General Terms and Conditions / Allgemeine Geschäftsbedingungen (ENG)
The following General Terms and Conditions as adopted 31st October 2017 apply to all current and future sales transactions between Bertfelt GmbH (“Bertfelt”) and its customers (“Buyer”).
1.1 General Terms of the Buyer shall not apply and are rejected, whether known or unknown, unless Bertfelt has given its expressed written consent to such. At latest when the Buyer receives the Products, these General Terms and Conditions shall be applicable.
1.2 The products offered and sold by Bertfelt (“Products”) are exclusively intended for professional uses.
2. Conclusion of Contract
2.1 Quotations by Bertfelt are non- binding. Bertfelt reserves its right to technical modifications as well as modifications in form, colour and / or weight. Brochures, catalogues and technical documents do not become part of the contract. Drawings, pictures, dimensions, weight and services, which are part of the quotation, are purely informative except expressly marked as binding.
2.2 A binding contract is only concluded upon written order confirmation by Bertfelt (“Agreement”).
3.1 All prices quoted or stated by Bertfelt are excluding applicable VAT as well as any other taxes and banking fees.
3.2 Prices are “Ex-Works” (Incoterms 2010), excluding packaging, installation or set-up.
3.3 If the deadline for deliveries exceeds four months after the confirmation of the order by Bertfelt, Bertfelt reserves its right to adjust its prices in case of changes of wages as well as price changes for raw or supplied material.
4.1 Payment terms shall be binding as stated in the written order confirmations by Bertfelt.
4.2 In case of late payment, Bertfelt is entitled to an interest payment of 9 percentage points on top of the basic interest rate at the time of default. Besides, the right of Bertfelt to prove and claim a higher damage and compensation remains.
4.3 Bertfelt is entitled to refuse any additional deliveries to the Buyer unless all to Buyer invoiced and due amounts have been settled. Bertfelt shall not be in default of its delivery obligation in such case.
5.1 Deliveries are “Ex-Works” (Incoterms 2010) from the warehouse of Bertfelt or Bertfelt Teknik AB, Sweden. The warehouse of Bertfelt or Bertfelt Teknik AB, Sweden (depending on where the Products are stored), shall be the fulfilment location (Erfüllungsort) and the risk of a coincidental loss and / or deterioration of the Product shall pass to the Buyer when the Products are handed over at the warehouse of Bertfelt or Bertfelt Teknik AB, Sweden (depending on where the Products are stored), for shipment, pickup or collection.
5.2 Bertfelt may agree to ship the Products upon request of the Buyer. However, if accepted by Bertfelt, delivery “Ex-Works” shall not be affected by such and shipment shall especially be done upon the sole risk of the Buyer. Bertfelt may charge a flat fee as stated in the written order confirmation.
5.3 All shipment initiated by Bertfelt will be done uninsured. On request and at the expenses of the Buyer, Bertfelt may offer to insure the Products against normal transport risks.
5.4 Delivery shall be done within the timelines specified in the written order confirmation by Bertfelt or as otherwise agreed upon in writing. The delivery timelines shall be deemed to have been observed when the Products have been handed over at the warehouse of Bertfelt or Bertfelt Teknik AB, Sweden (depending on where the Products are stored), for pickup or collection. The observance of delivery deadlines requires the timely transfer from the Buyer of all documents, required approvals and clearances, as well as the observance by the Buyer of agreed payment terms and conditions and other obligations. If these obligations are not met by Buyer in a timely manner, the delivery times shall be extended accordingly, except where Bertfelt is responsible for the delay.
5.5 Bertfelt shall not be liable for impossibility or delays of delivery due to force majeure or other event unforeseen at the time of written order confirmation for which Bertfelt bears no responsibility (e.g. any kind of operational malfunction, problems with material or energy supply, transport delays, strikes, legal lockouts, shortages of staff, energy or raw material, difficulties in the procurement of official approvals or official measure as well as outstanding, incorrect or delayed supply by Bertfelt´s own suppliers, etc.). In such case, the delivery timelines shall be prolonged accordingly. If such events make the delivery of the Products significantly difficult or impossible for Bertfelt and such impediment is not only temporary, Bertfelt shall be entitled to withdraw from the Agreement. Should the delay be such that the Buyer can no longer be reasonably expected to accept the Products, it shall immediately inform Bertfelt in writing and shall thereafter be entitled to withdraw from the Agreement.
5.6 The observance of delivery times for Bertfelt shall be subject to a correct and timely delivery to Bertfelt by its own suppliers. Bertfelt shall – subject to Section 9 – not be responsible for such, except where the resulting delay exceeds one month and Bertfelt is responsible for such. Bertfelt shall in this case inform the Buyer of any impending delays immediately.
