Bernhard Trade & Consulting GmbH


I. General 

1. All our deliveries and services, including future deliveries and services, including consultations, shall be provided exclusively on the basis of our terms and conditions set forth below; in particular, we hereby expressly object to any purchasing or other general terms and conditions of the customer. The deviating terms and conditions shall not apply even if we do not object to them again after receipt by us. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods delivered by us. 

2. our offers are subject to change. All supply contracts and other agreements shall only become valid upon our written confirmation. The content of the confirmation shall be exclusively authoritative. Verbal subsidiary agreements shall not be binding on us. Any amendments or additions to the agreement reached, including these Terms and Conditions of Sale, shall also require our written confirmation in order to be effective. 

 II. prices 

1: Our prices shall apply to the scope of performance and delivery specified in our order confirmations. Additional or special services will be charged separately. 

2: Unless otherwise agreed, our prices are ex works or ex warehouse plus value added tax, excluding factory taxes, customs duties and other ancillary costs. 

3. if, after conclusion of the contract, freight, customs duties, taxes or other charges are newly introduced or increased, the customer shall bear the additional costs. 

 III Terms of Payment 

1. unless otherwise agreed, payment is due within 8 days from the date of invoice. Our claims are assigned to BFS finance GmbH, Verl. Payments can only be made with debt-discharging effect to BFS finance GmbH. The bank details can be found in the note on the invoice. 

2. the retention of payments because of, or the set-off with counterclaims of the customer is only permissible if recognized by us or legally valid. If, after the conclusion of the contract, we become aware of circumstances which are likely to reduce the creditworthiness of the customer, we shall be entitled to declare all our claims immediately due and payable and to make outstanding deliveries from this transaction or other transactions only against advance payment or the provision of security. This shall apply in particular if our factoring institution or its trade credit insurance company cancels limits of the customer concerned in whole or in part or advises against further deliveries. 

4. in the event of default with more than one liability, the entire claims against the customer shall become due for payment immediately. The statutory interest on arrears shall apply. We reserve the right to claim further damage caused by delay. 

5. the granting of a discount is always subject to the condition that the purchase price is received in full on time. Refunds, bonuses, annual sales bonuses, etc. do not exist with us in principle. In the event of insolvency, cessation of payments, bankruptcy, judicial or extrajudicial settlement, protest of a check or bill of exchange, or debt collection measures, the rebate or discount included in net prices shall cease to apply and shall be charged again in full according to the contractually agreed price. 

6: We shall be entitled to assign our claims against the customer to third parties. Any prohibition of assignment to the contrary is hereby expressly objected to. 

IV. Delivery period, scope of delivery 

1 The agreed delivery periods shall be extended - without prejudice to our rights arising from default on the part of the Buyer - by the period by which the Buyer is in default with his obligations to us under this contract or other contracts. This applies accordingly to delivery dates.

2. in the event of force majeure, which also includes effects caused by Eurofer or similar governmental interventions, and other events over which we have no control and which make delivery considerably more difficult or impossible, such as operational disruptions of any kind, difficulties in the procurement of materials or energy. Transport delays, strikes, lockouts as well as non-delivery, incorrect or delayed delivery by our suppliers - for whatever reason - shall release us from our delivery obligations under the delivery contract. Obstacles of a temporary nature, however, only for the duration of the obstruction plus a reasonable start-up period. If the Purchaser cannot reasonably be expected to accept deliveries as a result of the delay, it may withdraw from the delivery contract by giving notice to us without delay. 

3. If we are in default of delivery or if it becomes impossible for us to deliver, for whatever reason, the Customer shall not be entitled to any claims for damages whatsoever (in particular under Sections 325 and 326 of the German Civil Code (BGB)) unless we have caused the default or the impossibility at least by gross negligence. Translated with (free version)

4. Partial deliveries are permissible. Each delivery shall be deemed an independent transaction. 

5. In the case of contracts with continuous delivery, call-off orders and specifications must be submitted to us in good time; unless otherwise agreed, the total quantity must be divided up and called off within one year of the conclusion of the contract. If the customer fails to meet these obligations, we shall be entitled, after setting a grace period to no avail, to allocate and deliver the goods ourselves or to withdraw from the part of the contract still in arrears or to claim damages for non-performance. If the contractual quantity is overlapped by the individual call-offs of the customer, we shall be entitled, but not obliged, to deliver the surplus. We may invoice the surplus at the prices valid at the time of call-off or delivery. 

