General terms and conditions
General Terms and Conditions of Delivery and Payment Bochumer Eisenhütte GmbH & Co. KG
6. Defects and other liabilities
1.1 Our Terms of Delivery apply to all current and future orders;deviations are only valid if we have expressly agreed to them in writing. Collateral agreements and subsequent changes are only binding for us after our written confirmation.
1.2 For assembly orders, our General Assembly Conditions apply.
2.1 Our offers are always non-binding. The delivery contract is only concluded after our written order confirmation.
2.2 Drawings, dimensions, and weights are only approximate unless expressly agreed as binding. Excess or reduced quantities or weights of up to 5% shall not be taken into account.
2.3 Ownership and copyrights of drawings and other documents remain with us; they may not be made accessible to third parties and must immediately be transmitted to us free of charge on our request or if no order is placed.
3. Prices and payments
3.1 All prices are in EURO plus VAT and are ex-works, unless otherwise agreed. The customer shall additionally pay for packaging and insurance. The same applies to special and partial deliveries as well as short-term express deliveries. Prices are calculated on the basis of current material prices and wages. If these increase before delivery, we are entitled to correspondingly raise our prices; the customer already agrees to this now. Down payments or advance payments by the customer shall have no effect on this. Unless a fixed price has been agreed on, we reserve the right to make reasonable price changes due to changes in wage,
3.2 material, and distribution costs for deliveries made three (3) months or later after conclusion of the contract.
3.3 Payment must be made – unless agreed otherwise – by the 30th of the month following the delivery ex-works or to the warehouse or with indicated completion, in cash without any deduction.
3.4 In case of late payment, we can
3.4.1 charge interest of 1% per month without notice and proof of damage. The assertion of a further damage as well as the rights from § 326 BGB [German Civil Code] remain reserved.
3.4.2 withhold our deliveries or other services from this or other orders until all our outstanding claims from this or other orders have been fully satisfied by the purchaser
3.4.3 demand appropriate security. 3.5 The purchaser is only entitled to set-off counterclaims if these are legally established or undisputed. The customer is only entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
4. Transfer of risks and acceptance
4.1 The risk shall pass to the customer when the goods are handed over to the forwarding agent or carrier, at the latest however when they leave the works. The same applies if the goods are made available to the customer through notification of dispatch.
4.2 The purchaser may, if agreed with us when placing the order, specially inspect and accept the goods before delivery. If special quality regulations are stipulated, he is obligated to such an acceptance upon our request. If he fails to do so in a timely manner, the goods shall be considered as delivered and accepted ex works in accordance with the terms and conditions.
4.3 If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to claim compensation for the relevant damage incurred by us including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or deterioration of the goods shall pass to the customer at the moment in which the latter is in default of acceptance or debtor’s default.
5. Retention of title
5.1 The goods to be delivered remain our property until complete payment of the delivery price, including all accessory claims.
5.2 With current accounts, the retention of title shall be deemed security for our outstanding balance claim. Goods already paid for and delivered remain our property as long as we still have any claims vis-à-vis the customer.
5.3 If the delivery item is mixed, connected, processed, or modified together with other items, the purchaser already now assigns their ownership and co-ownership rights to the mixed or connected item or to the new item or to the item resulting from the processing or modification; the purchaser may have the item in our possession until revocation.
5.4 We must be notified immediately of any seizure or other events jeopardising our rights. Intervention costs shall in any case be borne by the customer.
5.5 If the customer sells the item subject to which our retention of title applies, they are also obliged to retain the title vis-à-vis the third-party purchaser; the customer also already now assigns to us all claims arising from the sale and the retention of title against his customers with all accessory rights until complete repayment of all claims. We are entitled to notify the third party purchaser of this assignment at any time. The purchaser may only accept the payments of the third party purchaser as our trustee; he is obliged to transfer incoming amounts to us immediately.
5.6 The customer shall provide full insurance of the delivered items against fire, water, explosions, and other damages at their own expense. We must be notified immediately of any damages. For the duration of the retention of title, the customer hereby assigns his claims vis-à-vis the insurers to us. If the customer receives insurance pay-outs, these are to be paid to us immediately.
5.7 We are entitled to retrieve the item delivered under retention of title, if the customer is in default with their contractual obligations, if there are reasonable doubts about their creditworthiness as well as in cases of positive violation of contractual duties on the part of the customer, cessation of payments, filing for settlement or bankruptcy. This retrieval shall not be considered withdrawal from the contract. We may make use of retrieved items as we deem fit; the customer is liable for our claim for default.
