General Terms and Conditions
for business transactions
I. General Information / Scope
- These General Terms and Conditions apply to all contracts between us, Brandenburgische Kondensatoren Technologie GmbH, and other companies, legal entities under public law, or special funds under public law as our contractual partners.
- These General Terms and Conditions also apply to all future business as long as it involves legal transactions of a related kind. The same applies in the event that they are not mentioned explicitly in future contracts.
- We expressly contradict deviating purchase conditions of our contractual partner. They do not become contents of the contract by our acceptance of an order or in case that we do not contradict them again on receipt. Customized agreements made with the contractual partner in individual cases (including subsidiary agreements, supplements, and amendments) have to be put into writing.
- All our additional rights that arise from legal regulations remain unaffected by these General Terms and Conditions.
II. Offer and Conclusion of Contract
- Our offers are subject to alteration and non-binding.
- Orders of our contractual partner can be accepted by us within two weeks.
- Orders of our contractual partner do not become binding before we confirm them in writing. Should our order confirmation contain obvious mistakes, misspellings, or miscalculations, it is not binding for us.
- All measurement indications, weight indications, images, descriptions, sketches, circuit diagrams and other descriptions of the goods are to be considered as approximate but as best possible. They do not guarantee a specific condition or a specific appearance of the goods.
- We reserve property rights and copyrights on all written or electronic documents related to the offer that we hand over to the contractual partner. It is not allowed to make these documents available to third parties, insofar as no contrary agreements have expressly been made in writing.
- We deliver the goods according to our order confirmation. All amendments require our written confirmation to be effective.
- The goods are delivered packaged. We choose the kind of packaging as well as the means of protection and transport, insofar as no contrary agreements have expressly been made in writing. The costs for all packaging materials are borne by the contractual partner. We do not bear any costs which may arise from the disposal of packaging materials.
- The delivery is effected ex works (EXW according to the latest version of the Incoterms).
- We determine method and means of shipment as well as forwarder and carrier.
- The beginning of our stated delivery period is subject to a punctual and correct fulfilment of all obligations by the contractual partner. We reserve the right to object to an unfulfilled contract, i. e. our delivery periods are only valid in case that the contractual partner has met all his obligations in time. Should the contractual partner fail to meet his obligations in time, we are entitled to postpone our delivery periods or delivery dates appropriately according to the organisation of our production processes. Our rights arising from a default of the contractual partner remain unaffected thereby.
- Our statements on delivery periods are to be considered as approximate. Delivery periods start with the date of the order confirmation. The date of the dispatch ex stock or the date of the declaration of the readiness of dispatch is relevant to meet delivery periods or delivery dates.
- Our delivery obligation is subject to correct and punctual incoming deliveries unless we are to blame for an incorrect or delayed incoming delivery.
- Partial deliveries are possible as long as they are reasonable for the contractual partner. They can be invoiced separately. Should the contractual partner request a partial delivery, we are entitled to invoice the resulting additional costs.
Amendment for Framework Contracts and Call Orders
- In the case of a framework contract, the contractual partner is obliged to call all future deliveries in time. Should he fail to do so, we will grant an appropriate period of grace and, afterwards, are entitled to invoice and to deliver the goods at the contractual partner’s expense and risk or to store the goods at our own discretion and to invoice them immediately or to withdraw from our contract.
- In the case of a call order, the contractual partner has to call goods that are declared ready for dispatch immediately. Should he fail to do so, we will grant an appropriate period of grace and, afterwards, are entitled to invoice and to deliver the goods at the contractual partner’s expense and risk or to store the goods at our own discretion and to invoice them immediately or to withdraw from our contract.
- Should the individual calls in total exceed the agreed contract quantity, we are entitled but not obliged to deliver the additional quantities. We can invoice the additional quantities at the prices valid on call or delivery.
Amendments for Deliveries Abroad
- Should a contractual partner, who is not located in the Federal Republic of Germany (foreign-territory buyer), or a representative of him pick up goods at our warehouse and ship or dispatch them abroad, the contractual partner is obliged to provide us with the export certificate required for fiscal purposes. Should he fail to do so, the contractual partner has to pay the value added tax due for deliveries within the Federal Republic of Germany on the invoice amount.