6. excess or short deliveries of up to 5% are permissible. 

7. in the case of imported goods, the sale is subject to the Seller being granted any export or import licenses that may be required. 

V. Acceptance 

1. if acceptance has been agreed, it can only take place at our warehouse or at our supplying plant. It must be carried out at the latest immediately after notification of readiness for dispatch. We shall bear the material acceptance costs. The usual costs incurred in connection with acceptance or charged to us by third parties shall be borne by the customer. If special goods regulations are stipulated, the customer shall be obliged to accept the goods at our request. 

2. if the acceptance is not carried out, not carried out in time or not carried out completely, we shall be entitled to dispatch the goods without acceptance or to store them at the expense and risk of the customer. The goods shall be deemed to have been delivered in accordance with the contract upon dispatch or storage. 

VI Shipment and Transfer of Risk 

1. packaging is included in the price, unless expressly agreed otherwise. 

 2. the goods travel - even in the case of carriage paid delivery - at the risk of the buyer. We shall only be obliged to insure against transport damage and other risks if expressly requested to do so by the Buyer. The costs shall in any case be borne by the Buyer. In the event of damage in transit, the Buyer shall immediately arrange for a statement of the facts to be submitted to the competent authorities. 

3. Goods reported ready for dispatch on the agreed date must be called off immediately. If the goods cannot be dispatched within four working days of notification of readiness for dispatch, we may, at our discretion, dispatch the goods or store them at the expense and risk of the Buyer and invoice them as having been delivered after notification of readiness for dispatch, unless we are responsible for the goods not having been dispatched in accordance with the contract. 

4. All expenses (demurrage or storage charges, transport costs and the like) arising from a non-immediate acceptance in the port of shipment, which arise without our influence, shall be borne by the customer. 

5. If, through no fault of our own, it is impossible to transport the goods by the intended route or to the intended place within the intended time, we shall be entitled to deliver by another route or to another place. The additional costs incurred shall be borne by the customer. The customer shall be given the opportunity to comment beforehand. 

6. The risk shall pass to the Purchaser when the goods are handed over to the forwarding agent or carrier, but no later than when they leave the works or warehouse. This shall also apply in the case of fob or cif transactions as well as in the case of an agreement "free place of destination" or similar. 

VII Retention of Title 

1. We shall retain title to all goods delivered by us (goods subject to retention of title) until the customer has discharged all liabilities arising from the business relationship with us, including future liabilities - irrespective of the legal basis on which they arise. 

 2. a) The processing or transformation of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without any obligation on our part. The processed goods shall be deemed to be goods subject to retention of title within the meaning of this Section VII. 

b) In the event of processing with other items not belonging to us by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the sum of the invoice values of the other items used. 

c) If the goods subject to retention of title are mixed or combined with other items and if our ownership of the goods subject to retention of title expires as a result (§947,948BGB), the ownership or co-ownership rights of the customer in the mixed stock or the uniform item shall pass to us in the ratio of the invoice value of our goods subject to retention of title to the sum of the invoice values of the other mixed or combined items. The customer shall hold them in safe custody for us free of charge. 

d) The provisions of this Section VII. applicable to goods subject to retention of title shall apply mutatis mutandis to the co-ownership shares arising under this Paragraph 

2.b( and c). Translated with (free version)

