BOTHE-HILD GmbH is hereinafter referred to as the seller of the contractual partner. The delivery and assembly conditions apply to all types of contracts, not only to purchase contracts and also, if not specifically agreed again, to all future business relationships. The partner's terms and conditions of business which are not expressly recognised by us shall not be valid.
The contractual partners will confirm verbal agreements in detail in writing.
Orders shall only become binding with our order confirmation.
The information and illustrations contained in brochures and catalogues are approximate values customary in the industry unless they are expressly designated by us as binding.
Invoices are due immediately within 10 days of the invoice date, postage and expenses paid, without deduction. Bills of exchange and cheques are only accepted on account of payment. Discount interest, charges and bill stamp fees shall be borne by the buyer.
In the event of default in settlement of the invoice, we shall be entitled to charge the recipient of the invoice interest in the amount of the bank interest payable by us, but at least 13 % per annum.
Payments shall always be credited first to interest and costs and secondly to our oldest claim, irrespective of other dispositions by the payer. However, we reserve the right to offset payments differently.
In the event of overdue payments, we shall be entitled to charge interest on arrears at the rate charged to us by the bank for current account overdrafts, but at least 9% points above the respective bank interest rate.
If, after conclusion of the contract, it becomes apparent that our claim to payment is jeopardised by the partner's lack of ability to pay, we may refuse performance and set the partner a reasonable deadline within which it must pay concurrently against delivery or provide security. In the event of refusal by the partner or unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract and demand compensation.
Unless otherwise agreed, we deliver ex works. Decisive for compliance with the delivery date or the delivery period is our notification of readiness for dispatch or collection.
The delivery period begins with our technical clarification and is extended appropriately for cases of force majeure: industrial disputes, riots, official measures, failure to receive deliveries from our suppliers and other unforeseeable, unavoidable and serious events.
Goods notified as ready for dispatch must be taken over by the partner without delay, otherwise we shall be entitled to dispatch them at our own discretion or to store them at the partner's expense and risk.
If we can foresee that the goods cannot be delivered within the delivery period, we shall notify the partner of this immediately and in writing, inform him of the reasons for this and, if possible, state the expected delivery date.
Irrespective of the transfer of risk, we reserve the title to a delivered good until all claims arising from the business relationship with the partner have been settled.
The partner is entitled to sell these goods in the ordinary course of business as long as he meets his obligations from the business relationship with us in good time. However, he may neither pledge the reserved goods nor assign them as security. He shall be obliged to secure our rights in the credited resale of the reserved goods. In the event of default in payment on the part of the partner, we shall be entitled, after setting a reasonable period of grace, to demand the surrender of the reserved goods at the partner's expense, even without withdrawal.
If goods subject to retention of title are installed as an essential component in the purchaser's property, the purchaser hereby assigns the claims arising from the commercial sale of the property or of property rights in the amount of the value of the goods subject to retention of title with all ancillary rights; the seller accepts the assignment.
We guarantee the flawless manufacture of the goods delivered by us in accordance with the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples, etc. of our partner, the latter shall assume the risk of suitability for the intended purpose. Decisive for the contractual condition of the goods is the time of the transfer of risk, i.e. with the handover to the railway, the forwarder or the carrier or with the start of storage. However, the risk shall pass to the partner at the latest when the goods leave the factory or warehouse, even if we have accepted the delivery.
We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our consent. The same shall apply to defects which only insignificantly reduce the value or suitability of the goods.
Unless otherwise agreed, the limitation period for claims for material defects shall be governed by the law. Excepted from this are wear parts such as torsion springs, suspension ropes and rope drums. The limitation period for wear parts is 6 months.
Our deliveries are to be inspected immediately. The partner must give written notice of obvious defects immediately after receipt of the goods at the place of destination, and of hidden defects immediately after discovery of the defect.
We must be given the opportunity to determine the defect complained of. Goods which are the subject of a complaint must be returned to us immediately on request. We shall bear the transport costs if the notice of defect is justified. If the partner does not comply with these obligations or makes changes to the goods already complained about without our consent, he shall lose any claims for material defects.
In the event of a justified notice of defect within the time limit, we shall, at our discretion, either remedy the defective goods or deliver a faultless replacement.
If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable period of time, the partner may set us a final deadline in writing within which we must fulfil our obligations. After the unsuccessful expiry of this period, the partner may demand a reduction in the price, withdraw from the contract or carry out the necessary rectifications itself or have them carried out by a third party at our expense and risk.
If the rectification was successfully carried out by the partner or a third party, all claims of the partner shall be settled with reimbursement of the necessary costs incurred by him. Reimbursement of costs shall be excluded insofar as the expenses increase because the goods have been taken to another place after our delivery, unless this corresponds to the intended use of the goods.
Unless otherwise stated below, other and further claims of the partner against us are excluded. This applies in particular to claims for damages arising from delay, from impossibility of performance, from culpable breach, contractual collateral duties, from culpa in contrahendo and from tort. We are therefore not liable for damage to the delivered goods themselves, in particular we are not liable for loss of profit or other financial losses of the partner.
The above limitation of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or senior employees, or culpable breach of material contractual obligations. In the event of a culpable breach of essential contractual obligations, we shall only be liable for the reasonably foreseeable damage typical for the contract, except in cases of intent or gross negligence on the part of our legal representatives or executives.
Furthermore, the limitation of liability does not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It shall also not apply in the event of injury to life, limb or health and in the absence of warranted characteristics if and insofar as the purpose of the warranty was precisely to protect the partner against damage which did not occur to the delivered goods themselves. The partner shall only have recourse claims against us insofar as the partner has not reached an agreement with its customer which goes beyond the statutory claims for defects. Furthermore, the provisions of the liability for material defects shall apply to the scope of the recourse claims.
Unless otherwise stated in the order confirmation, our place of business shall be the place of performance. Our place of business shall be the place of jurisdiction for all legal disputes, also within the scope of a bill of exchange and cheque process, if the partner is a merchant, a legal entity under public law or a special fund under public law. We are also entitled to take legal action at the partner's place of business.
The law of the Federal Republic of Germany shall apply exclusively to the contractual relationship. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG Vienna Sales Convention) is excluded in the FRG.