§ 1 – General – Scope
These General Terms and Conditions of Sale (GTC) of BuddyStar GmbH apply to all transactions concerning deliveries to the customer by BuddyStar GmbH.
- Our Terms and Conditions of Sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale.
- All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
- Our Terms and Conditions of Sale shall only apply vis-à-vis entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB). These General Terms and Conditions shall not apply in dealings with consumers.
§ 2 – Offer – Offer documents – Rights to documents.
- If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks.
- We reserve the property rights and copyrights to illustrations, drawings, calculations, samples, cost estimates and other documents or information of a tangible or intangible nature, including in electronic form. The customer must obtain our express written consent before passing them on to third parties.
- The transfer of the aforementioned objects does not constitute a transfer or granting of rights (licence of use).
§ 3 – Conclusion of Contract – Payments – Terms of Payment – Default of Payment
- The contract shall be concluded by our written invoice or order confirmation or by our performance of the service.
- Our offers are subject to confirmation until the firm conclusion of the contract.
- In the absence of a special agreement, payment shall be made to us without any deduction à account, namely in the amount of a down payment of 50 % after conclusion of the contract.
- In the absence of a special agreement, payment of the remaining full contract price shall be made to us step by step before handover of the goods ex works.
- Unless otherwise agreed, bank guarantees, advance payment guarantees or other guarantees of third parties shall be handed over to us in the original before handover of the goods ex works.
- The deduction of a cash discount requires a special written agreement.
- The customer shall only be entitled to withhold payments to the extent that his counterclaims are undisputed or have been legally established.
- The customer shall only have the right to offset counterclaims from other legal relationships insofar as they are undisputed or have been legally established.
- The customer shall only have the right to set off counterclaims from this legal relationship to the extent that they are undisputed or have been finally determined by a court of law.
- The customer shall be in default of payment with regard to the outstanding contract price if he does not pay the contract goods (our performance) within 10 days after notification that our performance is ready for collection against tender of the transfer of ownership ex works step by step against payment, § 286 para. 2 no. 2 BGB (German Civil Code).
- The occurrence of default according to other legal provisions remains unaffected by this.
- In the absence of a special agreement, the prices shall apply ex works or agreed place of transfer, but excluding packaging. This will be invoiced separately. Value added tax at the respective statutory rate shall be added to the prices.
- All prices are net prices and do not include the respective statutory value added tax.
- The contractually owed performance is determined by the agreement reached, in particular the invoice or order confirmation.
- The agreement of a guarantee must be in writing in order to be effective (§126 BGB).
§ 4 – Delivery period – delivery deadlines – force majeure
- Unless otherwise agreed in individual cases, the delivery times are approximate, even if a fixed date has been agreed. Compliance with them by us presupposes that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as, for example, the provision of the necessary official certificates or approvals or the making of down payments. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if we are responsible for the delay.
- Compliance with the delivery time is subject to correct and timely delivery to us. We shall inform the customer as soon as possible of any delays that become apparent.
If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
- If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the contractual goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
- If non-compliance with the delivery time is due to force majeure, industrial disputes or other events beyond our control, the delivery time shall be extended accordingly. We shall notify the customer of the beginning and end of such circumstances as soon as possible.
- The customer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for us before the transfer of risk. Furthermore, the customer may withdraw from the contract if, in the case of an order, it becomes impossible to carry out part of the delivery and the customer has a justified interest in refusing the partial delivery. If this is not the case, the customer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of the supplier’s inability to perform.
- If the impossibility or inability occurs during the delay in acceptance and if the customer is solely or predominantly responsible for these circumstances, he shall remain obliged to counter-performance. If the customer sets us a reasonable deadline for performance after the due date – taking into account the statutory exceptions – and if the deadline is not met, the customer shall be entitled to withdraw from the contract within the framework of the statutory provisions. At our request, he undertakes to declare within a reasonable period of time whether he will exercise his right of withdrawal.
