General Terms and Conditions
1. General
a) Our general terms and conditions shall apply exclusively. We do not recognize contradictory, deviating conditions of Purchaser, unless we have expressly agreed to their applicability in writing. Our general terms and conditions shall also apply in the event of delivery execution to Purchaser without reservation in spite of knowledge of contradictory conditions.
b) All agreements that have been made shall be specified in the contract in writing.
c) Our general terms and conditions shall only be valid vis-à-vis entrepreneurs in the sense of Article 310, para. 1 BGB [German Civil Code].
2. Quotations
We reserve the right to accept purchase orders that are quotations according to Article 145 BGB within two weeks of receipt.
3. Prices and terms of payment
a) Our prices shall apply "ex works", exclusive of packing, which shall be billed separately, if nothing to the contrary has been agreed.
b) Statutory VAT shall not be included in our prices; it shall be shown separately in the invoice in the legal amount on the day the invoice is issued.
c) Deduction of discount shall require a special written agreement.
d) If nothing to the contrary contractually applies, the purchase price shall be understood as a net price, and shall be due for payment within 30 days from date of invoice, provided due date and receipt of performance are present.
e) Purchaser shall only have the right to set-off if Purchaser's counter-claims have become final and conclusive, are uncontested, or are acknowledged by us. Furthermore, Purchaser shall be entitled to exercise a right of retention, only insofar as his counterclaim is based on the same contractual relationship.
3a. Price adjustment and self-delivery reservation
a) The contractually agreed price is subject to reservation. In case of delivery, we are entitled to a proportionate increase of the agreed price if the costs for raw material, energy, customs duties, levies, etc. have increased by more than 10% between the placing of the order and the delivery through no fault of ours (e.g. due to the coronavirus pandemic or in case of force majeure) and the production of the delivery item becomes more expensive for the customer as a result. The customer shall be notified of any price increase at least 6 weeks prior to delivery; the customer may object to the price increase within 10 days of receipt of the notification. In case of objection, we have the choice between withdrawal from the contract or delivery at the originally agreed price. We must notify the customer of the decision without delay. If we decide to withdraw from the contract, further claims of the customer are excluded.
b) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the customer of this immediately and at the same time communicate the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any service already rendered by the customer. A case of non-availability of the service in this sense shall be deemed to be in particular the non-timely delivery by our supplier if we have concluded a congruent covering transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
4. Period of delivery
a) Periods of delivery provided by us are only binding if we have expressly arranged their binding nature. Clarification of all technical and commercial questions shall be the prerequisite for the period of delivery that we specify. In addition, prompt and proper fulfillment of the Purchaser's obligations shall be the prerequisite for our delivery obligation.
b) In the event that Purchaser defaults in taking delivery, or if they culpably infringe other duties to cooperate, we shall be entitled to demand compensation for the damage we incurred in this respect, including any extra expenses. More far-reaching claims shall remain reserved.
c) Should the prerequisites set forth in para. b exist, the risk of destruction or accidental deterioration shall pass to Purchaser as of the time when the default of acceptance or debtor's delay occurred.
d) Delivery periods have been observed if by the end of the delivery period the delivery item has left our factory or we have reported its readiness for delivery.
e) If we are late and Purchaser incurs damage because of this, then they are entitled to request a lump sum payment for the delay. For every full week, this payment shall be 0.5% - though no more than 3% - of the part of the total delivery which, due to the delay, could not be used on time or in accordance with the contract. If we are late, then the customer must first grant us a waiting period of four weeks before claims can be asserted. If we deliver within this waiting period, then it shall be deemed that we are not late.
f) Arranged delivery periods shall be appropriately extended upon the occurrence of unforeseen events which are outside the influence of BvL, such as strikes, lock-outs, operational faults, delays in the delivery of essential supply material, irrespective of whether these obstacles occur on our part or on the part of subcontractors.
g) If, after the due date, Purchaser sets us - taking the legal exceptions into account - a suitable deadline for performance, and if this deadline is not met, then Purchaser is entitled to withdraw within the scope of legal regulations. They agree, at the request of the supplier, in adequate time to specify whether they will assert their right of withdrawal. If they do assert their right of withdrawal, then there shall be no entitlement to damages for the delay.
h.) Force Majeure
(1) If, due to force majeure, one contractual partner is impaired from fulfilling its contractual obligations, it shall be released from the fulfilment of these contractual obligations until the removal of the contractual impediment without any default coming into force. The other contractual partner shall also be released from fulfilling its return obligations insofar and as long as the contractual partner is impaired from fulfilling its contractual obligations due to force majeure.
(2) Force majeure is defined as an unforeseeable externally-originating event that cannot be avoided, or not avoided quickly enough, even by deploying a reasonably expected due diligence and appropriate technical and commercial methods. Events of force majeure include, in particular, natural disasters, war, strikes, pandemics, terrorist attacks, power failures, loss of telecommunications connections and state-imposed restrictions (e.g. sanctions).
