General Terms and Conditions (November 2014) of
the company Falko Buhr, in the following called Seller
§1 Area of application
1. These conditions of sale apply exclusively to entrepreneurs, legal persons under public law or public special funds within the meaning of § 310 paragraph 1 BGB.
The seller expressly does not sale to consumers.
Opposing or deviating from the seller's general sales conditions are only acknowledged by the seller, if the seller expressly agrees in writing form to these conditions.
2. These conditions of sale also apply to all future transactions with the buyer, so far as it
concerns related legal transactions.
§ 2 Offer and conclusion of contract
1. All offers of the seller are non-binding, unless they expressly marked binding or contain a specific acceptance period. Offers and Illustrations on the website of the seller should not be construed contract deals, but only requests the buyer to place a buying-offer concerning to these regulations.
2. Orders or contracts can be accepted within 14 days by the seller.
3. The contract is concluded either with the written acceptance of the seller or with accomplishing the service.
4. Consultations and verbal promises from the seller prior to the conclusion of this contract are non-binding. Verbal agreements of the parties are replaced by this contract, unless it is expressly stated in each of them that they shall remain in force.
5.Information provided by the seller for the object of delivery or service (e.g. weight, dimensions, use values, load capacity, tolerances and technical data) as well as presentations (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires an exact match. They are not warranted characteristics, but descriptions or identifications of the delivery or performance. Customary deviations and deviations due to legal regulations or technical improvements, as well as replacements of components with equivalent parts shall be allowed, unless the usabilty of the contract is not impaired.
6. Yet relevant for the legal relationships between the seller and the buyer is the contract according to the offer / internet offer from the seller including the sellers’s terms and conditions.
§ 3 Submitted Documents
1. All ceded documents to the buyer such as calculations, drawings etc., are property of the seller and are protected under his copyright. These documents must not be made available to third parties, unless the seller granted to the purchaser's express written consent. If the seller does not accept the offer of the purchaser within the period of § 2, these documents must be returned immediately to the seller.
§ 4 Prices and Payment
1. Unless nothing otherwise is agreed in writing, the prices of the seller are ex warehouse excluding packaging and plus VAT at the applicable rate. Costs for shipping and packing will be invoiced separately.
2. The payment of the purchase price has exclusively done to the account which is written in the order-confirmation. Deduction of discount is only permitted with special written agreement.
3. Unless nothing otherwise agreed, the purchase price has to be paid within 10 days after order confirmation. Interest shall are added in height of of 8% pa above the base rate. The assertion of a higher damage caused by delay remains reserved.
4. Unless a fixed price agreement has not been made, reasonable price changes due to changes of labor, material and distribution costs for which take place 3 months or later after contract completation, are reserved.
5. The product prices do not include disposal costs or licence-charges for sales packaging. A reduction of the invoice is not allowed. If the buyer is required by law to licence the products which were bought from the seller, he is responsible for the implementation of the license process and for the fees which may apply.
§ 5 Compensation and retention rights
1. The buyer only has the right to offset if his counterclaims have been legally established or are undisputed. The buyer is only authorized to exercise a retention right, if insofar his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
1. By the seller promised deadlines and dates for deliveries and services are always just approximate, unless a fixed deadline or a fixed date is expressly promised or agreed. The beginning of the delivery period presumes the proper fulfillment of the buyers’s obligations.. The objection of the unfulfilled contract remains reserved. If shipment has been agreed, delivery times and dates refer to the time of handing over to the forwarder, carrier or another for the transport contracted third party.
2. One-way packages can not be returned and will not entitle the invoice reduction.
3. If the buyer comes in acceptance-delay or culpably violates other obligations to cooperate, the Seller is entitled to demand regulation for caused damages and additional outlays. Further claims remain reserved. Should the above conditions are fulfilled, the risk of accidental loss or accidental deterioration of the purchased items is forwarded in that moment of time to the buyer, when the buyer came in acceptance-delay or payment-delay. If the seller - because of default of payment or other causes – resigns from the contract, the compensation for resigning the contract will be 20% of the contract-value so far there is no higher damage proved by the seller. The buyer can prove that no or lesser damage has occurred.
