national & international

1. General, scope of application
 
1.1    The following Terms and Conditions of Delivery and Payment of Berkemann GmbH & Co. KG (hereinafter referred to as "Seller") shall apply from 01.02.2023.

1.2    All deliveries and services of the Seller shall be made - subject to individual agreements between the contracting parties (§ 305b BGB (German Civil Code)) - exclusively on the basis of these Terms and Conditions of Delivery and Payment. They apply only to entrepreneurs within the meaning of para. 14 BGB (German Civil Code) and are an integral part of all contracts concluded by the Seller with its contractual partners - hereinafter referred to as "Buyer" - for the deliveries and services offered by the Seller. The Terms and Conditions of Delivery and Payment shall also apply to future deliveries and services to the Buyer without the Seller having to refer to them again in each individual case.

1.3     Any conflicting, deviating or supplementary terms and conditions of the Buyer shall not apply unless the Seller expressly consents to their application in writing. This requirement of consent shall also apply if the Seller carries out the delivery without reservation in the knowledge of conflicting terms and conditions of the Buyer.

2. Conclusion of Contract

2.1    All offers of the Seller are subject to change and non-binding, unless they are identified as binding.

2.2    The ordering of the goods or other placing of orders by the Buyer shall be considered to be a binding offer to the Seller.

2.3     Acceptance by the Seller may be declared in writing or text form (e.g. by order confirmation) or by delivery of the goods to the Buyer. Furthermore, any order for goods shall be considered to have been accepted if it has not been confirmed by the Seller

- for initial orders within 20 working days and
- for re-orders within 10 working days

is explicitly rejected.

3. Place of Performance, Delivery

3.1    The place of performance for all services under the delivery contract is Zeulenroda (Germany).

3.2     Delivery of the goods shall be made at the risk of the Buyer “ex warehouse". If and to the extent that the following provisions do not contain any deviating regulations, the delivery shall be made at the expense of the Seller in the manner most favourable to him.

3.3     The Seller shall determine the packaging at its due discretion. The Seller's standard packaging shall not be invoiced separately. In all other cases, the Buyer shall bear the costs of the packaging.  

3.4     The Seller shall be entitled to make partial deliveries insofar as this is reasonable for the Buyer.

4. Delivery Periods, Delay in Delivery and Acceptance

4.1    Unless otherwise agreed, the Seller shall not be obliged to deliver the ordered goods earlier than 30 days after acceptance of the Buyer's order.

4.2    The delivery periods stated by the Seller are only approximate unless a fixed date has been expressly promised or agreed. Transactions for delivery by a fixed date are excluded for first orders.

4.3    If the Seller exceeds a firmly agreed delivery date, the Buyer (except in the case of an absolute fixed transaction) shall only be entitled to the statutory right of withdrawal if he has unsuccessfully set the Seller a reasonable period of grace (at least 30 days). A grace period need not be set if and to the extent that the Seller seriously and finally refuses to fulfil the order.

4.4    The Seller reserves the right to correct and timely self-delivery in all cases. The reservation of self-delivery shall apply subject to the proviso that the Seller has concluded a corresponding covering transaction in good time and/or the Seller is not itself responsible for the delayed delivery by its upstream supplier.

If the interruption of performance according to the aforementioned circumstances lasts longer than one month, the Buyer may withdraw from the contract with regard to the part not yet fulfilled if the delay in delivery is no longer reasonable for him.

4.5    The Buyer shall be in default of acceptance in the event of non-acceptance of the goods even without a renewed offer of delivery by the Seller, insofar as a fixed delivery date has been agreed.

4.6     If the Buyer is in default of acceptance or culpably violates other duties to cooperate, the Seller is entitled to demand compensation for the resulting damage, including any additional expenses. In all other respects, the risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer at the time at which the Buyer is in default of acceptance.

5. Delivery Interruptions

Force majeure or other serious disruptions unforeseeable at the time of conclusion of the contract (e.g. official decrees, operational disruptions, strikes and lawful lockouts, non-delivery or late delivery by suppliers) entitle both the Seller and the Buyer to extend the delivery or acceptance period by the duration of the impediment. If the impediment to performance persists for longer than three weeks, the contracting parties shall be entitled to withdraw from the contract.

6. Retention of Title

6.1    The goods delivered shall remain the property of the Seller until full payment of the purchase price due (retention of title).

