GENERAL TERMS AND CONDITIONS OF BREHMER GMBH & CO. KG TOWARDS COMPANIES
Last updated May 28, 2019
§ 1 Validity
- All deliveries, services and offers of Brehmer GmbH & Co. KG (hereinafter referred to as "BREHMER") shall be made exclusively on the basis of these General terms and Conditions. These are an integral part of all contracts concluded by BREHMER with its contractual partners (hereinafter referred to as the "Customer") regarding the deliveries or services offered by BREHMER. They are also valid for all future deliveries, services or offers to the client, even if not agreed again separately.
- The terms of business of the Customer or third parties shall not apply, even if BREHMER does not object to their validity in individual cases. Even if BREHMER refers to a letter that contains or refers to the terms of business of the client or a third party, it does not agree with the validity of these terms and conditions.
§ 2 Offer and conclusion of contract
- All offers from BREHMER are non-binding and without obligation, unless they are expressly marked as binding or contain a certain acceptance period. Orders or orders may be accepted by BREHMER within fourteen days after receipt.
- The respective purchase contract, including these General terms and conditions, shall be the sole relevant legal relationship between BREHMER and the Customer and completely reflect all agreements between the contract parties regarding the subject matter of the contract. Verbal commitments of BREHMER before the conclusion of this contract are legally non-binding and oral agreements of the contracting parties are replaced by the contract, unless expressly stated in them that they are binding.
- Modifications and amendments to the agreements made including these General terms and conditions shall be in writing. For the preservation of the written form the transmission by fax and by email is sufficient. Transmission by telecommunication is not sufficient.
- Information provided by BREHMER as the subject of the delivery or service (such as weights, measurements, utility values, load-bearing capacities, tolerances and technical data) as well as our representations (e.g. drawings and illustrations) are not guaranteed qualities, but descriptions or identifiers of the delivery or service. Any customary deviations and deviations, which are made according to legal regulations or technical improvements, as well as the replacement of components by equivalent parts, are permissible insofar as they do not impair the usability of the purpose intended by the contract.
- BREHMER reserves the title or copyright to all offers and quotations, as well as the drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and tools provided to the Customer. The Customer may not pass this content on to third parties, publish it, use it either personally or through third parties, or reproduce it, without the express consent of BREHMER. At the request of BREHMER, they must return this material to BREHMER in full and destroy any copies made if they are no longer required by them for the normal course of business or when negotiations do not lead to the conclusion of a contract.
§ 3 Prices and payment
- The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services are charged separately. The prices are quoted in EURO and ex works in addition to packaging, the legal value added tax, and in the case of export deliveries duty, fees and other public charges.
- Brehmer terms of payment:
21 days net without deductions.
Exceptions are development and laboratory assignments larger than 10,000 euros. The following payment terms apply:
50% net immediately upon order
50% net immediately upon order completion
- The date of payment shall be the date of delivery to BREHMER. In the case of transfers from abroad, all fees shall be borne by the Customer.
- The set-off with counterclaims by the Customer or the retention of payments due to such claims is not permissible.
- BREHMER shall be entitled to carry out or to deliver any outstanding deliveries or services only against advance payment or security depost in the event that BREHMER becomes aware, after the closure of the contract, of circumstances which substantially reduce the creditworthiness of the Customer and which will enable BREHMER to pay the outstanding receivables from which the Customer is jeopardized within the respective contractual relationship (including other individual orders for which the same contract framework contract applies).
§ 4 Delivery and delivery time
- Deliveries shall be made ex works.
- Time limits and deadlines for deliveries and services promised by BREHMER are only binding if expressly agreed as fixed deadlines or as fixed dates. If dispatch has been agreed, delivery periods and delivery dates refer to the date of handing over to the freight forwarder, freight carrier or other third party responsible for transport.
- BREHMER may, without affecting its rights to default on the part of the Customer, demand an extension of delivery and performance periods or a postponement of delivery and performance dates during any period in which the Customer fails to meet their contractual obligations to BREHMER.
- BREHMER shall not be liable for the impossibility of delivery or delays in delivery, as far as they are caused by force majeure or other events unforeseeable at the time of the conclusion of the contract (such as operational disturbances of all kinds, difficulties in material or energy procurement, transport delays, strikes, legal lockouts, lack of labor, energy or raw materials, difficulties in procuring necessary regulatory approvals, governmental measures, or failed or untimely supplier delivery), which BREHMER is not responsible for. If such events substantially impede BREHMER or make delivery or performance impossible and the hindrance is not only of a temporary nature, BREHMER shall be entitled to withdraw from the contract. In the case of obstacles of a temporary duration, the delivery or performance periods are extended or the delivery or performance dates are postponed by the period of the hindrance plus an appropriate start-up period. If, as a result of the delay, the Customer cannot reasonably be expected to accept the delivery or service, they can withdraw from the contract by means of an immediate written declaration to BREHMER.
