BORNIT®

The strong brand for construction

General terms and conditions

1. Applicability of the conditions

1.1 The seller‘s deliveries, services and offers are based exclusively on these terms and conditions. Hence, these terms and conditions also apply to all future business relations, even if they are not explicitly agreed again.

1.2 These conditions shall be construed as accepted no later than the acceptance of the good or service. Terms or conditions contained in orders or counter-confirmations received from the buyer and any references to buyer‘s own general purchasing conditions are here explicitly opposed. Deviations from the seller‘s general terms and conditions shall only be effective if the deviations are confirmed by the seller in writing.
2. Offer and conclusion of contract

2.1 The seller‘s offers are non-binding and subject to confirmation. Contracts (orders and acceptance) as well as any modifications or additions to them must be in writing. Oral subagreements or oral assurances beyond what is contained in the written contract are ineffective.

2.2 Any and all subagreements require seller‘s written confirmation. The documents integral to an offer, such as technical information sheets, etc., are only applicable if they have been explicitly designated as binding.
3. Price calculation and payment

3.1 All prices are exclusive of the legal turnover tax or other public charges. These expenses must be paid by the buyer. The seller reserves the right to modify seller‘s prices appropriately when, subsequent to the conclusion of the contract, costs change due to labor agreements, price increases from seller‘s suppliers or fluctuations in the currency exchange rate.

3.2 The prices for deliveries and services, if not agreed otherwise, shall be ex factory plus the costs of the packaging necessary for an orderly shipment.

3.3 The price calculation is based on the weights, figures and quantities calculated by the seller, unless the purchaser objects without delay.

3.4 The buyer can only offset by means of counter-claims which are undisputed or legally binding from the same contractual relationship or due to these claims assert a general lien.

3.5 Place of performance for the buyer‘s payment is the registered office of the seller. Payment must be made without discount and in such a manner that by the date due payment has been received on an account held by the seller.

3.6 In case of the buyer delaying payment – including in the course of ongoing business relations – or a fundamental eterioration in buyer‘s financial situation, the seller can require the buyer to pay or to provide a good-faith deposit. If buyer does not meet this demand, seller has the right, after a reasonable waiting period, to withdraw from the contract or to demand compensation due to nonfulfillment.

4. Passing of risk, shipment and delay in acceptance

4.1 Place of performance for all deliveries is the respective point of delivery. At the point of delivery, risk of accidental loss or damage of the goods passes to the buyer.

4.2 If there are no special agreements, the seller can select based on seller‘s own judgment the route, the type of shipment and the means of transport.

4.3 The buyer must return, carriage paid, rented containers and rented packagings emptied of any residues within 60 days; loss of or damage to the rented packagings shall be charged to the buyer if the buyer is responsible for them. Rented packagings (containers) must not be used for other purposes or for holding other products. They are solely made for the transport of seller‘s delivered goods. Labels must not be removed. The seller will not accept back any disposable packaging. Instead, the seller will inform the buyer of a third party who will accept the packaging materials in compliance with the Packaging Directive.

4.4 If the buyer delays acceptance, seller can store the remaining deliverable quantities at the risk and cost of the buyer, and charge for them as delivered including any incidental costs. The seller optionally also has the right, after a reasonable waiting period has expired, to withdraw from the contract or to demand compensation due to non-fulfillment.

4.5 The seller has the right to make partial delivery.

5. Delay, impossibility, and other contract infringement

5.1 In case of non-fulfillment of delivery deadlines, the buyer can set a reasonable delay limit in writing. After this deadline has been past without fulfillment, buyer has the right to withdraw from the contract. The withdrawal must be made in writing.

