§ 1 – General remarks – applicability
These General Terms and Conditions of BuddyStar GmbH (hereinafter referred to as “Terms of Sale”) apply to all business involving deliveries by us to customers.
- Exclusively our Terms of Sale apply to all kinds of products delivered to and services performed for the customer; contrary or additional terms and conditions of the customer or terms deviating from our Terms of Sale shall not be binding on us, unless we had expressly agreed to their applicability in text form. Our Terms of Sale shall also apply if we do not expressly object to the applicability of the customer’s terms and conditions or if we perform the delivery to the customer unconditionally.
- Our Terms of Sale, even if they are not expressly agreed upon again, shall also apply to all future business relations.
- Our Terms of Sale shall apply solely in relation to businesses (Sec. 14 BGB [German Civil Code]). They do not apply in legal transactions between us and a consumer (Sec. 13 BGB). They also do not apply to construction and property developer agreements.
§ 2 – Conclusion of contract – tender documents – rights to documents – changes
- Our quotations are subject to change, unless they are referred to in text form as being binding. Therefore, an effective contract will be established only by our contract confirmation or invoice in text form or by our performance of the service.
- If the customer’s order can be qualified as an offer pursuant to Sec. 145 BGB, we can accept it within two weeks
- We reserve property and copyrights on illustrations, drawings, calculations, models, cost estimates, and other documents or information in physical or non-physical form, including in the electronic form. Any transfer to third parties by the customer requires our explicit agreement in text form.
- No rights transfer or grant of right (license for use) shall be established by the provision of the aforementioned items.
- Any changes in design or form, deviations of the colour and change in the scope of delivery regarding the product remain reserved during the delivery period, provided that the changes or deviations in consideration of our interests are reasonably acceptable to the customer.
§ 3 – Prices – payments – terms of payment – default – set-off and withholding
- Unless agreed otherwise, our prices apply ex-factory without packaging. If the products are shipped at the customer’s request, the customer shall bear the costs of shipment and – if agreed – for any additional insurance.
- The statutory value added tax is not included in our prices and will be shown separately on the invoice in the statutory amount applicable on the date of the invoice.
- Unless agreed otherwise, 50% of our invoices shall be due for payment without deduction upon the order confirmation and 50% upon collection of the products or upon our notification of the product’s readiness for shipment. If part deliveries are made, the payment obligation refers to each part delivery in the proportionate amount.
- If the customer is in arrears with a payment, all its payment obligations in the business relationship with us shall become due for payment immediately. In that case, we shall have the right to demand interest in the statutory amount as of the relevant date. Proof of a higher loss remains reserved for us.
- Discounts, rebates or other price reductions require an explicit agreement in text form.
- If there are doubts as to the customer’s creditworthiness, we may also demand payment in advance, cash payment or a security deposit in an appropriate amount during the delivery period. This applies in particular in case insolvency proceedings are opened over the customer’s assets or if the customer is or has been summoned to provide an assurance in lieu of oath.
- The customer shall have a right of set-off only if the counterclaims have been established as final and absolute or if they have been acknowledged by us or if they are undisputed, which shall also apply if warranty claims or counterclaims are raised. The customer is entitled to exercise the right of withholding only to the extent that its counterclaim is based on the same purchase agreement.
§ 4 – Delivery period – delivery deadlines – force majeure
- Delivery deadlines or delivery dates shall be binding only if this has been agreed in text form with the customer.
- If we cannot keep an expressly agreed deadline through our fault or if we are delayed for other reasons, the customer shall grant us an appropriate grace period. After the unsuccessful expiration of the grace period, the customer shall have the right to withdraw from the contract.
- The delivery deadline will be deemed met when the products are made available ex-factory or, in case shipment has been agreed, when they are handed over to the hauler or when the products are dispatched otherwise.
- We shall be entitled to extend the delivery period if we on our part are not supplied with the products or individual components required for the processing of the products, in spite of the prior conclusion of a corresponding purchase agreement; our liability for intent or negligence shall remain unaffected in accordance with § 8 of these terms and conditions. We shall inform the customer without delay if the deliverables are not available on time. If the deliverables should still be unavailable in the new delivery period, we shall be entitled to fully or partly withdraw from the contract. Any consideration already paid by the customer shall be refunded immediately. This shall leave the customer’s right unaffected to withdraw from the contract after the expiration of an appropriate period set by it and/or its right to claim damage compensation for non-performance. Likewise, our statutory rights shall remain unaffected, in particular the rights in case of an exclusion of the performance obligation (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance).
- Fulfilment of our delivery obligations furthermore requires the timely and correct fulfilment of the customer’s obligations. The defence of lack of performance of the contract remains reserved.
- If the customer is delayed with the acceptance or if it culpably breaches other duties to cooperate, the risk of accidental loss or accidental deterioration of the object of purchase shall transfer to the customer at the point in time when the customer delayed the acceptance or defaulted on payment. At the same time, we shall be entitled to claim damages resulting from this, including compensation of any additional expenses. Further claims or rights remain unaffected.