(3) The contractual partner must immediately notify the other contractual partner and inform it of the reasons for the force majeure and its likely duration. It shall endeavour to ensure with all possible technical and commercially justifiable methods that it will subsequently be able to fulfil its obligations as quickly as possible.
(4) The contractual partners shall commit to cooperate, to the best of their abilities, in the removal of disruptions to business operations caused by the force majeure. However, if a contractual partner cannot comply with its contractual obligations due to reasons of force majeure for a longer period or permanently, it may, 3 months after the occurrence of the performance impediment caused by the force majeure, withdraw from the contract if the performance impediment still persists at this time.
i) Further legal claims and rights of Purchaser shall remain reserved.
5. Transfer of risk – packing costs
a) Unless stated otherwise in the contract or order confirmation, delivery "ex works" has been agreed.
b) Transport packaging and all other packing material pursuant to the Packing Ordinance shall not be taken back. Purchaser shall be obligated to make arrangements for the disposal of the packing material at his own expense.
c) If Purchaser so desires, we shall provide insurance coverage of the delivery through transport insurance. The costs which arise in this connection shall be borne by Purchaser.
6. Liability for defects
a) Claims of Purchaser based on defects require that Purchaser has duly fulfilled his/her duty to examine and to make a complaint in respect of a defect immediately on receipt of the goods pursuant to Article 377 HGB [Commercial Code].
b) If the object of sale has a defect, we are authorized at our discretion to offer subsequent performance in the form of a correction of the defect or delivery of a new item that is free from defects. In the case of correction of the defect, we must bear all of the required expenses to correct the defect including transport, road, labor and material costs.
c) If the subsequent performance fails and if in the business interests of the buyer, a reduction is unacceptable, then Purchaser is entitled at their discretion to withdraw from the contract or to request a reduction. If defects are only our responsibility due to minor negligence, then we are entitled to subsequent performance irrespective of the costs to be spent.
d) We warrant the contractually agreed condition of the goods and their correctness for the duration of 12 months or 1000 operating hours - whichever occurs first - following delivery or the documented initial operation. However, the initial operation must occur 6 months following delivery at the latest.
e) Notifications of defects must be produced immediately and in writing.
f) The prerequisite for enforcement of warranty rights is proper maintenance in accordance with the operating instructions as well as proper use of the goods.
g) For damage which did not occur on the delivery item itself, we can only be held liable - for whatever legal reasons:
- a. for intent
- b. for gross negligence of the owner / organs or managing employee
- c. for culpable injury to life, body or health
- d. for defects which we maliciously concealed
- e. within the scope of a guarantee promise
- f. for defects to the delivery item if, in accordance with the Product Liability Act, liability is held for personal or material damages to privately used items.
In the case of culpable breach to significant contractual duties, we can be held liable for gross negligence of non-managing staff and for minor negligence - in the latter case limited to reasonably foreseeable damage that is typical of the contract.
Further claims are excluded.
e) The liability due to culpable injury of life, body or health shall remain unaffected. This also applies for the mandatory liability in accordance with the Product Liability Law.
i) Insofar as not otherwise agreed in the foregoing, any and all further liability shall be excluded.
j) All claims of Purchaser, for whatever legal reason, are subject to a statute of limitations of 12 months. Legal time periods apply to damages claims in accordance with paragraph 6 g) a-f. They also apply to defects to a structure or for delivery items which have been used for a structure in accordance with their regular mode of use and caused its defect.
k) The period of limitation in the event of a delivery recourse claim pursuant to Articles 478, 479 BGB [German Civil Code] shall remain unaffected; the period is five years, counted from the date of handing-in of the defective item.
l) Any further liability for damages other than those provided for in no. 6 shall be excluded – regardless of the legal nature of the asserted claim. This applies, in particular, to claims for damage resulting from culpa in contrahendo, due to other breaches of obligations or due to claims in tort for the compensation of property damage in accordance with § 823 BGB [German Civil Code]. Insofar our liability for damages is excluded or limited, this shall also apply with respect to the personal liability for damage of our employees, members of staff, workers, representatives and vicarious agents.
