GENERAL TERMS AND CONDITIONS

with particular conditions for selection and commission business

 

of

 

Bullnheimer & Co. GmbH & Co. KG

Im Tal 12

DE-86179 Augsburg

 

As of: Juli 2019

 

    1.    Scope

1.1.     Our General Terms and Conditions shall apply exclusively.  As far as they do not contain any provisions, the law shall apply. Any conflicting terms or conditions of the contracting party which deviate from our General Terms and Conditions or from the law to our disadvantage shall not be recognised by us unless we have expressly agreed to their applicability in writing. With translations into foreign languages the German text is considered binding. Our General Terms and Conditions shall also apply if our contractual services or deliveries are performed by the contractual partner without reservation and with knowledge of conditions contrary to or deviating from our General Terms and Conditions or to our disadvantage from the law.

1.2.     Our General Terms and Conditions shall also apply to all future transactions with the contractual partner.

1.3.     Our General Terms and Conditions shall only be applicable to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 para. 1 BGB (German Civil Code).

    2.    Offers and quotations

2.1.     Our offers and quotation are subject to confirmation and non-binding, unless expressly designated as being binding and fixed.

2.2.     We reserve all rights to our offers and contract documents, in particular drafts, drawings, illustrations etc. as well as samples, models and prototypes, to the extent that they are not granted to the contractual partner in accordance with the sense and purpose of the contract or on the basis of an express agreement. Offer documents as well as samples, models and prototypes shall be returned to us immediately upon our request if the order is not placed with us. The contractual partner may not assert a right of retention in this respect.

    3.    Prices, terms of payment, reservation of supplementary performance

3.1.     We reserve the right to adjust our prices accordingly without prior notice if there are substantial price increases for which we are not responsible, in particular due to collective wage agreements or changes in material prices after the conclusion of the contract. We will prove these to the contractual partner upon request.

3.2.     Subject to a separate agreement, our prices are ex works Augsburg excluding postage, dispatch, freight, packaging and insurance. Value-added tax shall be invoiced additionally at the rate prescribed by law in each case.

3.3.     Packaging materials made available, insofar as they are identified as "on loan", must be returned to the seller within a reasonable period of time with carriage paid for partial credit.

3.4.     Subject to separate agreements, payments of the contractual partner are due immediately. The contractual partner shall be in default of payment ten days after the due date without any further declarations on our part if he has not paid. Otherwise, the statutory provisions shall apply to the consequences of default of payment.

3.5.     We are entitled to demand reasonable payments on account plus the statutory value-added tax payable thereon.

3.6.     Bills of exchange and cheques shall only be accepted on account of payment; bills of exchange shall only be accepted upon prior written agreement. The discount, the expenses and the costs in connection with the collection of the bill and cheque amount are to be borne by the contractual partner and are due for payment immediately. Cheques or bills of exchange shall only be regarded as received when the funds have been credited to our account and we are released from any liability.

3.7.     The contractual partner shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or acknowledged. The contractual partner is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

    4. Time of delivery or performance, delay in delivery or performance for which we are not responsible impossibility, default of acceptance, breach of duty to cooperate

4.1.     The stated delivery times are only binding if they are expressly specified as such.

4.2.     Compliance with delivery or service obligations, in particular binding delivery dates requires the following:

Justified industrial action (strike and lockouts); operational disturbances; shortage of raw materials; loss of operating and auxiliary materials. Claims for damages by the contractual partner in the event of delays in delivery and performance are excluded in the above cases. In the event of a final obstacle to delivery and performance in the above sense, each contracting party shall be entitled to terminate the contract immediately by withdrawing from the contract in accordance with the statutory provisions.

In the event of a temporary impediment to delivery and performance in the above sense, we shall be entitled to postpone deliveries and performance for the duration of the impediment plus a reasonable start-up period.

    5.    Transfer of risk, plea of insecurity

5.1.     If purchasing law applies to our deliveries, the risk of an accidental loss or an accidental deterioration shall pass to the contractual partner as soon as the delivery has been handed over to the person or institution designated to collect or execute the delivery.

5.2.     If we are obliged to perform in advance arising from a mutual contract, we may refuse to perform the service incumbent upon us if it becomes apparent after conclusion of the contract that our claim of consideration is endangered by the contracting party's lack of ability to pay. We are entitled to set the contractual partner a reasonable deadline within which the contractual partner must, at his discretion, either effect payment or provide guarantee in return for our services. If the deadline expires without success, we are entitled to withdraw from the contract. If we have already rendered our services, we are entitled to demand immediate payment of any resulting claims not yet due, including those for which bills of exchange or cheques have been given. Instead, we are also entitled to withdraw from the contract. Furthermore, we are entitled to the right to premature payment of claims arising from the same legal relationship if the contractual partner is in default of payment for more than 6 weeks with at least 25% of his total liabilities to us (absolute principal claims). The same applies accordingly if we become aware that bills of exchange are protested or enforcement measures are initiated against the contractual partner or any other deterioration of assets occurs. We are also entitled to a right of withdrawal if the contractual partner has made culpably incorrect or incomplete statements about the facts substantiating his creditworthiness.

