General Terms and Conditions of Sale

§ 1 Scope of application

(1) These Terms and Conditions of Sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognize terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.

(2) These Terms and Conditions of Sale shall also apply to all future transactions with the Client, insofar as these are legal transactions of a related nature.

(3) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

§ 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 Documents provided

We reserve the property rights and copyrights to all documents provided to the client in connection with the order placement – including in electronic form – such as calculations, drawings, etc.. These documents may not be made accessible to third parties unless we give the client our express written consent. If we do not accept the client’s offer within the period specified in § 2, these documents must be returned to us immediately.

§ 4 Prices and payment

(1) Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus VAT at the applicable rate. Packaging costs will be invoiced separately.

(2) Payment of the purchase price must be made exclusively to the account specified on the invoice. The deduction of a cash discount is only permitted with a special written agreement.

(3) Unless otherwise agreed, the purchase price must be paid within 14 days of delivery. We reserve the right to assert claims for damages caused by delay.

(4) b&d GmbH shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the client and which jeopardize the payment of b&d GmbH’s outstanding claims by the client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

(5) Unless a 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 made 3 months or more after conclusion of the contract.

§ 5 Rights of retention

The client is only authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

§ 6 Delivery, performance, delivery time

(1) Information provided by b&d GmbH on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) shall only be approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations, as well as replacement by equivalent parts, are permissible insofar as they do not impair usability for the contractually intended purpose.

(2) Deliveries shall be made ex works or from another location.

(3) Deadlines and dates for deliveries and services promised by b&d GmbH shall always be approximate only, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.

(4) b&d GmbH may – without prejudice to its rights arising from default on the part of the client – demand from the client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the client fails to meet its contractual obligations towards b&d GmbH.

(5) b&d GmbH shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which b&d GmbH is not responsible. If such events make delivery or performance significantly more difficult or impossible for b&d GmbH and the hindrance is not only of a temporary nature, b&d GmbH shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to b&d GmbH.

(6) b&d GmbH shall only be entitled to make partial deliveries if

the partial delivery can be used by the client for the contractually intended purpose
the delivery of the remaining ordered goods is ensured
the client does not incur any significant additional work or additional costs as a result (unless b&d GmbH agrees to bear these costs).
The start of the delivery period stated by us presupposes the timely and proper fulfillment of the obligations of the client. The defense of non-performance of the contract remains reserved.
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.

§ 7 Place of fulfillment, shipping, packaging, transfer of risk, acceptance

(1) The place of performance for all obligations arising from the contractual relationship is Weimar, unless otherwise specified.

(2) The type of shipment and packaging shall be at the dutiful discretion of b&d GmbH.

(3) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if b&d GmbH has assumed other services (e.g. shipping or installation). If dispatch or handover is delayed as a result of circumstances caused by the client, the risk shall pass to the client from the day on which the delivery item is ready for dispatch and b&d GmbH has notified the client of this.

§ 8 Liability for damages due to fault

(1) The liability of b&d GmbH for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this § 8 insofar as fault is involved.

(2) b&d GmbH shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Essential to the contract are the obligation to deliver the delivery item on time, its freedom from defects that impair its functionality or usability more than insignificantly, as well as obligations to provide advice, protection and care that are intended to enable the client to use the delivery item in accordance with the contract or to protect the life and limb of the client’s personnel or to protect the client’s property from significant damage.

(3) Insofar as b&d GmbH pursuant to § 8 para. 2 on the merits, this liability shall be limited to damages which b&d GmbH foresaw as a possible consequence of a breach of contract when the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.

(4) In the event of liability for simple negligence, b&d GmbH’s obligation to pay compensation for property damage and any further financial losses resulting therefrom shall be limited to an amount of EUR 3 million per claim (corresponding to the current sum insured under its product liability insurance or liability insurance), even if this involves a breach of material contractual obligations.

(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of b&d GmbH.

