Our General Therms & Conditions

Bornemann‑Etiketten GmbH: General Terms and Conditions of Sale and Supply

§ 1
General: Scope of applicability
(1) Our General Terms and Conditions of Sale and Supply apply exclusively; Other than in cases in which we have expressly agreed to their applicability in writing, any and all customer conditions which diverge from our General Terms and Conditions of Sale and Supply will not be acknowledged. Our General Terms and Conditions of Sale and Supply shall also apply in cases in which we despite having knowledge of contradictory customer conditions or of customer conditions divergent from our own General Terms and Conditions of Sale and Supply opt to supply the customer without express objection.
(2) All agreements made between us and the customer for the purpose of implementation of this contract are set down in writing in this contract.
(3) Our Terms and Conditions of Sale apply only with respect to corporations in the sense of § 310, Para. 1, BGB (German Civil Code).
(4) Our General Terms and Conditions of Sale and Supply apply to all purchase orders, contracts for services and supply contracts.

§ 2
Quotation; Quotation documentation
(1) Our quotations shall be deemed to be subject to modification and non binding unless their binding nature is stated in writing in the quotation.
(2) We reserve ownership rights and copyright to any and all samples, specimens and production documentation, including drawings, prepared by ourselves. This provision shall also be deemed to apply to written documents which are indicated as being "confidential". The customer shall be deemed to require our express written agreement prior to any disclosure/passing on of such material to third parties.
(3) By submitting our samples we do not assume any liability or guarantee for material compatibility with other fabrics. Where we do not provide guarantee of the utilizability of our products for further processing, the customer shall be deemed to bear sole responsibility for this.

§ 3
Prices; Terms and conditions of payment
(1) Where no provision to the contrary is made in the order confirmation, our prices shall be deemed to be "ex works" prices in Euro and not to include packing; packing will be charged separately.
(2) Our prices do not include Value Added Tax; this tax will be shown separately on the invoice at the rate applicable on the day of invoicing. The purchase price has to be paid free of any bank fees.
(3) Where no provision to the contrary is made in the order confirmation, the purchase price shall be due for payment within 10 days (with 4 % discount deductible), 30 days (with 2.25 % discount deductible) and 60 days (net, without deduction), calculated in each case from the date of the invoice. The legal provision concerning the consequences of arrears of payment shall apply. If the customer is in default, he has to bear default interest at a rate of eight percentage points above the basic rate of interest.
The obligation to pay default interest does not exclude us to claim further damages due to default. The reminder charge amounts to 2.50 Euro.
(4) The customer shall have the right of setting off of our invoices only in cases in which his counter claims have been recognized by final judgment or are undisputed or have been recognized by ourselves. In addition, the customer shall be entitled to exercise a right of retention only provided his counter claim(s) result from one and the same contractual relationship.

§ 4
Delivery date
(1) The delivery date stated by ourselves shall start upon complete clarification of all technical matters only.
(2) Our adherence to our obligation to supply shall depend on the customer's complete and correct fulfilment in the specified time of all of his obligations. The right of objection of failure to fulfil shall be reserved.
(3) Where the customer incurs delay in acceptance and/or culpably infringes other obligations to cooperation, we shall be entitled to require reimbursement of any and all loss or damage thus resulting for us, including any extra costs incurred by ourselves. We reserve the right to enforce further and/or more extensive claims for loss or damage.
(4) In cases in which the preconditions of Para. (3) apply, the risk of accidental loss and/or accidental deterioration of the goods shall be deemed to be transferred to the customer at the time at which he incurs delay in acceptance and/or incurs arrears of payment.
(5) We hereby accept liability in accordance with the legal provisions in cases in which the purchase order forming the basis of this contract is a fixed date transaction in the sense of § 286, Para. 2 No. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We also accept liability in accordance with the legal provisions in cases in which the customer is entitled as a result of delay in delivery for which we are responsible to object that continuation of the fulfilment of the contract is no longer in his interest.
(6) We also accept liability in accordance with the legal provisions in cases in which the delay in delivery is the result of our intentional or grossly negligent infringement of the contract; we further accept responsibility for negligence and/or intent on the part of our agents, representatives, officers and/or servants. In cases in which the delay in delivery is not due to our intentional infringement/infringements of the contract, our liability for reimbursement of loss/damage shall be deemed to be restricted to foreseeable loss and/or damage such as may typically and reasonably be expected to occur in this field and under these circumstances.
(7) We also accept liability in accordance with the legal provisions in cases in which the delay in delivery for which we are responsible is the result of culpable infringement of a significant contractual obligation, the infringement of which endangers the achievement of the purpose of the contract. In such cases, however, our liability for reimbursement of loss and/or damage shall be restricted to foreseeable loss and/or damage such as may typically and reasonably be expected to occur in this field and under these circumstances.
(8) In all other instances, we accept liability in case of delay in delivery for every complete week of delay on the basis of liquidated damages for delay of an amount of 0.5 % of the value of the delivery up to a maximum of 5 % of the value of the delivery.
(9) These provisions do not affect the customer's other legal entitlements and rights.

§ 5
Supply quantity   Part delivery   Transfer of risk   Packing costs
(1) The agreed supply quantity shall be deemed to cover for delivery and invoicing of same a deviation of up to 10 % upward or downward in the delivered quantity.
(2) We shall be entitled to make part deliveries of a reasonable and acceptable scope.
(3) We undertake at the customer's request to contract transport insurance for the delivery; the costs for such insurance shall be borne by the customer.

