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Terms and Conditions

Terms of Sale and Delivery of Berkemann GmbH & Co. GmbH (General Business Terms)

- national & international –

1. General, scope

1.1    The following terms of delivery and payment are effective as of 01/01/2018.

1.2    All deliveries and services of the seller shall be made – subject to individual agreements between the contracting parties (§ 305b BGB [German Civil Code]) – exclusively on the basis of these terms of delivery and payment. They shall apply only with respect to companies within the meaning of § 14 BGB and shall be part of all contracts that the seller concludes with his  contracting partners – hereinafter referred to as Buyer – for the deliveries and services offered by it. The terms of delivery and payment shall also apply for future deliveries and services to the Buyer without the seller having to refer to them again in each individual case.

1.3    Conflicting, deviating, or additional conditions of the Buyer shall not apply unless the seller expressly agrees to their validity in writing. This consent requirement shall also apply if the seller executes the delivery without reservation in the knowledge of the conflicting terms of the Buyer.

2. Conclusion of the contract

2.1    All of the seller’s offers are subject to change and are non-binding unless they are identified as binding.

2.2    Ordering the goods or other issuance of orders by the Buyer shall be considered as a binding offer to the seller.

2.3     The acceptance by the seller can be declared in written or text form (e.g., by order confirmation) or delivery of the goods to the Buyer. Otherwise when goods are ordered, the order shall be considered accepted if it is not expressly refused by the seller- Within 20 business days for initial orders and- Within 10 business days for later orders.

3. Place of fulfillment, delivery

3.1    Place of fulfillment for all services arising from the delivery contract is Zeulenroda.

3.2     Delivery of the goods shall be made at the Buyer’s risk ex stock. Insofar as the following terms do not contain any conditions to the contrary, delivery shall be made at the seller’s expense in a way that is most favorable to him.

3.3    The shipping costs for Germany amount to up to € 50.00 net order value € 6.00 and between € 50.00 € and € 150.00 € 4.00 net order value. The Buyer shall bear the extra costs for additional expenses, in particular for transportation insurance, shipping by couriers, express, or other type of shipping that deviates from the customary, labeling, and special orders.

3.4     The seller shall determine the packaging according to his best judgment. The seller’s standard packaging will not be charged specially. In all other cases, the Buyer must bear the costs of the packaging.  

3.5    The seller is entitled to partial delivery insofar as this is reasonable for the Buyer.

4. Delivery times, delay of deliveries, and default of acceptance

4.1    The delivery times indicated by the seller are only approximate unless a fixed date has been expressly promised or agreed on. Fixed dates are excluded for initial orders.

4.2    If the seller exceeds a firmly agreed upon date, an additional delivery period of 60 days will automatically and without explanation begin to run. After the expiry of this additional delivery period, withdrawal from the contract shall be considered complete unless the Buyer rejects the withdrawal before expiry of the additional delivery period and demands fulfillment of the contract. In this case, the seller must immediately and without undue delay designate the binding delivery date. If the Buyer does not object to this date without delay, it shall be considered a fixed date. If the seller does not designate the delivery date without delay, the Buyer can withdraw from the contract by written notice to the seller. Withdrawal from the contact after expiry of the 60 day additional delivery period shall also be considered complete if, before or during the additional delivery period and with designation of a binding delivery date, the seller asks the Buyer for a statement about whether he insists on fulfillment of the contract on the indicated fixed date and the Buyer does not comment without delay or an agreement about the date is not achieved. The withdrawal shall be considered not complete if the Buyer accepts without objection the goods after expiry of the additional delivery period.

4.3    The Buyer shall default on acceptance in the event of non-acceptance of the goods even without further tender by the seller insofar as a fixed delivery date has been agreed upon.

4.4    If the Buyer defaults on acceptance or culpably violates other obligations to cooperate, the seller shall be entitled to claim damages incurred, including any additional expenditures. Otherwise, the risk of accidental loss or deterioration of the goods shall be passed on to the Buyer in the time period in which the Buyer has defaulted on acceptance.

5. Interruptions of supply

Force majeure or other serious disruptions unforeseeable at the conclusion of the contract (e.g., official decrees, breakdowns, strikes and lawful lockouts, missing or late delivery by suppliers) entitle both the seller as well as the Buyer to extend the delivery or acceptance date by the length of the disruption, at most however up to a period of three weeks, provided that the contracting party affected is not responsible for the events that led to the delay. After expiry of the date according to sentence 1, the contracting parties are entitled to withdraw from the contract.

6. Retention of title

6.1    The goods delivered remain property of the seller until the complete settlement of all claims (present and future) from the ongoing business relationship with the Buyer (retention of title). Balancing of the account and balance acknowledgment do not affect retention of title.

6.2    The Buyer is entitled to re-sell or process the goods under retention of title (reserved goods) in the proper course of business. Pledges or assignments as security shall not be permitted without consent of the seller. The Buyer is obligated to immediately notify the seller of any access of third parties to the reserved goods (e.g., attachments, damage). 

6.3    In the event of the resale of the reserved goods, the Buyer hereby assigns to the seller as security all the claims arising against the purchaser from the resale. The seller shall accept the assignment. The Buyer shall remain entitled to collect the claim as long as he properly meets his payment obligations to the seller. The seller can withdraw the authorization to collect if the Buyer is in default of payment or a significant deterioration of his financial situation occurs, especially if the Buyer discontinues his payments or states that he wants to discontinue them.

6.4    In event of the Buyer’s behavior that is contrary to the contract, in particular in the event of non-payment of receivables due, the seller shall be entitled to withdraw from the contract if the statutory conditions are met and to demand return of the reserved goods. In the case of non-payment of receivables due, the return of the reserved goods may furthermore only be demanded if the seller has previously unsuccessfully set a reasonable deadline for payment unless such a deadline is unnecessary according to statutory provisions.

