General Terms and Conditions (T&Cs)
General conditions of purchase
I. General regulations
1. For every purchase made by Blank Metallbau-Technik GmbH (hereinafter named the buyer) and the vendor / supplier (hereinafter named the seller), the following provisions of the general conditions of purchase shall apply exclusively. For a further, or ongoing business relationship between the buyer and the seller, the terms and conditions of the buyer will govern any further orders, or any further purchases.
2. The terms and conditions or any other terms and conditions of the seller are hereby expressly excluded. (The seller is obliged to confirm the validity of the terms and conditions of the buyer for each, and respectively for the first order, to the buyer in writing, where electronic written form is also seen as sufficient. Should a written confirmation not be agreed to, the terms and conditions of the buyer are considered tacitly agreed upon. Also, in this case, the buyers conditions of purchase will continue to apply for any further orders or in a permanent business relationship. The one-time confirmation applies in a business relationship, i.e., by further orders or purchases, without the need for further confirmation.)
3. The conditions of purchase also apply to contracts, purchases on demand and successive delivery contracts. Here too, a one-time confirmation for other purchases or deliveries is binding. Orders, purchases and contracts are only binding for the buyer if they are made in
writing, where electronic written form is also sufficient. Binding agreements, arrangements, etc. require written confirmation by the buyer.
4. The submissions of requested tenders by the buyer, are free of charge.
5. Documents or other transferred items of the buyer, as for example calculations, models, materials, samples, technical specifications, etc., made available to the seller, may only be used to manufacture and/or deliver to the buyer. A transfer, or communication with third parties is expressly prohibited and excluded. The seller may only use the materials referred to above within the scope of the order exclusively for the fulfilment of the contract of the buyer, and not for their own purposes. The sellers knowledge related to the order, including also composition requirements, procedures, etc., is to be kept confidential. The seller is expressly obliged to maintain confidentiality. This applies to each order and also in the event of the termination of a business relationship. After completion of the contract upon delivering, all transferred documents, samples etc. made available in connection with the order, are to be returned to the buyer. The creation of reproductions, copies, the storage of data made available, etc. is expressly prohibited and excluded.
II. Quotes
1. The quotes provided by the seller, on request of the buyer, must show all prices, costs, costs incurred for example by freight and shipping, any other expenses and any customs costs incurred through dealing with international companies.
2. The agreed prices in the quote shall be deemed as agreed flat rates and are generally free of freight, packaging and shipping costs, or other ancillary costs, based on the place of receipt indicated by the buyer, and should not include shipping costs or other incidental expenses etc. In other cases where packaging, shipping and other incidental costs are not expressly agreed upon, these costs are then included in the agreed price. Delivery is in these cases is carried out free of charge by the seller.
3. To the extent, that prices for freight, shipping and other incidental expenses, such as packaging costs are to be increased by seller during the course of a business relationship, this is to be reported to the buyer in writing. These increases then need to be confirmed by the buyer. A retroactive change in prices for already placed orders is excluded. In case of price increases reserved by the seller, these require the consent of the buyer.
4. The deadlines for invoices sent by the seller begin upon receipt of invoice by the buyer, and, on condition that full delivery was indeed carried out. Based on the receipt of the sellers invoice by the buyer, the invoices are settled either within 14 days (less a three percent discount), within 30 days (less 2% discount) or within 60 days without any applied discount. The deadlines for payment and the discounts run from receipt of the invoice by the buyer, but not before receipt of the goods or services within the framework of the contract for work, or before their acceptance, and also not before, if included in the scope of the contract, documentation, instructions and other applicable documentation has been fully recieved by the buyer.
5. The buyer can make payment by check or bank transfer. The periods referred to in the preceding paragraphs are complied with payment by cheque, so long as the cheque was sent by mail on the due date. In the case of payment made via bank transfer, that the payment was requested at the bank of the buyer on the due date.
6. Late payment occurs at the earliest after 60 days from receipt of the invoice by the buyer, so long as the clauses and requirements previously described have been met. The default interest rate p.a. is five percentage points above the base rate.
7. The buyer may apply offsetting and retention within statutory procedural requirements.
III. Delivery dates, scope of delivery, transfer of risk
1. Contractually agreed delivery dates or deadlines are binding and mandatory for the seller to comply with. The seller is obliged to inform the buyer of any expected delays before the contractual acceptance of the order. Exceedance of the delivery date or an agreed delivery time after signing the contract, is solely the responsibility of the seller, unless it is a case of force majeure. In the case of known or anticipated delays in delivery after signing the contract, the seller must inform the buyer immediately.