3. the customer is only entitled to resell the goods subject to retention of title within the scope of a proper business. The following shall apply in detail: 

a) If the sales price is deferred to its customers, the customer shall reserve title to the sold goods vis-à-vis its customers under the same conditions under which we reserved title upon delivery of the reserved goods. Without this reservation, the customer shall not be authorized to resell the reserved goods.
b) The customer hereby assigns to us any purchase price claims or other claims for remuneration to which it is entitled against its customers as a result of the resale or other sale transaction. They shall serve as security to the same extent as the reserved goods. The customer shall only be entitled and authorized to resell or otherwise use the reserved goods if it is ensured that the claims resulting therefrom are transferred to us.
c) If the reserved goods are sold by the customer together with other goods not supplied by us, the assignment of the claim from the sale shall only apply to the amount of the invoice value of the reserved goods sold in each case. The sale of goods in which we have a co-ownership share as per. Para. 2.b) or c), the assignment of the claims shall apply in the amount of this co-ownership share.
d) If the assigned claim is included in a current account, the customer already now assigns to us a part of the balance from the current account corresponding to the amount of this claim. 
e) The customer is authorized to collect the claims assigned to us until we revoke this authorization. We may not make use of this right of revocation as long as the customer duly meets his payment obligations arising from the business relationship with us.
f) If the goods subject to retention of title are used by the customer for the performance of a contract for work and services or a contract for work and materials, the claim resulting therefrom shall be assigned to us to the same extent as stipulated in this paragraph 3 letters b) to e). 

 4. if the value of the securities existing for us exceeds the secured claims by more than 20% in total, then we shall be obliged to release securities of our choice to this extent at the request of the customer. Our rights arising from the retention of title pursuant to this Section VII shall apply until full release from contingent liabilities which we have entered into in the interest of the Buyer. If the retention of title pursuant to this Section VII is not legally effective under the law of the country in which the goods subject to retention of title are located, the legally possible security which comes closest under the law of that country shall be deemed to have been agreed instead. Withdrawal from the contract shall not be required in order to enforce the retention of title unless the customer is a consumer. 

VIII. Warranty 

1. The goods delivered by us shall be inspected carefully immediately upon arrival at the customer's premises. The goods shall be deemed to have been approved if we do not receive a written notification of defects immediately, but no later than eight days after receipt of the goods, or if the defect was not identifiable during the careful inspection carried out immediately, but no later than eight days after discovery of the defect. 

2. In the event of a justified notice of defect, we shall be obliged, at our discretion, to rescind the purchase contract (redhibitory action), reduce the purchase price (reduction) or make a replacement delivery. In the event of failure of the replacement delivery, the customer may, to the exclusion of all further claims - irrespective of the type and legal grounds - demand rescission or reduction at his discretion. All other claims to which the Buyer may be entitled on account of or in connection with defects or the absence of warranted characteristics of the delivered goods, irrespective of the legal grounds, in particular claims for damages for non-performance, claims for positive breach of contract, claims for culpa in contrahendo and claims in tort (in particular product liability) shall be excluded; this shall not apply insofar as we have acted with at least gross negligence and to claims for damages arising from warranties of characteristics which are intended to protect the Buyer against the risk of consequential damage caused by defects. 

3. warranty claims are excluded for goods which have been sold as declassified material - e.g. so-called II a material. 

IX. Other claims for damages

Also outside the area of warranty as well as liability due to impossibility or delay, any liability on our part for damages, irrespective of the legal grounds, in particular also due to the breach of duties during the contract negotiations, due to positive breach of contract and due to tort (including product liability) is excluded, unless we have acted with gross negligence.

X. Final Provisions  

1. The place of performance for all rights and obligations arising from business transactions with us shall be the place of the supplying plant or our warehouse. For payments, including payments from bills of exchange, the place of performance is Düsseldorf.

2. Düsseldorf shall be the place of jurisdiction if the other party is a fully qualified merchant or a legal entity under public law or if the other party has no general place of jurisdiction within the Federal Republic of Germany or if it moves its registered office out of this area after conclusion of the contract. This shall also apply to actions arising from bills of exchange and checks. However, we shall also be entitled to take legal action at the court having jurisdiction for the registered office of the customer. The law applicable in the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded. 

3. Should one or more provisions of the contract (including these General Terms and Conditions of Contract) be or become invalid, the remaining provisions shall remain binding; in place of the invalid provisions, a provision shall apply which comes as close as possible to what was intended within the scope of what is legally possible; insofar as a provision is not legally permissible to the full extent, it shall apply to the legally permissible extent.

German law applies, including the United Nations Convention on Contracts for the International Sale of Goods.