7. Warranty / returned goods

7.1    In the event of defects of goods delivered, the seller shall at his option undertake remedial measures or make a replacement delivery. If the remedial measures or replacement delivery fail (e.g., due to impossibility, unreasonableness, refusal), the Buyer has the right to withdraw from the contract or to reduce the purchase price; the Buyer can assert claims for damages or reimbursement of fruitless expenditures only according to the provisions set forth in section 8. Warranty claims shall generally lapse within 12 months of the delivery date.

7.2    The Buyer must report in writing or in text form visible defects to the seller (notice of defects) - Within 10 business days after receipt of the goods and- Within 10 business days, in the case of delivery before the agreed delivery date, otherwise the goods shall be considered accepted. Statutory provisions shall otherwise apply, in particular § 377 HGB (German Commercial Code).

7.3    The goods that are subject to a complaint may be returned free of charge only with the seller’s consent, unless the seller has not responded to the notice of defects within 10 business days after receipt. If the complaint is justified, the seller shall reimburse the accrued postage costs.

7.4    For claims regarding individual pairs, the concurrent submission of the goods with the notice of defects shall be permitted. The seller must deal with these complaints within 16 business days after receipt, otherwise the Buyer is entitled to calculate the purchase price of the individual pairs.  

7.5    If the Buyer has settled a consumer complaint by an exchange without an inquiry to the seller, the seller, insofar as the complaint is justified and the correction of the defects is possible only with an expenditure that is disproportionate to the value of the goods, shall issue a credit or send a replacement. The risk of a rejection of a complaint by the seller shall remain unchanged for the Buyer.

7.6    Returns shall be accepted only after prior notice (notification) accompanied by the original delivery papers, whereby the goods must be in perfect condition. A flat processing fee in the amount of € 15.00 net shall be charged for returns without prior notification.

7.7     For returned goods outside the warranty and a return within one month after delivery, a processing fee of € 10.00 net shall be charged; for a return as of 1 month, 20% of the net order value and after 6 to 12 months 40% of the net order value shall be charged by the supplier.

7.8    Goods that are returned within the scope of the warranty can only be delivered in a hygienically impeccable condition (washed, cleaned inside and out) for processing or repair.

7.9    The warranty rights shall be deemed null and void insofar as the article shows defects due to excessive wear and stress, improper use or neglect of care, and unintended use.

8. Limitation of liability

8.1    Damage claims of the buyer, irrespective of their legal grounds, are excluded, unless otherwise stated in these terms, including the provisions set out below.The seller shall be liable for damages for injury to life, body, or health or breach of essential contractual obligations as well as for other damages that are based on a willful or grossly negligent breach of an obligation by the seller, his legal representatives, or agents. Essential contractual obligations are obligations that the contract imposes on the seller in accordance with its contents for the attainment of the purpose of the contract, whose fulfillment enables the proper execution of the contract in the first place and on whose observance the Buyer can regularly rely on.

8.2    In the event of breach of essential contractual obligations, the seller is liable only for foreseeable damage typical for the contract if the damage was caused by simple negligence, unless the damage claims are from injury to life, body, and health.

8.3     The limitations of sections 8.1 and 8.2 shall also apply in favor of the seller’s legal representatives and agents insofar as the claims are not made directly against them. They shall not apply insofar as the seller has deliberately concealed a defect or guaranteed a specific quality as well as for claims in accordance with the German Product Liability Act.

9. Terms of payment

9.1    The invoices shall be issued on the day of dispatch or acceptance of the goods.

9.2    A postponement of the due date (value date) is generally excluded and requires a separate written agreement. 

9.3    For cash payment (cash or bank transfer) within 10 calendar days, a 3% cash discount shall be granted. Otherwise, the net purchase price (without deduction) is to be paid within 30 calendar days from the issue day of the invoice. Statutory regulations shall otherwise apply for default of payment.

9.4    The invoices can be consolidated from the 1st to the 10th, from the 11th to the 20th, and from the 21st to the end of each month on the last day of this time period respectively.

9.5    The day of payment is considered to be the day on which the payment is received by the seller or credited.

9.6    Payments by check are permitted only starting with a minimum amount of € 350.00 (gross). The timely payment by check shall also depend on the value date of the payment amount to the account of the seller, so that receipt of the check at the seller 2 business days before the due date of the invoice should be ensured for the timeliness of the payment.

9.7    If the Buyer is in arrears with an outstanding invoice or if a significant deterioration occurs in his financial situation (e.g., impending insolvency), the seller shall be entitled for all purchase contracts that are based on the same legal relationship to execute all outstanding deliveries and performances only against prepayment or security or to withdraw from these contracts after setting a reasonable deadline; the statutory provisions that a deadline is not needed shall remain unaffected.

9.8    The seller is entitled to transmit invoices also in electronic form to the Buyer (e.g., by email).

10. Offset, right of retention

The Buyer shall be entitled to an offset against the seller’s receivables due only if he has made notifications of defects or counterclaims from the same purchase contract. Otherwise, an offset shall only be permitted against uncontested or legally established counterclaims. The Buyer may only exercise a right of retention if the counterclaim comes from the same purchase contract.

11. Applicable law, jurisdiction

11.1    The laws of the Federal Republic of Germany shall apply with the exclusion of the UN Convention on the International Sale of Goods (CISG). 

11.2    If the Buyer is a merchant, a legal entity under public law, or a special fund under public law, the jurisdiction shall be Zeulenroda for all disputes between the contracting parties arising from the contractual relationship. The seller is entitled to file a suit again the Buyer in his general jurisdiction. In the case of transactions with purchasing groups, the jurisdiction is their headquarters.