(6) The limitations of this § 8 shall not apply to the liability of b&d GmbH for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§ 9 Property rights

(1) In accordance with this § 9, b&d GmbH warrants that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.

(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, b&d GmbH shall, at its discretion and at its own expense, modify or replace the delivery item in such a way that no rights of third parties are infringed, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the client by concluding a license agreement. If it fails to do so within a reasonable period of time, the client shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Client are subject to the limitations of § 8 of these General Terms and Conditions of Sale.

(3) In the event of infringements of rights by the products of other manufacturers supplied by b&d GmbH, b&d GmbH shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the client or assign them to the client. In such cases, claims against b&d GmbH shall only exist in accordance with this § 9 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or has no prospect of success, for example due to insolvency.

§ 10 Retention of title

(1) We reserve title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased goods if the customer acts in breach of contract.

(2) The client is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. As long as ownership has not yet been transferred, the client must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. If the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to Section 771 ZPO, the client shall be liable for the loss incurred by us.

(3) The client is entitled to resell the reserved goods in the normal course of business. The client hereby assigns to us the claims against the customer 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 irrespective of whether the purchased item has been resold without or after processing. The client shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the client 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 and payments have not been suspended.

(4) The treatment and processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the expectant right of the client to the purchased item shall continue in the transformed item. If the purchased item is processed with other items 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 items 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 client’s item is to be regarded as the main item, it is agreed that the client shall transfer co-ownership to us on a pro rata basis and shall keep the resulting sole ownership or co-ownership for us. To secure our claims against the customer, the customer shall also assign to us such claims which accrue to him against a third party through the combination 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 customer if their value exceeds the claims to be secured by more than 20%.

§ 11 Warranty and notification of defects and recourse/manufacturer recourse

(1) Warranty rights of the client presuppose that the client has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).

Claims for defects shall become time-barred 12 months after delivery of the goods supplied by us to our customer. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, limb and health which are based on an intentional or negligent breach of duty by the user. Insofar as the law pursuant to § 438 para. 1 No. 2 BGB (buildings and items for buildings), Section 445 b BGB (right of recourse) and Section 634a (1) BGB (construction defects), these periods shall apply. Our consent must be obtained before any goods are returned.
The delivered items must be carefully inspected immediately after delivery to the client or to the third party designated by the client. With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, they shall be deemed approved by the client if b&d GmbH does not receive a written notice of defects within ten working days of delivery. With regard to other defects, the delivery items shall be deemed approved by the client if b&d GmbH does not receive the notice of defects within ten working days of the time at which the defect became apparent; however, if the defect was already recognizable to the client at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the notice period. At the request of b&d GmbH, a rejected delivery item shall be returned to b&d GmbH carriage paid.
In the event of defects of other manufacturers which b&d GmbH cannot remedy for licensing or factual reasons, b&d GmbH shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. Warranty claims against b&d GmbH for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Sale if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the client against b&d GmbH shall be suspended.
If, despite all due care, the delivered goods have a defect that already existed at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We must always be given the opportunity for subsequent performance within a reasonable period of time. Recourse claims remain unaffected by the above provision without restriction.
If the supplementary performance fails, the client may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not provided for in the contract. If improper repair work or modifications are carried out by the client or third parties, there shall also be no claims for defects for these and the resulting consequences.
Claims by the client for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been moved to a location other than the client’s branch office, unless the transfer corresponds to their intended use.
The client shall only have rights of recourse against us to the extent that the client has not made any agreements with its customer that go beyond the statutory mandatory claims for defects.

§ 12 Miscellaneous

This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
If the client is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between b&d GmbH and the client shall be Erfurt or the registered office of the client, at the discretion of b&d GmbH. However, Erfurt shall be the exclusive place of jurisdiction for legal action against b&d GmbH in such cases. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply accordingly in the event that the contract proves to be incomplete.

Note: Parts of the publication were made with the kind permission of the Hessian Chamber of Industry and Commerce