- March 2015 -
1. General Information - Scope
1.1 These T&C shall apply for all business operations between Börsig GmbH (hereinafter "Seller") and its customers (hereinafter: "Buyer"), even if they are not mentioned in later contracts. The T&C apply only where the Buyer is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity governed by public law or a special fund under public law. These T&C apply exclusively. All purchasers' terms and conditions that deviate or differ from these T&C shall be rejected unless expressly acknowledged in writing by the Seller. Individual agreements reached with the Buyer in specific cases (including subsidiary agreements, addenda and amendments) shall in every case take precedence over these T&C.
1.2 These T&C shall also apply if the Seller delivers goods without reservation with knowledge of conditions that deviate or differ from these T&C or does not adhere to these T&C in particular transactions in the future.
1.3 The rights to which the Seller is entitled under the statutory provisions governing these T&C shall remain unaffected.
1.4 The language of contract is German. The German version of these T&C shall prevail for interpretation.
2. Offer and conclusion of contract
2.1 All offers made by the Seller are subject to change and non-binding, unless expressly indicated as a binding offer. The only represent an invitation to the Buyer to make an offer by placing an order to the Seller. All information in catalogues and brochures and information to satisfy legal requirements are intended to create an overview of the products and are not the subject of the contract.
2.2 Orders made by the Buyer represent binding offers. The Seller can accept requests or orders within 14 days after receipt. The acceptance of the offer is carried out with a separate order confirmation or through delivery of the goods.
2.3 The Buyer's receipt of the order confirmation from the Seller or, in the case of immediate processing of the order, the delivery of the goods ordered shall prevail for the time of contract completion.
2.4 If the Buyer has objections regarding the contents of the order confirmation or the goods sent, he must raise these immediately. The contract shall otherwise apply in accordance with the stipulations and content of the order confirmation.
2.5 The Buyer shall only be entitled to amend or cancel orders or defer delivery times with the approval of the Seller.
2.6 Completion and fulfilment of the contract remain subject to the proviso that it is not opposed by obstacles resulting from German, US-American or other applicable national, EU or international regulations of foreign trade legislation or by embargoes or other sanctions. The Buyer must supply all information, consent and documents necessary for export, shipment or import. The Buyer shall undertake not to export goods to a country into which their export is prohibited.
3. Description of the goods
3.1 Should the contract refer to goods that are subject to further technical processing, the Seller shall be entitled to deliver the goods according to the manufacturers' most recent data sheet, provided usability for the contractually agreed use is not affected. Customary deviations, amendments to the construction, choice of materials, specification and design, and deviations which occur on the grounds of legal regulations, shall also be permitted as long as they do not impair the contractually intended use. The Buyer must inform the Seller if his interest is limited exclusively to the type ordered and if no deviations of any kind may be made from this type.
3.2 Information about the goods distributed by the Seller (e.g. weight, dimensions, utility values, loading capacity, tolerances and technical data) and representations of the same (e.g. graphics, descriptions and other illustrations), particularly in brochures, type lists, catalogues, data sheets, sales catalogues or advertising materials, specifications and other technical terms of delivery, do not represent the Seller's guarantee of quality or durability and shall only be understood as approximate values.
3.3 Samples of the goods distributed by the Seller shall be deemed test samples and do not represent a guarantee of the quality of the goods unless expressly agreed.
4. Call order
4.1 Call orders wherein the Buyer orders a specific quantity of goods to be sent in several shipments over a given period shall only be possible with the separate agreement of a fixed schedule for completing individual deliveries. The frame order may not exceed a period of 12 months unless otherwise agreed.
4.2 If the total amount ordered is not allocated to a fixed delivery schedule, the Seller shall keep between 30 % and 40 % of the overall amount in stock. Amounts applied to a fixed schedule shall be delivered on the desired dates. Cancellation or part cancellation of the order shall only be possible if other Buyers are available to the Seller and/or the manufacturer approves the cancellation and the possible return of goods in stock. The agreed price shall remain binding for 12 months from the date of the order. The total amount ordered can be divided into a maximum of 6 separate partial deliveries. Each partial delivery shall be subject to the cost of postage and packaging.
