Standard Terms and Conditions of Berco Deutschland GmbH
These Terms and Conditions shall apply vis-à-vis any natural person or legal entity who, when entering into the contract with us, was acting in the capacity as a commercial enterprise or as an independent contractor (business person), as well as vis-à-vis any entities or special-purpose entities under public law.
- All our deliveries and services shall be governed by these Terms and Conditions, as well as by any separate agreements. Any deviating terms and conditions of purchase on Customer’s part shall not become part of the contract with the Customer, even upon the acceptance of an order.
- Our offers shall be subject to change. In the absence of a separate arrangement, an agreement shall be deemed to have been entered into when we have confirmed Customer’s order in writing.
- These Terms and Conditions shall also apply as to sales made on the basis of standard terms and conditions of trade, including, without limitation, on the basis of Incoterms 2000; such standard terms and conditions of trade shall only apply to the extent that they are not in conflict with these Terms and Conditions.
- Unless we expressly indicate that they are binding, the information and illustrations portrayed in brochures and catalogues represent approximations that are considered standard for the industry and are not warranted qualities or attributes.
III. Prices, Payment Terms
- With respect to domestic business transactions all prices shall be plus statutory value-added tax; with respect to foreign business transactions, all prices shall be without statutory value-added tax.
- Except as otherwise agreed upon, all prices shall be ex works, as set forth in Incoterm EXW (2000).
- Except as otherwise provided in a separate agreement, payment must be effected in cash, net, by the 30th day of the month following delivery ex works, and there shall be no right to withhold or offset any amounts. Customer shall not be entitled to offset any payments unless Customer’s claim is undisputed or has been determined to be valid by a court of law. Payment dates provided for in these Terms and Conditions or agreed otherwise with Customer are due dates within the meaning of Article 102(2) of the Swiss Code of Obligations. Articles 214(2) of the Swiss Code of Obligations shall not apply. Our right to rescission in case of a payment default shall remain reserved, even in cases where delivery has taken place before full payment was made (Article 214(3) of the Swiss Code of Obligations).
- Late payments shall incur interest at the respective rates charged by banks on overdraft facilities, calculated from the date on which payment was due, provided, however, that the minimum interest rate shall be 9 percentage points above the base interest rate charged by the European Central Bank.
- All of our claims shall become immediately due and payable if Customer does not comply with these payments terms or if we become aware of circumstances that could impair Customer’s creditworthiness.
We shall be entitled to security that is standard for the type and scope of our claims, even to the extent that such claims are conditional or subject to a time limit. If Customer fails to make any advance payments that were agreed upon, or if after entering into the agreement with Customer, we become aware of circumstances that appear likely to impair Customer’s solvency, we shall be entitled, without prejudice to any further claims, to refuse performance and to give Customer a reasonable time limit in which to effect payment or furnish security in exchange for delivery. If Customer refuses or the time limit expires without Customer having made payment or furnished adequate security (as applicable), we shall be entitled to rescind the agreement and claim damages.
V. Partial Delivery
We shall be entitled to make partial deliveries if it is reasonable to expect Customer to accept such partial deliveries. Any additional costs that we incur thereby shall not be borne by Customer if we are responsible for the additional costs. The price shall not be affected thereby.
VI. Delivery Time/Service Time/Liability for Delays in Delivery/Service
- Delivery periods shall begin as of the date we confirm the order, provided, however, that they shall not begin prior to the complete clarification between the parties of all business and technical details in connection with the order and the performance of all obligations incumbent upon Customer, including, without limitation, the provision of all required official permits or certificates or the provision of any advance payments. The delivery period shall be extended by a reasonable amount of time in instances where the provision of such documents or advance payments is pending. It shall not be extended in cases where we are responsible for the delay. Deliveries shall be deemed to have been made within the delivery period if, prior to the end of such period, the delivery has left our production facility or Customer has been notified of its readiness for shipment.
- Our ability and our obligation to make deliveries within the delivery period shall depend on accurate and on-time deliveries from our own suppliers. We shall inform Customer as soon as possible of any apparent delays.
- Delivery/service periods shall be extended by a reasonable period of time if circumstances for which we are not responsible cause a delay. Such circumstances include, without limitation, force majeure, labor disputes, delays caused by Customer (such as from failure to provide documentation or permits in a timely manner or from changes made by Customer to the delivery and service parameters agreed upon) and any other obstacles that are beyond our control.
- If shipment or acceptance of the delivery item is delayed for reasons for which Customer is responsible, Customer shall bear the costs incurred as a result of such delay, starting one month after notice of readiness for shipment or readiness for acceptance is given.