- The delivery period shall be extended in the event of force majeure. BuddyStar GmbH shall inform the customer immediately of the existence of force majeure and the expected end of this circumstance. In the event of force majeure, the assertion of further claims is excluded.
- If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
§ 5 – Transfer of risk – packaging costs
- Unless otherwise stated in the contract, delivery “ex works” or delivery “ex place of delivery” is agreed.
- The registration and insurance of the trailer/vehicle is the responsibility of the buyer.
- The customer shall return any unpaid packaging materials at his own expense.
- If the customer so desires, we shall cover a delivery, which in the absence of an agreement to the contrary is always made at the customer’s expense and risk, by transport insurance; the customer shall bear the additional costs incurred in this respect.
- The risk of accidental loss shall pass upon handover to the customer, his carrier or a third party designated by him.
- If the customer does not accept the goods declared ready for delivery at the time of delivery, the risk of accidental loss shall pass to the customer at the time of delivery.
§ 6 – Default in acceptance – damage caused by delay
- If the customer does not accept the goods on time or is otherwise in default of acceptance or payment, he shall owe BuddyStar GmbH an amount of 1% of the order value or the value of the partial delivery for each week or part thereof, but not more than a total of 8% of the order value or the value of the partial delivery.
- The customer has the right to prove a lower damage, BuddyStar GmbH the right to prove a higher damage.
§ 7 – Liability for defects
- Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
- Claims for defects do not exist in the case of only insignificant deviation from the agreed quality or only insignificant impairment of usability. If the customer has made changes to the goods after the transfer of risk, either independently or through commissioned third parties, the customer shall forfeit his claims arising from liability for defects. Technically induced changes to the design or shape, as well as deviations in colour or shade, do not constitute defects, insofar as these are reasonable for the buyer, taking into account the interests of the seller.
- The warranty shall only exist until the end of the warranty period for the original item, unless a statutory provision intervenes. Notices of defects do not release the buyer from the obligation to comply with the agreed payment obligations. Assurance of characteristics shall in any case require the written declaration of the seller and confirmation.
- The warranty assumed by the seller shall expire if improper repair work has been carried out on the delivered item by the seller or by third parties or if the item has been modified by the installation or attachment of parts of third party origin and the damage is causally related to the repair or modification carried out. There shall likewise be no claims for defects arising from the consequences thereof. The warranty shall also be excluded if the total weight permissible under the relevant provisions of the Road Traffic Act or the axle loads or the payload or chassis load capacity on which the delivery contract is based is found to be exceeded. Natural wear and tear and damage resulting from negligent and/or improper handling are excluded from the warranty.
- Upon handover of the subject matter of the contract, a joint handover protocol shall be drawn up, which shall become an integral part of the contract. Upon handover of the subject matter of the contract, the buyer or their legal representative must be authorised and present for acceptance.
- The subject matter of the contract shall be handed over on the day of handover. In the acceptance or handover protocol, any defects are bindingly determined and any supplementary and rectification work still to be carried out is recorded. These are to be remedied or carried out by the seller according to a location and schedule then determined.
- Insofar as the protocol does not contain specific defects as still to be completed, the buyer shall recognise the condition of the subject matter of the contract as being in accordance with the contract by signing the handover protocol, with the exception of hidden defects.
- The seller shall therefore not be liable for defects which were recognisable at the time of handover but which were not notified by the buyer on the day of handover and were not recorded in the handover protocol.
- Defects which are recognisable at the time of handover and which do not impair the function and use of the subject matter of the contract or the operational procedure of the buyer and which can also be remedied without impairing the operational procedure of the buyer shall not prevent the handover and shall not delay the handover.
- Within the scope of subsequent performance, we shall not be obliged to provide the services again or to re-manufacture the contractual item.
- The customer’s request for subsequent improvement must be made in writing.