5.2 Seller cannot be held responsible for delivery and performance delays, even in relation to agreed deadlines and dates, due to force majeure or due to events which substantially hamper or render impossible seller‘s delivery/performance – this also includes material procurement difficulties arising at a later date, operational disruptions, strike, lock-out, raw material or energy shortages, personnel shortages, shortage of means of transportation, official decrees, etc., even if they occur to seller‘s subsidiaries or their successors. They give seller the right to postpone the delivery or performance for the duration of the obstacle, plus a reasonable period of time for recovery, or, because of portion left unperformed, to withdraw completely or in part from the contract.

5.3 In cases of negligence the seller is liable only for the infringement of basic contractual obligations and not for the compensation of typical foreseeable damage, whereby a damage no more than the amount of the net invoice value of the individual faulty delivery shall be replaced.

6. Inspection, processing, warranty and liability

6.1 The buyer must immediately – if necessary by applying a sample – test whether the delivered goods are faultless and suitable for their intended use. If buyer fails to test, the seller is released from any warranty or liability. The buyer is aware that goods sold by BORNIT have various use-by dates and areas of application. The buyer commits party ordering to the individual qualities of the goods which are described in detail in the product information sheets.

6.2 Objections regarding quality or quantity must be communicated in writing without delay, no later than seven days after receipt of the goods, to the seller specifying the type and extent of the complaint and the invoice and batch number(s) as well as the product name, in the case of less obvious shortcomings, at least eight days after their discovery. If based on the law a longer period is not mandatory or the seller has assumed a warranty, claims of defects shall be barred by the lapse of time after one year. Otherwise, the period set down by the law shall apply. The periods begin on the respective date of delivery/performance.

6.3 Binding for the establishment of a defect are control surfaces which are laid in the presence of one representative of the buyer and the seller respectively.

Control surfaces on the object shall be especially cordoned off and labeled. About the control surfaces a record shall be prepared and signed by all the participants. If in the course of the warranty period defects in the goods delivered become visible, a joint inspection by the buyer and the seller shall take place. If it should turn out that the control surfaces have remained intact during the warranty period, it shall be found that damages to the remaining surfaces are not due to the quality of the delivered material, so that the warranty shall not apply. If damages occur during the warranty period both to the control surfaces and to the other surfaces, the seller shall carry out all the analyses necessary to describe the nature of the damage and determine the cause of the damage. If these analyses find that the damages are due to a defect in the delivered goods and not to a load which goes beyond the load stated at the time of the acceptance of the warranty, or other influences for which BORNIT-Werk Aschenborn GmbH is not responsible, the buyer has the following rights.

6.4 If the object of the contract is defective, the seller shall supply a substitute delivery/performance because of the defect, excluding any other claims. If the buyer is not interested in a substitute delivery performance or if the necessary expense of the substitute delivery/performance is out of proportion to the advantage for the buyer, the buyer has the right to demand optionally either a reduction in the remuneration or an annulment of the contract. An annulment of the contract is excluded if the nature of the contractual performance does not permit a withdrawal.

The above paragraphs encompass the buyer‘s rights in case of defects in the objects of the contract and exclude other claims of any other kind. If seller has assumed a warranty for quality, the buyer has legal rights based on the defect.

6.5 The seller is liable in accordance with the following provisions for damages – no matter what the legal basis – if the seller, seller‘s legal representatives, seller‘s agents or seller‘s employees have culpably caused them.

6.6 Liability towards the buyer is excluded except for damages related to loss of life, personal injury or illness and in cases of intent and gross negligence. This does not apply if the seller has assumed a warranty for the quality of the thing.

6.7 Seller‘s liability is limited to foreseeable damages. The liability for the consequences of defects is excluded based on provision 6.6.

7. Returns

7.1 The acceptance of returns of goods delivered free of defects by the seller is excluded. If, as an exception, the seller declares seller‘s agreement to accept defect-free goods, a credit will only be issued after seller‘s laboratory has determined their unrestricted reusability. For the costs of the testing, processing, converting and repackaging, the actual costs of at least 20% of the billed amount or at least 30 euros will be subtracted. Such a credit is not paid out in cash but is used as an offset against future deliveries.