4.3 Should the call still not be fully completed after 12 months in accordance with Paragraph 4.1, we shall approach you to find a common solution. After an appropriate grace period, the Seller shall be entitled to deliver and invoice the goods or to withdraw from the contract and, in the event that the Buyer has acted negligently, to claim compensation instead of the payment. Should the call dates not be adhered to by the Buyer, the Seller reserves the right to amend the price from the time of the call.
5. Prices and price adjustment
5.1 Unless otherwise agreed, the prices provided by the Seller in the order confirmation shall apply. The prices shall apply ex works and shall only cover the services and delivery specified in the order confirmation. In particular, the cost of packaging, freight, insurance, tolls, public duties and sales tax are not included.
5.2 Should unreasonable and unforeseeable additional costs arise, particularly due to market price, material and raw material price changes, between completion of the contract and the Seller's delivery of the goods ordered, which mean that the Seller can only obtain the goods from his suppliers under poorer economic conditions than had been foreseen at the time of contract completion with the Buyer, the Seller shall be entitled to adjust the prices agreed with the Buyer to correspond with the different circumstances and without accounting for any additional profit, provided the goods or part thereof are not to be delivered until at least 4 months after completion of the contract. Should the increase to the sale price agreed with the Buyer amount to more than 25 %, the Buyer may withdraw from the concluded contract.
5.3 The Seller shall be entitled to perform or provide outstanding deliveries or services only against advance payment or security if, after the conclusion of the contract, he becomes aware of circumstances which could substantially diminish the creditworthiness of the customer and which would threaten the payment by the customer of outstanding claims. This shall also result in the immediate payment of all claims and entitles the Seller to withdraw from the contract after an appropriate grace period and to compensation due to non-fulfilment.
6. Terms of payment
6.1 Unless otherwise agreed in writing, all of the Seller's invoices must be paid immediately without any reduction, no later than 30 days after the date of invoice.
6.2 Should the Buyer fail to complete a due payment, the Seller shall be entitled to charge interest in the amount of 9 % points above the respective basic interest rate in addition to a default lump sum payment of EUR 40.00 per invoice after the due date, to increase appropriate collection costs and legal fees and to demand immediate payment of all outstanding costs.
6.3 Bills and cheques shall only be accepted with express written agreement and only on account of payment. Discount charges and other billing and cheque fees shall be paid by the Buyer. The Seller's rights under § 10 of these T&C shall remain in force until the complete gratification of all bills receivable.
6.4 The Seller shall be entitled to credit payments to the Buyer's oldest debts first. Where costs and interest have already been accrued, the Seller shall be entitled to credit payment first to the costs, then to the interest and finally to the principal amount.
6.5 Should the Buyer not accept the purchased goods after the expiry of a grace period afforded to him (default of acceptance), the maturity of the purchase price from the date of the shipment declaration shall come into effect. At the same time the Seller may claim the reimbursement of storage costs from the time of the default of acceptance. Further claims shall remain thereby unaffected.
7. Offsetting, Retention, Assignment
7.1 Counterclaims made by the Buyer shall then only entitle him to offsetting and to the validation of a right of retention, provided they are legally established or undisputed. The counter-rights of the Buyer for any defective goods, particularly those established in Paragraph 11.8 Claus 2 of these T&C, shall remain unaffected.
7.2 The assignment of any claims made by the Buyer against the Seller in this contractual relationship shall only become valid with the written approval of the Seller. The Seller may only refuse to give approval due to his legitimate interests.