- Notices of defects and complaints must be submitted to us in writing: By post to BuddyStar GmbH, Breisacher Str. 86, 79110 Freiburg or by e-mail to info[at]buddystar.de. In the event of a justified complaint within the time limit, the goods shall be returned by the customer free of charge to a specialist workshop named by BuddyStar GmbH and, if justified, shall be repaired free of charge or replaced by faultless goods at our discretion. In the event of justified complaints, the Seller shall initially be obliged, at its discretion and to the exclusion of other claims, to provide subsequent performance or rectification (max. 3 attempts) and/or replacement. In the event of rectification of defects, the Seller shall be obliged to bear the necessary expenses incurred by the Seller for the purpose of rectifying the defects, in particular the labour and material costs incurred by the Seller.
- We shall be granted a period of at least 6 months for subsequent performance.
- If the rectification fails, the customer shall have the right to reduce the price or, at his option, to withdraw from the contract. If the performance is to be rectified, the rectification shall be deemed to have failed at the earliest after the second unsuccessful attempt. The customer’s right to claim damages under these terms and conditions shall remain unaffected.
- The expenses necessary for the purpose of rectification shall be borne by the customer insofar as they are increased by the fact that the services or the contractual item are or have been taken to a place other than our works.
- Without prejudice to further claims on our part, the customer shall reimburse us in the event of an unjustified notice of defect for the expenses incurred in inspecting and – insofar as requested – rectifying the defect.
- We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage. Cover purchases shall not be accepted without our written consent.
- We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, liability for damages shall also be limited to the foreseeable, typically occurring damage. We shall not be liable for loss of sales, stand fees, rental fees, raw material costs or other costs in relation to an event.
- Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
- Unless otherwise stipulated above, liability is excluded.
- The limitation period for claims for defects is 6 months, calculated from the transfer of risk.
- Defects in installed equipment or commodities shall only be recognised if it can be proven that the defect was already present at the time of delivery. If it is a recognised material defect, the customer must make the device available to a specialist company named by us at his own expense. We do not assume any special costs such as evening, weekend or public holiday surcharges.
- We will not accept any reimbursement of expenses by third parties for the removal of defects unless we have given our written approval.
§ 8 – Joint and several liability
- Any further liability for damages than provided for in § 6 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.
- The limitation according to paragraph (1) shall also apply insofar as the customer demands compensation for useless expenditure instead of a claim for compensation for damage.
- Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 9 – Retention of title
- We retain title to the object of sale until receipt of all payments under the contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer’s liabilities – less reasonable realisation costs.
- The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against damage by fire, water and theft at its replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
- In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
- The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties. The customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
- We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent on us.
§ 10 – Additional clause (Covid-19 pandemic)
- Any effects on the order, parts thereof, delays or parts thereof due to national or international restrictions or other circumstances in connection with the Covid-19 pandemic are not the responsibility of BuddyStar GmbH. Therefore, no claims can be made against BuddyStar GmbH. Should BuddyStar GmbH or the Client/Customer become aware of circumstances in connection with the Covid 19 pandemic which may lead to a delay or other impairment of our services and the order, both the Client and the Contractor will inform each other immediately. The parties will attempt to find a mutually agreeable solution, e.g. by temporarily suspending the contractual obligations of both parties. If the influence of the Covid 19 pandemic lasts longer than 6 months from the date of signing, BuddyStar GmbH is entitled to terminate the contract.
§ 11 – Place of jurisdiction – Applicable law – Place of performance
- The place of jurisdiction is our place of business; however, we are also entitled to sue the customer at the court of his place of residence.
- The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply.
- Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.
§ 12 – Written form
- All amendments and supplements to these General Terms and Conditions as well as the waiver of their validity must be made in writing in accordance with § 126 of the German Civil Code (BGB).
§ 13 – Severability clause
- Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract as a whole shall remain unaffected.
- The invalid or unenforceable provision shall be replaced by a valid and enforceable provision the effects of which come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision.
- The above provisions shall apply accordingly in the event that the contract proves to be incomplete.
BuddyStar GmbH, Breisacher Straße 86, 79110 Freiburg, Germany
Freiburg, January 2020