General Terms & Conditions of Delivery and Services of BSM GmbH

I. Scope of Application

1. We do business exclusively on the basis of the Terms and Conditions set forth below. These Terms and Conditions will also apply to all future transactions even if not expressly agreed to in each case. Any exception to these Terms and Conditions will be valid only if agreed to by us in writing. Any terms and conditions of the customer that we have not explicitly acknowledged in writing will be immaterial even if we fail to explicitly object to such terms and conditions.

2. Agreements in individual cases including collateral agreements, amendments and changes. shall in any case prevail the General Conditions. All changes have to be agreed in writing. The same applies to legally binding declarations and notifications of the customer after conclusion of the contract (i.e. deadlines, notifications of defects).
 

II. Quotations, Scope of Delivery, Services

1. Our quotations are subject to change. Understandings made orally, in person or by telephone must be confirmed in writing to be valid.

2. Documents related to our quotations such as brochures, photos and drawings as well as weights and measures will be considered only approximations unless explicitly specified as binding by us. Order confirmations will be exclusively determinative for the purposes of definition of the quality of goods and services.

All property rights – including copyright and industrial property rights – to all calculations, drawings, other documents and data regardless of their specific embodiment shall remain with us. These documents, data etc. shall not be made available to third parties without our consent.

3. All deliveries will be in accordance with the standards and legal provisions applicable in the Federal Republic of Germany. The customer shall be responsible for any examination and approval of deliveries according to foreign technical standards and regulations.

4. Our written order confirmations will be determinative for the purposes of definition of the scope of delivery or services. In the absence of such written confirmation, our quotation will be determinative.

 

III. Prices and Conditions of Payment

1. Prices apply ex works manufacturer and do not include packaging. For services we will charge the agreed prices or the list prices applicable.  We are entitled to change the price of delivery is made or services are rendered more than four months after the conclusion of the contract if we prove that either our costs of prices of suppliers have increased.

2. In the case of shipments to other countries, the customer will bear all duties, fees, taxes, costs for certification, etc., incurred outside the Federal Republic of Germany. This will also apply accordingly to the cost of any necessary legalization of certificates of origin, invoices for consular services, etc..

3. The customer may not offset counterclaims or exercise any rights of retention unless claims of the customer are undisputed or legally enforceable.

4. If it should become apparent after execution of a contract that our claim to payment is at risk due to the customer’s inability to make payment, we may refuse to make shipment and request that the customer either make payment upon delivery within a period specified by us or provide appropriate security. In the event this period should elapse with no response from the customer, we may cancel the order and demand reimbursement of expenses incurred. No such period of notice will be required if the customer seriously and definitively refuses to make payment or if special circumstances exist that justify immediate cancellation of the contract by us after weighing the interests of both sides.

IV. Delivery Time, Time of Performance

1. Dates and deadlines specified in our order confirmations or otherwise agreed with the customer will be binding. Compliance with such dates and deadlines by us presupposes timely receipt of all documents to be supplied by the customer – including exact specifications – as well as compliance with the agreed conditions of payment and other obligations by the customer. If these conditions are not met in a timely manner, delivery or performance will be delayed accordingly. Partial shipments are permissible if the Customer can be reasonably expected to accept such shipments.

2. Delivery will be considered to have been made on a timely basis if the goods are ready for shipment or collected by the delivery date. If shipment is delayed for reasons attributable to the customer, delivery will be considered to have been made on a timely basis upon notification of completion or availability for shipment by the agreed delivery date.

3. If we are prevented from performing our obligations due to the occurrence of unforeseeable unusual circumstances affecting our operations or those of our suppliers that we could not avoid despite all due care in view of the given circumstances, for example, disruption of operation, governmental intervention, delays in the delivery of essential raw and building materials, delivery will be postponed by the duration of any such occurrence unless delivery or performance is rendered impossible. In the event delivery or performance should become impossible due to the circumstances mentioned above, we will be released from our obligation to make delivery.

4. Delivery will also be postponed in case of strike or lock-out affecting ourselves or our suppliers. In the event delivery or performance should become impossible, we will be released from our obligation to make delivery.

In the event the delivery or performance is not impossible, the Customer may, upon expiry of an adequate period of grace rescind the contract. Claims for damages are excluded.

If the operations of the customer should be affected by any of the above-mentioned circumstances, the same legal consequences will also apply in respect of the customer's obligation to accept delivery.

We may rely on the circumstances mentioned here only if we notify the customer accordingly without delay.

V. Call-Off-Orders

1. The customer has to accept performance of call-off-orders within six months unless otherwise agreed.

2. If the customer does not accept delivery during the six-months-period, we may invoice the total quantities, arrange for shipment to the customer or store the goods at the customer’s costs. The same shall apply if the customer does not take delivery at the agreed time.
 

VI. Shipment and Passage of Risk

1. The risk of loss or damage will pass to the customer upon dispatch. If shipment is delayed for reasons lying within the sphere of influence of the customer or the customer’s agents, the risk of loss or damage will pass to the customer as of the day of readiness for shipment.

2. The customer has to return the goods used for packaging (i.e. cable spools, europallets, containers) directly to the manufacturer/supplier. The objects have to be returned within the customary time frame. In case of a delayed restitution or a restitution after expiry of a fixed term the customer has to compensate us for all costs and damages.

