General Terms and Conditions
of Biffar GmbH & Co. KG, 67480 Edenkoben,
as of 04.2014
The following General Terms and Conditions of Biffar GmbH & Co. KG (“Company”) are a constituent part of all contracts.
Any general terms and conditions of the contract partner (“Customer”) shall not apply even if the Company does not expressly reject them. The terms and conditions of the Company shall also apply for subsequent deliveries made on the basis of written or verbal orders.
Delivery, delivery periods
Delivery periods or dates that have not been expressly agreed as binding are provided solely on a non-binding basis. If the observance of a delivery period has been agreed, observance of the delivery period assumes that the Customer has fulfilled any obligations on its part, in particular agreed part payment obligations.
Should unforeseen events occur that are outside our control, even if they have occurred in our plant or at a subcontractor, the delivery period shall be extended by the duration of the hindrance. This particularly applies for disruptions to business, labour disputes and delays in obtaining supplies of essential raw materials for us or our suppliers, sovereign measures or force majeure. Customers who are also consumers also have a statutory right of withdrawal within extended delivery periods.
If delivery is not possible for the foreseeable future and this is beyond our control, we will have the right to withdraw from the contract. We will inform the Customer immediately of the non-availability and refund any payments made by the Customer at once.
Our plant (our respective supply plant) is agreed as the place for performance for delivery in transactions with Customers who are not consumers. The risk shall pass to the Customer who is not a consumer upon provision and despatch of the notification of readiness of the goods for shipping unless we have agreed to assemble, i.e. erect, the goods, in which case the risk shall pass to the Customer upon acceptance of the installed work.
If we are bound to assemble the goods supplied by us, the conditions and requirements necessary for erection must be met prior to the start of assembly so that the goods supplied by us can be transported smoothly to the site. In particular, all masonry, plastering, floor and ceiling works and other preparatory work must have been completed so that the assembly activities can be commenced immediately after unloading without hindrance or interruption and without jeopardising the safety of the fitters.
The Customer shall bear the costs of masonry, mortising, touching-up, plastering, painting and wall covering, sealing and connections to the structure. We will only carry out such work if this has been specially agreed.
The costs for the supply of electric power for the assembly work shall be borne by the Customer. We will not carry out electrical work, in particular power supply work. The Customer must have such work carried out on its own account.
If additional means of transport such as lifting platforms, cranes, scaffolding, etc. are required at the place of assembly, the Customer shall make these available at the time of assembly at its own expense.
Our supply and assembly agreements shall apply in the ancillary.
Prices, price adjustments
Unless otherwise agreed, prices are quoted ex works or ex stock and are exclusive of packaging, carriage and VAT.
Any increase in labour costs, costs of materials or VAT occurring after the contract has been concluded will be passed on to the Customer in the same amount if delivery is to take place more than 4 months after the contract has been concluded. If the price rises by more than 5% the Customer may withdraw from the contract. We must be notified of this withdrawal in writing within two weeks of notification of the price increase.
The following payment schedule shall apply unless otherwise agreed:
30% upon placement of the order and 70% following completion of assembly and acceptance of the work.
If payment by instalment was agreed with the Customer, the outstanding total amount will be due for payment if the Customer falls into arrears with the payment of some or all of more than two instalments.
The Customer only has rights of retention against counterclaims arising from the same contractual relationship.
The Customer may only set off against a claim that is undisputed or has been declared final unless the claim results from the same contractual relationship.
Personal details will be recorded, saved and processed in accordance with section 28 of the German Data Protection Act (BDSG). This also covers the transmission of these details to credit rating agencies for the purposes of credit checks and monitoring.
Duties of preservation
If the Customer procures a work or other services in connection with land and he is not an entrepreneur or, if an entrepreneur, does not use it for his entrepreneurial purposes, he has a duty under section 14b (1) sentence 5 of the German VAT Act (UstG) to preserve the invoices until the end of the year after the next year.
Claims based on defects, liability
Minor, customary deviations in the form of the surface, colour, structure and grain of the processed materials due to the typical properties of the material are not defects. This shall also apply for formal and technical improvements of our products that we undertake in order to maintain or adapt them to the state of the art.