4. The seller is not liable for impossibility of delivery or for delivery delays if these are caused by force majeure or other, at the time of concluding the contract unforeseen events (e.g. operational disruptions of all kinds, difficulties in procuring materials, transport delays, strikes, lockouts, shortage of labor, energy or raw materials, official measures or by suppliers)
If such events impede or heavily complicate the sellers performance and if the obstruction is not only temporary, the seller is entitled to resign from the contract. Obstacles temporary nature extend the delivery or performance deadlines or shift the delivery or performance dates to the period of the obstruction plus a reasonable start-up period. As far as the delivery delay is unreasonable for the purchaser, he has the right to resign from the contract with an immediate statement in written form.
5. If the seller comes in default with a delivery or service or a delivery or service will be unpossible for the seller, the seller's liability for any reason for compensation is limited in accordance to § 10 of these GTC.
6. Contracts with agreed partial deliveries require the buyer to accept the total qunatity
no later than nine months after signing the contract, unless a delivery or a qunatity-call at a later date has been agreed.
7. If the agreed partial deliveries are not called, the seller is, after setting a reasonable time, entitled to charge subsets, damage caused by delay especially storage-costs, or to resign from the contract and to assert claims for damages according to § 6 no. 3.
§ 7 Place of performance, dispatch, packaging, transfer of risk, acceptance
1. Place of performance for all obligations from the contractual relationship is the registered office of the seller.
2. The shipping and packaging are subject to the obligatory discretion of the seller insofar no otherwise is agreed.
3. The risk is transferred to the buyer at the latest with the handover of the delivery item (the beginning of the loading process is decisive) to the freight forwarder, carrier or another for the delivery process determined third party. This also applies if partial deliveries are done. This applies regardless of whether the shipment is started at the place of performance or who is paying the transport-costs. If shipment or delivery is delayed due to circumstances caused by the purchaser, the risk passes from the day to the buyer, where the seller is ready to ship and has indicated this to the buyer.
4. If acceptance has to take place, the purchased goods are accepted if,
a. the delivery was delivered to the buyer.
b. the delivery was indicated by the seller to the buyer having regard to the deemed acceptance under this § 7 (4) and has asked him to accept, or
c. since the delivery twelve working days have passed or the buyer alreasy started using the products and – in this case – 6 working days since delivery have padded.
d. the buyer failed to accept the delivery within this period for any reason other than because of the seller displayed defect that makes the use of the goods impossible or significantly impaired.
5. The buyer has to check the conformity of the goods delivered and to state whether these are correct.
§ 8 Retention of title
1. The Seller retains ownership of the delivered goods until full payment of all claims from the contract. This also applies to all future deliveries, even if the seller not always explicitly refers to this. The seller is entitled the purchased item to be withdrawn, if the buyer breaches the contract.
2. The buyer is obliged, as long as the ownership has not been transferred to him, to treat the object with care. As long as ownership has not been transferred, the buyer has to inform the seller immediately in writing if the delivered goods are seized or otherwise interferenced by third parties. If the third party is not in a position to reimburse the seller's court and extra-judicial costs of an action pursuant to § 771 ZPO, the buyer is liable for the sellers incurred loss.
3. The purchaser is entitled to resell the reserved goods in the ordinary course of business. The claims of the buyer arising from the resale of the goods are ceded now to the seller in height of the arranged invoice total value (including VAT). This assignment applys regardless of whether the purchase thing has been resold before or after processing. The buyer remains entitled to collect the claim even after ceding. The seller's right to collect the claim by himself remains unaffected. The seller will not collect the claim, as long as the buyer is serving his payment obligations, is not in default of payment and in particular, no application for the opening of insolvency has been made or payment suspension exists.
§ 9 Warranty and complaints and recourse / manufacturer regress
1. Warranty rights of the buyer require that the delivered goods are immediately checked carefully after delivery to the purchaser or a third party designated by him. They apply deemed approved if the seller is not a complaining obvious defects or other defects that were apparent in an immediate investigation, within seven working days after delivery of the delivery item, or otherwise within seven working days after the discovery of the defect or the time at which the defect was obvious to the purchaser under normal use of the delivery item without closer examination, in writing. Before returning any goods the consent of the seller must be obtained.