6.2     The Buyer is entitled to resell or process the goods subject to retention of title (reserved goods) in the ordinary course of business. Pledges and transfers of ownership by way of security are not permitted without the consent of the Seller. The Buyer is obliged to inform the Seller immediately of any access by third parties to the goods subject to retention of title (e.g. seizure, damage).
 
6.3     In the event of resale of the goods subject to retention of title, the Buyer hereby assigns to the Seller by way of security all claims against the purchaser arising from the resale. The Seller accepts the assignment. The Buyer shall remain entitled to collect the claim as long as he duly fulfils his payment obligations towards the Seller. The Seller may revoke the authorisation to collect if the Buyer defaults on payment or if there is a significant deterioration in his financial circumstances, in particular if the Buyer suspends his payments or declares his intention to suspend them.

6.4     In the event of a breach of contract by the Buyer, in particular in the event of non-payment of due claims, the Seller shall be entitled to withdraw from the contract and to demand the return of the reserved goods if the legal requirements are met. In the event of non-payment of due claims, the goods subject to retention of title may furthermore only be reclaimed if the Seller has previously set the Buyer a reasonable deadline for payment without success, unless such a deadline is dispensable under the statutory provisions.

6.5     In addition, the Seller is obliged to release the securities to which it is entitled at the Buyer's request to the extent that the realised value of its securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is incumbent on the Seller.

7 Warranty / Returns

7.1    The statutory warranty regulations shall apply unless otherwise stipulated below.

In the absence of an agreement to the contrary, it is not a prerequisite for the goods delivered by the Seller to be free of defects that they comply with the objective requirements of para. 434, sec. 3 BGB (German Civil Code) if and to the extent that the Buyer and the Seller have reached an agreement on the subjective requirements of the goods.

7.2    If the delivered goods are defective, the Seller shall, at his discretion, either rectify the defect or provide a replacement delivery. If the rectification or replacement delivery fails (e.g. due to impossibility, unreasonableness, refusal), the Buyer shall have the right to withdraw from the contract or reduce the purchase price; the Buyer may only assert claims for damages or reimbursement of futile expenses in accordance with the provisions set out in clause 8. Warranty claims are generally subject to a limitation period of 12 months from the date of delivery: this does not apply to claims for reimbursement of expenses (§ 445a BGB) and other warranty claims of the Buyer pursuant to § 437 BGB in the case of so-called supplier recourse (§ 478 BGB).

7.3     The Buyer shall notify the Seller of any visible defects

- within 10 working days after receipt of the goods

in writing or in text form (notice of defects), otherwise the goods shall be considered to have been approved.

In all other respects, the statutory provisions shall apply, in particular para. 377 HGB (German Commercial Code).

7.4    The goods complained about may only be returned with the Seller's consent and free of charge, unless the Seller has not responded to the complaint within 10 working days of receipt. In the event of a justified complaint, the Seller shall reimburse the postage costs incurred.

7.5     In the case of complaints about individual pairs, the goods may be sent in at the same time as the complaint. The Seller shall settle such complaints within 16 working days of receipt, otherwise the Buyer shall be entitled to charge the purchase price of the individual pairs.

7.6     If the Buyer has settled a consumer complaint by exchange without consulting the Seller, the Seller will issue a credit note or make a replacement delivery if the complaint is justified and the rectification of the defects is only possible at disproportionate expense compared to the value of the goods. The risk of rejection of the complaint by the Seller remains for the Buyer.

7.7     Returns shall only be accepted after notification and by enclosing the original delivery documents, whereby the goods must be in perfect condition. A processing fee of € 15.00 net will be charged for returns that have not been notified.

7.8     In the case of returns outside the warranty and returns within one month of delivery, a net handling fee of € 10.00 will be charged; in the case of returns after 1 month, 20% of the net order value and after 6 to 12 months 40% of the net order value will be charged by the Seller.

7.9    Goods returned under warranty can only be sent for processing or repair if they are in a hygienically perfect condition (washed, cleaned inside and outside).

7.10    The warranty rights shall not apply if the item shows defects due to excessive wear and tear and overloading, misuse or neglect of care and use not in accordance with the intended purpose.

