TERMS & CONDITIONS
General Terms of Sale and Delivery
Ulrich Brunner GmbH
A lasting and permanent business relationship is not built on the General Terms of Sale and Delivery but on cooperation and mutual trust. Nonetheless, we cannot avoid regulating some points as follows:
1. Applicability of the General Terms of Sale and Delivery
The Supplier's offers, the order acceptance and all deliveries shall take place exclusively on the basis of the following "General Terms of Sale and Delivery". The Purchaser's conditions of purchase are herewith expressly ruled out; they are not binding for the Supplier, even if he does not object to them again at the conclusion of the contract.
2. Offer and conclusion of contract
The Supplier's offers are without obligation and subject to a written confirmation by the Supplier, unless specifically agreed otherwise in writing. Documents pertaining to an offer, such as pictures, drawings, weights and detailed descriptions are only approximate and serve the purpose of better describing and defining the delivery item. The same applies to performance and consumption data. This data shall not constitute any guarantee for the quality or durability of the delivery item. The Supplier reserves the right to alter dimensions and weight of the item until delivery.
Should the Supplier employ a subcontractor for the shipment of goods (e.g. parcel service), the Purchaser shall consent that the e-mail address indicated by him is communicated by the Supplier to the subcontractor and that the latter uses it in relation to the delivery. This consent can be revoked by the Purchaser at any time. The Purchaser should bear in mind that, in the case of revocation, he will no longer be able to directly affect the delivery of the shipped goods. A revocation can be sent to the following address: email@example.com.
4. Prices and payments
Prices apply ex-works excluding packing and freight and do not apply to subsequent orders.
Prices are based on the actual costs at the time of the written confirmation by the Supplier. Should the actual costs rise at the time of delivery due to increases in taxes, raw materials, auxiliaries, energy, freight or wages, the Supplier shall be entitled to adapt the agreed price accordingly. Specific cost elements and their increases must be appropriately weighted to assess the new price. Should specific cost elements increase, whereas others decrease, is this to be considered too in the new price assessment. The Purchaser does not acquire any right to withdraw from the contract as result of such price increases.
In case the delivery date is later than four (4) months after the conclusion of the contract and changes in the price basis occur as per b), the Supplier reserves the right to accordingly adapt the price after informing the Purchaser.
In this case too the specific cost elements must be appropriately weighted to assess the new price, and should specific cost elements increase, whereas others decrease, this fact must be considered too in the new price assessment.
The Purchaser does not acquire any right to withdraw from the contract as result of such price increases.
The delivery price agreed upon is due after receipt of the invoice, unless a different agreement has been negotiated. Payments to sales representatives and agents are not allowed unless they have a written authority to collect. Packing, freight and erection costs are due immediately after receipt of the invoice net.
The customer agrees that his/her invoice will be sent electronically via email. The invoice is valid without a signature.
The customer has to ensure that all electronic mailings of the invoice can be properly sent to the customer's email address and that technical facilities such as filter programs or firewalls are adapted accordingly. Any automated electronic reply letters (e.g. out of office message) cannot be taken into account and do not prevent valid delivery.
The customer must immediately notify a change in the e-mail address to which the invoice needs to be sent in writing and in a legally valid manner. Sending invoices to the last e-mail address provided by the customer is deemed to have been received if the customer has not announced a change in his e-mail address.
The customer can revoke the participation in the electronic sending of the invoice by email at any time in writing. After the written revocation has been received and processed, the invoices will be sent to the customer by post to the last known postal address. The supplier reserves the right to charge a processing fee for postal delivery.
6. Compensation and withholding
The compensation with counter-claims is permitted only with undisputed, legally established or recognised claims.
The exercise of a withholding right is permitted only for undisputed, legally established or recognised claims as well as for claims arising from the same contract relationship.
7. Delay in payment
Should payment deadlines be exceeded or in case of subsequent deferment, interests as provided for by the law shall be charged.
If the Purchaser does not honour a check or a bill of exchange, or the Supplier receives information about a significant deterioration in the financial condition of the Purchaser that question the Purchaser’s ability to pay, the entire balance of the debt can be made due for payment, even if bills of exchange with a later due date are open. If the total balance debt is not paid immediately, the Purchaser's right to use the delivery item will expire. The Supplier is entitled to recover the delivery item without renouncing his claims until they have been fulfilled, or to withdraw from the contract. Any cost for the removal of the delivery object shall be charged to the Purchaser. Besides compensation for the use of the delivery object, in case of contract withdrawal the Purchaser has also to reimburse any reduction in value, even if he cannot be held responsible for it, and the loss of profit.