2. Warranty claims expire 12 months after delivery of the goods delivered by the seller to the buyer.
3. If, despite all care, the delivered goods contain a defect which already was present at the time of transfer of risk, the seller has to, subject to timely notice and his choice, rework the goods or deliver substitute goods. The seller always has to be granted chance and space to rework within a reasonable time. Recourse claims remain untouched of the above regulation, without limitation.
4. If the remedy fails, the purchaser may - notwithstanding any claims for damages – resign from the contract or reduce the remuneration.
5. Warranty claims are excluded in cases of insignificant deviations from the agreed quality, in cases of only minor impairment of usefulness, of natural wear and tear and damage after the transfer of risk from faulty or negligent handling, excessive strain, insuitable equipment or due to special external influences, which according to the contract are not assumed. If the buyer or third parties administer improperly repairs or changes there is no right for complaints from these and developing consequences originating.
6. Claims of the customer because of the necessary expenditures for the purpose of subsequent performance, in particular transport, travel, labor and material costs are excluded if the expenses increase because the goods delivered by the seller subsequently brought to another location than the purchaser's office.
7. Rights of recourse by the buyer against the seller only exist insofar as the buyer has not taken over the mandatory statutory warranty claims agreements with his customers. Also paragraph 6 applies to the scope of right of recourse against the supplier accordingly.
§ 10 Liability of the seller for damages for negligence
1. The seller's liability for damages, regardless of the legal reason, in particular due to defective or incorrect delivery, impossibility and delay is, as far as it is at fault, according to this § 10 restricted.
2. The seller is not liable
a. in case of simple negligence of its organs, legal representatives, employees or other agents.
b. in the case of gross negligence of non-managerial employees or other agents as long as it is not a breach of essential contractual obligations. Essential contractual obligation are timely, faultless deliveries and installation, consulting, protection and custody obligations, which shall allow the buyer the contractual use of the delivery item or the protection of the buyer’s lives and health of personnel or a third party or the property of the buyer before significant damage.
3. As far as technical information are provided by the seller or he is an advisory capacity and this information or advice does not belong to contracted scope of services, this is done free of charge and without any liability.
4. In favour of the seller’s organs, legal representatives, employees and other fulfillment agents the above liability exclusions and restrictions are valid in the same scope..
5. The seller’s liability in case of simple negligence for property or personal injury is limited to an amount of EUR 5.000, - per claim, even if there is a breach of contractual obligations.
6. Indirect damages and consequential damages resulting from defects in the delivery item are also only eligible for compensation unless such damage are expected under normal use of the delivered goods.
7. If the seller is liable according to § 10 no. 2 for compensations, this liability is limited to damages, which the seller foresaw when concluding the contract as a possible consequence of a breach of contract or under regard to the circumstances that were known to him or which he should have known, or - while applying the useable care- should have foreseen.
8. The limitations of § 10 do not apply to the seller's liability for willful conduct, for guaranteed characteristics of state, injury to life, limb or health or under the Product Liability Act.
§ 11 Data Protection
1. The buyer takes note that the seller saves data from the contractual relationship in accordance with § 28 Federal Data Protection Act for the purpose of data processing and reserves the right to transfer these information – as far as necessary for fulfilling the contract – to third parties. (insurances, I.T.-companies etc.)
§ 12 Miscellaneous
1.This agreement and the entire legal relations of parties are subject to the laws of the Federal Republic of Germany under exclusion of the UN Sales Convention (CISG).
2. Place of fulfilment and exclusive legal venue for all disputes from this contract is the seller’s place of business.
3. All agreements made between the parties for the purpose of executing this contract are in included in this contract in writing.
4. Should individual parts of this contract are or become invalid or contain a loophole, the other parts of this contract remain untouched. The parties undertake to replace the invalid part with a legally permissible part that comes near to the economic purpose of the invalid part, or fills this gap.