General Terms and Conditions
Here you will find a brief overview of the individual points of our terms and conditions.
1 General terms
1.1 All deliveries and services provided by us are subject to the current version of our General Terms and Conditions of Sale and Delivery. Any exclusions or amendments to these provisions, even if they only concern individual provisions, shall require an explicit written agreement in the supply contract.
1.2 Any deviating terms and conditions established by customers must always be confirmed by us in writing in order to be effective.
1.3 The customer acknowledges our terms and conditions of sale and delivery as legally binding when placing the order. This also applies to any subsequent repair and maintenance orders.
1.4 All subsidiary agreements must be confirmed in writing in order to be effective.
1.5 Our General Terms and Conditions of Sale and Delivery shall apply irrespective of the qualification of the underlying contractual relationship. All claims, whether arising from a contract of sale, a contract for work and services or a contract for work and materials, which the customer has against us are subject to the prohibition of assignment in accordance with § 399 BGB.
1.6 Any documents, drawings, weight and dimension data belonging to our offer are only approximate unless they are expressly designated as binding. We reserve the right of ownership and copyright for our cost estimates, drawings and other documents. These documents may not be made accessible to third parties without our explicit written consent.
2 Scope and delivery obligation
2.1 The scope of delivery shall be determined by the written order confirmation.
2.2 We reserve the right to make design or shape changes during the delivery period which are attributable to improvements in technology or to legal requirements, provided that the object of delivery is not significantly changed and the changes are reasonable for the customer.
3 Price and payment
3.1 The prices offered are based on the calculation factors valid at the time the offer is submitted. Price changes are permissible if there are more than 4 months between the conclusion of the contract and the agreed delivery date. If the personnel and material costs increase thereafter until completion of the delivery, Berlemann Torbau GmbH shall be entitled to increase the prices appropriately in line with the cost increases. If the customer is a merchant, a legal entity under public law or a special fund under public law, price changes shall be permissible in accordance with the aforementioned provision if there are more than 10 weeks between the conclusion of the contract and the agreed delivery date.
3.2 Unless otherwise agreed in writing, all prices are quoted in EURO. The prices are subject to value-added tax at the statutory rate.
3.3 Unless otherwise agreed, prices are ex works Neuenkirchen. Additional freight charges for dispatch by express shall be at the expense of the customer, even if the transport costs are otherwise covered by us in individual cases.
3.4 All additional costs such as transport insurance, customs duties, TÜV (Association for Technical Inspection) fees are at the expense of the customer.
3.5 In the absence of a special agreement, payment shall be made as follows: Net within 8 days after receipt of invoice. Separate individual invoices remain reserved.
3.6 We are entitled to demand immediate payment of all of this party's claims against the customer if there is an important reason. This shall apply in particular if a payment deadline is exceeded, the customer suspends payment or bill of exchange or cheque protests exist, applications for bankruptcy or composition proceedings are filed or out-of-court measures are taken.
3.7 Quoted prices are for normal working hours and work performance. If the assembly work has to be carried out at night or on Sundays or public holidays and under aggravating conditions, the customer shall be obliged to pay the corresponding tariff surcharges on the wage costs offered.
3.8 Services not expressly listed in the offer which become necessary for the execution of the order or which are carried out at the request of the client will be invoiced additionally. Such services are e.g. demolition, planning work, removal of excavated earth or work due to changes in the construction site after submission of the offer or similar circumstances.
3.9 In the event of default in payment, interest at a rate of 5 % above the base rate in accordance with § 1 of the Discount Rate Transition Act in conjunction with the Basic Interest Rate Reference Ordinance, but at least 8 % p.a. shall be charged from the due date, without prejudice to any other claims. All payment dates shall be deemed to be determined according to the calendar within the meaning of § 284 para. 2 BGB (German Civil Code). In the event of non-compliance with such a deadline, the customer shall be in default without a reminder.
3.10 Payment orders, cheques and bills of exchange shall only be accepted after special agreement and only on account of payment, but not in lieu of payment (as performance). Bills of exchange must be discountable, any collection and discount charges will be charged to the customer.
3.11 The customer may only assert set-off and retention rights against us if the counterclaims are undisputed or legally established.
4 Shipment and transfer of risk
4.1 The goods always travel at the risk of the customer, even if the transport risk is insured by us. The carrier is always the customer's vicarious agent.
4.2 The risk shall pass to the customer at the latest when the goods are loaded at the factory, even if only partial deliveries are made or we have assumed other services, e.g. shipping costs or delivery and installation. The transfer of risk is independent of the respective type of dispatch.
