General standard terms and conditions
1. General information
1.1 The following conditions apply exclusively to all our offers, confirmations, deliveries and services. They are accepted by the customer when the order is placed and, at the latest, when the first delivery or service is accepted.
1.2. Any conflicting terms and conditions of purchase of the purchaser shall not become part of the contract, even if BerlinerLuft. does not expressly contradict them.
1.3 All agreements made between BerlinerLuft. and the purchaser in order to perform a service are only binding if they are set down in writing.
2. Conclusion of the contract
2.1 Our offers are not binding. The purchaser is bound to a placed order for a period of three weeks.
2.2 The contract shall only come into effect with our written order confirmation and its contents, or through delivery or service provided.
3.1 BerlinerLuft. reserves its ownership rights and copyright, as well as its ancillary copyright rights to its quotes, drawings and other documents (hereinafter referred to as documents) without restrictions. The documents may only be made available to third parties with our prior consent and they shall, upon request, be immediately returned if BerlinerLuft. is not awarded the contract.
3.2 The purchaser has the non-exclusive right to use standard software within the scope of the contractual use on the agreed equipment. The purchaser may make a backup copy without express agreement.
4. Delivery times/advance performance assurance
4.1 Delivery dates or periods are only binding with the express written agreement of the parties.
4.2 The delivery period shall commence with the dispatch of the order confirmation, but not before the purchaser has provided all required documents, permits, and approvals and not before receipt of an agreed downpayment.
4.3 The delivery period shall be deemed to have been met if notification of readiness for dispatch has been given by the end of the delivery period or the delivery item has left the factory. The delivery period shall be extended in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, as well as in the event of unforeseen impediments beyond our control, e.g. operational disruptions, delays in the delivery of essential materials, insofar as such impediments can be proven to have a considerable influence on the delivery of the delivery item. This also applies if such circumstances occur with subcontractors. The delivery period shall be extended in accordance with the duration of such measures and impediments.
4.4 BerlinerLuft. may, at its own discretion, demand advance payment or security before delivery.
4.5 BerlinerLuft. is entitled to make deliveries and services dependent on the compliance with a commercial credit limit. The performance obligation of BerlinerLuft. only extends to a value in the amount of the credit limit. BerlinerLuft. shall, upon request of the purchaser, immediately inform the purchaser in writing about the amount of the granted credit limit. If the amount of BerlinerLuft.'s claims for remuneration and purchase price resulting from the business relationship with the purchaser exceeds the amount of the credit limit, BerlinerLuft. can demand either prepayment or suitable security from the purchaser in the amount exceeding the credit limit. A delivery obligation of BerlinerLuft. beyond the value of the granted credit limit shall only arise when the requested advance payment or the requested security has been received by BerlinerLuft. The purchaser shall then be free to effect the delivery by BerlinerLuft. also by prepaying BerlinerLuft. claims for remuneration and purchase price claims of BerlinerLuft. arising from already effected deliveries and services in the amount of the unsecured part of the order.
5. Transfer of risk
5.1 The risk shall pass to the purchaser when the delivery item has left the factory. This also applies to partial deliveries and applies regardless of who has assumed the shipping costs or the delivery or installation. If acceptance is to take place, the date of acceptance shall be decisive for the passage of risk. If shipment cannot take place or cannot take place in due time, due to circumstances not attributable to BerlinerLuft, the risk shall pass to the purchaser on the day of notification of readiness for shipment or acceptance.
6.1 The delivery and/or service shall be carried out at the agreed prices, if no such prices have already been agreed, at the prices valid on the day of delivery.
6.2 Prices are net ex works, unloaded, excluding packaging, freight, insurance and additional documentation costs, customs duty unpaid and excluding value added tax. These costs will be calculated and listed separately.
6.3 The agreed prices are only valid for the concluded contract.
6.4 If BerlinerLuft. has undertaken the installation or assembly, unless otherwise agreed upon, the purchaser shall bear all necessary additional costs such as travel expenses, costs for the transport of tools and personal luggage as well as allowances in addition to the agreed upon remuneration.
7. Terms of payment, contractual exclusion of offsetting
7.1 Our invoices are due and payable without deduction thirty days after the date of invoice, strictly net cash, unless otherwise agreed.
7.2 The submission of bills of exchange, cheques or the assignment of claims for the settlement of our remuneration requires our consent and is only made on account of performance. Expenses and costs as well as the risk of timely presentation and protest shall be borne in full by the purchaser.
7.3 If the payment deadline is exceeded, BerlinerLuft. shall be entitled to charge interest on arrears at a rate of 9% per annum above the respective base interest rate. This shall not exclude the assertion of further damages.
7.4 In the event of default of payment or reasonable doubt about the solvency or creditworthiness of the purchaser, we are entitled – without prejudice to our other rights – to demand guarantees or advance payments for outstanding deliveries and to make all claims arising from the business relationship due immediately.
7.5 Only undisputed claims that have been legally established or are ready for decision shall entitle the purchaser to offset or withhold payment. The exercise of the right of retention is excluded if this is based on a different legal relationship.
7.6 BerlinerLuft. has the right to assign its claims against the purchaser to third parties.
7.7 The purchaser shall bear all fees, costs and expenses incurred in connection with any legally successful prosecution against them by BerlinerLuft. outside of Germany.
8. Reservation of title
8.1 The goods sold remain our property until full payment of our claims arising from the business relationship with the purchaser. The purchaser is obliged to handle the delivery with care and to insure it sufficiently against fire, water and theft, at his own expense. Insofar as maintenance and inspection work is necessary, the purchaser must carry out this work – or have it carried out – in good time and at his own expense.