5.7 Bertfelt shall be entitled to partial deliveries in its sole discretion, unless the Buyer is not able to use a partial delivery within the contractually intended scope, Bertfelt cannot ensure the remaining deliveries or this leads to a significant increase in efforts or expenses of the Buyer.
5.8 Should the delivery be delayed due to reasons for which the Buyer is responsible, Bertfelt is entitled to charge monthly storage fees amounting to 0,5% of the invoiced amount (max 5% of the invoiced amount in total). The parties may prove higher or lower storage costs as well as other damages.
6. Reservation of Title
6.1 Bertfelt reserves its right to retain title (Eigentumsvorbehalt) to the Products unless all payments from the business relationship with the Buyer have been settled. The Products delivered by Bertfelt shall remain the property of Bertfelt until complete payment of all secured claims. Buyer shall be entitled to resell the Products within its ordinary course of business. In such case, Buyer already at this stage assigns to Bertfelt all claims arising from the resale of the Products to third parties up to an amount equalling the amount invoiced by Bertfelt for the Products. Bertfelt accepts such assignment. The same shall apply to other claims which supersede the products or arise in respect of them, such as, for example, insurance claims or claims arising from unlawful action in case of damage, destruction or loss. Until revoked in case of enforcement, Buyer is authorized by Bertfelt to collect the assigned claims in its own name and on behalf of Bertfelt.
6.2 Buyer is entitled to modify or process the Products. Any modification or processing of the Products shall be done by Buyer in the name and on behalf of Bertfelt and Bertfelt shall acquire ownership to the modified or processed product. In case of processing with third party products, Bertfelt shall acquire partial ownership of the newly processed products in such proportion, that reflects the invoiced value of the Products in relation to third party products. In case where such acquisition of ownership for Bertfelt does not occur, the Buyer already now transfers to Bertfelt its future full or partial ownership of the newly processed products as a security. Buyer is entitled to sell the newly processed products under the conditions as laid down in Section 6. 1 above.
6.3 Buyer is obliged to immediately inform Bertfelt about any resale, modification or processing of the Products as well as about any other third party action with effect to the Products, such as seizure, as well as about damage, destruction or loss of the Products. Should any damages arise from the late notification, Buyer shall be liable towards Bertfelt for such damages.
6.4 In case the hereby assigned claims by Buyer to Bertfelt should exceed more than 20% of the claims that Bertfelt has against the Buyer, Bertfelt shall release any exceeding claims upon request of the Buyer.
6.5 Bertfelt shall be entitled to withdraw from the Agreement in case Buyer violates its obligation under the Agreement and demand a transfer of the Products and/ or newly processed products owned by Bertfelt. Bertfelt shall be authorized to dispose of the Products and / or newly processed products once they have been transfered by Buyer.
7. Reservation of IP Rights
7.1 Buyer shall not have the right to relabel, modify or copy the Products unless otherwise explicitly agreed upon in writing between the parties.
7.2 Buyer shall not be entitled to use Bertfelt´s intellectual property rights outside the agreed upon as well as the by mandatory statutory regulations required scope. It is therefore especially – but not exclusively – prohibited to violate Bertfelt´s patents, design rights, copyrights, trademarks or other registered or unregistered intellectual property rights by unauthorized replications or copies of the Products.
8.1 The warranty period shall be 12 months from the beginning of the statutory limitation period. All claims of the Buyer (except for claims pursuant to the Product Liability Act (Produkthaftungsgesetz) and other provisions for which mandatory statutory limits apply) shall become time barred after such period, except where the defects have been fraudulently concealed or an according guarantee has been assumed or in case of intent.
8.2 Buyer is obliged to inspect the Products upon reception and to immediately notify Bertfelt in writing about any defects. If the Buyer fails to notify Bertfelt about such defects within two weeks after receipt of the Products, any claims of Buyer in respect of such defects shall be excluded, except where defects could not be reasonably detected upon inspection or have been fradulently concealed by Bertfelt. The timely sending of the respective notice shall be sufficient. The Buyer may not refuse acceptance due to insignificant defects.
8.3 Claims in respect of defects shall not arise (aa) in case of natural wear or tear or (bb) in case of (i) damages which arise after the passing of the risk due to improper or negligent handling, (ii) misuse, (iii) improper use for which the Products were not designed or advertised for, (iv) use of the Products on pressure differentials in excess of the Products´ specifications, (v) corrosive or abrasive water or other liquids, (vi) use of the Products in unsuitable production facilities, (vii) use of non-authorized or non-standard parts, (viii) abnormal performance of the Products caused by ancillary equipment interference or other external factors non foreseen at the time of written order confirmation, (ix) failure or any breakage caused by overload, dropping or abusive treatment as well as (x) the re-use of the Product after its initial installation.