VII. Retention of Title

Shipped goods will remain our property after shipment until we have received payment in full of the agreed price.
 

VIII. Rights of the Customer in the Case of Defects

1. We hereby assign our claims against suppliers to the customer. The customer may hold us liable for defects of such products manufactured or distributed by third party suppliers only if after he has taken legal steps against the third party supplier. We will make all reasonable efforts to support the customer in asserting his claim against the third party supplier and provide the customer with the necessary documents.

2. If the purchase represents a commercial transaction for the customer, the customer must notify us of any defects in writing without delay and at the very latest within ten days of
receipt of the goods. The customer must notify us in writing without delay upon detection of any other defect that cannot be detected within the above period even upon careful inspection.

3. In the case of legitimate defects, we may at our discretion correct the defect or supply a replacement within a reasonable period of at least 14 days. If corrective work should prove inadequate, the customer may – unless the default is of negligible importance – reduce the price or rescind the contract. The customer may also claim damages or reimbursement of expenses if appropriate. If the customer should rescind the contract, the customer will return the goods to us.

4. If  the customer resents the contract, he has to return the defective product and to pay an adequate sum for the use of the product equaling the customery rent for such a product. Further claims remain unaffected.

Further claims of the customer in respect of expenses incurred for the purposes of carrying out required corrective work, in particular for shipping, freight, materials and labor, will not be honored if such expenses are increased due to the fact that the goods are subsequently brought to a location other than the delivery destination by the customer or any other party unless required by the intended use of the goods or agreed to by us upon execution of the contract.

5. We will be liable for claims arising from defects in products only in the case of willful  misconduct or gross negligence on our part or that of our agents or in the case of breach of a material contractual obligation. A material contractual obligation is one that must be met if the contract is to be properly fulfilled and on which the customer may rely.
No liability can be assumed for unforeseeable, so-called excess damage. It is expressly agreed that this limitation will not apply in the case of loss of life or personal  injury due to a culpable breach of duty.

6. If we warrant that the goods will comply with certain specifications, the conditions pertaining to limitation of liability contained in para. 5 above will not apply. Claims brought under the Product Liability Act (Produkthaftungsgesetz – ProdHaftG) will remain unaffected.

7. We accept no liability for the suitability of the goods for the purposes contemplated by the customer unless such purposes are expressly stipulated by us.
 

IX. Limitation of Liability, Damages

1. Unless stipulated otherwise in these Terms and Conditions, our liability for any breach of contractual obligations or any or other obligations will be governed by the relevant provisions of law. We will at our sole discretion determine whether circumstances warrant a limitation of our liability.

2. We will be liable for damages – for whatever legal reason – in the case of willful misconduct and gross negligence. In the case of simple negligence, we will be liable only in the case of

a) claims arising in connection with the loss of life, personal injury or illness,
b) claims arising in connection with the breach of a material contractual obligation (i.e., an obligation that must be fulfilled to permit proper performance of the contract and may regularly be relied upon by the customer). Our liability will, however, then be limited to foreseeable and typically occurring damages.

3. The limitations to our liability pursuant to 2 above will not apply in the case of concealment of a defect with intent to deceive or if we have extended a warranty on the respective products. The limitations to our liability do not apply in the case of claims of the customer under the Product Liability Act.

4. The customer may rescind or cancel the order due to breach of contract only if the breach can be attributed to us. The contract will otherwise be governed and construed in accordance with the provisions of law and legal practice.

5. In the case of delay, the customer’s claim for damages will be limited to 5 per cent of the net purchase price unless such delay is due to willful misconduct or gross negligence on our part.
 

X. Limitation Periods

1. The general period of limitation for claims arising from defects in materials and workmanship or defects of title is one year from the date of delivery.
        
2. The general period of limitation for claims arising from services rendered is one year.

3. Special provisions of law governing real rights of third parties to the return of property (s. 438 (1) no. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), intent to deceive on our part and claims against suppliers in the case of sale to a consumer pursuant to s. 479 of the German Civil Code will apply.

4. Contractual and other claims of the customer arising from defective goods will also become time-barred upon expiration of the periods specified under the provisions of law governing contracts unless the application of the regular legally prescribed periods pursuant to ss. 195 and 199 of the German Civil Code would result in earlier expiration of such claims under the given circumstances.

5. Warranty periods prescribed by the Product Liability Act will apply. The legal warranty periods will otherwise apply exclusively in the case of claims for damages on the part of the customer pursuant to section IX.
 

XI. Place of Performance, Jurisdiction, Applicable Law

1. Bielefeld, Germany, is the place of performance for all obligations arising from this Agreement.

2. Any disputes arising from this contractual relationship will be submitted to the jurisdiction of the courts of Bielefeld if the customer is a businessman, a public law corporation or special fund under public law . We may, however, at our discretion, take action before the courts having jurisdiction over the registered place of business of the customer.

3. The provisions of this Agreement will be interpreted and construed exclusively in accordance with German law. Application of the United Nations Convention on the International Sale of Goods of April 11, 1980 (CISG) is excluded.
 

XII. Data Privacy

The collection, use and processing of your personal data is in strict compliance with the relevant legal provisions. For details we refer to our privacy statement communicated on our website under www.bsm-einkauf.de/de/kontakt/datenschutz.html.
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