8.2 If a current account relationship exists between us and the commercial purchaser, we reserve the right of ownership until receipt of all payments from the current account relationship. The retention of title refers to the acknowledged balance. Insofar as we – in commercial transactions – have agreed with the purchaser for the claims to be paid by cheque/bill of exchange, our reservation of title shall also extend to the encashment of the security accepted by us and shall not expire by means of a credit note, but only when the purchaser has released us from any liability in their interest.
8.3 The purchaser is authorised to dispose of the purchased goods in the ordinary course of business.
8.4 Retention of title also extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If the ownership rights of third parties remain in existence during the processing, mixing or combining with their goods of third parties, we shall acquire co-ownership in proportion to the invoice values of these processed goods.
8.5 The purchaser hereby assigns to us by way of security all claims against third parties arising from the resale of the goods, either in full or in the amount of our possible co-ownership share (see clause 8.4.). The purchaser is authorised to collect them on our account until revocation or suspension of their payments to us. The purchaser is also not authorised to assign these claims for the purpose of collecting debts by way of factoring, unless the obligation of the factor is simultaneously established as effecting the consideration in the amount of our share of the claim directly to us, for as long as claims on our part against the customer still exist.
8.6 Access by third parties to the goods and claims belonging to us must be reported to us by the purchaser immediately by registered letter. The costs for the assertion of our rights against the third party shall be borne by the purchaser, unless we are reimbursed by the third party.
8.7 Exercising the reservation of title does not mean a withdrawal from the contract.
8.8 The goods and the claims arising from them may not be pledged to third parties or transferred by way of security before complete payment of our claims.
8.9 If the value of the securities exceeds our claims by more than 20%, we shall release securities of our choice upon request of the purchaser.
9.1 Warranty rights of the customer presuppose that the customer has properly fulfilled his obligation to immediately inspect the goods and give notice of defects in accordance with § 377 of German Civil Code.
9.2 Claims for material defects are subject to a limitation period of 12 months, unless otherwise agreed. This shall not apply where longer periods are prescribed by law according to §§ 438 para. 1 no. 2 (buildings and items relating to buildings), 479 para. 1 (recourse claims), and 634a para. 1 no. 2 (building defects) of German Civil Code, as well as in cases of injury to life, limb or health, a wilful or grossly negligent breach of duty of the supplier or in the case of malicious non-disclosure of a defect.
9.3 The purchaser shall immediately notify BerlinerLuft. of any material defects in writing.
9.4 BerlinerLuft. shall firstly have the opportunity for a subsequent performance within a reasonable period of time.
9.5 BerlinerLuft. shall in any case have the right to choose between the rectification of defects and new delivery (new performance). If the subsequent performance also fails, the purchaser shall have the right to reduce the purchase price or to withdraw from the contract at his discretion. This does not affect the right of the purchaser to demand compensation instead of the services in accordance with the legal regulations and these conditions.
9.6 Claims for defects shall not apply in the case of only slight deviations from the agreed quality, in the case of only slight impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to particular external influences which are not provided for in the contract, as well as in the case of non-reproducible software errors. If the purchaser or third parties carry out improper modifications or repair work, no claims for defects shall arise from these and the consequences thereof.
9.7 The purchaser cannot assert claims for expenses incurred because of subsequent performance, in particular regarding transport, travel, labour and material costs, if these expenses are increased because the purchased product was after delivery shipped to a location other than purchaser’s branch office, unless such relocation is required by the designated use of the product.
9.8 The purchaser's right of recourse against BerlinerLuft. according to § 478 of German Civil Code (recourse of the entrepreneur) shall only exist insofar as the purchaser has not made any agreements with his customer exceeding the statutory claims for defects. For the scope of the right of recourse of the purchaser against us according to § 478 para. 2 of the German Civil Code, No. 9.7. shall also apply accordingly.
9.9 Claims for damages are subject to the provisions of Clause 10. Further or other claims made by the purchaser against BerlinerLuft. and its vicarious agents due to a defect other than those regulated in this Clause 9 are excluded.
10. Claims for damages and withdrawal
10.1 Claims for damages and reimbursement of expenses of the purchaser (hereinafter referred to as claims for damages), in particular due to defects, delay and further breaches of obligations arising from the contractual relationship and from tortious acts, are excluded, irrespective of the legal basis.
10.2 This does not apply in cases of mandatory liability, for example, under the German Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health, or breach of major contractual obligations. However, the claim for damages for the breach of major contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. The above rulings do not constitute any change in the burden of proof to the disadvantage of the purchaser.
10.3 If delivery is not possible, the purchaser is entitled to claim damages, unless BerlinerLuft. is not responsible for the inability to deliver. However, the purchaser's claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put into appropriate operation due to the impossibility. This limitation shall not apply in cases of mandatory liability based on wilful intent, gross negligence or injury to life, limb or health; this does not imply a change in the burden of proof to the disadvantage of the purchaser. The right of the purchaser to withdraw from the contract remains unaffected.
10.4 The purchaser may only withdraw from the contract within the framework of the legal regulations, if BerlinerLuft. is responsible for the breach of duty; in the case of defects, however, the statutory conditions remain in force. In the case of breach of duty, the purchaser shall declare whether they will withdraw from the contract due to the breach of duty or insist on delivery. This must be carried out within a reasonable time after BerlinerLuft. has requested it.
11.1 The contractual relationship and all legal relationships between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
11.2 If the purchaser is a registered trader, legal entity under public law or special fund under public law, the exclusive place of jurisdiction shall be Berlin.
11.3 Should individual provisions of the contract or these terms and conditions be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.
BerlinerLuft. Technik GmbH
As of: May 2019