4.3 Partial deliveries are permissible.
4.4 Delivered items are to be accepted by the customer, even if they should show insignificant shortcomings, without prejudice to his rights resulting therefrom. Any defects or transport damage must be reported to us immediately, irrespective of the risk assumption and any possible liability.
5 Retention of title
5.1 We retain title of the delivered goods until full payment of our claims under the underlying contract. 5.2 In the event of breach of contract by the customer, in particular default in payment, we shall have the right to take possession of the goods subject to retention of title after a reminder has been sent and a reasonable period of grace has expired. If these objects are in the possession of a third party, the customer agrees that we also take possession of the objects in this case.
5.3 The assertion of the retention of title as well as the attachment of the delivery items by us shall not be deemed withdrawal from the contract unless the provisions of the Consumer Credit Act apply or this is expressly declared in writing. In addition, the following shall apply in the case of merchants, a legal entity under public law or a special fund under public law:
5.4 The customer is entitled to resell the delivery items in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the purchase price agreed between us and the customer including VAT from which the customer accrues from the resale, irrespective of whether the delivery items are resold without or after processing. The customer is authorized to collect these claims after their assignment. Our authority to collect the claims ourselves remains unaffected; however, we undertake not to collect the claims as long as the customer duly meets his payment obligations and is not in default of payment. If this is the case, however, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
5.5 The processing or transformation of the delivery items by the customer is always carried out for us. If the delivery items are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery items to the other processed or mixed items at the time of processing.
5.6 The customer may neither pledge the delivery items nor assign them as security. In the event of seizure, confiscation or other dispositions by third parties, the customer must notify us immediately and provide us with all information and documents required to safeguard our rights. Enforcement officers or a third party must be made aware of our ownership.
5.7 We undertake to release the securities to which we are entitled at the request of the customer to the extent that the value of the claims to be secured exceeds the value of the claims by more than 20%, insofar as these have not yet been settled.
6 Delivery terms
6.1 If a delivery period has been agreed between us and the customer, it shall commence at the earliest upon dispatch of the order confirmation, but not prior to the provision of any documents, approvals, releases to be procured by the customer and prior to receipt of any agreed down payment. If the customer is obliged to approve drawings, plans or documents prepared by us, the delivery period shall not commence before we have received the customer's declaration of approval.
6.2 The delivery period shall be deemed to have been complied with if the readiness for dispatch has been notified or the delivery item has left the factory by the time it expires.
6.3 The delivery period shall be extended in the event of interventions within the framework of industrial disputes, in particular strikes and lock-outs, as well as in the event of unforeseen events beyond the control of Berlemann Torbau GmbH, e.g. operational disruptions, delays in the delivery of essential materials, insofar as such hindrances demonstrably have a considerable influence on the delivery of the delivery item. This shall also apply if the circumstances occur with subcontractors. The delivery period shall be extended in accordance with the duration of such measures and obstacles. The aforementioned circumstances are also not justifiable if they arise during an already existing delay. In important cases, Berlemann Torbau GmbH will inform the client of the beginning and end of such hindrances as soon as possible.
6.4 If dispatch is delayed at the customer's request, the customer shall be charged the costs incurred for storage 10 days after notification that the goods are ready for dispatch; in the case of storage in our works, however, at least ½ % of the invoice amount shall be charged for each month. Furthermore, in such cases the customer is obliged to pay the material value after invoicing. However, we shall be entitled, after setting and fruitless expiry of a reasonable deadline, to otherwise dispose of the delivery item and to supply the customer with a reasonable new deadline.
6.5 Compliance with the delivery period presupposes the fulfilment of the customer's contractual obligations.
7.1 We shall be liable for defects of the delivery item to the exclusion of any claims only on the basis of the following provisions: a) During a period of 6 months after acceptance of the delivery item, the customer has the right to have faulty mechanical and electrical parts repaired (rework). b) Natural wear and tear is excluded from the warranty in any case.
7.2 No liability is assumed for damages resulting from the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, faulty or negligent handling, unsuitable subsoil, chemical, mechanical or electrical influences.
7.3 The customer must give us the reasonable time and opportunity after notification to carry out all repairs which we deem necessary at our reasonable discretion, otherwise we shall be released from liability for defects.
7.4 Of the direct costs arising from the repair or replacement delivery, we shall bear the costs of the replacement delivery, including dispatch, insofar as the notice of defect proves to be justified.