- To the extent that circumstances of force majeure, e.g. mobilisation, war, unrest, pandemics, delay the delivery, especially in case of measures in the context of labour disputes such as strikes and legitimate lockout, and on occurrence of other obstructions, which could not be anticipated by us and which are outside of our responsibility, the agreed delivery period shall extend for the duration of the obstruction of the performance. This shall also apply insofar as such circumstances occur at our suppliers without our fault. The beginning and end of such obstructions shall be notified immediately to the customer.
- We shall be liable in accordance with the legal provisions, insofar as the contract concerned is a transaction for delivery by a fixed date as defined in Sec. 286 (2) no. 4 BGB or in the definition of Sec. 376 HGB. We shall also be liable in accordance with the legal provisions if the buyer has a right to invoke the loss of interest in the further performance of the contract in consequence of a delivery delay caused by us.
- Furthermore, we accept liability in accordance with the legal provisions where a delay in delivery is due to any intentional or grossly negligent breach of contract for which we are responsible; any fault by our representatives or agents shall be treated as our fault. If the delay of delivery is due to a gross negligent breach of contract for which we are responsible, our liability for damage compensation shall be limited to the foreseeable, typically occurring damage.
- We shall also be liable pursuant to the legal regulations if a delay in delivery is our fault due to a culpable breach of contract; in this event, liability for damage compensation shall be limited to the predictable, typically occurring damage.
§ 5 – Delivery – assumption of risk – shipment – part deliveries
- Unless agreed otherwise, the deliveries will be made from our factory. It is also the place of performance for the delivery and any subsequent performance.
- The buyer shall be responsible for the registration and insurance of the trailer/vehicle.
- On the customer’s request, the product will be shipped to a different place of destination. Unless agreed otherwise in text form, we are entitled to determine the method of shipment in consideration of the customer’s interest (in particular, transport companies, shipping route, packaging).
- The risk of accidental destruction and accidental deterioration of the product will transfer to the customer on the collection of the product or, in case shipment has been agreed, on the loading of the product, even if delivery with freight paid is agreed and/or shipment is made by means of our own vehicles. The delivery can be insured at the customer’s cost on its request.
- Part deliveries are permissible, unless the part delivery is not reasonable to the customer. Such unreasonableness is given in particular if the customer incurs substantial additional expense or significant extra costs by the part delivery, or if the part delivery cannot be used by the customer within the scope of the contractually agreed intended use or the delivery of the remaining ordered products is not assured.
§ 6 – Acceptance delay – default damage
- If the customer does not accept the products on time or if it comes to be in delay with the acceptance or if it defaults on payment, it shall owe us per started week an amount of 1% of the order value or the value of the part delivery, whereas in total at most 8% of the order value or value of the part delivery.
- The right remains reserved for the customer to prove a lower loss and it remains reserved for us to prove of a higher damage.
§ 7 – Warranty
- The customer’s rights in case of material defects and defects of title are determined pursuant to legal regulations, unless defined otherwise below.
- The customer’s warranty rights require that it has duly fulfilled its obligations for inspection and notification of defects pursuant to Sec. 377 HGB [German Commercial Code].
- Subsequent performance shall be provided at our choice either by repair of the defect or delivery of a defect-free object. This shall leave the statutory rights of refusal of subsequent performance unaffected.
- Warranty claims shall not apply in the case of merely insignificant deviations from the agreed properties and condition or merely minor impairments of usability.
- Claims for damage compensation and claims for the refund of useless expenses in cases of defects shall apply exclusively in accordance with § 8 and be excluded for the rest.
§ 8 – Liability
- We shall have unlimited liability pursuant to the statutory provisions in case of intentional or gross negligent breaches of duty and in case of damages arising for injury to life, body or health. We shall be liable in other respects only if the breached contractual duty is clearly essential for reaching the purpose of the contract and our liability in that case shall be limited in the amount to the typically predictable damage.
- The liability limitation pursuant to paragraph 1 shall apply analogously to claims of damages other than contractual damage compensation claims, in particular to claims resulting from tortious act, except for claims pursuant to the Product Liability Act. It shall furthermore also apply in favour of our employees, workers, staff, representatives and vicarious agents.
- Unless we have given a guarantee for properties and condition and/or durability regarding the products or parts of the same, our liability shall also apply within the scope of this guarantee. However, we shall be liable for damages that are based on the absence of the guaranteed properties and condition or durability, which occur, whereas not directly on the products, only if the risk of such a damage is clearly covered by the assured properties and condition and the guaranteed durability.
- We shall also be liable for damages, which are caused by simple negligence, insofar as this negligence relates to the breach of such contractual duties, the fulfilment of which is of particular significance for reaching the purpose of the contract (cardinal duty). However, we shall be liable only insofar as the damages are predictable and typically related to the contract. For the rest, we shall not be liable for breaches of ancillary duties, which are not essential to the contract and caused by simple negligence. The liability limitations contained in this § 8 shall also apply insofar as the liability concerns our legal representatives, managing employees and other vicarious agents.
