller may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
- In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from the Seller of the expenses objectively necessary for this purpose. The Seller shall be notified immediately of any such self-remedy, if possible in advance. The right of self-execution shall not apply if the Seller would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.
- If the supplementary performance has failed or if a reasonable deadline to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
- Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 9 and are otherwise excluded.
- Retention of title
- The seller retains ownership of the goods sold until all current and future claims of the seller from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
- As a result of the treatment and/or processing of the material supplied by the Buyer with other materials, the Seller shall acquire co-ownership of the uniformly produced new item on a pro rata basis in the ratio of the value of the material supplied to the value of the newly produced item, but at least in the amount of the services rendered by the Seller.
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall notify the Seller immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. attachments) seize the goods belonging to the Seller.
- In the event of any breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, the Seller shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; the Seller is rather entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, the Seller may only assert these rights if it has first unsuccessfully set the Buyer a reasonable deadline for payment or if setting such a deadline is dispensable under the statutory provisions.
- 5. Until revoked, the buyer is authorized under (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
a) The retention of title extends to the products created by processing, mixing or combining the seller's goods at their full value, with the seller being considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, the seller acquires co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Furthermore, to the processed product applies the same as to the goods delivered under retention of title.
b) The Buyer hereby assigns to the Seller by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share of the Seller pursuant to the preceding paragraph. The Seller accepts the assignment. The obligations of the Purchaser set forth in Paragraph 3 shall also apply in respect of the assigned claims.
c) The buyer remains authorized to collect the claim alongside the Seller. The Seller undertakes not to collect the claim as long as the Buyer meets its payment obligations to the Seller, there is no deficiency in the Buyer's ability to pay and the Seller does not assert the retention of title by exercising a right pursuant to subsection 4. If this is the case, however, the seller can demand that the buyer informs the seller of the assigned claims and their debtors, provides all the information required for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. Furthermore, in this case the Seller shall be entitled to revoke the Buyer's authorization to further sell and process the goods subject to retention of title.
d) If the realizable value of the securities exceeds the Seller's claims by more than 10%, the Seller shall release securities of the Seller's choice at the Buyer's request.
- Other liability
- Unless otherwise stipulated in these GTCS including the following provisions, the Seller shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
- The seller is liable for damages - for whatever legal reason - within the framework of fault-based liability in the event of intent and gross negligence. In the case of simple negligence, the seller is only liable, subject to a milder standard of liability according to statutory provisions (e.g. for care in his own affairs).
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the not inconsiderable breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, the liability of the seller is limited to compensation for the foreseeable, typically occurring damage.
- The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or in favor of persons for whose fault the Seller is responsible in accordance with statutory provisions. They shall not apply insofar as the Seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
- Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if the seller is responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
- Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
- However, if the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB) shall also remain unaffected.
- The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages by the Buyer pursuant to § 9 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
- Personal data
- We process personal data to maintain customer relations and for our advertising campaigns in accordance with the guidelines of the BDSG. We ensure that customer interests worthy of protection are not impaired.
- Choice of law and place of jurisdiction
- The law of the Federal Republic of Germany shall apply to these GTCS and the contractual relationship between the Seller and the Buyer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
- If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Schwäbisch-Hall. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, the Seller shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the Buyer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
- These GTCS are written in German and in English. In the event of a discrepancy, the German-Language version shall prevail.