Conditions of sale

of Biermann & Kröger

General conditions of sale

Biermann & Kröger Gummiwarenfabrik GmbH & Co KG

Status: 01.04.04

§ 1 General - Scope of application

  1. Our terms and conditions of sale shall apply exclusively; we shall not recognise any terms and conditions of the customer which conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our terms and conditions of sale.
  2. All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
  3. Our terms and conditions of sale shall only apply to entrepreneurs within the meaning of § 310 para. 1 BGB (German Civil Code).

§ 2 Offer - Accessories - Tools

  1. If the order is to be qualified as an offer according to § 145 BGB, we can accept it within 2 weeks.
  2. We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as "confidential". The customer requires our express written consent before passing them on to third parties.
  3. If the customer has to provide parts for the execution of the order, these are to be delivered free production site with the agreed, otherwise a reasonable additional quantity for any rejects in time, free of charge and free of defects.
  4. If moulds, tools or devices are procured by us, we shall have the exclusive right of ownership thereto, irrespective of the cost assumption agreement. For moulds, tools or devices provided by the customer, our liability shall be limited to the same care as in our own case. Our storage obligation shall expire - irrespective of the customer's property rights - at the latest two years after the last production from the mould or tool.

§ 3 Prices - Terms of payment

  1. Unless otherwise stated in the order confirmation, our prices shall apply "ex works", excluding packaging; this shall be invoiced separately.
  2. The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
  3. The deduction of discounts requires a special written agreement.
  4. Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory regulations concerning the consequences of default in payment shall apply.
  5. The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 4 Delivery period

  1. The beginning of the delivery period stated by us presupposes the clarification of all technical questions.
  2. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer's obligation. We reserve the right to plead non-performance of the contract.
  3. 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.
  4. If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
  5. We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a firm deal within the meaning of § 286 para. 2 no. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased.
  6. Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributable to us. If the delivery contract is not based on an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
  7. We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
  8. Furthermore, in the event of a delay in delivery, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay amounting to 3% of the delivery value, but not more than 15% of the delivery value.
  9. Further legal claims and rights of the customer remain reserved.
  10. Partial deliveries are permissible. Deviations of the delivery quantities from the order quantities are permitted up to 10%.
  11. The delivery period stated in the order confirmation refers to the time of dispatch of the delivery. We may exceed or fall short of the delivery period by up to one week.

§ 5 Transfer of risk - Packaging costs

  1. Unless otherwise stated in the order confirmation, delivery "ex works" is agreed.
  2. Transport packaging and all other packaging in accordance with the Packaging Ordinance shall not be taken back, with the exception of pallets. The customer is obliged to dispose of the packaging at his own expense.
  3. If the customer so wishes, we shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.

§ 6 Liability for defects

  1. Warranty claims of the purchaser presuppose that he has properly fulfilled his obligations to inspect and give notice of defects according to § 377 HGB (German Commercial Code).
  2. If there is a defect in the object of sale, the customer shall be entitled, at his option, to subsequent performance in the form of rectification of the defect or delivery of a new defect-free object. In the event that the defect is remedied, we shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the object of sale has been taken to a place other than the place of performance.
  3. If the supplementary performance fails, the customer shall be entitled at his option to demand rescission or reduction.
  4. We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
  5. We shall be liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
  6. Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
  7. Unless otherwise regulated above, liability shall be excluded.
  8. The limitation period for claims based on defects is 24 months, calculated from the transfer of risk.
  9. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected.

§ 7 Joint liability

  1. Any further liability for damages than provided for in § 6 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage in accordance with § 823 BGB.
  2. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, co-workers, representatives and vicarious agents.

§ 8 Retention of title security

  1. We reserve the title to the object of purchase until receipt of all payments from the delivery contract. In the event of breach of contract by the customer, in particular default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to sell it; the proceeds of such sale shall be set off against the customer's liabilities - less reasonable selling costs.
  2. The customer is obliged to treat the object of sale with care; in particular, he is obliged to sufficiently insure it at his own expense at replacement value against fire, water and theft. If maintenance and inspection work is necessary, the purchaser must carry this out in good time at his own expense.
  3. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with the following provisions
  4. § 771 ZPO can raise. Insofar as the third party is not in a position to pay us the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure).
  5. § 771 ZPO, the customer shall be liable for the loss incurred by us.
  6. The customer is entitled to resell the object of purchase in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of purchase has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made for the opening of bankruptcy or composition or insolvency proceedings or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
  7. The processing or transformation of the object of sale by the customer is always carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
  8. If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer assigns us proportionate co-ownership. The customer shall keep the resulting sole ownership or co-ownership in safe custody for us.
  9. The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a piece of real estate.
  10. We undertake to release the securities to which we are entitled at the customer's request 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 shall be incumbent on us.

§ 9 Jurisdiction - Place of performance

  1. If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
  2. The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply.
  3. Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.

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