    6.    Reserveration of ownership

6.1.     We reserve the ownership to the delivered goods ("reserved delivery") until receipt of all payments arising from the business relationship with the contractual partner. The reservation of ownership also extends to the acknowledged balance insofar as we record claims against the contractual partner in current accounts (current account reservation). If, in order to effect the payments to be made to us for the reserved delivery, a bill of exchange liability on our part is established, the reservation of ownership does not expire before our bill of exchange liability expires; if the cheque/bill of exchange procedure is agreed with the contractual partner, the reservation also extends to the payment of the bill of exchange accepted by us by the contractual partner and does not expire by crediting the cheque received to us.

6.2.     The contractual partner is entitled to resell the reserved delivery in the ordinary course of business; however, he hereby assigns to us all claims in the total amount of the final invoice amount (including value added tax) of our claims to which he is entitled as a result of the resale against his customers or third parties. If the contractual partner places the claims from a resale of the reserved delivery in a current account relationship existing with his customer, the current account claim is assigned in the amount of the recognised balance; the same applies to the "causal" balance in the event of insolvency of the contractual partner. The contractual partner is authorised to collect the assigned claims even after they have been assigned. Our authority to collect the claims ourselves remains unaffected - subject to the provisions of insolvency law - by this; however, we undertake not to collect the claims as long as the contractual partner does not breach his contractual obligations, in particular duly fulfils his payment obligations, does not fall into arrears of payment and no petition for the opening of insolvency proceedings has been filed or payments have not been suspended.

Transfer as security or pledging are not covered by the contractual partner's right to sell.

6.3.     If our obligation in accordance with Clause 6.2 above not to collect the claims ourselves ceases to apply, we are entitled - under the reservation of the provisions of insolvency law - to revoke the right of resale and to take back the reserved delivery or to demand the assignment of the contractual partner's claims for surrender against third parties. The taking back of the reserved goods by us constitutes a withdrawal from the contract.

We are entitled - subject to the provisions of insolvency law - to make reasonable use of the reserved delivery taken back for the aforementioned reasons after prior warning and after setting a deadline; the proceeds of such realisation are to be set off against the contractual partner's liabilities - after deducting reasonable realisation costs.

Under the circumstances which entitle us to revoke the resale authorization of the contractual partner, we are also entitled to revoke the collection authorization and demand that the contractual partner informs us of the assigned claims and their debtors, provides us with all information required for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.

6.4.     In the case of damage to or loss of the delivery subject to reservation of ownership as well as change of ownership and change of residence, the contractual partner must notify us immediately in writing. The same applies in the case of distraints or other interventions by third parties to enable us to take legal action in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the contractual partner is liable for the loss incurred by us. If the release of the reserved delivery is achieved without trial, the costs incurred can also be charged to the contractual partner, as can the costs of repurchasing the distrained reserved delivery.

6.5.     The processing or modification of the reserved delivery by the contractual partner is always carried out for us. If the reserved delivery is processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the reserved delivery (final invoice amount including VAT) to the value of the other processed items at the time of processing or modification.

Besides, the same applies to the object resulting from the processing or modification as to the reserved delivery. The contractual partner is granted an expectant right corresponding to his expectant right to the reserved delivery for the object resulting from processing or modification.

6.6.     If the reserved delivery is inseparably mixed or combined with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the reserved delivery (final invoice amount including value added tax) to the value of the other mixed or combined items at the time of mixing or combining. If the mixing or combination takes place in such way that the object of the contractual partner is to be regarded as the main object, it is agreed that the contractual partner transfers co-ownership to us pro rata. The contractual partner keeps the sole ownership or the co-ownership for us.

6.7.     In case of resale of our reserved delivery after processing or modification, the contractual partner hereby assigns to us his claims to remuneration in the amount of the final invoice amount (including value added tax) of our claims by way of security.

If we have only acquired co-ownership in accordance with the above Clause 6.5. or 6.6. as a result of the processing or modification or the mixing or combining of the reserved delivery with other items not belonging to us, the contractual partner's claim to remuneration is only assigned to us in advance in the ratio of the final amount invoiced by us for the reserved delivery including value added tax to the final invoice amounts of the other items not belonging to us.

In all other respects, the above Clauses 6.2 to 6.4 apply accordingly to the claims assigned in advance.

6.8.     If the reservation of ownership or the assignment is not effective under foreign law in the area of which our reserved delivery is located, the security corresponding to the reservation of ownership and the assignment in this legal area is deemed agreed.