- Any further liability shall be excluded, regardless of the legal nature of the claim asserted. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives, managing employees and other vicarious agents.
§ 9 – Limitation
- The limitation period for claims and rights based on defects of the products – regardless of the legal reason – shall be one year. However, this shall not apply in the cases of Sec. 438 (1) no. 1 BGB [German Civil Code] (defects of title of immovable objects), Sec. 438 (1) no. 2 BGB (buildings, items for buildings) or Sec. 634a (1) no. 2 BGB (buildings or work the result of which consists in the rendering of planning or monitoring services for this purpose), The cases excluded in the previous no. 2 are subject to a limitation period of three years. However, the provisions of this § 9 on the whole shall not apply to the limitation of the seller’s right of recourse pursuant to Sec. 445b (1) BGB in the event that the ultimate buyer is a consumer.
- The limitation periods pursuant to para. 1 shall also apply to all damage compensation claims against us, which relate to the defect – regardless of the legal basis of the claim.
- The limitation periods pursuant to para. 1 and para. 2, however, shall apply with the following proviso:
- The limitation periods shall generally not apply in case of intent or fraudulent concealment of a defect or if we have given a warranty for the product’s properties and condition. The statutory limitation periods shall apply instead.
- The limitation period shall furthermore not apply to damage compensation claims in the event of a breach of duty through gross negligence or in case of a culpable breach of cardinal duties – which does not consist of the delivery of a defective object or performance of deficient work – nor in cases of a culpably caused injury to life, body or health nor to claims pursuant to the Product Liability Act. The statutory limitation periods shall apply instead.
- The limitation period shall begin for all claims on delivery, in case of the performance of work on acceptance.
- Unless expressly defined otherwise, the statutory provisions regarding the start of the limitation period, suspension of expiration, suspension and restart of periods shall remain unaffected.
- The foregoing provisions shall apply analogously to damage compensation claim, which do not relate to a defect; para. 1 sent. 1 shall apply to the limitation period.
- A reversal of the burden of proof to the customer’s disadvantage is not tied to the foregoing provisions.
§ 10 – Reservation of title
- We reserve the title to the object of purchase up until receipt of all payments under the contract.
- The customer is obligated to store and treat the object of purchase in application of proper care and caution of a prudent businessman.
- The customer is obligated to inform us immediately if any third parties attain control over the products, for example, in the case of a pledging and of any damages or the destruction of the products. The customer shall inform us without delay of any change of ownership of the products and any relocation of its registered office.
- In the event of actions by the customer contrary to the contract, in particular in the case of delays of payment or breach of a duty pursuant to numbers 2 and 3 of this clause, we are entitled to withdraw from the contract and demand the return of the products. Further claims remain unaffected thereof.
- The customer is entitled to resell the object of purchase in the course of ordinary business; however, it assigns all claims, which arise for it against its buyers or third parties from any resale, to us on this day already in the amount of the final invoice total (including VAT). The customer shall be authorised to collect these receivables also after the assignment. Our authority to collect these receivables ourselves remains unaffected thereof. However, we undertake not to collect the receivables for as long and insofar as the customer fulfils its payment obligations from the received proceeds and does not default on payment, and particularly, for as long as it has not filed for settlement or insolvency proceedings or a similar discontinuation of payments has occurred. If this is the case, however, we may demand that the customer disclose the assigned receivables and their debtors and provide all information required for collection, surrender the related documents and inform the debtors (third parties) of the assignment.
- As security for our claims against the customer, the customer assigns to us claims against third parties, which arise against a third party from connecting the object of purchase with land.
- The treatment and processing of the products by the customer shall take place in our name and on our behalf. If a processing is made with objects not owned by us, we shall acquire the proportional co-ownership of the new object for the value of the products delivered by us relative to the other processed objects. The same applies if the products are mixed with other objects that are not our property.
- We undertake to release securities provided by the Customer on its request only insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%. We shall have the choice of the securities to be released.
§ 11 – Proprietary rights
- All proprietary rights to our products, including copyrights, trademarks, corporate rights and other marks and know-how insofar as existing are in our entitlement. The customer may not produce these items or documents on its own nor let third parties produce them without our prior agreement in text form.
- If we perform services, which have been implemented according to a requirement of the customer or another instruction by the customer, exclusively the customer shall be liable in case the production and delivery of these services infringes on industrial property rights, copyrights or other rights of third parties. If third parties bring claims against us for such infringements, the customer shall refund us for all related damages.
§ 12 – Place of jurisdiction – applicable law – place of performance
- Claims relating to any disputes arising from the contractual relationship shall be filed in the court with jurisdiction at the place of our registered office. We are also entitled to file lawsuit at the place of the customer’s headquarters.
- The law of the Federal Republic of Germany applies. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
- Unless the order confirmation states otherwise, our permanent place of business is the place of fulfilment.
BuddyStar GmbH, Breisacher Straße 86, 79110 Freiburg
Freiburg, in July 2021