2. In the event of a delivery delay, the buyer is entitled to legal claims, in particular, claims for damages including the assertion of any penalties which the buyer is borne to by third parties as a result of the delayed delivery. The delay in delivery occurs automatically upon non-compliance with the agreed delivery date or if the agreed delivery time is exceeded, without requiring a reminder being issued on the part of the buyer.
that there will be a delay in delivery, the buyer has the right of withdrawal from the contract and to be compensated for any damages according to clause 2.
4. Unless otherwise agreed on or subsequently authorised by the Buyer, the deliveries are to be provided in the scope of the order. Partial deliveries deviating from this rule are inadmissible. In case of impermissible partial deliveries, the buyer is entitled to accept the partial delivery and to withdraw from the contract with regard to the remaining delivery, and to claim for any compensation as specified under clause 2.
5. The risk of accidental loss, deterioration or damage to the goods is borne by the seller until the delivery of the goods has been accepted at the agreed location. The seller shall, at his own expense, insure against damage of the delivery during transit.
IV. Clause reserving errors
1. Apart from the legally designated rights of reservation of ownership, the seller is entitled to no further retention. The ownership of the goods shall pass to the buyer upon payment.
2. § 449 para 2 of the German Civil Code (BGB) is not waived.
V. Warranty, compensation for damage, statute of limitations
1. The seller shall carry out the delivery free of material and legal defects.
2. The delivered goods, items etc. must comply with the recognised rules of technology and the contractually agreed properties, DIN-standards (where such exist for the delivered item), as well as meet the security, occupational safety and accident prevention regulations.
3. If the delivered item has a defect, then the legal rights and claims are to the buyer. If, through the implementation of remedial measures by a third party the performance of the contract falls into default, then the seller is obliged to compensate the damage incurred to the buyer. Any further claims for damages remain unaffected.
4. Die Frist aus § 377 BGB, soweit es sich für beide Vertragsparteien um ein Handelsgeschäft handelt, für die Rüge eines Mangels, beträgt für den Besteller einen Monat. The period begins upon delivery to the buyer specified destination. The delivery to a different location does not set the start of the period of notification deadline.
5. The limitation period for warranty claims is two years. In the case of the ordered goods being installed at the property, a period of five years applies.
6. If the goods are delivered in a quality that deviates from or is less than the expected standard of quality from the contract, then the seller is obliged to carry out the performance in accordance with the contract and the agreed upon standards of quality between the parties. The buyer has the option to the right of withdrawal from the contract, including the rights to statutory compensation claims and the assertion of a possible penalty, which may arise from a third party due to the event of a delay in delivery, as well as any other claims of the third party.
7. If special qualities or the origin of the materials used have not been observed, or a verification possibility is not made possible to the buyer, then the delivered goods shall be deemed deficient. Liability, as per clause 6 clause 6, is then borne to the seller if there is a fault of the seller or in the event of the absence of a promised feature.
8. The seller must inform the buyer in the event of a breach of copyright, record keeping, infringement of patent rights or utility models rights and claims of third parties. The seller is also to the buyer obliged, to replace from resulting damage, in particular if the goods delivered pursuant to a foregoing infringement are unuseable. In the event that this causes a delay in delivery, then the rules under II. 2 shall apply. In this case, the right to withdraw from the contract is available to the buyer.
VI. Applicable law, place of delivery, jurisdiction
1. For each contract, the laws of the Federal Republic of Germany shall exclusively apply. This also applies to contracts with companies that have their registered offices within the EU. International treaty law does not apply.
2. All deliveries – either as one-offs or from an ongoing business relationship – are to be made to the buyers registered office – even for deliveries directly to a building site.
3. As far as the seller is a merchant, a legal person under public law or a special fund under public law, the place of jurisdiction for all legal disputes, including within the framework of a bill of exchange or cheque process, is the registered place of business of the buyer. The buyer, in a judicial claim, may only call the laws which are responsible for the buyers place of business.
VII. Formalities, legal effectiveness, data Protection
1. If any changes are made to the contract, even if only a partial modification of the contract, these changes must be made in writing. Verbal agreements have no legal effect.