Should the Purchaser fail to pay even after receiving a reminder which sets a reasonable period of time, then the Supplier is entitled to recover the delivery item or to withdraw from the contract.
8. Delivery time
The delivery time starts on the day of the order confirmation dispatch and is complied with if the goods leave the factory by the end of the delivery time.
In the event that, due to reasons we are not responsible for and despite congruent covering (i.e. quality and quantity as agreed upon with the customer), we do not receive or receive incorrect or delayed deliveries or services from our sub-suppliers or subcontractors or due to force majeure, i.e. service hindrances that we are not responsible for during over 14 calender days, we shall inform our customers in writing in due time. In this case we are entitled to postpone the delivery or service by the duration of the hindrance, or to partially or fully withdraw from the contract in relation to the part thereof not yet fulfilled, provided that we complied with our duty to give information and neither we took the risk of procurement or production nor is the service hindrance merely temporary in nature. Force majeure refers to strikes, lockouts, measures of the authorities, shortage of raw material and energy, transport failures and service hindrances beyond our control such as fire, water and machinery damages and any other obstacle that, from an objective point of view, has not been caused by our fault.
In the case of binding delivery or service dates and deadlines agreed upon which are exceeded by more than four weeks due to circumstances as per article 6 par. (1) above, or if in case of non-binding deadline the customer cannot be objectively expected to stick to the contract, then the customer is entitled to withdraw from the contract for the part thereof that has not been fulfilled. In this case further claims of the customer, in particular claims for damages, shall be excluded.
The Supplier shall not be liable for the aforesaid circumstances even if they occur when his performance is already delayed.
If the Purchaser suffers damage due to a delay arisen through the Supplier's own fault, the Purchaser may demand compensation for the delay at the exclusion of other claims. It amounts to 0,5 % for each full week of delay but only to a maximum of 5% of the value of the part which, as a result of the delay, cannot be used in good time or according to the contract.
The proof of higher or lower storage fees shall remain reserved to the contracting parties. The compliance with the delivery deadline implies the completion of the Purchaser's contract obligations.
9. Transfer of risk and acceptance
The risks shall be transferred to the Purchaser at the latest when the delivery item is dispatched, even in the case of partial shipments or if the Supplier has undertaken also other services. At Purchaser's request transport insurance may be arranged by the Supplier against theft, break, transport, fire or water damages or other insurable risks.
Should the delivery, which can be carried out by rail or truck according to the Supplier, be delayed due to fault of the Purchaser, the risks are passed on to the Purchaser at the date of readiness for shipment; however, the Supplier shall be obliged to take out the insurances that the Purchaser may wish, at the Purchaser's request and expenses. Delivered items, even when they show negligible defects, are to be accepted by the Purchaser, irrespective of the rights under section 7.
Partial shipments are permitted.
10. Liability for defective delivery
Warranty claims of the Purchaser imply that he has duly met his obligations to inspect and make notification of defects as per article 377 of the German Commercial Code (HGB).
In the case of a defect in the item it shall be repaired, or supplied again, at the discretion of the Supplier; replaced parts shall become the property of the Supplier.
No liability shall be assumed for damage arising from improper installation, faulty maintenance, faulty connection, natural wear or substitute materials.
In the case of liability, i.e. repair or new supply, the Supplier shall bear all costs for the elimination of defects, especially shipment, transport, wage and material costs, insofar as these do not increase because the purchased item has been brought to a different location than the place of fulfilment.
If the subsequent performance fails, the Purchaser can claim at his discretion for depreciation or withdrawal from the contract and, if preconditions are fulfilled, also claim damages or reimbursement of useless expenses.
No subsequent performance is required if the Supplier earnestly and definitively refuses performance, if the Supplier does not fulfil the performance within a date or a period set in the contract, and the buyer has made the compliance with the delivery date an essential condition for his interest in the performance. The buyer shall be entitled to the aforesaid rights even if the Supplier refuses the subsequent performance or is clearly unable to carry it out.
The Supplier shall be liable without limitation for damage to life, body, and health ascribable to a negligent or intentional breach of his duty, or also to negligent or intentional breach of duty of a legal representative or subcontractor.
The Supplier shall also be liable without limitation for any other damage ascribable to a grossly negligent breach of his duty, or also to grossly negligent or intentional breach of duty of a legal representative or subcontractor.
Furthermore the Supplier shall be liable when it is prescribed as mandatory by law, as in the case of the Product Liability Law.
