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General terms on sale

General terms on sale


1 Scope of application

1.1 The following terms and conditions are exclusively applicable to all deliveries and services unless otherwise agreed in writing. The following terms and conditions shall also apply when rendering services to the client without reservation whilst being aware of the client’s terms and conditions conflicting with or deviating from our terms and conditions.

1.2 Our terms and conditions apply solely to entrepreneurs as defined by § 14 German Civil Code (BGB).

2 Offers and offer documentation

2.1 Our offers are valid for three months from the date of the respective offer.

2.2 We reserve ownership and copyright in all documents provided by us in connection with submitting the offer such as particularly offers, descriptions, illustrations, drawings, calculations. Any disclosure to third parties by the client requires our express written approval.

3 Subcontracting/transferability

3.1 We shall be entitled to use subcontractors for order fulfilment without prior coordination with or the approval of the client.

3.2 We shall further be entitled to transfer rights and obligations arising from this contract.

4 Confidentiality/disclosure of documents

4.1 The parties agree to keep all information provided by the other contracting party within the context of the order confidential and only disclose the information to third parties with the approval of the contracting party from which it was obtained. This particularly also applies to the offer of Müller-BBM Building Solutions or parts thereof.

The contracting parties further agree to keep all information and documents provided by the other party strictly confidential, even beyond the term of the contract or if a contract is not concluded, and not to make the information accessible to third parties.

4.2 The obligation to observe confidentiality does not apply to information the receiving party was already lawfully aware of prior to receiving the information, lawfully obtained by third parties, or developed by the receiving party independently from the information provided.

The obligation to observe confidentiality also does not apply when required to disclose information to authorities or within the context of judicial proceedings.

4.3 Unless otherwise agreed, documents may also be e-mailed without encryption unless related to personal data concerning third parties.

4.4 Upon request the information provided must be returned or erased. This obligation does not apply to data made available by the client that is relevant to the outcome of the contract until the end of the liability period for defects.

5 Due Dates

5.1 Dates are only binding when agreed in writing. Partial deliveries are permitted and end the delay.

5.2 The agreed dates are subject to correct and timely supply, in particular the client having met his obligations to cooperate. We shall inform of any delays as soon as possible.

5.3 If the client is in default of acceptance or otherwise culpably violates other duties to cooperate, the risk of accidental loss or accidental deterioration of the object of the purchase shall pass to the client upon the client’s default of acceptance or debtor’s delay.

5.4 Claims arising from delay in delivery shall otherwise be determined exclusively according to clause 13.

6 Restrictions due to the COVID-19 or any other pandemic

6.1 Should the global economy as well as the economy in Germany be massively impaired or in some cases completely shut down by the effects of the corona virus or any other pandemic and the resulting extensive governmental and other measures to restrict the national economy and public life, compliance with the contractually agreed services can not be guaranteed.

Müller-BBM Building Solutions shall therefore be released from the respective affected performance obligations for the duration of the disruption caused by a pandemic and to the extent of its effect if and insofar as Müller-BBM Building Solutions is either unable to perform the service or is unable to perform the service on time as a result of circumstances attributable to a pandemic.

6.2 Unless and insofar as not otherwise agreed in the previous provisions, the statutory provisions, in particular on impossibility of performance §§ 275, 326 German Civil Code (BGB) and on frustration of contract § 313 German Civil Code (BGB) as well as any other existing rights and claims of the parties remain unaffected.

6.3 An exclusion or limitation of our liability does not apply to circumstances set out in clause 13.4.

7 Remuneration/Contractual exclusion of setoff Retention

7.1 The agreed remuneration is subject to the statutory value added tax (VAT) applicable on the invoice date. The relevant value added tax shall be shown separately on the invoice. Unless otherwise stated in our offer, our prices shall apply “ex works” excluding packaging.

7.2 Furthermore, we shall be entitled to demand instalment payments for services rendered in accordance with the contract.

7.3 The client shall only be entitled to offset counterclaims insofar as his counterclaims are undisputed or have been legally established.

7.4 The period of payment is 14 days net.

7.5 The client shall only be entitled to retention if the counterclaim is based on the same contractual relationship and is undisputed or has been legally established.

8 Reservation of title

8.1 We reserve ownership and right of use in the object of the agreement until all receivables arising from the contract have been satisfied by the client even if payments have already been made by the client.

In the event of any breach of contract by the client, particularly payment default, subject to prior unsuccessful reminder the client shall be obligated to return the object of the agreement.

Our accepting the return of the object of the agreement shall constitute rescission of the contract.

8.2 The client is entitled to resell the object of purchase in the orderly course of business. However, he already assigns to us all claims up to the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against third parties. In the event of default of payment, we may demand that the customer provides us with all information necessary for the acquisition of the assigned claims, submits the relevant documents and informs the third parties of the assignment.

8.3 In the event that our ownership expires as a result of combining, blending or processing, it shall already be agreed now that ownership of the resulting integrated product shall be transferred to us on a pro rata basis (invoice value) until all claims have been completely settled.

8.4 We shall undertake to release the securities to which we are entitled upon request of the client to the extent that the recoverable value of our securities exceeds the claims being secured by more than 10 %.

8.5 The client shall inform us immediately of any execution measures by third parties against the goods subject to retention of title, stating the documents necessary for an interference. The client shall, irrespective of this, inform the third parties in advance of the existing rights to the subject matter of the contract. The costs of an interference shall be borne by the client insofar as the third party is not capable of reimbursing him.