- BREHMER shall be entitled to make partial deliveries if a) the partial delivery is usable by the Customer within the scope of the contractual purpose, b) the delivery of the remaining ordered goods is ensured, and c) the Customer is not thereby incurred considerable additional costs (unless BREHMER is willing to accept these costs).
- If BREHMER is in default with a delivery or service or if a delivery or service is impossible for any reason, BREHMER's liability is limited to damages in accordance with § 8 of these General terms and conditions.
§ 5 Place of delivery, dispatch, packaging, transfer of risk, acceptance
- The place of performance for all obligations arising from the contractual relationship is the place of registered office of BREHMER, unless otherwise specified.
- The method of shipment and packaging are subject to BREHMER's discretion.
- The risk shall pass to the Customer at the latest upon receipt of the delivery item (whereby the commencement of the loading process is decisive) to the freight forwarder, freight carrier or other third party designated to execute the shipment. This also applies if partial deliveries are made or BREHMER has taken over other services (for example, shipping). If the shipment or delivery is delayed as a result of a circumstance which is the cause of the Customer, the risk is transferred to the Customer from the day on which the delivery item is ready for dispatch and BREHMER has indicated this to the Customer.
- The consignment is insured by BREHMER against theft, breakage, transport, fire and water damage or other insurable risks only at the explicit request of the Customer, and at thier expense.
§ 6 Warranty, material defects
- The warranty period is one year from delivery.
- The delivered goods must be carefully inspected immediately after delivery to the Customer or to the third party designated by them. They shall be deemed approved if BREHMER has not received a written notification of defects in respect of obvious defects or other defects which were recognizable in an immediate and thorough investigation within seven working days after receipt of the delivery item or otherwise within seven working days after the discovery of the defect or any earlier date, in which the defect was recognizable to the Customer in the normal use of the delivery item without closer examination, in the manner specified in § 2 (3). At the request of BREHMER, the defective delivery item shall be returned to BREHMER freight-free. In case of justified complaints, BREHMER will pay the costs of the most favorable shipping; this does not apply to increased costs if the delivery item is located in a place other than the place of the intended use.
- In the case of material defects of the delivered goods, BREHMER shall be obliged and entitled to rectify or replace the goods after having made an appropriate decision within a reasonable period of time. In the event of a failure, e.g. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Customer can withdraw from the contract or reduce the purchase price appropriately.
- If a defect is due to the fault of BREHMER, the Customer may demand damages under the conditions stipulated in § 8.
- In the event of defects of components of other manufacturers which BREHMER can not remedy for licensing or other reasons, BREHMER will, at its discretion, assert its warranty claims against the manufacturers and suppliers on behalf of the Customer or assign these to the Customer. Warranty claims against BREHMER in the event of such defects are subject to the other conditions and in accordance with these General terms and conditions only if the enforcement of the aforementioned claims against the manufacturer and suppliers was unsuccessful or there is no reasonable chance, for example due to insolvency. During the duration of the legal dispute, the limitation of the warranty claims of the Customer against BREHMER do not apply.
- The warranty is void if the Customer, without the consent of BREHMER, changes the delivery item or has it altered by a third party and the rectification of the defect thereby becomes impossible or unreasonable. In each case, the Customer is required to bear the additional costs of remedying defects caused by the modification.
§ 7 Property rights
- In accordance with § 7, BREHMER shall ensure that the delivery item is free of industrial property rights or copyrights of third parties. Each contractual partner shall immediately notify the other in writing if they are asserted claims against the infringement of such rights.
- In the event that the delivery item violates an industrial property right or copyright of a third party, BREHMER will, at its option and at its expense, amend or replace the delivery item in such a way that no third party rights are infringed but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the Customer by concluding a licence contract. If BREHMER fails to do so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or reduce the purchase price appropriately. Any claims for damages by the Customer are subject to the limitations in § 8 of these General terms and conditions.
- In case of breaching rights by products of other suppliers delivered by BREHMER, BREHMER will be entitled to choose either to enforce its claims against the manufacturers and own suppliers for the account of the Customer or to assign them to the Customer. Claims against BREHMER in these cases shall be subject to the provisions of this § 7 only if the judicial enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or there is no reasonable chance, for example due to insolvency.
§ 8 Liability for compensations caused by fault
- BREHMER's liability for damages, irrespective of the legal basis, in particular from impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations with regard to contract negotiations and unauthorized action, shall be restricted, as far as the fault is concerned, in accordance with this § 8.