8. Limitation of Liability

8.1    Claims for damages by the Buyer, irrespective of the legal grounds, are excluded unless otherwise provided for in these terms and conditions, including the following terms.

The Seller shall be liable for damages due to injury to life, body or health or breach of material contractual obligations as well as for other damages based on an intentional or grossly negligent breach of duty by the Seller, its legal representatives or vicarious agents. Material contractual obligations are obligations which the contract imposes on the Seller according to its content in order to achieve the purpose of the contract, the fulfilment of which therefore makes the proper performance of the contract possible in the first place and on the observance of which the Buyer may regularly rely.

8.2    In the event of a breach of material contractual obligations, the Seller shall only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless the damage claims are based on injury to life, body or health.

8.3     The restrictions of sections 8.1 and 8.2 shall also apply in favour of the Seller's legal representatives and vicarious agents insofar as the claims are asserted directly against them. They shall not apply insofar as the Seller has fraudulently concealed a defect or has given a guarantee as to the quality of the goods and in the case of claims under the Product Liability Act.

9 Prices and terms of payment

9.1    The Seller's prices valid at the time the order is placed shall apply in each case. The prices are always exclusive of the legally applicable value added tax.

If a VAT-exempt delivery is made pursuant to para. 4 No. 1 lit. b) in conjunction with para. 6 a UStG (German Sales Tax Code), the Buyer is obliged to sign a confirmation of receipt and return it to the Seller. The confirmation of receipt must be returned to the Seller within 30 days of delivery by the Seller. If the Buyer does not fulfil its obligation, the sales tax will be charged subsequently. Ownership of the delivered goods shall remain reserved until receipt of the confirmation of receipt or until payment of the recalculated VAT.    

9.2    Invoices shall be issued on the date of dispatch or acceptance of the goods.

9.3    All invoices are due for payment within 30 days of the invoice date. A postponement of the due date (value date) is generally excluded and requires a separate written agreement. Interest on arrears shall be owed in accordance with § 353 HGB (German Commercial Code).  

9.4    For cash payment (cash or bank transfer) within 10 calendar days, a discount of 3 % shall be granted. Otherwise, the purchase price shall be paid net (without deduction) within 30 calendar days from the date of issue of the invoice. In all other respects, the statutory regulations on default of payment shall apply.

9.5    Invoices may be aggregated by the Seller from the 1st to the 10th, from the 11th to the 20th and from the 21st to the last day of each month.

9.6    The payment date shall be the date on which the payment is received or credited by the Seller.

9.7    If the Buyer falls into arrears with a due invoice or if a significant deterioration occurs in its financial circumstances (e.g. imminent insolvency), the Seller shall be entitled, in the case of all purchase contracts based on the same legal relationship, to perform outstanding deliveries or services only against advance payment or security or to withdraw from these contracts after setting a reasonable deadline; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

9.8    In addition, in the event of default in payment by the Buyer, the Seller shall be entitled to the statutory claims for default interest and lump-sum damages pursuant to §§ 286, 288 BGB (German Civil Code).

9.9    The Seller is entitled to transmit invoices to the Buyer also in electronic form (e.g. by e-mail).

10. Set-off, Right of Retention, Exclusion of Assignment

10.1    The Buyer is only permitted to offset against recognised, undisputed or legally established counterclaims.

10.2     The Buyer may only exercise a right of retention if the counterclaim arises from the same purchase contract.

10.3    Without the prior written consent of the Seller, the Buyer shall not be entitled to assign to third parties any claims to which it may be entitled under the contract on which these Conditions are based.

11 Applicable law, place of jurisdiction

11.1     The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
 
11.2    The exclusive place of jurisdiction for all disputes between the contracting parties arising from the contractual relationship is Zeulenroda, Germany. However, Seller shall additionally be entitled to bring action against Buyer at Buyer's general place of jurisdiction.  

12. Final regulations

12.1    All ancillary agreements to, additions to and amendments of a contract concluded with us,
including these general terms of delivery and payment, must be in writing.

12.2     Should one (several) condition(s) of these terms of delivery and payment be or become invalid, the legal validity of the other conditions shall remain unaffected. Instead of the ineffective terms and conditions, such terms and conditions shall be deemed to have been agreed which come as close as possible in economic terms to the respective ineffective terms.

An unplanned loophole shall be deemed to be filled by a condition which comes closest to the economic purpose of this contract.