If the cooperation of the contractual partner is necessary for the creation of such rights, he is obliged, at our request, to take all measures necessary to establish and maintain such rights.

6.9.     The contractual partner is obliged to treat the reserved delivery with care and to maintain it in good condition at his own expense; the contractual partner is in particular obliged to sufficiently insure the reserved delivery at his own expense against theft, robbery, burglary, fire and water damage at replacement value in our favour. The contractual partner hereby assigns to us all resulting insurance claims with regard to the reserved delivery. We accept the assignment.

In addition, we reserve the right to assert our claims for performance or damages.

6.10. The contractual partner also assigns to us the claims to secure our claims against him which arise against a third party through the combination of the reserved delivery with a property.

6.11. We oblige ourselves to release the securities to which we are entitled at the request of the contractual partner insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; the choice of the securities to be released is at our choice.

    7.    Rights in case of asset deterioration - granting of credits

7.1.     If we are obliged to perform in advance under a mutual contract, we may refuse to perform the service incumbent upon us if it becomes apparent after conclusion of the contract that our claim to consideration is jeopardised by the contracting party's lack of ability to pay. In this case, we may set the contractual partner a reasonable deadline within which the contractual partner must, at his discretion, either effect counter-performance or provide security in return for our services. If the deadline expires without success, we are entitled to withdraw from the contract. Insofar as we have already rendered our service, we may in this case declare due and payable with immediate effect any claims resulting therefrom which are not yet due, including those for which bills of exchange or cheques have been given. Instead, we are also entitled to withdraw from the contract. Furthermore, we are entitled to the right to premature payment of claims arising from the same legal relationship if the contractual partner is in default of payment for more than 3 weeks with at least 25% of his total liabilities to us (absolute principal claims).

7.2.     In the event of final return of goods, in particular due to payment difficulties or insolvency of the contractual partner, etc., a credit note will be issued. We reserve the right to make deductions accordingly, e.g. :

7.3.     In general, there is no legal entitlement to a credit note.

    8.    Rights, contractual penalty

All rights (in particular ownership rights, copyrights or copyright exploitation rights as well as industrial property rights) to the contractual documents (in particular drafts, drawings, brochures, catalogues, illustrations, calculations, product descriptions, etc.) as well as samples, models and prototypes made available to the contractual partner within the scope of our business relationship (unless explicitly agreed otherwise) are exclusively ours.

The contractual partner agrees to pay us a contractual penalty in the amount of € 5,000.00 for each infringement of the aforementioned obligation, insofar as he does not furnish proof of his non-fault. We reserve the right to claim further damages.

    9.    Performance description, liability for defects

9.1.     The qualities listed in our performance descriptions define the characteristics of our deliveries and services comprehensively and conclusively. In case of doubt, the descriptions of our deliveries and services are the subject of quality agreements and not of guarantees or warranties. In case of doubt, declarations on our part in connection with the present contract do not contain any guarantees or assurances in the meaning of an intensification of liability or the assumption of a special responsibility. In case of doubt, only explicit written declarations on our part with regard to the issuance of guarantees and warranties are decisive.

9.2.     We do not accept any liability for damage caused by the following reasons: unsuitable or improper use or operation, faulty assembly by the contractual partner or third parties, natural wear and tear, faulty or negligent treatment, unsuitable media, chemical, electrochemical or electrical influences (insofar as we are not responsible for them), improper changes or repair work carried out by the contractual partner or third parties without our prior approval.

9.3.     The contractual partner is not entitled to make claims based on defects in case of minor differences from the agreed quality or in case of minor impairment of the usability of our deliveries or services. 

9.4.     The contractual partner's rights in respect of defects require that he has properly attended his duties to inspect and give notification of defects in accordance with § 377 HGB (German Commercial Code).

9.5.     If a defect exists, we are entitled to subsequent performance in the form of remedy of the defect or delivery of a new defect-free item at our choice. Should one of the two or both types of subsequent performance be impossible or disproportionate, we are entitled to refuse it.

We are also entitled to refuse subsequent performance as long as the contractual partner does not fulfil his payment obligations towards us to an extent corresponding to the defect-free part of the service rendered.

The buyer bears the risk and the costs for a return transport.

We are entitled to have the remedy of defects carried out by third parties. Replaced parts become our property.

9.6.     In case of impossibility or failure of the supplementary performance, culpable or unreasonable delay or serious and final refusal of the supplementary performance by us or unreasonability of the supplementary performance for the contractual partner, the contractual partner shall be entitled, either to reduce the purchase price accordingly (reduction) or to withdraw from the contract (withdrawal) at his choice.

9.7.     Unless otherwise specified in Clauses 9.8. and 9.9. below, further claims of the contractual partner in connection with defects of our deliveries and services, irrespective of the legal basis (in particular claims for damages due to defects and breaches of duty, tortious claims for compensation of material damage and claims for reimbursement of expenses) are excluded; this applies in particular to claims arising from damage outside the delivery items, e.g. to other items of the contractual partner, as well as to claims for the compensation of lost profits.

