Condiciones comerciales generales

Condiciones comerciales generales

General Terms and Conditions of Purchase (GCPs)

Börger GmbH - last updated: November 2020
Valid from 07 December 2020


General Terms and Conditions of Purchase - Börger GmbH

I. Orders and their acceptance

(1) Orders and agreements are binding only when they are placed or confirmed in writing by BÖRGER GmbH, subsequently referred to as BÖRGER. The acceptance of orders must be confirmed to BÖRGER in writing immediately after their receipt.

(2) Implementation of an order placed by BÖRGER is deemed to be a recognition of the BÖRGER conditions. If, under exceptional circumstances, the prices are not agreed in advance, then they must be bindingly stated in the order confirmation. BÖRGER’s right of objection and withdrawal remains unaffected.

(3) These GCPs apply exclusively. The General Terms and Conditions of the supplier (subsequently referred to as LX) which deviate from, contradict, or supplement BÖRGER’s GCPs become a component of the contract only if, and to the extent that, BÖRGER has expressly agreed in writing to their validity. This requirement for agreement applies in every case, e.g. even if BÖRGER, in the knowledge of the vendor’s General Terms and Conditions, accepts the vendor’s deliveries without reserve.


II. Prices

(1) The agreed prices are fixed prices, and are stated - exclusive of the applicable value added tax - with free delivery to the point of use, and inclusive of packing and freight costs. The agreement on the place of execution is unaffected by the type of pricing.

(2) The price indicated in the order is binding. If prices fall between ordering and delivery, then the prices quoted at the time of delivery apply. Price reservations on the part of the contractor trigger a reservation of acceptance on the part of BÖRGER. If non-bindingly agreed prices are increased, then BÖRGER has the option to agree to these or to terminate the contract.

(3) BÖRGER reserves the right to accept over-deliveries.


III. Trading terms

The INCOTERMS in the version valid at the conclusion of a contract apply to the interpretation of trading terms.


IV. Environmental, safety, and other provisions

For the delivery item, the LX is obliged to take all necessary measures of environmental and accident prevention, and to take into account all other official and legal requirements. If the delivery item is intended for a point of use abroad, and this is known to the LX, then the environmental and health and safety provisions which apply there must also be complied with. At the expense of the LX, BÖRGER has the right to demand a certificate from the responsible trade association; this certificate must indicate that all relevant provisions for accident prevention have been complied with.


V. Delivery item

(1) The delivery item must fulfill the intended purpose and the latest state of the art. If, in an individual case, the LX wishes to deviate from the contractually agreed delivery because this is reasonable or necessary, then he must obtain BÖRGER’s written agreement in advance. The obligation of the LX to deliver a product free of defects remains unaffected by BÖRGER’s agreement.

(2) The fundamental safety and health requirements for the design and construction of units as per the specific Safety and Machinery Directives must be complied with.

(3) All documentation, statements, tests, and identifications required by these directives also form part of the scope of delivery. In addition, when supplying units, the LX must at the same time supply a manufacturer’s declaration and, for safety components placed independently on the market, a declaration of conformity as per EC directive 2006/42/EC.

(4) The following applies to the delivery of assemblies, machinery components, and complete aggregates:
    

     (a) The LX bears full responsibility for the process-related design of the 
     delivery item. All data and information required for the design are made 
     available by BÖRGER to the LX upon request.
     
     (b) Components not manufactured by the LX himself are permitted only in 
     accordance with the component description which applies to the respective 
     order. Deviations are permitted only with BÖRGER’s written approval.
     
     (c) Unless expressly otherwise agreed, the delivery item will be painted as per 
     BÖRGER’s requirements in the colors specified for the order.
     
     (d) During commissioning, an acceptance protocol will be created for the 
     delivery item. The limitation period for claims for defects starts from signature 
     of the protocol by BÖRGER or by the end user.

(5) The LX is unconditionally responsible for procurement of the goods and of the supplies and services required for them – even in the absence of fault – (complete acceptance of the risk of procurement), unless something different is agreed on a case-by-case basis (e.g. limitation to stock).


VI. Delivery deadlines and lateness

(1) Part deliveries and/or deliveries before the agreed deadline require BÖRGER’s advance agreement. Additional costs, such as shipping, storage, etc., caused by advance or partial delivery must be borne by the LX, unless these deliveries have been expressly requested by BÖRGER and unless BÖRGER has expressly stated that it is prepared to accept these costs.