- If there is a delivery or service delay within the meaning of this Section through our fault as a result of which Customer can prove to have suffered a damage, Customer shall be entitled to demand a lump-sum compensation for the damage suffered. Such compensation shall be in the amount of 0.5% for each full week of the delay starting from the beginning of the third week of delay, but shall not, altogether, total more than 5% of the value of that part of the entire delivery that, due to the delay, could not be used by Customer in a timely manner or as agreed upon.
- Delay in delivery or failure to meet any deadline agreed for delivery does not entitle Customer to any rights or claims other than those expressly provided in this Section VI and the respective statutory rights are excluded. Such limitation shall, however, not apply to mandatory liability in cases of intentional misconduct or gross negligence of us, but it shall apply in case of intentional misconduct or gross negligence of our auxiliary persons.
VII. Delays in Acceptance
- Customer is under an obligation to accept delivery. If Customer does not accept delivery at the agreed upon time (acceptance delay), we shall be entitled to store the contents of the order, at Customer’s risk and expense, at a place of our choice. If we store the items at our own facilities, we shall be entitled to charge, in addition to our other fees, a monthly storage fee, calculated from the day notice of readiness for shipment was given.
- If Customer definitively refuses to have the order delivered or to accept the delivery or if Customer is silent in respect of a written request by us to have the order delivered or to accept the delivery within a 2-week grace period, we shall be entitled to claim damages. The amount of damages shall be determined on the basis of the costs we incur, provided, however, that the damages shall be at least 15% of the purchase price. Customer shall retain the right to prove that the actual damages were less or that no damages were suffered. Our statutory rights, in particular the rights to performance or rescission shall be unaffected hereby.
VIII. Passing of Risk
Except as otherwise agreed upon, the risk shall pass to Customer in accordance with Incoterm EXW (2000), even in cases of partial deliveries or in cases where we assume other responsibilities, including, without limitation, shipping and handling or the costs of shipping and handling. If shipment is delayed for reasons for which Customer is responsible, the risk shall pass to Customer as of the day that notice of readiness for shipment is given.
IX. Retention of Title
- All goods delivered shall remain our property (goods subject to retention of title) until such time as all claims arising from the business relationship with Customer have been satisfied, including, without limitation, any payment claims. This shall also apply in respect of future and conditional claims.
- Customer shall cooperate in any measures necessary for the protection of our title which shall include the execution of such documents and the making of filings as necessary. In particular, Customer authorizes us to enter or notify the reservation of title in the required form in public registers, books or similar records, all in accordance with applicable laws, and to fulfill all corresponding formalities at Customer’s cost.
- During the period of reservation of title, Customer shall insure the goods at its own cost for our benefit and take all further measures as may be necessary to ensure that our title is not prejudiced.
- Any treatment or processing of goods subject to retention of title shall be effected on our behalf as the manufacturer in accordance with Article 726 of the Swiss Civil Code, without our incurring any obligations thereby. The treated or processed goods shall be deemed to be goods subject to retention of title within the above meaning, even if the value of the processing or treatment exceeds the value of the goods.
- In the event that the goods subject to retention of title are connected to or mixed with other goods by Customer, we shall be entitled to joint ownership of the new article in the ratio of the invoiced value of the goods subject to retention of title to the invoiced value of the other goods used. If our ownership should lapse because of such connecting, mixing or processing, Customer agrees to assign and hereby assigns to us free of charge, with immediate effect, any property rights or expectation rights to the new inventory or article in the amount of the invoiced value of the goods subject to retention of title. Our joint ownership rights shall be deemed to be goods subject to retention of title within the above meaning.
- Customer shall be entitled to resell the goods subject to retention of title only if Customer is not in default and only in the ordinary course of Customer’s business and on Customer’s standards terms and conditions; Customer must retain title to the goods subject to retention of title and must assign to us any claims arising from the sale as security. Customer shall not be entitled to dispose of the goods subject to retention of title in any other way. Use of the goods subject to retention of title for the performance of a contract for work and services or a contract for work and materials shall also be deemed a resale. Customer’s claims as arising from the resale of the goods subject to retention of title shall be and hereby are assigned to us with immediate effect. We hereby accept such assignment. The claims assigned shall serve as security to the same extent as the goods subject to retention of title.
- If Customer resells the goods subject to retention of title along with other goods, the claims arising from the resale shall be assigned to us in the ratio of the invoiced value of the goods subject to retention of title to the invoiced value of the other goods sold. In the event that goods in which we have joint ownership are sold, a portion of the claim in keeping with our joint ownership shall be and hereby is assigned to us. If Customer defaults on its obligations to us, we shall be entitled to forbid the resale and processing of the goods delivered, and to demand, at Customer’s expense, the return of the goods delivered or the transfer of the indirect possession in the goods delivered, and to revoke any authorization given to Customer to collect debts. Customer hereby authorizes us, with immediate effect, to enter Customer’s premises in the cases mentioned and to seize (repossess) the delivered goods; such seizure shall not be deemed as a rescission of the Agreement.
