GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

(as of 01.01.2022)

Please note: This document is a translation of the General Terms and Conditions originally drafted in German. Berner Torantriebe accepts no liability for the accuracy of this translation.

Section 1 General Provisions
1. Our terms and conditions of sale and delivery apply to all deliveries and services under the contract concluded between us and the customer.
2. Our terms and conditions apply exclusively; conflicting or deviating customer terms shall not apply unless expressly accepted by us in writing.
3. These terms apply only to entrepreneurs within the meaning of Section 14 German Civil Code (BGB), legal entities under public law, and special funds under public law.

Section 2 Conclusion of Contract
1. Our offers are subject to change and non-binding unless otherwise agreed. The order confirmation determines the type and scope of the order. We reserve the right to make reasonable technical, design, color and weight changes.
2. An offer is accepted only upon dispatch of an order confirmation or delivery of the goods. Acknowledgment of receipt or telephone acceptance does not constitute binding acceptance. For custom-made goods, the contract is concluded upon our written confirmation even if execution details remain open. We may make design and construction changes during the delivery period provided the object, function and appearance are not materially altered. Such changes do not entitle the customer to a price adjustment.
3. We reserve all ownership and copyright rights to illustrations, drawings, calculations and similar documents, including confidential documents. They may not be disclosed to third parties without our prior express consent.

Section 3 Prices and Terms of Payment
1. Unless otherwise stated, prices are ex works, excluding transport and installation costs. Packaging is included except for small parts and spare parts. VAT is charged separately at the statutory rate.
2. Invoices are payable within 30 days net. Cash discounts require a separate written agreement.
3. If material costs, taxes or duties increase after conclusion of the contract, we may adjust prices accordingly where at least four months elapse between contract conclusion and delivery.
4. Installation and similar services are billed on a time basis unless a lump sum price has been agreed. Our installation terms apply.
5. We may allocate payments first to the oldest debts and, if costs and interest exist, first to costs, then interest, then principal.
6. We may demand immediate payment of all outstanding receivables and make further performance dependent upon advance payment or security if circumstances raise doubts regarding the customer’s creditworthiness, especially in the event of payment default.
7. During payment default the customer has no right of possession. A request for return of goods constitutes withdrawal only if expressly declared in writing.
8. Set-off is permitted only with undisputed, acknowledged or legally established counterclaims. Rights of retention are permitted only for claims arising from the same contractual relationship.

Section 4 Place of Performance and Transfer of Risk
1. Unless otherwise agreed, delivery is ex works (INCOTERMS 2020). Risk passes upon handover of the goods or to the carrier.
2. In the event of acceptance default by the customer, risk passes to the customer.
3. For carriage-paid deliveries, the customer must unload immediately. Waiting times are at the customer’s expense. Delivery to a construction site means delivery at truck level on an accessible route. Unloading and internal transport are the customer’s responsibility.

Section 5 Delivery Times
1. Delivery periods commence only after all technical issues have been clarified.
2. Stated delivery dates are estimates and subject to timely self-supply. A delivery deadline may be set only if the estimated date has been exceeded by more than three weeks and must be at least three weeks long. Claims for damages due solely to non-compliance with an estimated date are excluded.
3. Force majeure and events beyond our control, including shortages, operational disruptions, strikes, lockouts, governmental actions, pandemics including COVID-19 and related measures, extend delivery times. We may postpone performance or withdraw from the contract in whole or in part. Further claims, particularly damages, are excluded.
4. If the customer is in default of acceptance, we may store the goods at the customer’s risk and expense and charge actual costs or 5% of the invoice amount per month.
5. Following expiry of a grace period, refusal to accept goods may entitle us to claim damages for non-performance.
6. Partial deliveries are permissible within reasonable limits.

Section 6 Retention of Title
1. We retain title to the goods until all claims arising from the ongoing business relationship have been settled in full. Excess security above 20% shall be released upon request.
2. During retention of title, the customer must carefully handle and adequately insure the goods and notify us of third-party access, damage, address changes and possession changes.
3. Pledging or transfer by way of security is not permitted.
4. Processing or combining goods is carried out on our behalf; retention of title extends to the resulting products and co-ownership shares.
5. The customer may resell reserved goods in the ordinary course of business. All resulting receivables are assigned to us. We may collect them ourselves in the event of payment default or justified doubts regarding creditworthiness.
6. The right to process and resell ends upon contract termination.
7. We may inspect and repossess reserved goods during business hours if the customer has no right of possession.

Section 7 Warranty Claims
1. Defect claims require compliance with inspection and notification obligations under Section 377 German Commercial Code (HGB). Otherwise the goods are deemed accepted.
2. In case of defects, we may choose repair or replacement. If supplementary performance fails, the customer may reduce the price, withdraw from the contract or claim damages. Withdrawal for only minor defects is excluded.
3. Product characteristics are determined solely by the order confirmation. Public statements and advertising do not constitute agreed quality.
4. Limitation periods are governed by Section 438 BGB unless otherwise agreed.
5. Warranty claims may not be assigned.

Section 8 Liability
1. We are liable in accordance with statutory provisions for intent and gross negligence. In cases of ordinary negligence, liability is limited to foreseeable, typical contractual damages. Liability for non-essential contractual obligations breached through ordinary negligence is excluded.
2. Liability for injury to life, body or health and liability under product liability law remain unaffected.

Section 9 Data Protection
1. Customer data, particularly data relating to company contacts, are processed in accordance with the GDPR and the German Federal Data Protection Act.
2. The customer undertakes to comply with applicable data protection laws and information obligations. Data protection incidents must be reported immediately via email to datenschutz@berner-torantriebe.de together with all necessary information.

Section 10 Final Provisions
1. German law applies. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
2. Amendments and ancillary agreements must be made in writing. This also applies to changes to the written-form requirement.
3. Unless otherwise stated, the place of performance is our registered office. Exclusive jurisdiction is Bielefeld.
4. If individual provisions are invalid, the validity of the remaining provisions remains unaffected. Invalid provisions shall be replaced by valid provisions most closely reflecting the intended purpose.