(2) The agreed delivery deadlines are binding and must be complied with under all circumstances. If a specific calendar week is agreed as a delivery deadline, then the goods must be delivered no later than Friday 13.00.

(3) If the LX realizes that compliance with a delivery deadline is at risk, then he must inform BÖRGER immediately, in order to make other arrangements possible

(4) BÖRGER has recourse to the statutory claims in the event of lateness. If a contractual penalty was agreed, this does not restrict the assertion of further damages.

(5) If the LX is late with a delivery, then (in addition to further legal claims) for the damages BÖRGER suffers from the delay, for each working day of lateness BÖRGER can demand once-off compensation of 0.1 % of the agreed net order amount, but to an overall sum no greater than 5% of the net order amount. BÖRGER has the right to prove that greater damages than this occurred. The LX has the right to prove that no damage, or a significantly lower level, occurred.


VII. Shipment

(1) The Contractor shall bear the labor and material costs for the loading and for the shipping documents as well as for the customary packaging, unless otherwise stipulated by individual agreement and/or by the agreed INCOTERMS.
(2) For all consignments the specified weights shall be indicated in the documents accompanying the goods. In the case of delivery on call or in the case of interim storage upon BÖRGER’s request, care shall be taken to ensure a proper storage and adequate insurance.
(3) Invoice, delivery note and shipping advice shall be sent to BÖRGER correctly issued.
(4) The Contractor shall be obliged, separately from the delivery of the actual object of delivery, to send a complete documentation according to EN ISO 12100 in the required quantity and execution to the person responsible for the respective order.
(5) The Contractor shall be liable for consequences resulting from incorrect consignment note declarations. The shipping advice shall immediately be submitted on the departure of each individual consignment. If the shipping documents fail to show the designated place of destination, the department, the order number, the reference note or the note of issue, all costs thereby incurred shall be at the Contractor’s expense.
(6) If a price “ex works“ or “ex stock“ was agreed, BÖRGER shall only bear the freight charges in accordance with the BÖRGER procurement logistics of 11/1999. Any costs arising up to the handing over to the freight carrier, including loading and excluding cartage, shall be borne by the Contractor.


VIII. Warranty and Deficiencies

(1) All deliveries shall be made available to BÖRGER free from material defects and deficiencies in title. They shall comply with the agreed condition. The deliveries shall equally be suited for the intended use specified in the contract, or in default of the latter, the usual intended purpose.

(2) The Contractor shall guarantee and make sure that all deliveries are state-of-the-art-deliveries and that they comply with the relevant legal regulations and the regulations and directives of the relevant authorities, insurance associations and professional associations and, - if submitted and/or otherwise brought to attention – that they correspond to the details mentioned in the drawings or to other specifications. Deviations from the specifications shall always be deemed to be substantial breaches of duty, unless BÖRGER them- selves are able to put the product in a state according to specification with quite insignificant effort.

(3) The Contractor shall undertake to use environment-friendly products and processes for his deliveries and services, and also for deliveries and services provided by third parties, as far as economically and technically feasible.

(4) The Contractor shall guarantee the environmental compatibility of the delivered products and packaging materials and their proper disposal. Upon BÖRGER’s request the Contractor shall issue a quality certificate for the delivered products and packaging materials.

(5) If the object of delivery is deficient, which also includes the non-compliance with indicated data, the Contractor shall remedy the deficiency without delay and free of charge, including any extra expenses (including assembly and disassembly costs) at BÖRGER’s option by repair or replacement of the deficient parts or of the complete object of delivery. Apart from the right of subsequent performance BÖRGER shall be entitled to the legal claims,  in particular the right of withdrawal from contract, of  reduction  of price and/or of compensation.

(6) If the Contractor does not fulfill his obligation within an appropriate period of time set as target by BÖRGER, BÖRGER shall be entitled to take the required measures themselves at the Contractor’s costs and risk or to have them taken by third parties, the Contractor’s obligations remaining unaffected by this, and to demand compensation and/or an advance payment for the required expenditures.
If the Contractor‘s subsequent performance fails or BÖRGER cannot be reasonably expected to accept it (e.g., only smaller deficiencies are to be remedied because of particular urgency, the safety being at risk or a risk of an unreasonably great damage being imminent) the setting of a deadline is not needed; the Contractor will be informed about such circumstances without delay, if possible, beforehand.

