§ Section 1 Scope of application
Deliveries, offers, services and sales of the company B+S Großhandel GmbH (BSGH for short) are exclusively based on the following conditions. These are valid for all contracts concluded, as well as for all future business relations and therefore do not have to be expressly agreed again. The acceptance of our general terms and conditions is effected at the latest when an order is placed or when the delivery or service is accepted. Deviating or contradictory terms and conditions, or deviating counter-confirmations will only be accepted if BSGH expressly confirms this in writing.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.
§ 3 Provided documents
We reserve the property rights and copyrights to all documents, such as calculations, drawings, etc., provided to the customer in connection with the placing of the order. These documents may not be made accessible to third parties unless we give the customer our express written consent. Insofar as we do not accept the customer's offer within the period of § 2, these documents must be returned to us immediately.
§ 4 Prices and payment - freight and packaging
(1) Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value-added tax at the applicable rate.
(2) Payment of the purchase price must be made exclusively to our account at the Sparkasse Neu-Ulm-Illertissen. The deduction of a discount is only permissible if a special written agreement has been made.
(3) Unless otherwise agreed, the purchase price for new customers must be paid in advance or cash on delivery for the first three deliveries. The cash on delivery charges shall be borne by the purchaser. In the case of cash or cheque cash on delivery, the customer is obliged to have the carrier issue a receipt for payment on delivery and to keep this receipt. Upon request, the receipt must be presented to BSGH or a legible copy must be provided; in the event of default, the customer bears the burden of proof for payment. BSGH reserves the right to check the customer's creditworthiness by obtaining information. Default interest will be charged at a rate of 8% above the respective base rate p.a. (see Appendix 1). We reserve the right to assert higher damages caused by default.
(4) If no fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries. (5) Freight costs shall be charged as offered. Freight costs UPS up to 30 kg - 6,50 Euro. For more than 30 kg or for special procurements from abroad, the freight costs and possible customs duties are shown separately in the offer or in the order confirmation. For direct deliveries to end customers of the client, an additional handling fee of 10.00 Euro will be added to the freight costs.
(6) BSGH waives the charging of a packaging flat rate. In return, the recipient shall assume the professional disposal of the transport packaging.
§ 5 Set-off and rights of retention
The customer is only entitled to offsetting if his counterclaims have been legally established or are undisputed. The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
(1) The beginning of the delivery time stated by us is subject to the timely and proper fulfilment of the obligations of the purchaser. We reserve the right to raise the defence of non-performance of the contract.
(2) If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to make further claims. Insofar as the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
(3) In the event of a delay in delivery not caused by us intentionally or by gross negligence, we shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay in the amount of 3% of the value of the delivery, but not more than 15% of the value of the delivery.
(4) Further legal claims and rights of the customer due to a delay in delivery remain unaffected. § 7 Passing of risk on dispatch If the goods are dispatched to the customer at the latter's request, the risk of accidental loss shall pass to the customer on dispatch, at the latest on leaving the factory/warehouse.
§ 8 Retention of title
(1) We reserve the right of ownership of the delivered item until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.
(2) As long as the ownership has not yet been transferred to him, the customer is obliged to treat the object of sale with care. In particular, he is obliged to insure it sufficiently at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the purchaser must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other third-party interventions. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
(3) The purchaser is entitled to resell the reserved goods in the normal course of business. The purchaser hereby assigns to us the purchaser's claims arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply regardless of whether the purchased item has been resold without or after processing. The customer remains entitled to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
(4) The treatment, processing or transformation of the object of sale by the customer is always carried out in our name and on our behalf. In this case, the expectant right of the purchaser to the object of purchase shall continue in the transformed object. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed objects at the time of processing. The same applies in the event of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it is deemed to be agreed that the customer shall transfer proportional co-ownership to us and shall keep the sole ownership or co-ownership thus created for us. In order to secure our claims against the customer, the customer also assigns to us such claims which accrue to him against a third party through the connection of the reserved goods with a property; we hereby accept this assignment. (5) We undertake to release the securities to which we are entitled at the request of the purchaser if their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notification of defects as well as recourse/manufacturer's recourse
(1) Warranty rights of the purchaser require that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
(2) Warranty claims shall become statute-barred 12 months after delivery of the goods delivered by us to our customer (Note: in the case of the sale of used goods, the warranty period can be completely excluded). The above provisions shall not apply where longer periods are prescribed by law in accordance with § 438 para. 1 No. 2 BGB (buildings and items for buildings), § 479 para. 1 BGB (right of recourse) and § 634a para. 1 BGB (building defects). Our consent must be obtained before any goods are returned.
(3) If, despite all the care taken, the delivered goods show a defect that was already present at the time of the transfer of risk, we shall, subject to timely notification of defects, either repair the goods or deliver replacement goods at our discretion. We must always be given the opportunity to remedy the defect within a reasonable period of time. Recourse claims shall remain unaffected by the above provision without restriction.
(4) If the subsequent performance fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
(5) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or wear and tear as well as in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not provided for under the contract. If improper repair work or modifications are carried out by the customer or third parties, no claims for defects shall exist for these and the consequences thereof.
(6) Claims by the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the goods delivered by us have subsequently been taken to a location other than the purchaser's branch office, unless the transfer corresponds to their intended use.
(7) Recourse claims of the purchaser against us shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the mandatory statutory claims for defects. Furthermore, paragraph 6 shall apply accordingly to the scope of the customer's right of recourse against the supplier.
§ 10 Miscellaneous
(1) This contract and the entire legal relations between the parties shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our place of business, unless otherwise stated in the order confirmation.
(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.
Appendix 1:
Warranty periods For purchase and work contracts the warranty period is 2 years.
The warranty period can be shortened as follows by AGB:
Movable goods except building materials - new - buyer is consumer 2 years - buyer is entrepreneur 1 year - used - buyer is consumer 1 year - buyer is entrepreneur none.
Building materials (if built in) - new 5 years - used - buyer is consumer 1 year - buyer is entrepreneur none. U
ndeveloped land no buildings - new building 5 years - old building none.
Amount of interest on arrears
From the beginning of the delay, the buyer shall owe the seller default interest in addition to the purchase price. If a consumer is involved in the purchase contract, either as buyer or seller, the interest rate is 5% above the base rate. In the case of purchase contracts between entrepreneurs, the interest rate is increased to 8% above the base rate by the reform of the law of obligations.
The current base interest rates can be determined at www.bundesbank.de/presse/presse_zinssaetze.php.