7.2 If the laboratory test should show that no reuse is possible, the full costs for the orderly disposal of the goods will be charged to the buyer.
8. Technical standards

The buyer is obligated to inform the seller in writing about the technical standards existing in buyer‘s country related to the delivered product. If the buyer does not do this, buy must release
seller from any liability which may arise from this towards third parties, unless seller was aware of the regulations in the buyer‘s country or was grossly negligent in not knowing them.

The binding, technical guidelines which apply are primarily those technical specifications and the safety data sheets available for download any time at www.bornit.de.

9. Broad retention of title

9.1 Until all debts have been met which are due the seller on any legal basis now or in the future, the seller is assured the following securities which seller will release on demand according to seller‘s choice, if the value of the debt persistently rises by more than 20%. The security also extends to the recognized balance, if the seller books debt to the buyer in the current account (current account-qualification).

9.2 The goods delivered by seller remain seller‘s property (reserved title goods). The buyer has the right to process and sell the reserved title goods in orderly business activity. An orderly business transaction in the sense of this condition is not given if during the sales of the buyer or during buyer‘s other dispositions or actions to the benefit of a third party the assignment of buyer‘s debt to the third party is excluded. Pledges or security assignments of the reserved title goods are impermissible.

9.3 The property purchase of the buyer of the reserved title goods in case of processing or modification is excluded. Processing or modification always occur for the seller, but without any obligations for the seller.

9.4 In case of an integration or mixing of the reserved title goods with other movable items in such a manner that they become an integral part of a uniform thing, the seller will become a part-owner of this thing, the owner‘s share shall be determined by the value ratio of the items at the time of the integration or mixing. However, if the reserved title goods can be identified as the main component, the seller shall acquire the sole ownership. In the case of the integration of the reserved title goods into a structure, the seller shall be assigned any claim of the buyer, as part of an order, to a security pledge from the contractor on the property of contactor‘s client amounting to the share corresponding to the reserved title goods.

9.5 The corresponding debts arising in connection with the resale / reprocessing or some other legal basis in relation to the reserved title goods shall be assigned by the buyer to the seller effective immediately in the amount equivalent to the purchase price of the reserved title goods. The buyer has the authority to collect these debts for the seller. The authority to collect expires if the buyer fails to meet in an orderly manner buyer‘s payment obligations to the seller. In this case the seller has the right to disclose the third party debtor of the assignment.

9.6 The buyer is obligated at buyer‘s own expense to communicate to the seller without delay the information necessary to assert seller‘s debts and other claims and to provide the documentary evidence if it is in buyer‘s possession. The obligation exists correspondingly in case of a judicial foreclosure on things, debts and other rights to assets belonging to the seller; the buyer must inform the seller without delay about the judicial foreclosure; buyer will also inform the execution creditor in writing of the rights of the seller.

9.7 If third party debtors make an assignment dependent on the condition that all of the debts owed the buyer from one building contract must be assigned, the buyer, effective immediately, assigns to the seller by way of security the whole of the debt owed buyer. Besides the above obligations related to the communication of information and documentary evidence mentioned above, the buyer is obligated to notify, in writing, third party debtors of the assignment jointly with the seller.

10. Applicable law and venue

10.1 All the legal relationships with the seller shall be construed in compliance with the law of the Federal Republic of Germany. The application of the „United Nations Convention on Contracts for the International Sale of Goods“ is excluded.

10.2 If not opposed by legally mandatory regulations, the venue agreed shall be the headquarters of the seller, for court actions filed by the seller also the headquarters of the plaintiff.

11. Final provisions

11.1 The German language text of these General Terms and Conditions shall rule.

11.2 If individual provisions of these General Terms and Conditions are invalid or unenforceable or be excluded by special agreement, the remaining provisions shall remain valid.

11.3 The seller stores the data of seller‘s buyers in the course of seller‘s mutual business relations in compliance with the German Federal Data Protection Act.

Status: March 2005