8. Delivery, Delivery Times and Partial Deliveries
8.1 Deliveries shall be made ex works (Incoterms 2010 "EXW").
8.2 When delivery deadlines and dates are provided by the Seller, they represent estimated, unbinding deadlines and dates; the following shall apply in every case: "Subject to prior sale". The Seller shall not be liable for any delays in delivery. Delivery deadlines and dates shall only be binding to the Seller if he has expressly denoted or confirmed as such in writing. Unless otherwise agreed, the delivery shall be fulfilled in good time by the Seller when the goods have been dispatched to transport personnel at the Seller's office or warehouse, or when the Seller has informed the Buyer of readiness for shipment after the Buyer's default of acceptance.
8.3 Agreed delivery periods shall not begin before the Buyer has provided in full all required documents and permissions. Compliance with the delivery period or the delivery date requires the timely and proper fulfilment of all other obligations on the part of the Buyer and are subject to their timely and proper provision to the Seller.
8.4 Should the Seller, through no negligence on his part, receive incorrect or delayed deliveries or services from manufacturers, suppliers or subcontractors for reasons despite duly congruent preparation, or should force majeure apply, i.e. involuntary factors delaying the service by more than 6 weeks, the Seller shall inform the Buyer in writing in good time. In this case the Seller shall be entitled to postpone the delivery or service by the duration of the encumbrance or, provided the Seller has complied with his preceding duty of information and the encumbrance has lasted for longer than 2 months, to completely or partially withdraw from the part of the contract not yet fulfilled. Force majeure shall include strike action, lockouts, government intervention, energy and raw material shortages, involuntary transport bottlenecks, involuntary operating hindrances, resulting for example from fire, water or machine damages, and all other encumbrances for which the Seller cannot be considered culpable from an objective perspective.
8.5 Should a delivery date or a delivery period be subject to binding agreement and, due to circumstances outlined in the preceding Paragraph 8.4, should this period or this date be exceeded by more than 2 months or should the Buyer not accept the delivery or service as reasonable as a result of the delay, he may withdraw from the not yet completed part of the contract after the expiry of an appropriate warning period issued to the Seller. The occurrence of a delivery delay shall be determined according to statutory provisions.
8.6 Partial deliveries shall only be permissible if the partial delivery is usable for the customer as part of the contractually intended use, the delivery of the remaining ordered goods is ensured and this does not impose unreasonable additional effort or considerable additional costs on the Buyer.
8.7 The Seller reserves the right to up to 10 % of the delivery for long and short deliveries due to technical production reasons. No reimbursement shall be issued for short deliveries.
9. Transfer of Risk / Shipping
9.1 The risk of accidental loss, destruction or degradation of the goods shall be transferred to the Buyer on handover to the freight forwarder, carrier or person/company otherwise appointed to carry out the delivery, and no later than the handover of goods to the Buyer. At the Buyer's request and expense, the Seller shall cover the goods against the risks indicated to the Buyer with transport insurance. Packages that the Seller has sent with GLS are covered for up to EUR 500.00.
9.2 If dispatch or the transfer of risk is delayed due to circumstances for whose cause the Buyer is responsible, the risk shall pass to the Buyer on the day on which the goods are ready for shipment and the supplier has notified the customer thereof.
9.3 If the Seller chooses the delivery method, route and/or company, the Seller shall only be liable for malice or gross negligence relating to the choice made.
10. Retention of title
10.1 The goods delivered shall remain property of the Seller until all claims due to the Seller from the business relationship with the Buyer have been paid in full. The Buyer shall be obligated to handle the goods with care for the entire period in which they are subject to the retention of title. In particular, he shall be obliged to insure the replacement value of this equipment against fire, water damage and theft at his own expense. At the same time, the Buyer hereby assigns all claims for compensation from this insurance to the Seller. The Seller hereby accepts this assignment. At the Seller's request, the Buyer must prove that the insurance coverage is in effect.
10.2 The Buyer shall only be permitted to sell the goods subject to retention in the ordinary course of business. The Buyer shall not be entitled to pledge the goods subject to retention, assign them as security or take any other action that may jeopardise the property of the Seller. In the event that third parties seize or otherwise intervene, the Buyer shall notify the Seller in writing immediately and provide all necessary information to inform the third parties of the Seller's property rights and to participate in the Seller's activities for the protection of the goods subject to retention. The Buyer shall bear all the costs which must be paid for the annulment of attachment or for return transportation of the reserved goods, provided they cannot be retracted by third parties.