5.8 If the value of the securities given to us exceeds our delivery claims and accessory claims by more than 20%, then we are obliged to reassignment if requested by the customer; however, in this case, we reserve the right to select a means to secure our claims.
5.9 If the value of the securities provided to us does not exceed the value of our delivery claims plus accessory claims, we reserve the right to procure a sufficient security of our choice.
For material defects of the delivery, which also include the deficiencies of the warranted characteristics or non-compliance with other warranties, the supplier shall be liable – to the exclusion of all further claims – as follows:
6.1 The deficient parts shall be repaired free of charge, at the discretion of the customer, or delivered only if they become demonstrably unusable or significantly impaired in their usability within 6 months after the transfer of risk due to a circumstance occurring before the transfer of risk – in particular due to faulty design, poor construction materials, or faulty workmanship. Any replaced parts become our property.
6.2 If the supplier does not acknowledge defects of which they were notified in time, the right of the customer to assert claims for defects shall expire in 12 months and in all cases from the time of the timely notification of defects. If no agreement is reached within this period, the supplier and the customer may agree on an extension of this period of limitation.
6.3 Our liability for defects is excluded in the following cases:
6.3.1 In the event of unsuitable or improper use, faulty assembly or incorrect commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, excessive strain, unsuitable operating materials, replacement materials, defective construction, unsuitable construction ground, chemical, electrochemical, or electrical influences, provided that the defects are not attributable to us.
6.3.2 If the purchaser or third party makes changes or repairs without our prior consent.
6.3.3 If the purchaser does not give us the necessary time and opportunity for the repairs and replacement deliveries as we deem them necessary according to our reasonable discretion. We reserve the right to refuse the remedying of defects if the customer fails to fulfil their contractual obligations arising from this or other orders.
6.4 If we have provided a guarantee for a certain function, in particular for the performance of certain tasks by complete plants, then the guarantee shall be fulfilled by us only insofar as all project planning, production, assembly, and start-up tasks of the complete plant are assumed by us.
6.5 We shall be liable for defects of title, in particular in the event of infringement of third party industrial property rights on our part, provided that:
6.5.1 the buyer was not aware of the defect before the conclusion of the contract; 6.5.2 the defect was culpably attributable to the supplier;
6.5.3 we are informed of the assertion of a third-party right within one week. If these conditions are met, we can be held liable to the maximum amount of 5% of the net invoice value of the respective delivery. For external products, our liability is limited to the assignment of our claims vis-à-vis our subcontracted supplier.
6.6 No other claims on the part of the customer, in particular relating to conversion, reduction, termination, or reimbursement for damages exist; this also extends to the breach of ancillary contractual obligations to which the supplier is subject, insofar as these are not attributable to intent.
7. Impossibility and default
7.1 The customer may withdraw from the contract,
7.1.1 if the entire performance becomes definitively impossible for us before the transfer of risk.
7.1.2 if we are in default of delivery after expressly guaranteeing delivery times and we do not comply with the reasonable grace period set by the customer due to a fault on our part, with their express declaration that they will refuse acceptance of the service after expiry of this period.
7.1.3 if we fail to fulfil our obligation to remedy defects due to a fault on our part, despite a reasonable grace period; the reasonable grace period shall only commence after the defect requiring remedy has been acknowledged by us or proven to us. 7.2 If the impossibility or the delay in delivery or performance occurs during the delay in acceptance or if this is attributable to the customer, the latter shall remain obliged to provide consideration. 7.3 All further claims of the customer are excluded, in particular for compensation for damages of any kind. 7.4 Events of force majeure entitle us to postpone the delivery for the duration of the hindrance and afterwards taking into account a reasonable start-up period, or to withdraw from the contract as part of the contract has not yet been fulfilled. Force majeure is equivalent to circumstances which make delivery considerably more difficult or impossible for us.
8. Data protection
8.1 We point out that, pursuant to § 33 of the Federal Data Protection Act (BDSG), we will store the customer’s data on the legal basis provided by the BDSG.
8.2 For further information on data protection and data processing, please refer to our data protection statement, which you can access on the Internet in our legal notice.
9. Final clauses
9.1 The place of performance and exclusive place of jurisdiction is Bochum, Germany.
9.2 The contractual relationship, including the terms of delivery, shall be solely evaluated pursuant to German law, even if the consumer has their place of residence or headquarters abroad and/or in the case of export transactions.
9.3 The unaffected aforementioned terms of delivery and payment shall remain binding, even if individual points are legally ineffective. The parties to the contract are obliged to replace an invalid provision with a valid provision corresponding to the economic purpose to the greatest possible extent.