BEDRUNKA+HIRTH Main catalog industrial equipment Page 593
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Other 7. Terms of payment 7.1 Our invoices are payable within 10 days from the invoice date with a 2% discount or within 30 days in full. 7.2 The Buyer shall be in default, without any warning by ourselves, if it does not pay the purchase price within 30 days of becoming due and receipt of the invoice or an equivalent demand for payment. 7.3 If the Buyer is late making a payment, all of its payment obligations arising from the business relationship with us shall immediately become due. In this case, we are entitled to demand interest in the legally established amount with effect from the relevant moment. The Vendor reserves the right to provide proof of further damage. 7.4 The Buyer is entitled to set-off, even if complaints or counterclaims are asserted, only if the counterclaims have been legally established, acknowledged by the Vendor or are not in dispute. The Buyer is authorised to exercise its right of retention if its counterclaim is based on the same purchase agreement. 8. Liability 8.1 Information about the properties of goods, as well as references to technical standards in catalogues or other advertising media and our price lists, are for descriptive purposes only and do not form the basis for any guarantee of quality without explicit reference in the order confirmation or in the contract. 8.2 We are not obliged to provide any warranty if the Buyer has not immediately complained about an apparent fault in writing. In the case of hidden faults, which could not be discovered even with careful execution of the obligations of the customer pursuant to Art. 377 German Commercial Code, the complaint shall be raised immediately after the fault has been found. If the product has a fault for which we are responsible and the Buyer complains about it promptly in writing, we will undertake to rectify the fault - to the exclusion of the right of the Buyer to withdraw from the contract or to reduce the purchase price - unless we are entitled to refuse rectification on the basis of a statutory regulation. For each individual fault, the Buyer shall grant us an appropriate period of time in which to effect rectification. 8.9 All claims for defects expire 24 months after the transfer or risk, unless any longer periods are mandatorily prescribed pursuant to Articles 438 I (2), 479 I and 634a I (2) German Federal Civil Code. 9. Retention of title 9.1 We shall retain possession of the goods (goods subject to retention of title) until all payments due under the purchase agreement have been received. The delivered goods shall pass into the possession of the Buyer only when the Buyer has fulfilled all of its liabilities under the business relationship, including subsidiary claims, claims for compensation and redemptions of cheques and bills of exchange. In the case of the cheque/bills of exchange procedure, the retention of title in all of its forms listed here shall expire not with the payment by cheque but only with the redemption of the bill of exchange. 9.2 The Buyer shall notify us in writing without delay of all third-party interventions, in particular of enforcement measures and other impairments of its property. The Buyer shall make good all damage and costs we incur, which arise through a breach of this obligation and through necessary measures to protect against third-party interventions. 9.3 If the Buyer does not comply with its obligation to make payment, despite our reminder, we can, without prior notice, demand that the Buyer release the goods that are still in its possession and subject to the retention of title. The Buyer shall bear the transport costs associated with this. The attachment of the matter subject to the retention of title by us always includes a withdrawal from the contract. We are entitled to dispose of the goods subject to the retention of title following their retention. The proceeds of disposal shall be offset against our outstanding claims. 10. Place of fulfilment The place of fulfilment for payments is Bräunlingen, for our deliveries of goods the place of shipping. 11. Data processing 8.3 Rectification can take the form of the elimination of the fault or the delivery of a new product, at the Buyer’s option. We are entitled to reject the method of rectification chosen by the Buyer if it is associated with disproportionately high costs. During rectification, a reduction in the purchase price or withdrawal from the contract by the Buyer are precluded. Rectification is deemed to have failed after the second unsuccessful attempt. If rectification has failed or the Vendor has rejected the rectification overall, the Buyer can demand a lowering of the purchase price (reduction) or declare its withdrawal from the contract, at its option. The Buyer agrees that we may process the data about the Buyer received in connection with the business relationship in accordance with the Federal Data Protection Act for the fulfilment of our business purposes, in particular to store them or transmit them to a credit reference agency, where this is done within the scope of the identified purpose of the contract or required for the preservation of our legitimate interests, and there is no reason to assume that the legitimate interests of the Buyer outweigh the preclusion of the processing of these data, in particular their transmission. 8.4 The Buyer can only bring claims to compensation under the following conditions because of the fault if the rectification failed or we refused to carry out rectification. The right of the Buyer to bring further claims for compensation under the following conditions remains unaffected. 12. Severability clause 8.5 In accordance with statutory provisions, we are liable without restriction for intentional or grossly negligent breaches of duty as well as for damage caused by an injury to life, limb or health. Moreover, we shall only be liable if the breached contractual obligation is of material importance for achieving the purpose of the contract and only up to the amount of the typically foreseeable loss. 8.6 The limitation of liability in accordance with para. 5 applies accordingly to other than contractual claims for compensation, in particular claims arising from tortious liability, with the exception of claims in accordance with the German Product Liability Act. It further also applies to the benefit of our executives, employees, workers, representatives and vicarious agents. 8.7 If we have issued a guarantee or quality and/or shelf life in respect of the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage that is based on the absence of the guaranteed quality or shelf life but does not occur directly on the goods, if the risk of such damage is apparent from the guarantee of quality and shelf life. Amendments or additions to the contract or these General Terms and Conditions must be made in writing in order to obtain effectiveness. Should a provision of these General Conditions of Delivery and Payment be or become ineffective or unenforceable, this shall not affect the effectiveness of the remaining General Conditions of Delivery and Payment. 13. Jurisdiction and applicable law 13.1 The contractual relationship between the Buyer and ourselves is governed exclusively by the law of the Federal Republic of Germany, even if the Buyer has its place of residence or business abroad. Application of the Uniform Law on the International Purchase of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods is precluded. 13.2 The Buyer is not authorised to cede claims arising from the purchase agreement without the permission of the Vendor. 13.3 If the Buyer is a merchant legal entity under public law or a special fund under public law, the place of jurisdiction for both parties - including for complaints regarding cheques and bills of exchange - is Donaueschingen, Germany. We are, however, also entitled to sue the Buyer at its general place of jurisdiction. 8.8 Any further liability is precluded without consideration of the legal nature of the claim brought. Insofar as the Vendor‘s liability is precluded or limited, this also applies to the personal liability of his executives, employees, workers, representatives and vicarious agents. www.bedrunka-hirth.de 593
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