The Supplier shall be liable for other material and financial damage due to negligence also of his legal representatives and subcontractors only in the case of breach of an essential contractual duty; essential contractual duties are those duties the fulfilment of which characterises the contract and upon which the Purchaser can reasonably rely.
In the case of liability for essential contractual duties, the amount of the damage amount is limited to typical and foreseeable damage at the time of the conclusion of the contract.
Other than this any liability is excluded irrespective of legal grounds; the above regulations apply also to claims arising from faults at the time of the contract conclusion.
Warranty claims lapse one year after the transfer of risk, however the legal time limit shall apply if the law on claims for structures and products used in structures prescribes a longer time, the same applies to the Purchaser's withdrawal right as per article 478, 479 of the German Civil Code (BGB).
The legal limitation applies also in the case of damage to life, body, and health as well as negligent or intentional breach of duty on the side of the Supplier or fraudulent concealment of a defect.
13. Reservation of title
The goods shall remain property of the Supplier until receipt of all payments agreed upon in the contract.
The Purchaser is obliged to treat the goods with care and especially to insure them at its own expense against fire, water and theft damage at their replacement value.
If service and inspection work is required, the Purchaser must carry it out at his own expense and in due time.
In the case of pledging, confiscations or other accesses of third parties, the Purchaser shall inform the Supplier without delay in writing in order to allow the Purchaser to exercise his own rights in relation to the reservation of title.
In case of breach thereof, the Purchaser shall be liable for losses arising to the Supplier.
The Purchaser is entitled to market the goods in the ordinary course of business, but assigns already now to the Supplier all claims equivalent to the gross purchase price that the Purchaser is entitled to as a result of the resale, whether or not the goods are resold in a processed or unprocessed condition.
The customer shall remain entitled to collect the claims even after the act of transfer; the Supplier's right to disclose the claim assignment and to collect the claims on his own remains unaffected hereof.
This does not applies insofar as the Purchaser meets his payment obligations, does not come into delay of payment, and no application for opening insolvency proceedings has been filed.
In this case the Manufacturer is obliged to immediately provide the Supplier with all the data required about the relevant buyers and to hand over the necessary documentation allowing the Supplier to disclose the act of transfer.
The processing or modification of the goods by the Purchaser will always be carried out on behalf of the Supplier.
If the goods are processed with other items not belonging to the Supplier, the latter acquires the co-ownership of the new item in proportion to the value of his own item in relation to that of the other processed objects at the time of the processing.
The reservation of title shall entirely apply to the item resulting from the processing.
The Purchaser is entitled to resell the goods with title reservation in his orderly business.
The buyer assigns already now to the seller all claims resulting from the resale of these goods subject to reservation title, whether or not the goods are resold in a processed or unprocessed condition.
If the delivered goods are inseparably mixed with other items not belonging to the Supplier, the latter acquires the ownership of the new item again in proportion to the value of his own item in relation to the value of the other mixed objects at the time of the mixing.
If the item mixing is carried out in such a manner that the Supplier's item is regarded as the main item, the Purchaser shall transfer proportionate co-ownership; the Purchaser guards the sole or co-ownership for the Supplier.
If the Purchaser resells the resulting items or includes them, directly or after modification, as an essential part of the land property of a third party, then the Purchaser's claims for these items against his customers or third parties shall be transferred onto the Supplier in order to secure his claims, without any need for a special declaration of assignment.
The Supplier shall release securities upon request of the Purchaser, insofar as the realisable value of the securities exceeds the claims to be secured by more than 10%, the selection of the securities to release being incumbent on the Supplier.
In the event that individual provisions of the contract are legally invalid, the remaining provisions shall remain in force; the invalid provision shall be replaced by a provision coming closest to the economic purpose.
If the Purchaser is a business company in accordance with the purpose of legislation, the Supplier's registered office is the sole place of jurisdiction for all disputes arising directly or indirectly out of this contractual relationship; however the Supplier is entitled to bring legal action at the Purchaser's registered office.
German law exclusively shall apply to legal relationships in connection with this contract under the exclusion of the UN Convention on the International Sale of Goods (CISG).
All other possible clauses outside the order confirmation must be agreed upon in writing between the contractor and commissioner; this applies also to modifications and side agreements that are made prior to or after the conclusion of the contract or the issuing of the order confirmation.
This also applies to the suspension of the requirement for the written form.
In the event that individual provisions of the order are invalid, the remaining provisions shall remain in force; the invalid provision shall be replaced by a provision coming closest to the economic purpose.