7. Reservation of title
a) We shall reserve title to the object of sale until all payments resulting from the delivery contract have been received. If Purchaser violates the contract, particularly if there is delay of payment, we shall be entitled to take back the object of sale. If we take back the object of sale, this shall not be considered as a withdrawal from the contract, unless we have expressly declared said withdrawal. If we attach the object of sale, this shall always constitute a withdrawal from the contract. After we have taken back the object of sale we shall be authorized to utilize said object of sale. The utilization revenues must then be set-off with Purchaser's liability, less appropriate utilization costs.
b) Purchaser undertakes to treat the object of sale carefully. In particular, Purchaser shall be obliged to sufficiently insure the object of sale at its new value, and at Purchaser's own expense, against fire and water damage, and theft. If maintenance and inspection work is required, Purchaser shall be required to carry out such maintenance and inspection work at his own expense and in good time. In the event of attachments or other interference by third parties, Purchaser shall inform us immediately in writing. Purchaser shall be liable for the costs of averting such claims in accordance with Article 771 ZPO [Code of Civil Procedure] if the costs cannot be recovered from the third party.
c) Purchaser shall be entitled to resell the object of sale in an orderly business procedure, however, Purchaser at this time assigns to us all claims, amounting to the final invoice amount (including VAT) of our claim, which accrue for Purchaser from the resale vis-à-vis his customers or third parties, regardless of whether the object of sale was resold with or without further processing. Purchaser shall remain entitled to collect this claim also following the assignment. Our right to collect the claim ourselves shall remain unaffected. However, we undertake to refrain from collecting the claim as long as Purchaser meets the payment obligations from the collected revenues, is not in arrears with payment or, in particular, has not filed an application to open composition or insolvency proceedings, or cessation of payments is present. If this is the case, we can demand that Purchaser inform us of the assigned claims and the respective debtors, provide all information necessary for the collection, hand over the necessary documents to us, and inform the debtor (third party) about the assignment.
d) Processing of and modifications to the object of sale shall always be executed for us. If the object of sale is combined with other objects that do not belong to us, then we shall acquire joint ownership to the new object in the ratio of the value of the object of sale (final invoice amount including VAT) to the combined objects at the time of combination. The same applies to the new object resulting from the processing as applies to the reserved object of sale. If the object of sale is inseparably combined with other objects that do not belong to us, then we shall acquire joint ownership to the new item in the ratio of the value of the object of sale to the other combined objects at the time of combination. If the combination is executed in such a manner that Purchaser's object is viewed as the main object, then it is agreed that Purchaser shall proportionally transfer joint ownership.
Thus Purchaser shall protect our resultant right of sole ownership or joint ownership.
e) To secure our claims against Purchaser, Purchaser shall also cede such claims to us that arise against a third party to which Purchaser is entitled, due to the combination of the reserved object of sale with a piece of property.
f) We shall be obligated to release the securities to which we are entitled on Purchaser's request, should their value exceed the claims to be secured, by more than 10%; we reserve the right to select the securities that shall be released.
8. Conditions for farmyard testing and demonstration
a) The supply of a model for the purpose of farmyard or field testing shall require the conclusion of a legally binding contract. A confirmation about the farmyard or field test model must have been received by the manufacturer.
b) The machines must be tested upon their receipt unless the parties have agreed on a specific date. The farmyard or field test is not permitted to last more than 3 days, unless anything to the contrary has been arranged.
c) In the case of perfect function, the recipient must accept the machine in accordance with the conditions arranged. A farmyard or field test shall also be deemed to have been successful if the machine was in use for longer than three days or the arranged time period. If a farmyard or field test has not been passed, then this must be confirmed in writing by both parties, and the customer can return the machine undamaged and cleaned. The user is liable for damage resulting from improper use of the machine.
d) If we leave the customer a machine for use by them for bridging, demonstration or any other purpose, then this machine remains the property of the company Bernard van Lengerich GmbH & Co. KG.
e) The bridging or demonstration machine is passed to the customer for a predefined period and we can request its return at any time.
f) The customer agrees to handle the machine carefully. The machine must not be made accessible to third parties. The customer is liable for the loss or damage of the machine due to negligence, improper use and any changes they make themselves. The customer is also responsible for theft, vandalism, fire and water damage. In this respect, liability insurance and full insurance cover must be concluded.
g) The customer must pass back the machine in the same condition as when it was handed over. The machine should only exhibit traces of usage which are unavoidable if used properly within the scope of this contract. The customer is not liable for wear or damage which occurred due to wear. Wear must be reported to BvL immediately.
9. Jurisdiction - place of performance - other
a) If Purchaser is a merchant, our place of business shall be the place of jurisdiction; we shall also be entitled to institute legal proceedings against Purchaser at the court of Purchaser's domicile.
b) The laws of the Federal Republic of Germany shall apply. The provisions of the U.N. Convention on Contracts for the International Sale of Goods shall not apply.
c) Unless stated otherwise in the order confirmation, our place of business shall also be the place of performance.
d) The parties agree to regulate in the best possible manner any insufficiently regulated points by amicable agreement in order to ensure long-term cooperation to the benefit of both parties.
10. Data protection
We comply with the relevant legal provisions on the protection of personal customer data. For more information, please see our Data Protection Declaration at https://www.bvl-group.de/en/data-privacy-statement/.