8.4 In case of defects, which were present at the time of passing the risk of coincidental deterioration and which are not excluded as stated in this Section 8 or as otherwise agreed upon by the parties, Bertfelt is – within the timeline stated in Section 8.1 – obliged to remedy the defect at its own discretion by either repairing or replacing the Products. Bertfelt shall cover the costs for reparing or replacing the Products as well as expenses of the Buyer in this respect, except where such expenses are higher due to actions of Buyer outside the ordinary course of business, especially for example if the Products have been transferred to another location than the designated delivery destination. In case the repair or replacing fails two times or is not undertaken within reasonable deadlines, Buyer has the right to withdraw from the Agreement. If the defects are not significant, Buyer’s rights shall however be limited to a right to reduce the price.
8.5 Unless otherwise agreed in writing, Bertfelt is only responsible to provide the Products free of any third party intellectual property rights within the country where the Products are delivered to. In case of a liability by Bertfelt in this respect, it shall, within the timeline stated in Section 8.1 above, at its own discretion either acquire a right of usage for the third party intellectual property right or change the Products so that a violation of third party intellectual property rights is not given anymore. Should this not be possible, Buyer is entitled to the statutory withdrawal or price reduction rights. Any liability of Bertfelt is however excluded if (i) Buyer is responsible for the violation of third party intellectual property rights, (ii) the violation is due to specific request of the Buyer or modifications done by the Buyer, (iii) Buyer does not inform Bertfelt immediately about the third-party claims or (iv) Buyer acknowledges any third-party claims or reduces options of Bertfelt to defend itself against such claims.
8.6 Buyer is solely responsible for the intended usability of the Products and has to verify such by himself. No guarantees or warranties are assumed by Bertfelt in this respect.
8.7 Further claims as well as other claims except as stated in this Section 8 against Bertfelt, its statutory representative or its vicarious agents (Erfüllungsgehilfen) due to or in connection with defects of the Products are exluded unless otherwise stated in Section 9.
9.1 Except for the claims explicitly laid down in these General Terms and Conditions, any claims for damages and compensation against Bertfelt, its statutory representative or its vicarious agents (Erfüllungsgehilfen) – whether based on contract, law (especially tort) or other grounds – are excluded. This does not apply to claims in accordance with Product Liabilty Act (Produkthaftungsgesetz).
9.2 The exclusions laid down in this Section 9 do not apply in case of (i) compulsory liability according to the Product Liability Act (Produkthaftungsgesetz) as well as (ii) intent or gross negligence by Bertfelt, its statutory representatives or its vicarious agents (Erfüllungsgehilfen), (iii) injuries to life, body and health, or (iv) breaches of major contractual obligations, as well as (v) where defects have been fraudulently concealed or (vi) if a guarantee has been assumed by Bertfelt. A breach of major contractual obligations is given in case obligations are violated which enable the contractual fulfillment of the Agreement and which Buyer has relied on and had reason to rely on and whose culpable violation jeopardises the contractual purpose. The claim for damage compensation for breaches of major contractual obligations shall however be limited to direct and foreseeable damages which are typical for this type of contract, unless malicious intent or gross negligence by Bertfelt, its statutory representatives or its vicarious agents (Erfüllungsgehilfen) is given, or a liability arising out of injury to life, body or health involved
10. No Obligation to store or deliver Spare Parts
10.1 From the contractual obligation of Bertfelt, no obligation of Bertfelt shall arise which obliges Bertfelt to sell, be able to sell or keep in storage spare parts for the Products. Bertfelt’s sale and delivery obligations are limited to the sale and delivery of the ordered and by Bertfelt confirmed Products, unless otherwise agreed upon in writing.
11.1 Only written declarations from both Parties shall be valid. All agreements, as well as their amendments or cancellation, must be done in writing. This also applies to any changes to this written form requirement.
11.2 The Buyer only has the right to offset against any claims of Bertfelt, if its counterclaims have been confirmed by a legally binding decision, are uncontested or have been confirmed by Bertfelt in writing.
11.3 Any assignment of legal relationships between Bertfelt and Buyer as well as any duties or obligations arising from such requires the written consent of the respective other party.
11.4 Should any provision of these General Terms and Conditions or any other contractual agreement between Bertfelt and Buyer be or become invalid, then this shall not affect the validity of the other provisions. In lieu of the invalid provision such regulation shall apply that shall to the closest extent possible reflect the purpose of the General Terms and Conditions and / or the Agreement between Bertfelt and Buyer and the intention of the parties thereto. The same shall apply to any unintentional regulatory gaps.
11.5 These General Terms and Conditions have been issued in German and English. In case of any discrepancies between the two versions, the German version shall prevail.
11.6 Any legal relationship between Bertfelt and the Buyer shall be governed by German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.7 In case of any disputes arising out of or in connection with the legal relationship between the Buyer and Bertfelt, the courts at the headquarter of Bertfelt shall have sole jurisdiction. Bertfelt shall nevertheless also be entitled to bring legal action to a court at the Buyer´s headquarter.