- Customer shall be entitled to collect debts arising from the resale unless we revoke Customer’s authorization to do so. At our request, Customer agrees to inform its customers that debts have been assigned to us — to the extent we do not do so ourselves — and Customer shall provide us with the information and documents necessary for collecting the debts.
- Customer shall not be entitled to assign the receivables to any other party; this provision shall also apply to any and all kinds of factoring arrangements, which are beyond our authorization to collect. Customer must notify us immediately of any attachment or other restriction imposed by third parties or authorities.
- If the existing security should exceed the total amount of secured claims by more than 10%, we are obligated in this respect to release the security of our choosing at Customer’s request.
- In the absence of other instructions from Customer, we shall be entitled to make shipping arrangements, including, without limitation, the execution of agreements with haulage contractors and freight forwarders in Customer’s name and for Customer’s account, and shall exercise standard business practices when doing so.
- The goods shall be packed in accordance with standard business practices for the material in question. We shall provide packaging, protection and/or shipping aids in accordance with our experience and, except as otherwise agreed upon, at Customer’s expense. In cases of damage incurred during shipping, Customer shall make immediate arrangements for a fact-finding and shall keep us informed without delay.
XI. Liability for Defects
Our liability for defects shall be as follows, with any further claims (including claims for damages, rescission or partial rescission) being explicitly excluded:
- The quality of the goods sold shall comply exclusively with the technical specifications agreed upon; no other qualities or conditions are warranted and the statutory warranty for defects is excluded. If our delivery shall be based on drawings, specifications, samples, etc. provided by Customer, Customer shall bear the risk that the goods are suited for their intended purpose. The relevant point in time is the time that the goods are given to the freight forwarder or haulage contractor, but in any event at the very latest the time that the goods leave our production facilities.
- In addition, for goods and services of subcontractors, we assume liability for defects only to the extent of such subcontractors’ liability obligations and only to the extent such liability is actually fulfilled.
- Immediately upon receipt, Customer shall examine the goods. Notice of defects from Customer must be sent to us in writing or by fax immediately after receipt of the goods at their destination, or immediately upon a later discovery of defects (in case of hidden defects that could not reasonably have been discovered in the course of a careful examination). Failure of prompt notice shall conclusively be deemed acceptance of the sold goods. Notwithstanding a notice of defect, Customer shall not be entitled to withhold payment on any invoiced amounts. Any treatment and processing of the goods must immediately cease as soon as any defects became apparent.
- Any parts that are found to be defective due to a defect that predates the passing of risk shall be repaired or replaced (at our choice) by us free of charge. Parts that have been replaced shall become our property.
- Customer shall promptly give us the opportunity to inspect the defective goods and, at our request, shall provide us, without delay, with either the goods in question or samples thereof. After consulting with us, Customer shall also give us adequate time and opportunity to make the repairs or replacements that appear necessary to us; if Customer does not give us adequate time and opportunity, we shall not be held liable for the ensuing consequences. Customer shall not be entitled to remedy the defect itself or to have professionals remedy the defect and then demand that we reimburse the necessary expenses unless the defect constitutes an emergency that threatens operational safety or that threatens to cause excessive damage and the Customer has notified us thereof.
- Any further claims, in particular any right to rescind the contract and claims for damages are explicitly excluded to the maximum extent permitted by law.
- All claims arising from defects shall be time-barred twelve months after receipt of the goods at their destination, but no later than 14 months after notice of readiness for shipment is given. For replaced or repaired parts all claims expire 6 months after replacement or completion of repair.
- Without limitation, we shall not be liable for improper or unsuitable use or for faulty assembly or faulty commissioning on the part of Customer or third parties; further, we shall not be liable for normal wear and tear, improper or negligent handling, unsuitable machinery or equipment, or any chemical, electrochemical or electrical influences, to the extent that we are not responsible therefor.
- Our warranty shall immediately expire if any modifications, changes or work associated with commissioning the delivery items are performed without our prior consent. Our warranty shall further expire if our guidelines concerning the installation, maintenance and lubrication of our undercarriage systems or components thereof are not followed.
- For reasons of preserving evidence, this shall also apply to situations where the undercarriage systems or components thereof are opened without our prior consent.
XII. Intellectual Property Rights, Legal Imperfections in Title
- Any and all ownership rights and intellectual property rights to samples, cost estimates, drawings and similar information, whether tangible or intangible, are our property and may not be made accessible to third parties without our prior written consent.
- Except as set forth in Section XV.2, our sole and exclusive obligations with respect to any violation of third-party intellectual property rights are those set forth in this Section XII.
