Terms and Conditions

General

  1. For all deliveries and services between Josef Bernbacher & Sohn GmbH & Co. KG, hereinafter referred to as "Bernbacher", and companies, hereinafter referred to as "customers", the following terms and conditions of sale and delivery shall apply exclusively, unless and to the extent that nothing to the contrary has been expressly agreed in writing. If the customer refers to his own general terms and conditions, their validity is hereby contradicted. Bernbacher's terms and conditions of sale and delivery shall also apply if Bernbacher executes the delivery without reservation in the knowledge that the customer's terms of sale and delivery conflict with or deviate from Bernbacher's terms and conditions of sale and delivery.
  2. All agreements made between Bernbacher and the customer for the purpose of executing this contract must be made in writing.
  3. Bernbacher’s terms and conditions of business apply only to companies within the meaning of § 310 para. 1 BGB (German Civil Code).

Prices and due date

  1. Unless otherwise agreed, Bernbacher’s prices are "ex works".
  2. The statutory value added tax (VAT) is not included in Bernbacher’s Prices.
  3. The deduction of discounts requires a special written Agreement.
  4. Bernbacher is entitled to make its delivery only against prepayment.
  5. If advance payment is not required, payments are due net without any deductions within 14 days of the invoice date, unless otherwise agreed.

Subcontracting and transferability

  1. Bernbacher is entitled to subcontract the performance of the contract without prior agreement or approval by the customer.
  2. Bernbacher is also entitled to transfer rights and obligations arising from this contract.

Transfer of risk

Unless otherwise agreed, delivery "ex works" is agreed. The risk shall pass to the customer at the latest as soon as Bernbacher has handed over the goods to the forwarding agent, the carrier or any other person or company designated to carry out the shipment. If the requirements of Clause 5 c are met, the risk shall pass to the customer at the point in time at which the customer defaults in acceptance or debtor's default.

Delivery time

  1. Insofar as Bernbacher's offer contains a processing time or dates, these are only binding if Bernbacher has expressly confirmed their binding nature in writing. Partial deliveries are permissible and end the delay in delivery.
  2. Binding deadlines are only to be met by Bernbacher if the agreed lead time is met by the customer. Bernbacher reserves the right to plead non-performance of the contract.
  3. If the customer is in default of acceptance or culpably violates other duties to cooperate, Bernbacher is entitled to demand compensation for the resulting damage. Further claims or rights are reserved.
  4. Claims from delay in delivery are determined according to Clause 6.

Liability for defects

  1. In the event of justified notifications of defects, Bernbacher shall be obliged to make subsequent delivery or rectification of defects which are not only insignificant. Bernbacher has the right to choose between rectification of defects or subsequent delivery. Should subsequent delivery or rectification fail or not be possible, the customer can demand a price reduction or withdraw from the contract. Upon Bernbacher's request, the customer is obliged to declare within a reasonable period of time whether he makes use of his right of withdrawal.
  2. Bernbacher can refuse the obligation of subsequent performance as long as the customer does not fulfil his payment obligations to Bernbacher to an extent corresponding to the defect-free part of the service.
  3. Liability for claims for damages shall be governed by Clause 6.
  4. A further condition for any warranty claim is that, insofar as it concerns obvious defects, the notice of defects is declared in writing and without delay, i.e. at the latest within 3 working days from receipt of the goods (on the delivery note). The goods complained of must be kept ready for inspection by Bernbacher in the condition in which they are at the time of the defect detection, in particular not mixed. If this does not happen, the goods are deemed to be approved.
  5. No guarantees are assumed by Bernbacher.

Warranty in case of defects of title

In the event of a defect of title due to the infringement of third-party industrial property rights, Bernbacher shall only be liable if these rights exist in the Federal Republic of Germany, if the customer uses the service owed in accordance with the contract and is legitimately held liable by the third party to this extent and the customer has informed Bernbacher in writing. Guarantees are not given.

Liability

  1. The liability of Bernbacher, its representatives or vicarious agents arising from contractual breach of duty or tort is limited to intent and gross negligence. Insofar as Bernbacher is not accused of intentional conduct, liability is limited to the foreseeable, typically occurring damage. In the event of a culpable breach of material contractual obligations (cardinal obligations), Bernbacher, its representatives or vicarious agents shall also be liable for simple negligence. An essential contractual obligation exists if it is an obligation the fulfilment of which is essential for the proper execution of the contract and on whose compliance the customer may regularly rely. In this case, too, Bernbacher's liability is limited to the foreseeable damage typical of the contract.
  2. The exclusion or limitation of liability of Bernbacher, its representatives or legal vicarious agents does not apply to liability for culpable injury to life, body or health. The mandatory liability under the Product Liability Act as well as any liability of Bernbacher arising from the assumption of a procurement risk or fraudulent concealment of a defect shall also remain unaffected.
  3. Unless otherwise agreed above, any further liability of Bernbacher and its representatives and vicarious agents is excluded, irrespective of the legal nature of the claim asserted. The exclusion or limitation of liability also applies with regard to the personal liability for damages of employees, representatives and vicarious agents of Bernbacher.