10.3 The Buyer hereby assigns claims and all subsidiary rights to the resale of the goods to the Seller, regardless of whether the goods subject to reservation have been further processed or not prior to resale. The Seller hereby accepts this assignment. Should an assignment not be permissible, the Buyer shall hereby irrevocably instruct the garnishee to make any payments due solely to the Seller. The Buyer is irrevocably authorised to collect the receivables assigned to the Seller on trust for the Seller. The amounts collected must be paid to the Seller immediately. The Seller may revoke the Buyer's authorisation to collect or the Buyer's right to resale if the Buyer does not fully comply with his payment obligations to the Seller, enters into payment default, ceases his payments or if insolvency proceedings are commenced against the Buyer's estate. Resale of the receivables requires the prior written approval of the Seller.
10.4 In the event of a payment default on the part of the Buyer, the Seller shall be entitled, notwithstanding the Buyer's other rights, to withdraw from the contract and the Buyer must grant to the Seller, or to a third party designated by the Seller, access to the goods subject to reservation, and surrender them or inform the Seller as to where they can be found.
10.5 Any processing or transformation of the goods subject to reservation carried out by the Buyer shall always be for the Seller. The Buyer's expectant right to the goods subject to reservation shall carry forward to the processed or transformed item. If the purchased item is processed, connected or mixed with other items that do not belong to the Seller, then the Seller shall acquire joint ownership of the new item in proportion to the value of the purchased item compared to the value of the other processed items at the time of the processing.
10.6 At the request of the Buyer, the Seller shall be obligation to release the security due to him to the extent that the realisable value of the securities adjusted for banking evaluations exceeds the Seller's claims arising from the contractual relationship with the Buyer by more than 10 %.
11. Deficiencies, Restrictions of Use and Liability
11.1 The basis of the Seller's liability for defects is above all an agreement about the condition of the goods. The specifications of the respective manufacturer's data sheets shall apply as the agreed condition in accordance with § 434 of the BGB. The Seller hereby guarantees that the delivered goods shall have the features specified in writing by the manufacturer or, by mutual agreement, in testable technical parameters. The Buyer's facilities, lists and other documents do not form part of the agreed conditions unless the Seller has expressly agreed to their validity.
11.2 The delivered goods are only intended for the purposes designated by the respective manufacturer in the respective product specification. These purposes do not include the use of the goods in vital or life-supporting medical equipment, in military systems, in nuclear facilities, in aerospace engineering, in fire controls, in safety equipment and in equipment or systems in which failure or malfunction of the goods could lead to the reasonable estimation of loss of life, injury or health problems or to exceptionally high risk of injury and/or property damage (hereinafter: "reserved purposes"), unless the use of the goods for such reserved purposes has been expressly permitted by the respective manufacturer or by the Seller. Should the Buyer use a product for such reserved purposes without such express permission, this use is carried out exclusively at the Buyer's own risk. The Seller hereby accepts no liability for damages arising from their use for reserved or prohibited purposed without prior expressed permission. The Buyer shall undertake to release the Seller from all claims made by third parties insofar as they have arisen in connection with the use of the goods for prohibited or reserved purposes without prior expressed permission from the respective manufacturer or from the Seller.
11.3 The Buyer shall be responsible for the suitability and safety of the goods for any application on the part of the Buyer, unless expressly agreed otherwise. This shall also apply to the analyses and assessment, solely incumbent for the Buyer, of all information and recommendations made by the Seller as well as claims made for environmentally hazardous contents in the goods, for whose accuracy the Seller also does not guarantee that the goods contain no environmentally hazardous or prohibited contents exceeding permissible limits.