(7) Unless otherwise agreed by individual agreement, the period of the warranty obligation ends 36 months after the acceptance of the object of delivery by BÖRGER or the handing over to the third party mentioned by BÖRGER at the place of destination and/or use specified by BÖRGER. For repaired deliveries or deliveries delivered in addition the statutory period of limitation of 36 months newly starts with the completion of repair or the handing over of the new delivery. This regulation shall not apply, if the repair is effected as a gesture of goodwill or for reaching an amicable settlement.

(8) The Contractor shall indemnify BÖRGER from any third party claims for damages from product and manufacturer’s liability, the cause of which is the Contractor’s responsibility and for which the Contractor is himself liable towards third parties. In such an event of damage the Contractor shall also be liable for the costs of any product recalls that are   necessary   and  for   those   damages  and   expenditures   which BÖRGER has agreed to pay out of court to third parties, in favorable consideration of the Contractor’s interest.


IX. Property Rights of Third Parties

The Contractor shall guarantee that the delivery and use of the object of delivery does not infringe any protective rights of third parties, in particular patents, utility models, copyrights and competition laws and shall indemnify BÖRGER from all claims asserted by third parties.


X. Drawings, Final Planning Documents, Too

(1) Drawings and other documents, devices, models, tools, other production means and supplies that are handed over to the Contractor remain BÖRGER’s property. The ownership of tools and other production means which are paid by BÖRGER passes on to BÖRGER. The above-mentioned subjects may neither be scrapped nor made available to third parties - e.g., for the purpose of production - without BÖRGER’s written consent. For other than the purposes stipulated in the contract, e.g., for the delivery to third parties – they may not be used. During the execution of the contract they shall properly be stored for BÖRGER by the Contractor at his own costs.

(2) The care, maintenance and repair  of  the above-mentioned objects shall be incumbent on the Contractor, unless otherwise stipulated in the contract.

(3) BÖRGER shall reserve the right to details indicated in drawings made by BÖRGER as well as to processes developed by BÖRGER


XI. Assignment, Set-off and Right of Retention

(1) An assignment of claims against BÖRGER shall only be effective with BÖRGER‘S prior written consent. This also applies to undisclosed assignment.

(2) The Contractor shall not be entitled to set off with asserted claims against BÖRGER without BÖRGER’S prior consent, unless the claim has been ascertained as undisputable and legally binding.

(3) Rights of retention by the Contractor are excluded, unless they are not based on the same contractual relationship.


XII. Place of Performance, Place of Jurisdiction, Applicable Law

(1) Place of performance for the delivery is the place of destination indicated by BÖRGER.

(2) Place of performance for the payment is Borken. Exclusive place of jurisdiction for delivery and payment is Borken. The adjective and substantive law of the Federal Republic of Germany shall apply exclusively and without restriction: to the exclusion of the United Nations Convention of 11/04/1980 on Contracts for the International Sale of Goods.


XIII. Payment

(1) Payments are made once per week, in accordance with the agreed discount conditions.

(2) The payment term shall only start with the day of arrival of the proper invoice at BÖRGER – provided that material and proper documentation were received - , in case of a too early delivery it shall only start from the demanded date of delivery.

(3) Invoices shall be sent in writing and by post. In no case the invoices shall be added to the goods.

(4) The ownership of the supplied material shall be transferred to BÖRGER with the complete payment of the respective object at the latest. Any prolonged or extended reservation of proprietary rights of the Contractor shall be excluded.


XIV. Others

(1) If the Contractor’s assets are subjected to the opening of insolvency proceedings, BÖRGER shall be entitled to retain 10 % of the order amount as security until the expiry of the time limit for defect-related claims. Apart from this BÖRGER shall be entitled to withdraw from the contract for the part of the order not fulfilled yet.

(2) The Contractor shall be obliged to handle any company matters of which he got knowledge within the scope of the contract negotiation and execution and any other information received from BÖRGER with strict confidentiality and to make them available to third parties only with BÖRGER’S consent.