Statute of limitations

The customer's claims for breach of duty and tort shall become statute-barred within 12 months of the transfer of risk. This does not apply if the law according to § 478 and § 479 BGB (right of recourse in delivery recourse) prescribes longer periods or Bernbacher is liable due to intent.

Retention of title

  1. The goods remain the property of Bernbacher until full payment of all claims to which Bernbacher is entitled from the current business relationship with the customer.
  2. The customer may sell the goods only in the regular course of business, otherwise he may not dispose of them in any way. He is obliged to notify Bernbacher immediately of any access by third parties.
  3. The customer already now assigns all claims in the amount of the gross final invoice amount of Bernbacher’s claim, which arise for the customer from the resale If the customer is in default of payment, Bernbacher is entitled to collect the claims. The customer is obliged to inform Bernbacher to which debtors the claims have been assigned and also to hand over all information and documents required for collection.
  4. In the event that Bernbacher's ownership expires through combination, mixing or processing, it is already now agreed that ownership of the uniform object created in this case shall pass to Bernbacher until full payment of all claims in proportion to value (invoice value).
  5. Should an excess security of more than 10 % of Bernbacher's claims arise, Bernbacher will release goods of its choice from the retention of title to the corresponding extent upon request.
  6. In the event of breach of contract on the part of the customer, in particular in the event of default in payment, Bernbacher is entitled to reclaim the goods without Bernbacher having to declare its withdrawal beforehand.

Right of withdrawal

  1. Bernbacher may withdraw from the contract if the customer, despite being requested to perform step by step or to provide sufficient security, is not prepared or has not provided the security within a reasonable period of time. This applies in particular if a company which Bernbacher has assumed the delcredere for the customer's liabilities excludes the customer from the delcredere. Bernbacher's statutory rights of withdrawal remain unaffected by this.
  2. After declaration of rescission, Bernbacher is entitled to sell the object of purchase. The proceeds of the sale shall be set off against the customer's liability, less reasonable costs of sale.

Set-off, retention and assignment

  1. The customer is only entitled to offsetting rights if his counterclaims are undisputed, established as final and absolute by court or acknowledged by Bernbacher.
  2. The customer is only entitled to withhold payment if his counterclaim is based on the same contractual relationship.
  3. Until complete repayment of all existing claims of Bernbacher, the customer assigns all claims arising from the goods delivered by Bernbacher to Bernbacher upon conclusion of the contract. Payments received by the customer on the basis of these claims must be forwarded to Bernbacher without delay, insofar as the claims of Bernbacher are due.
  4. The customer's claims may not be assigned. § 354 a HGB remains unaffected.

Confidentiality and release of documents

  1. The parties undertake to treat the information made available by the contractual partner in connection with the order confidentially and to pass it on to third parties only with the consent of the notifying contractual partner. This also applies in particular to the offer or parts of the offer by Bernbacher. The contracting parties undertake to treat all information and documents provided to them by the other party in strict confidence and not to make them available to any third party, even after the term of the contract or if the contract has not been concluded.
  2. The duty of confidentiality shall not apply to information which was lawfully known to the received party prior to transmission, which was lawfully obtained by a third party or which was developed by the received party independently of the information provided. Furthermore, there is no duty of confidentiality if disclosure to the authorities or in the course of legal proceedings becomes necessary.
  3. Upon request, information made accessible in each case is to be returned or deleted.

Declaration of consent under data protection law

Unless otherwise agreed and no personal data from third parties are contained, the parties agree that documents may also be sent unencrypted by e-mail.

Place of jurisdiction, applicable law and place of performance

  1. The place of jurisdiction is agreed to be Bernbacher's place of business. Bernbacher is, however, also entitled to take legal action at the other legal venues, in particular to sue the customer at his place of business. Legal proceedings are only admissible in ordinary jurisdiction. Therefore, arbitration agreements are expressly rejected.
  2. The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  3. Bernbacher’s place of business shall be the place of performance.