- Should we deliver to other EU member states, the contractual partner has to notify us prior to our delivery about his value added tax identification number that he uses for his profit and income taxation within the EU. Should he fail to do so, the contractual partner has to pay the value added tax amount legally owed by us in addition to the purchase price.
- Should we deliver tax-free and intra-community to another EU member state, the contractual partner is obliged to provide evidence of the actual arrival of the goods (Entry Certificate) according to §§ 17 a and 17 c of the German Turnover Tax Implementing Ordinance. Should he fail to do so, the contractual partner has to pay the value added tax due for deliveries within the Federal Republic of Germany on the invoice amount.
a. Default in Delivery
- Should we not be able to meet our delivery periods or delivery dates, we will inform the contractual partner immediately and also state the expected new delivery period or the expected new delivery date.
- The contractual partner is not entitled to his rights according to §§ 281, 323 of the German Civil Code for non-compliance with delivery periods or delivery dates before granting an appropriate period of grace for a subsequent delivery.
- In the event of a default, we are liable for losses related to the default and proven by the contractual partner only in case that we fail to meet bindingly agreed delivery periods or delivery dates. In the event of intent or gross negligence as well as in the event of culpable violation of essential contractual obligations, we are liable for damages. In the event of slight negligence, we are only liable for predictable damages that are typical for the contract. A liability for a loss of profit or of production is excluded. Notwithstanding his duty to mitigate damages, the contractual partner is particularly obliged to immediately inform us in writing about all recognizable imminent damages that he is expecting due to the default.
- Should our complete delivery become definitely impossible before the passing of risk, the contractual partner is entitled to withdraw from the contract without setting a deadline. All payments already made by the contractual partner will be refunded immediately.
- Should we not be able to meet our delivery periods or delivery dates for reasons that we are not responsible for, we will inform the contractual partner immediately and also state the expected new delivery period or the expected new delivery date. Should we not be able to meet the expected new delivery period or the expected new delivery date, we are entitled to withdraw from the contract completely or partly. All payments already made by the contractual partner will be refunded immediately.
- Should we not be able to meet our delivery periods or delivery dates for force majeure events, e. g. acts of sovereignty, war, terroristic attacks, industrial action in our or in external companies, import or export restrictions, delays in transit, delays in import or customs clearance, epidemics or pandemics, or for other events that are beyond our control, e. g. business disruptions due to no fault of our own, such as fires, shortage of raw materials, or cyber attacks, we are entitled to delay our delivery for the duration of the event and an appropriate lead time. Should the execution of the contract become unreasonable for one of the contracting parties for one of the events exemplarily mentioned before or should the execution of the contract be delayed by more than six months, this party can declare the cancellation of the contract.
- Further legal claims and rights of the contractual partner arising from the default in delivery remain unaffected.
b. Default of Acceptance
- Should the contractual partner fall into default of acceptance or should he culpably violate other duties to cooperate, we are entitled to claim damages. Further claims remain reserved.
- The risk of an accidental destruction or an accidental deterioration of the goods is passed to the contractual partner at the moment that he falls into default of acceptance.
V. Passing of Risk
- The risk of an accidental destruction or an accidental deterioration of the goods is transferred to the contractual partner as soon as the goods are dispatched to the contractual partner or when they leave our warehouse, at the latest. The same applies to partial deliveries and regardless of who bears the freight costs.
- We are not liable for deterioration or destruction or inappropriate handling of the goods after the passing of risk.
- Should the contractual partner request a transport insurance, we will take out an insurance according to his specifications and at his expense.
- Our prices are principally understood to be in Euros.
- Our prices are quoted ex works, excluding additional costs, such as packaging, freight, insurance, plus value added tax, other taxes, and customs duties in the amount applicable on the date of invoicing.
- Insofar as no fixed price has been agreed on, prices are subject to change appropriately due to altered labour, material, and distribution costs for deliveries that are effected more than three months after the conclusion of the contract. In this case, the contractual partner can cancel his affected orders within two weeks after he has been informed about the price increase.
- The measurements, sizes and quantities given in our shipping documents are relevant for billing. Customary deviations are permissible.
VII. Payment and Default in Payment
- The payment of the purchase price is to be effected cashless only into one of our commercial accounts stated in the order confirmation or in the invoice.