7.5 If, as an exception, repairs or replacement deliveries fail for reasons for which we are responsible, at least 2 further repairs or replacement deliveries must be granted to us within a reasonable period of time before the customer has the right to rescind the contract or reduce the purchase price.
7.6 If changes or repair work are carried out by the customer or third parties without prior approval, any warranty on our part shall lapse.
7.7 Otherwise, the statutory provisions shall apply.
8 Acceptance obligation
8.1 The customer is obliged to accept a consignment as soon as he has been informed that it is ready for dispatch. If the customer remains in arrears with the acceptance of the object of purchase for more than 10 days due to intent or gross negligence, we shall be entitled, among other things, a) to invoice the costs incurred for storage and maintenance and b) after setting a grace period of one week to withdraw from the contract or to demand compensation for non-performance. The setting of a grace period is not necessary if the customer seriously or finally refuses acceptance or is obviously unable to pay the purchase price within this period.
8.2 The assertion of the statutory provisions on default of acceptance shall not be limited by the above provision.
8.3 If the customer declares that he will not accept the delivery item, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer at the time of refusal.
8.4 Notwithstanding the provisions of § 649 BGB (German Civil Code), we shall be entitled to demand reimbursement of the costs incurred up to that point, less payments already made, in the event of processing the customer's order discontinued at the customer's request. We shall only be bound by such a calculation if the customer makes corresponding payments within 4 weeks of the invoice being issued.
9.1 Berlemann Torbau GmbH assumes liability for defects in the delivery items in the following manner:
9.2 Berlemann Torbau GmbH shall not be liable in principle for errors arising from the client's documents or inaccurate information.
9.3 Liability is limited to direct damage to the delivery item. This also applies to claims arising from unlawful acts.
9.4 Berlemann Torbau GmbH shall only be liable for further claims and rights in cases of intent and gross negligence. In all other respects liability is excluded. This also applies if vicarious agents are active.
10 Other obligations of the customer
10.1 The customer is solely responsible for the building permit and the removal of obstacles in the area of the gate and/or fence route. He is also obliged to point out pipes, ducts, cables and boundary stones in good time and to mark them. At the start of installation, Berlemann Torbau GmbH or its representatives must be instructed by the customer on site regarding the exact course of the fence, the heights and all other details required for installation. If this is not possible, Berlemann Torbau GmbH must be informed in good time, at the latest three working days before the start of installation. If the installation is delayed because the customer does not carry out the instruction or does not do so on time, he is obliged to bear all costs resulting from the delay as compensation.
10.2 Electricity and water connections must be provided free of charge by the customer.
10.3 The customer may only demand compliance with agreed execution deadlines if he has provided all the necessary documents and if an unhindered start of assembly at the construction site is guaranteed. D Berlemann Torbau GmbH assumes that the installation can be carried out without interruption. Delays in the commencement, continuation or completion of the work for reasons for which the customer is responsible (e.g. ambiguities regarding borders, corridor and neighbouring rights, building permits or non-locatable boundary stones as well as unperformed preliminary work) release Berlemann Torbau GmbH from the obligation to adhere to agreed execution dates for the duration of the delay and oblige the customer to secure material already delivered against theft. If the customer has used deliveries or services or a part thereof, acceptance shall be deemed to have taken place.
10.4 The customer is entitled to demand a binding on-site measurement from Berlemann Torbau GmbH. If the measurement is associated with considerable costs, the customer undertakes to assume these.
10.5 The customer is obliged to inform Berlemann Torbau GmbH of obvious errors, spelling and calculation errors or inaccuracies in the illustrations and drawings or dimensional data of Berlemann Torbau GmbH. This also applies to missing documents or drawings.
11 Place of performance/place of jurisdiction
11.1 Place of performance is 48485 Neuenkirchen.
11.2 For all disputes arising from the contractual relationship, if the customer is a registered trader, a legal entity under public law or a special fund under public law, the action shall be brought before the court having jurisdiction for the headquarters of Berlemann Torbau GmbH. Berlemann Torbau GmbH is also entitled to sue at the customer's headquarters.
11.3 German law shall apply exclusively to the exclusion of the law on the international purchase of movable property, even if the customer has its registered office abroad.
12 Final clauses
12.1 Concluded delivery contracts as well as the above conditions shall remain binding even if individual conditions are legally ineffective. Verbal collateral agreements are only valid if Berlemann Torbau GmbH expressly confirms them in writing. This provision may be repealed only by a joint written declaration of both Parties.