9.8.     The exclusion of liability specified in Clause 9.7 above does not apply:

9.9.     In case of reimbursement of expenses, clause 8.8 shall apply accordingly.

9.10. The statutory provisions concerning the burden of proof shall remain unaffected by the aforementioned provisions of clause 9, in particular clauses 9.7 to 9.9.

    10.  Rights to know-how and inventions

We have the exclusive right to confidential, high-quality and progressive knowledge (know-how) as well as inventions and any related industrial property rights which we have or have acquired during the execution of the contracts concluded with us - subject to separate agreements or the use or application of the delivered goods to which the contractual partner is entitled according to the purpose of the contract.

    11.  Violation of third party rights

We do not provide any warranty that the use or resale of the delivered goods will not violate any industrial property rights of third parties; however, we assure that we are not aware of the existence of such industrial property rights of third parties to the delivered goods.

    12.  Limitation period

The limitation period for claims and rights due to defects in deliveries or services shall be one year, – regardless of legal basis.

    13.  Assignments of claims by the contractual partner

Claims against us in relation to the deliveries or services to be provided by us are only allowed to be assigned with our prior written consent.

    14.  Place of performance, place of jurisdiction, applicable law, intra-community acquisition, severability clause

14.1. Unless otherwise agreed, the exclusive place of performance is our place of business, Augsburg, Germany.

14.2. If the contractual partner is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for all obligations arising from and in connection with the contractual relationship - also for matters relating to bills of exchange and cheques - shall be our place of business or, at our option, the contractual partner's place of business. The above agreement on the place of jurisdiction also applies to contractual partners located abroad.

14.3. For all rights and obligations arising from and in connection with the contractual relationship, the law of the Federal Republic of Germany apply exclusively and without regard to any conflict of laws provisions to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG: United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980).

14.4. Should a provision of our General Terms & Conditions or a provision within the framework of other agreements between us and the contracting party be or become invalid, this shall not affect the validity of all other provisions or agreements.

14.5. Contractual partners from EC member states are obliged to compensate us for any damage that may occur to us in the event of intra-community acquisition.

•       due to tax offences committed by the contracting party itself or

•       due to incorrect or omitted information of the contractual partner regarding his taxation-relevant circumstances.

    15.  Additional particular conditions for selection and commission business

15.1. The performance and maintenance of selection and commission business shall be carried out under the sole responsibility and at the sole expense of the contracting party.

15.2. We are not obliged to keep the stock of the contractual partner at a certain minimum level.

15.3. The selected goods/commissioned goods are our property. The contractual partner is obliged to inform us immediately of any incidents concerning the selected goods/commissioned goods.

15.4. 1 We are entitled to convince ourselves or third parties at any time of the proper storage of the selected goods/commissioned goods and to carry out an inventory respectively have it carried out.

15.5. Any defects must be reported to us without delay. This report must include the article number. Any defects which could not be detected during the required inspection must be reported immediately upon their discovery.

15.6. The contractual partner is liable for the loss, improper handling or damage of the selected goods/commissioned goods in his custody, unless the loss, improper handling or damage is caused by circumstances which cannot be averted by the diligence of a prudent businessman.

15.7. The contractual partner is entitled to remove selected goods/goods on commission from the warehouse for selling and assigning them to users.

15.8. With the removal of the selected goods/commissioned goods from the warehouse, a purchase contract is concluded between us and the contractual partner for these goods in accordance with the prices valid or agreed on the day of the removal. The same applies if selected goods/commissioned goods are not returned within the agreed period.

15.9. The contractual partner must notify us by the 10th of each month at the latest of the quantity of the selected goods/commissioned goods removed in the previous month. This notification must be made in written form, stating the article number and quantity withdrawn. On the basis of the reported consumption quantity, we will issue an invoice with the date of the reporting date. The invoice must be settled by the contractual partner in accordance with the agreed terms of payment.

15.10.         We may demand the return of the selected goods/commissioned goods at any time. The return is at the expense and risk of the contractual partner.

15.11.         The contractual partner cannot assert any right of retention against our demand for return. Storage differences, improper handling or damage to the goods delivered will be charged to the contractual partner.

15.12.         Any risk, especially the risk of the accidental destruction and loss, shall pass to the contractual partner upon delivery of the selected goods/commissioned goods to the contractual partner or, in the case of dispatch, upon transfer to the carrier.

15.13.         The contractual partner is obliged to provide sufficient insurance cover for our selected goods/goods on commission and in particular to insure them against robbery, burglary, theft, fire and water damage. He assigns his claims against the insurance company to us in advance. We hereby accept the assignment.