- The payment of the purchase price is due within 30 days after delivery and has to be effected without discount deduction, insofar as no contrary agreements have expressly been made in writing. The date of the receipt of payment in our account is relevant to meet the deadline, so that the invoice amount is at our disposal on the due date. Potential costs of the payment transactions are borne by the contractual partner.
- The contractual partner falls into default in payment immediately after the due date of the invoice.
- In case of an exceedance of the payment deadline or in case of a default in payment, we charge interest in the amount of 8 % above the base rate. We expressly reserve the right to claim for further damages caused by default.
- The contractual partner is only entitled to the right of retention or to an offsetting of claims in case that his counterclaims are undisputed or legally valid.
- Should the contractual partner fall into default in payment of one invoice, we are entitled to request payment of all outstanding debt claims arising from the business relationship.
- Should we realize that our payment claim is endangered by a declining creditworthiness of the contractual partner after the conclusion of contract, we are entitled to payment in advance or securities for all outstanding deliveries. The same applies in the event that the contractual partner refuses to pay his outstanding debt when there are no undisputed or legally valid objections to our claims.
- The legal regulations on default in payment remain unaffected.
VIII. Retention of Title
- All delivered goods remain our property until all debt claims have been paid in full (reserved-title goods). The same applies to all future deliveries as well, even if we do not constantly mention it explicitly.
- The contractual partner is obliged to treat the delivered goods with the greatest care as long as the ownership of the goods has not been transferred to him.
- As long as the ownership has not been transferred, the contractual partner immediately has to inform us in writing in case that the delivered goods are seized or are exposed to other third-party interferences. The contractual partner is obliged to inform the third party about our property rights and to contribute to protect the goods that are subject to retention of title. The contractual partner is liable for all costs arising from the release of the seizure or for the return transport of the reserved-title goods as well as for our loss.
- Should the reserved-title goods be processed, connected, or blended with other goods, we are entitled to a proportional co-ownership of the new goods at the rate of the invoice amount of the reserved-title goods (final invoice amount included value added tax) to the invoice amount of the other goods. Should our ownership expire due to processing, connecting, or blending, the contractual partner transfers his property rights to the new goods at the rate of the invoice amount of the reserved-title goods (final invoice amount including value added tax). We accept this transfer. The contractual partner stores the new goods free of charge for us. Our co-ownership of the new goods is considered as reserved-title goods according to no. 1.
- Should the contractual partner fall into default in payment, we are entitled to disallow the processing of the delivered goods, to retrieve the goods, and to enter the contractual partner’s premises for this purpose, if necessary.
- The contractual partner is entitled to sell the reserved-title goods only in normal business operations at his usual terms and conditions and as long as he is not in default. This applies provided that he reserves his title of ownership and that all debt claims arising from the resale are transferred to us. He is not entitled to any other disposal of the reserved-title goods.
- The contractual partner’s debt claims arising from the resale of the reserved-title goods are already now assigned to us. We accept this assignment. This assignment applies regardless of whether the goods have been sold without or after processing, connecting, or blending. These debt claims serve as security to the same extent as the reserved-title goods according to no. 1.
- Should the contractual partner sell the reserved-title goods along with other goods that were not delivered by us, we are assigned the debt claims arising from the resale at the rate of the invoice amount of the reserved-title goods (final invoice amount including value added tax) to the invoice amount of the other sold goods. We accept this assignment. Should goods that we co-own according to no. 4 be resold, we are assigned a share of the debt claims according to our co-ownership share.
- The contractual partner is entitled to collect debt claims arising from the resale. Our right to collect these debt claims ourselves remains unaffected thereby. This direct debit mandate expires in the case of our revocation and, at the latest, with the contractual partner’s default in payment or with his application for the opening of insolvency proceedings. The contractual partner is then obliged to inform us about the assigned debt claims and the respective debtors, to inform the respective debtors about the assignment, and to hand over all documents to us that are necessary to collect our debt claims.
- An assignment of debt claims arising from the resale is impermissible.
- We are entitled to securities of common type and scope for our debt claims, even if they are conditional or limited. In the case of deliveries of goods in other legal systems in which the regulations on the retention of titled mentioned above are not effective, the contractual partner grants us an appropriate security interest. We undertake to release the securities that are due to us on demand of the contractual partner in case that its value exceeds the debt claims secured by more than 20 %. The choice of securities to release is ours.