- BREHMER shall not be liable in the case of simple negligence on the part of its management, legal representatives, employees or other agents, insofar as it is not a violation of contractual obligations. Essential contractual obligations include the obligation to deliver the goods, which are free from material defects, as well as consultation, protection and custody obligations, which are to facilitate the contractual use of the delivery object for the Customer or which are to protect the life and limb of the Customer's or third parties' personnel or to protect the property of the Customer against considerable damages.
- Insofar as BREHMER is liable for damages in accordance with § 8 (2), this liability is limited to damages which BREHMER has foreseen at the time of conclusion of the contract as a possible consequence of a breach of contract or which BREHMER should have foreseen when exercising due diligence. Indirect damages and consequential damages, which are the result of defects in the delivered object are only liable for compensation if such damage can be typically expected when the delivered object is used in conformity with its intended purpose.
- In the event of liability for simple negligence, BREHMER's liability for damage to property of EUR 3,000,000.00 per claim and consequential loss of property is limited to an amount of EUR 500,000.00 per claim (in accordance with the current sum insured in its liability insurance), even if it is a violation of contractual obligations.
- The foregoing exclusions and limitations of liability apply to the same extent to the bodies, legal representatives, employees and other agents of BREHMER.
- Insofar as BREHMER provides technical information or acts as an adviser and this information or advice does not belong to the contractually agreed scope of services which it owes, this shall be free of charge and without any liability.
- The limitations of this § 8 do not apply to BREHMER's liability for deliberate actions, for guaranteed characteristics, for injury to life, body or health or according to the Product Liability Act.
§ 9 Retention of title
- The following agreed retention of title serves to secure all current and future BREHMER claims against the Customer from the delivery relationship between the contract partners (including balances due from a current account relationship limited to this relationship).
- The goods supplied by BREHMER to the Customer remain the property of BREHMER until full payment of all secured claims. The goods and the following mentioned goods under retention of title are referred to hereinafter as reserved goods in the following.
- The Customer stores the reserved goods free of charge for BREHMER.
- The Customer is entitled to process and sell the reserved goods in normal business dealings up to the point of instigation of recovery. Pledging and transfer of ownership by way of security is not permissible.
- If the reserved goods are processed by the Customer, the Customer is required to transfer future ownership of the newly created object or, if the processing is made from substances of several owners, co-ownership of the newly created object in relation to the value of the reserved goods to the value of the newly created object for security, to BREHMER. If the reserved goods are combined with other items to form a uniform item or are inseparably combined, and if one of the other items is to be regarded as the main item, the Customer shall transfer ownership of the uniform item in the proportion specified in sentence 1 on a pro rata basis.
- In the event of the resale of the reserved goods, the Customer is required to assign to BREHMER the claims arising thereof as a precautionary measure - in the case of co-ownership of BREHMER on the reserved goods proportionally according to the co-ownership share. The same shall apply to other claims which replace the reserved goods or otherwise arise with respect to the reserved goods, such as, for example, insurance claims or claims arising from unauthorized handling in case of loss or destruction. BREHMER irrevocably authorizes the Customer to collect the claims assigned to BREHMER in its own name. BREHMER may revoke this collection authorization only in the event of enforcement.
- If third parties access the reserved goods, in particular by way of attachment, the Customer will immediately notify BREHMER of the property and inform BREHMER thereof in order to enable BREHMER to enforce its proprietary rights. If the third party is in no position to reimburse BREHMER for the court or extrajudicial costs arising in this connection, the Customer shall be liable to BREHMER.
- BREHMER will release the reserved goods as well as the goods or claims in its place at the request of the Customer at its discretion insofar as their value exceeds the amount of the secured claims by more than 50%.
- Should BREHMER withdraw from the contract due to a breach of contract by the Customer (in particular default of payment) BREHMER is entitled to demand the reserved goods.
§ 10 Final provisions
- If the Customer is a merchant, a legal entity under public law or a public special fund, then the court of jurisdiction for any disputes arising from the business relationship between BREHMER and the Customer is, at the discretion of BREHMER, the place of registered office of BREHMER or the place of business of the Customer. The place of registered office of BREHMER is exclusive jurisdiction for actions against BREHMER. Mandatory legal provisions regarding exclusive jurisdictions shall remain unaffected by this regulation.
- The relations between BREHMER and the Customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
- If one of the provisions of the contract or these General terms and conditions is or becomes invalid, void or impracticable, the validity of the remaining provisions shall not be affected. The parties undertake to agree on an effective and enforceable provision which is as close as possible to the economic purpose of the invalid, void or unenforceable provision, instead of the invalid, void or unenforceable provision. This applies accordingly in the event of a contractual gap.
The Customer acknowledges the fact that BREHMER is able to obtain data from the contractual relationship according to § 28 Bundesdatenschutzgesetz (Data Protection Act) for the purpose of data processing and reserves the right to transfer the data to third parties (for example, insurance companies) as far as necessary for the fulfillment of the contract.