11.4 The Buyer's rights arising from product defects stipulate that he must have complied with his statutory inspection and complaint obligations (§§ 377, 381 of the German Commercial Code [HGB]), in particular that he inspected the delivered goods upon receipt and informed the Seller in writing of any evident defects, or defects that could be detected with such an inspection, immediately upon receipt of the goods. The Buyer must notify the Seller of any complaints concerning hidden defects immediately after they are discovered. Notification shall be considered immediate if it is provided within 2 weeks, whereby the timely dispatch of the notification or complaint shall suffice for the observation of the deadline.
11.5 If the goods are supplied by the Seller in batches that allow a statistical incoming quality inspection according to respective customary principles, this inspection must at least be carried out as an incoming inspection.
11.6 The Buyer must give the Seller the time and opportunity necessary to perform the supplementary performance owed, particularly by surrendering the disputed goods for testing purposes on request. Expenses, particularly transport, infrastructure, labour and material costs, required for the purpose of the testing and supplementary performance shall, in accordance with § 439 Para. 2 of the BGB, shall be borne by the Seller, if it turns out that there is indeed a defect, but not for the portion of expenses that have increased because the goods had been brought by the Buyer to a location different to the delivery address.
11.7 If the goods are defective, the Seller shall first be entitled to supplementary performance after either eliminating the defect or delivering defect-free goods, dependent on his own choice within a reasonable time frame.
11.8 The Seller shall be entitled to carry out the supplementary performance owed dependent on the Buyer paying the purchase price due. The Buyer shall, however, be entitled to retain a portion of the purchase price that is reasonable in proportion to the defect.
11.9 The warranty shall no longer apply if the Buyer modifies the delivery object or has third parties modify the delivery object without the consent of the Seller, rendering the elimination of a defect impossible or making it unreasonably difficult.
11.10 Claims on the part of the Buyer for reimbursement of expenses instead of damages in lieu of service shall be excluded, unless they were not necessary or a reasonable third party would not have made them.
11.11 The Seller shall be fully liable for any damages arising from a breach of guarantee or from loss of life, injury or health problems. The same shall apply for intent and gross negligence, the mandatory statutory liability of the Seller under the Product Liability Act and liability for the fraudulent concealment of defects. In cases of simple negligence, the Seller shall only be liable for the breach of an essential contractual obligation arising from the nature of the contract, whose fulfilment is necessary for the proper completion of the contract and upon which the Buyer may rely. In cases of a negligent breach of contract, default and impossibility, the Seller's liability is limited to the foreseeable, typically occurring damages of up to EUR 10,000.00 per claim. Unless regulated otherwise above, liability on the part of the Seller shall be excluded.
11.12 The above disclaimers and limitations of liability outlined in Paragraph 11.11 shall also apply to the same extent in relation to the bodies, legal representatives, employees or other vicarious agents of the Seller.
11.13 The statutory limitation period for defect claims on the part of the Buyer shall be 1 year, insofar as the defective goods were not used for their normal structural purposes and whose defects were caused by this. The limitation period shall begin with the transfer of risk, no later than delivery of the goods. The unrestricted liability of the Seller for damages arising from breach of warranty or loss of life, injury or health problems, for intent and gross negligence and for product defects remains hereby unaffected.
12. Final provisions
12.1 The transfer of rights and obligations from this contract is only permitted to the Client with the written consent of the Agency.
12.2 The court of jurisdiction for all disputes arising from this contract shall be the registered office of the Seller. The Seller shall also be entitled to the commencement of proceedings at the registered office of the Buyer and at any other approved court of jurisdiction.
12.3 The contractual relationship, including its interpretation and execution, shall be governed by the laws of Germany, excluding application of the United Nations Convention on the International Sale of Goods (CISG).
12.4 If individual provisions of this agreement are or become invalid, or if there is a loophole in these T&C, the validity of the remaining provisions shall not be affected. An agreed effective or valid provision which is as close as possible to the purpose of the ineffective or invalid provision shall apply in its place; the same shall apply if an issue requiring regulation has not been expressly regulated.