. Should one of the provisions of the terms and conditions of the buyer be invalid, the parties commit themselves to a legally permissible provision corresponding to the sense and purpose of the original provision. In case of a loophole, the parties commit themselves to close such a loophole with a legally valid provision.
3. All declarations of intent which have influence on the order and on the ongoing business relationship, must be made in writing. This applies especially to terminations, cancellations, damage compensation claims, etc.
4. The buyer shall be entitled, in accordance with the statutory provisions on data protection in the sense of the German Federal Data Protection Act, to process data derived from the seller themselves, even if they originate from third parties within the meaning of the Federal Data Protection Act.
General conditions of sale
§ 1 Scope of application
1. These terms of sale apply exclusively to entrepreneurs, legal persons under public law or special funds under public law within the meaning of § 310 para. 1 of the German Civil Code (BGB). We only accept any terms and conditions of the buyer to the contrary or which vary from our Conditions of Sale if we explicitly approve them in writing.
2. These Conditions of Sale also apply to all future transactions with the buyer, to the extent that they are legal transactions of a related nature.
§ 2 Offer and conclusion of contract
1. To the extent that an order is seen as an offer according to § 145 of the German Civil Code (BGB), we can accept them within two weeks.
§ 3 Transferred documents
1. Title and copyright of all documents transferred by the buyer in the context of granting the order, e.g. calculations, drawings etc., shall remain with us. Third parties must not be granted access to these documents except where we have granted the buyer explicit written approval to do so. If we do not accept the buyers offer within a period set out in § 2, these documents must be returned to us immediately.
§ 4 Prices and payment
1. Unless agreed otherwise in writing, our prices are ex works excluding packaging and plus statutory VAT as required. The costs of any packaging are charged separately.
2. The purchase price shall be made solely to one of the mentioned in our business papers bank accounts below. Discounts may only be deducted by special written agreement.
3. Unless otherwise agreed, the purchase price must be paid within 30 days after delivery. Interest to the amount of 12% per annum above the base rate shall apply to late payments (see Appendix 1). We reserve the right to charge higher default interest.
4. Unless a fixed price was agreed, we reserve the right to adjust prices based on changed salary, material and sales costs for suppliers, if these become effective at least 3 months after the contract was concluded.
§ 5 Rights of retention
1. The buyer is only authorised to exercise a right of retention to the extent that his counterclaim is based on the same contract relationship.
§ 6 Delivery time
1. The start of the delivery time set by us assumes the timely and proper delivery of the buyers requirements. We reserve the right to plead non-performance of the contract.
2. If the buyer is delayed in accepting or if he is guilty of violating other cooperation duties, we are authorised to demand compensation for any damage incurred by us, including additional costs. We reserve the right to enforce additional claims. To the extent that the conditions above apply, the risk of accidental loss or accidental deterioration of the object of purchase is passed to the buyer at the point in time when approval default or payment default commences.
§ 7 Transfer of risk during delivery
1. If the goods are sent to the buyer at the latter’s request, the risk of accidental loss or accidental deterioration of the goods is passed to the buyer when the goods are sent to the buyer, at the latest when they leave the works/warehouse. This applies regardless of whether the goods are sent from the place of performance or who bears the freight costs.
§ 8 Retention of title
1. We retain title of the delivered item until full payment of all claims based on the delivery contract have been made. This also applies to all future deliveries, even if we do not always make explicit reference to this. We are authorised to take part the object of purchase if the buyer is in breach of contract.
2. The buyer must treat the object of purchase with care until ownership of the item has passed to him. In particular, he must sufficiently insure (at his own expense) against theft, fire and water damage at replacement value. If maintenance work and inspections must be performed, the buyer must carry these out at his own expense. If ownership has not yet been transferred, the buyer must notify us immediately in writing
if the delivered item is pledged or otherwise subject to third-party interventions. If the third party is unable to compensate us for the judicial and extrajudicial costs of a claim according to § 771 of the Code of Civil Procedure (ZPO), the buyer is liable for the costs incurred by us.