9 Rights of use

The client shall be granted a non-exclusive, non-transferable, non-sublicensable, free-of-charge right of use in the contracted services resulting from performance of contract for the contracted purpose.

10 Transfer of risk

Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.

11 Liability for defects

The provisions governing contracts of purchase shall apply.

11.1 We warrant the services to be rendered by us comply with the generally recognised rules of technology at the time rendered. We do not assume any guarantees particularly not for contracted qualities.

11.2 The client’s rights in respect of defects are subject to the client giving notice of the relevant defects in due time. § 377 German Commercial Code (HGB) applies accordingly.

11.3 Warranty claims for defects cannot be raised if there is only an insignificant deviation from the agreed quality.

11.4 Any claims by the client arising from measurement methods are further excluded. Warranty is particularly excluded for damages resulting from exposure to speakers or hammer mills, or due to proper use of building service installations. Warranty is further excluded for damages resulting from measures carried out by the client or third parties for testing purposes.

11.5 We reserve the right to determine whether to repair or replace a defective product. In the event we refuse to repair the defect or provide a replacement, particularly when delayed for an unreasonable amount of time for reasons within our control, or if the repair or replacement fails in any other way, the client is at his discretion entitled to demand rescission of contract or a discount (corresponding reduction of the purchase price).

Upon inquiry the client is obligated to notify us within a reasonable amount of time whether he intends to exercise his right to rescind. The right to rescind may only be exercised for material defects.

The right to rescind expires unless exercised by the client within 14 days of receiving notice of rejection or failure of subsequent performance and after having been informed by us in advance of the right to rescind.

11.6 We may refuse subsequent performance if the client fails to meet his payment obligations for the portion of the service free from defect.

11.7 Liability for damages shall be based on clause 13.

12 Liability for defects of title

In the event of a defect of title due to the infringement of third party intellectual property rights we shall only be liable if these rights do exist in the Federal Republic of Germany, the client uses the service owed in accordance with the contract and is justifiably claimed against by the third party in this respect and the client has informed Müller-BBM Building Solutions immediately in writing.

We shall assume no guarantees.

13 Joint and several liability

13.1 We shall only be liable without restriction for deliberate acts and gross negligence, including deliberate acts or gross negligence of our representatives or servants.

Unless we are charged with deliberate acts, liability is limited to the foreseeable typical damage.

13.2 In the case of culpable infringement of material contractual obligations (cardinal obligations) we shall also be liable for ordinary negligence.

In this case our liability is also limited to the foreseeable typical damage.

Material contractual obligations are obligations essential for implemen-tation of the contract and the compliance with which the client has relied on and was entitled to do se.

13.3 In the case of liability for ordinary negligence in infringement of material contractual obligations our liability under the contract and offences for material and financial damages shall be limited to the amount of our remuneration. The liability amount, however, shall be at least 50,000 €.

In the event of consequential damage arising from defects, we shall only be liable if the damage claimed is covered by our liability insurance.

13.4 The exclusion or limitation of our liability and the liability of our representatives or servants does not apply to liability for wrongful harm to life, bodily injury or harm to health.

We shall also be liable without limitation in the absence of qualities which have been expressly warranted in writing if the purpose of the warranty was to protect the client against any damage which did not occur to the object of performance itself.

We shall also be liable without limitation in the event of fraudulent concealment of a defect.

There shall also be no restriction in the case of strict liability, in particular in accordance with the German Product Liability Act (Produkthaftungsgesetz).

Furthermore, any liability according to the principles of recourse of the entrepreneur according to §§ 478 et seq. of the German Civil Code (BGB) shall remain unaffected.

13.5 Unless otherwise stipulated above, liability – irrespective of the legal cause – is excluded.

13.6 The same applies to claims arising from culpa in contrahendo.

13.7 In the event of reimbursement of expenses, with the exception of reimbursement of expenses pursuant to § 439 (2) German Civil Code (BGB), clauses 13.1 to 13.5 shall apply accordingly.

13.8 Any exclusion or limitation of our liability shall also apply to our legal representatives and servants.

13.9 In the event of defective delivery or delay in performance due to disruptions caused by a pandemic, clause 6 shall apply.

14 Statute of limitations

14.1 The client’s rights, irrespective of the legal cause, shall lapse within 12 months, unless otherwise agreed in individual contracts. This does not apply to liability for culpable injury to life, physical injury or injury to health.

14.2 The limitation period shall commence upon the transfer of risk of the purchased product.

14.3 The statutory periods shall apply to claims for damages pursuant to clause 13.4. The same applies to claims for defects for which the law stipulates longer limitation periods. This applies in particular to claims based on deliberate intent, claims according to § 438 para. 1 no. 2 German Civil Code (BGB), furthermore to recourse claims according to § 445b German Civil Code (BGB).

15 Place of performance/Place of jurisdiction/Applicable law

15.1 Unless otherwise stipulated in the contractual agreement, our registered office shall be the place of performance.

15.2 For contracts with merchants or legal entities under public law, the place of jurisdiction is agreed to be the registered office of our company. Müller-BBM Building Solutions has the right to sue the client at his place of jurisdiction.

Legal proceedings are only to be brought before the ordinary courts of law. Arbitration agreements are therefore expressly rejected.

15.3 The Contract shall be governed exclusively by German law with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

16 Formal requirements

All legally relevant declarations and notifications issued by the client and submitted to us require written form.

Date 2023-08

Müller-BBM Building Solutions GmbH
General terms on sale (PDF)