- Our goods comply with the condition stated in our product descriptions, specifications, and labelling. Deviations are permissible in case that the suitability for the typical usage is not essentially compromised. The exact condition of the goods that we deliver is finally agreed upon in order and order confirmation.
- The exact condition of the goods cannot necessarily be deduced from public statements, recommendations, or advertising.
- The goods do not necessarily comply in detail with a sample or a model which we handed over to the contractual partner prior to the conclusion of contract.
- Our verbal and written advice is non-binding and does not excuse the contractual partner from an own examination of the goods with regard to their suitability for his intended purpose. We do not give a warranty for a certain purpose or a certain suitability of the goods, insofar as no contrary agreements have expressly been made in writing. Furthermore, the contractual partner alone assumes the risk for use and application.
- Any warranty for material and legal defects is only dependent on the condition of the goods stated in the order and in the order confirmation.
- The contractual partner is obliged to examine the goods immediately on receipt. Claims for defects are only existent in case that obvious defects are immediately complained about in writing. Hidden material defects have to be complained about in writing immediately on detection and before expiry of the statutory limitation period of twelve months at the latest. Should the contractual partner fail to examine the goods properly and/or to notify us of the defect in writing, our liability for the defect is excluded. The statutory limitation period applies to claims for damages for intention, gross negligence, as well as for injury to life, limb, or health caused by a deliberate or negligent breach of duty by the user. Repair or replacement deliveries do not lead to a new start of the limitation period.
- Should the contractual partner complain about the delivered goods, he is obliged to give us the immediate opportunity for examination and to provide us, on demand, with the rejected goods or a sample of them at our expense. Should he fail to do so, all rights arising from the material defect will expire.
- Prior to any return of the goods, it is absolutely necessary to obtain our consent. Otherwise, we will not bear the expenses for a return of the goods.
- In case of an unjustified notice of defects, we are entitled to a refund of the expenses incurred by the contractual partner.
- Should, despite all care taken, the delivered goods exhibit a defect that was already existent in the moment of the passing of risk, we will, at our option, repair the goods or deliver replacement goods. We are always entitled to an opportunity to supplementary performance within an appropriate period of grace. Claims of the contractual partner on expenses necessary for supplementary performance, especially transport, road, labour, and material costs, are excluded in case that the expenses increase due to the fact that the delivered goods were later shipped to another location than the place of delivery, unless this shipment conforms to their intended use.
- Should the supplementary performance fail, the contractual partner can withdraw from the contract or reduce the selling price without any effect on possible claims for damages.
- Should the goods have already been resold, processed, or modified, the contractual partner is only entitled to the right to reduce the price.
- Claims for defects are non-existent in the case of minor deviations from the agreed condition of the goods that are reasonable for the contractual partner, in the case of insignificant impairment of usability, in the case of natural wear-and-tear, in the case of damages that arise after the passing of risk from incorrect or negligent handling, from the assembly of our goods by insufficiently qualified personnel, from improper storage, from excessive use, from inappropriate equipment, or due to force majeure or special outside influences that are not presupposed according to the contract, or due to a use of the goods beyond the usual or presupposed use according to the contract.
- Our liability for defects that are caused by the contractual partner’s request for a processing or a material in derogation from our standards is excluded.
- Should goods be sold as declassified material, e. g. seconds, the contractual partner is not entitled to claims for defects regarding the reasons stated for the declassification and regarding defects that he usually has to expect in this case. Our liability is excluded in this case.
- The contractual partner’s rights of recourse against us according to § 478 of the German Civil Code are limited to the legal scale of claims for defects against the contractual partner by third parties and require that the contractual partner has attended to his obligation to give us notice of defects.
XI. Place of Fulfilment, Place of Jurisdiction and Applicable Law
- Place of fulfilment for all services of us and of our contractual partner is our place of business.
- Exclusive place of jurisdiction for all disputes arising from the business relationship between us and our contractual partner is our place of business. We are also entitled to sue our contractual partner at his place of jurisdiction or at any other permissible place of jurisdiction.
- All legal relations between us and our contractual partner are subject to the law of the Federal Republic of Germany under exclusion of the UN Sales Convention (CISG).
Effective: Februar 2022