3. The buyer is entitled to sell on the goods, which are subject to a retention of title, during the course of ordinary business. The buyer hereby transfers any claims of the buyer to the goods subject to a retention of title to us in the amount of the agreed final invoice amount (including VAT). Such transfer shall apply regardless of whether the object of purchase was sold on without or after processing. The buyer remains entitled to collect the receivable even after the transfer. his shall not affect our right to collect the receivable ourselves. However, we shall not collect the receivable so long as the buyer meets his
payment obligations from the collected proceeds, he has not defaulted on the payment and in particular if no application has been submitted to initiate insolvency proceedings or payments have ceased. 4. Processing of or changes to the object of purchase by the buyer always take place in our name and for us. In this case, the buyers remainder in relation to the object of purchase shall continue in relation to the changed item. If the object of purchase is processed together with other items, which do not
belong to us, we hereby acquire co-ownership of the new item in relation to the objective value of our object of purchase to the processed items at the time of processing. The same shall also apply to any mixing. If the object is mixed in such a way that the buyers object must be viewed as the main object, it is hereby agreed that the buyer shall transfer proportionate co-ownership to us and thereby protect the resulting sole ownership or co-ownership for us. In order to secure our claims against the buyer, the buyer shall also transfer to us such claims against a third party as he obtains as a result of combining the object subject to a retention of title with a property; we hereby accept this transfer.
§ 9 Warranty and defect claims as well as regress/manufacturer recourse
1. Warranty rights on the part of the buyer assume that the latter has properly met his obligations under § 377 of the Commercial Code (HGB) to examine the property and report defects.
2. So far as it concerns the two parties in a commercial transaction, the deadline period under § 377 of the German Civil Code (BGB) for the notification of a defect applies for the destination specified by the buyer. Also, the delivery to a different location does not set the start of the period of notification deadline.
3. Defect claims have a limitation period of 12 months after the goods delivered by us have been delivered to our buyer. The statutory limitation period applies to compensation claims based on intent or gross negligence, as well as to loss of life, physical injuries and damage to health, which are due to an intentional or grossly negligent violation of duty by the user. If the law in accordance with § 438 para. 1 No. 2 of the German Civil Code (BGB) (constructions and objects for constructions), § 479, para. 1 of the German Civil Code (BGB) (right of recourse) and § 634a para. 1 of the German Civil Code (BGB) (construction defects) prescribes longer mandatory deadlines, then these deadlines shall apply. Before the return of any goods, our consent must be obtained.
4. If the delivered goods are defective in spite of all diligence and care, and the defect was already present at the time that risk was transferred, we shall at our option either repair the goods – subject to a timely defect report – or deliver replacement goods. We must always be given the opportunity of supplementary performance within an appropriate period.
. Defect claims shall not apply if the object only differs insignificantly from the agreed properties, if usability is only affected insignificantly, in the case of wear and tear, or in the case of damage incurred after transfer of risk as a result of incorrect or careless handling, excessive use, unsuitable tools, inadequate construction work, unsuitable building ground, or due to particular external influences, which are not assumed based on the contract. If the buyer or a third party carries out inappropriate maintenance work or makes changes, defect claims shall also not apply to these nor to any consequences resulting from this.
6. Claims by the buyer due to expenses required for supplementary performance, particularly transport, travel, work and material costs, are excluded, to the extent that these expenses increase because the goods delivered by us were subsequently moved to a different location other than the buyers place of business.
7. Any regress claims by the buyer against us only apply to the extent that the buyer has not reached any agreements with buyers of the goods in excess of the statutory defect claims. Furthermore, Section 6 applies to the scope of the buyers regress claims against the supplier.
§ 10 Miscellaneous
1. This contract and the entire legal relationship shall be subject to the law of the Federal Republic of Germany excluding the UN Convention on the International Sale of Goods (CISG).
2. Our registered office is the place of performance and exclusive jurisdiction for all disputes resulting from this contract, unless agreed otherwise on the order confirmation.
3. All agreements between the parties regarding performance of this contract must be recorded in writing in this contract.
§ 11 Formalities, legal effectiveness, data Protection
1. If any changes are made to the contract, even if only a partial modification of the contract, these changes must be made in writing. Verbal agreements have no legal effect.
2. Should one of the provisions of our terms and conditions be invalid, the parties commit themselves to a legally permissible provision corresponding to the sense and purpose of the original provision. In case of a loophole, the parties commit themselves to close such a loophole with a legally valid provision.
3. All declarations of intent which have influence on the order and on the ongoing business relationship, must be made in writing. This applies especially to terminations, cancellations, damage compensation claims, etc.
4. Blank Metallbau-Technik GmbH shall be entitled, in accordance with the statutory provisions on data protection in the sense of the German Federal Data Protection Act, to process data derived from the buyer themselves, even if they originate from third parties or Blank Metallbau-Technik GmbH within the meaning of the Federal Data Protection Act.