If the Customer is a consumer, the statutory warranty rights apply.
If the Customer is an entrepreneur or legal entity under public law, the Customer may demand that the defect be rectified by way of renewed performance. If this fails, the Customer’s rights under section 437 nos. 2 and 3 of the German Civil Code (BGB) shall apply. A claim to renewed performance is excluded. Claims based on defects are excluded in the case that used moveable assets are sold to entrepreneurs or legal entities under public law.
In the case that new moveable assets are sold to entrepreneurs or used moveable assets are sold to consumers, claims based on defects will become time-barred in one year.
We will be liable to the full extent under statutory provisions in the case of intent and gross negligence. The Company will also be liable for any negligence in the case of damages arising from loss of life, damage to health or physical injury, the German Product Liability Act or cardinal duties under the contract. No further liability shall exist.
Reservation of title
The goods supplied shall remain our property as reserved goods until the price has been paid and all claims that exist or may arise from the business relationship have been settled. If the Customer defaults in payment we shall have the right to recover the reserved goods after warning and the Customer shall be bound to surrender them.
If the Customer processes reserved goods into a new moveable asset, the processing shall be carried out for us but without imposing any obligation on us. The new asset shall become our property. In the event of processing with goods not belonging to us, we shall acquire joint title to the new asset in the proportion of the value of the reserved goods to that of the other goods at the time of processing. If reserved goods are combined, mixed or intermingled with goods not belonging to us pursuant to sections 947, 948 BGB, we shall acquire joint title in accordance with the statutory provisions. If the Customer acquires sole title through combination, mixing or intermingling, he hereby transfers to us joint title in the proportion of the value of the reserved goods to that of the other goods at the time of combination, mixing or intermingling. In these cases the Customer shall preserve the asset to which we have title or joint title, which shall likewise be deemed reserved goods within the meaning of the following provisions, free of charge for us.
If the Customer sells reserved goods alone or in conjunction with goods belonging to us, the Customer hereby assigns the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and ranking before the rest. We accept the assignment. If the resold reserved goods are in our joint ownership, the assignment of the claims shall extend to the amount corresponding to our pro rata share of the joint title.
If the Customer installs reserved goods as a substantive component on the land of a third party, the Customer hereby assigns the claims to remuneration against the third party or against whom it may concern in the amount of the value of the reserved goods with all ancillary rights, including any right to the granting of a security mortgage ranking before the rest. We accept the assignment.
If the Customer installs reserved goods as a substantive component on his own land, he hereby assigns the claims arising from the commercial sale of the land or of property rights in the amount of the value of the reserved goods with all ancillary rights and ranking before the rest. We accept the assignment.
The Customer is entitled and authorised to resell, use or install the reserved goods only in the usual and ordinary course of business and only subject to the proviso that the claims within the meaning of paragraphs 3, 4 and 5 actually pass to us. The Customer does not have the right otherwise to dispose of the reserved goods, in particular to pledge or assign them as security.
The Customer shall inform us at once of enforcement measures by third parties on the reserved goods or the assigned claims, providing the information required for opposition.
The right to resell, use or install the reserved goods and the authority to collect the assigned claims shall lapse upon suspension of payment or an application for or the opening of insolvency proceedings. The authority to collect shall likewise lapse in the event of a cheque or bill protest. In these cases we may withdraw from the contract and demand surrender of the reserved goods.
If the value of the securities furnished more than temporarily exceeds the claims by more than 10%, we will be bound at our option to retransfer or release securities to that extent. Title to the reserved goods and the assigned claims will pass to the Customer when all our claims under the business relationship have been settled.
Jurisdiction, place of performance
If the Customer is a merchant, the place of jurisdiction shall be our registered office; however, we shall have the right to pursue the Customer at the court of his place of residence.
The laws of the Federal Republic of Germany shall apply, to the exclusion of the UN Sales Convention.
Unless otherwise indicated on the confirmation of our, the place of performance shall be our registered office.
If the Customer relocates his domicile or usual place of residence outside the scope of the Federal Republic of Germany after the contract has been concluded, the place of jurisdiction shall be our registered office. This shall also apply if the domicile or usual place of residence of the Customer is not known at the time the action is brought.