- We declare that we do not have any knowledge of third-party intellectual property rights existing in the country of manufacture at the time that the agreement with Customer is entered into that would hinder our supplying Customer with these products. We shall not be responsible if the products we deliver violate any third-party intellectual property rights outside of the Federal Republic of Germany and/or violate any intellectual property rights because Customer uses the material delivered for a purpose for which the material was not expressly supplied.
- Customer shall notify us immediately of any claims concerning the violation of third-party intellectual property rights, otherwise Customer’s rights hereunder shall lapse,and Customer shall provide us with a reasonable level of support in our efforts to defend ourselves against the alleged violations. In any case, we retain the right to take any and all measures to defend ourselves.
XIII. Materials and Documents Provided by Customer
- To the extent that Customer issues manufacturing guidelines, makes quality specifications or provides its own materials, Customer shall be responsible for ensuring that there are no defects; this shall also apply to labor. All parts and technical documents shall be delivered, free of any defects, in a timely manner and at no expense to us. Any parts supplied that do not comply with the values or specifications given can be refused. We shall be entitled to charge compensation for any damage that we suffer or extra costs that we incur as a result of the materials or documentation not being free of defects.
- If additional passes are required, it shall be assumed that the material provided was not defect-free unless Customer proves otherwise. If parts become unusable during processing at no fault of ours, we shall be compensated and reimbursed for the damage and costs that we suffer and incur as a result thereof. If the material becomes unusable because of our fault, we shall re-process either the same or a new piece of material, which new piece shall be delivered free of charge.
- To the maximum extent permitted under applicable law, any claims for damages and replacement of the material provided by Customer shall be excluded, regardless of the legal basis. Shavings and any other waste become our property.
- We shall not be liable for the items, services, drawings or documentation provided by Customer, irrespective of whether such items, services, drawings or documentation met with our approval and/or were joined to or used in connection with our deliveries, nor shall we be liable for any personal injury, damage to property or financial loss suffered as a result thereof.
XIV. Relinquishing of Documents, Confidentiality
- Any drawings, models, samples or other documentation made available to Customer or produced by us in accordance with Customer’s instructions may only be used for processing our offer or for using the products and services ordered, and may not be made available to third parties without our prior written consent.
- Customer shall further keep in confidence and shall not disclose to third parties any and all of our and our sub-contractors’ operating procedures, devices, equipment, etc., which become known to Customer in the course of our deliveries or services, and Customer shall continue to keep these confidential even after our offers are tendered or the order is filled. Customer shall use such information only for processing our offer or for using the products and services ordered.
- We agree not to make accessible to third parties any information or documentation that Customer has identified as confidential.
XV. General Liability
- The provisions of Sections XI and XV.2 shall apply by analogy and exclusively if Customer cannot use the delivery items in the agreed upon manner as a result of a failure by us to provide any recommendations and advice that was agreed to be provided by us or as a result of any recommendations or advice provided by us that is proven to be defective or materially incorrect in a manner essential and necessary for the use of the products or as a result of a violation of any agreed upon ancillary obligations, including (without limitation) any obligation on our part to provide essential and necessary instructions for operating or maintenance of the delivery items.
- Without prejudice to the other limitations in these Standard Terms and Conditions or in the agreement with the Customer, our liability for damage not materializing in the delivery items themselves shall be limited, irrespective of the legal basis of the claim, to damage caused by a) intentional misconduct, b) the gross negligence of one of our directors or senior executives, c) culpable injury to life, body or health, d) fraudulent concealment of defects or fraudulent breach of warranty and e) defects in the delivery items for which the applicable product liability law provides for our compulsory liability in cases of personal injury and property damage to privately used goods. Any and all other claims shall be excluded to the maximum extent permitted by law.
XVI. Proof of Export
Customer must present us with proof of export, required for tax purposes, if Customer or an agent of Customer is picking up goods that are not intended for use within the Federal Republic of Germany. Otherwise Customer must pay us an amount equivalent to the value-added tax that would be levied on the invoiced amount in the case of domestic deliveries.
XVII. Place of Performance/Governing Law/Jurisdiction/Miscellaneous Provisions
- The place of performance for any obligations arising out of agreements executed with us shall be our principal place of business in Ennepetal, Germany.
- The execution, content, interpretation and amendment of the Agreement shall be governed by Swiss substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980.
- Any dispute, controversy or claim arising out of or in relation to the contract with the Customer, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The seat of arbitration shall be in Hagen, Germany. The arbitral proceedings shall be conducted in English or German.
- Notwithstanding the arbitration clause in the preceding paragraph, we (but not Customer) shall also be entitled to take legal action against Customer in any court of competent jurisdiction.
- Should any of the provisions of these Standard Terms and Conditions of Sale be unenforceable, in whole or in part, the remaining provisions shall remain in full effect and force.