§ 6
Liability for defects and deficiencies
(1) Claims raised by the customer on the basis of defect or deficiency presuppose that the customer has correctly fulfiled his obligations to investigation and notification in accordance with § 377 HGB (German Commercial Code).
(2) In case of a defect or defects in the goods, we shall at our discretion be entitled to remedy performance in the form of either removal of defect or defects or supply of a new and non defective, non deficient good. In case of removal of defect or deficiency, we undertake to bear any and all expenditure necessary for the removal of the defect/deficiency, and, in particular, the relevant transportation, travel, labour and material costs, always provided and to the extent that these costs are not increased by the goods having been taken to a place other than the place of fulfilment of the contract.
(3) Where remedial performance fails, the customer shall at his discretion be entitled to withdraw from the contract or to require a reduction in the purchase price.
(4) We accept liability in accordance with the legal provisions in cases in which the customer raises claims for reimbursement of loss or damage resulting from intent or gross negligence, including intent or gross negligence on the part of our agents, representatives, officers and/or servants. Where no intentional infringement of the contract on our part is involved, our liability for loss and/or damage shall be restricted to foreseeable loss and/or damage such as may typically and reasonably be expected to occur in the field and under these circumstances.
(5) We accept liability in accordance with the legal provisions in cases in which we culpably infringe a significant contractual obligation, the infringement of which endangers the achievement of the purpose of the contract; in such cases, however, our liability for reimbursement of loss and/or damage shall be restricted to foreseeable loss and/or damage such as may typically and reasonably be expected to occur in this field and under these circumstances.
(6) Liability for culpable causing of death, bodily injury and/or detriment to health shall remain unaffected by these provisions; the same provision also applies to mandatory liability under the Product Liability Act.
(7) Other than in the above provisions, any and all liability on our part shall be excluded.
(8) The period of limitation for claims due to defects is twelve months from the transfer of risk. This does not apply in case of intent a fraudulent concealment of a defect or if we assumed a guarantee for the condition of the goods. Furthermore, this does not apply to claims for damages because of injury of life, body or health, in case of compulsory liability pursuant to the Product Liability Act or gross negligence.

§ 7
Overall liability
(1) Any and all further or more extensive liability for reimbursement of loss and/or damage than get forth in § 6 shall irrespective of the legal basis of the claim be excluded. This provision shall apply, in particular, to claims for reimbursement of loss and/or damage resulting from negligence in the making of the contract to any and all other infringements of obligations and to legally admissible claims for reimbursement of loss and/or property damage pursuant to § 823 BGB (German Civil Code).
(2) The limitation of Para. (1) shall also apply in case of claims by the customer not for reimbursement of loss and/or damage but instead for reimbursement of wasted effort and expenditure.
(3) Where our liability for reimbursement of loss and/or damage is excluded or restricted, this shall also apply to the personal liability for reimbursement of loss and/or damage on the part of our employees, agents, representatives, officers and servants.

§ 8
Retention of Title
(1) We reserve ownership of the goods up to such time as all payments due on the basis of the purchase order have been made in full. In case of conduct contradictory to the contract on the part of the customer and, in particular, in case of arrears with payment, we shall be entitled to reclaim the goods. The reclaiming of the goods constitutes withdrawal from the contract. We shall also be entitled following reclamation of the goods to dispose of the goods by way of sale, whereby the proceeds from any sale of the goods, minus reasonable costs of disposal and sale, shall be set off against the customer's debts.
(2) In case of seizure of the customer's assets or other action on the part of third parties, the customer shall be obliged to notify us in writing immediately in order to enable us to start legal action in accordance with § 771 ZPO (Zivilprozessordnung = Federal Rules of Civil Procedure). Where the third party is not able to reimburse to us the legal and out of court costs of any action in accordance with § 771 ZPO (see above), the customer shall liable for the loss incurred by ourselves.
(3) The customer shall be entitled to sell the goods in the course of ordinary business transactions; he shall, however, assign to us any and all amounts receivable up to the amount of the final invoice amount (including VAT) of our amount receivable due to him from his customer or third party from the onward sale, irrespective of whether the goods have been sold on after or without further working or processing. The customer shall be deemed to be entitled to recover such amount receivable even after such assignment. Our entitlement to ourselves recover the amount shall not affected by this provision. We nonetheless undertake, however, not to recover the amount provided the customer meets his or her obligations to payment from the proceeds taken, does not incur arrears of payment and, in particular, provided no application for composition or insolvency procedures or for bankruptcy has been made. Where this is, however, the case, we shall be entitled to require that the customer state to us the amounts receivable assigned and their debtors, provide all the information necessary for recovery, provide the appurtenant documentation and notify the debtors (third parties) about the assignment.
(4) Any working, processing and/or reshaping of the goods by the customer shall in all cases be deemed to have been performed on our behalf. Where the goods are combined or processed with other items or materials which are not our property, we shall acquire co ownership of the new good at the ratio of the value of the goods (final invoice amount, including VAT) to the other items or materials incorporated or processed at the time of such incorporation and/or processing. In all other instances, the same provisions as for goods supplied with reservation of ownership shall be deemed to apply to the good produced as a result of incorporation, processing or combination.
(5) Where the goods are indissolubly combined with and/or incorporated in other items or materials which are not our property, we shall acquire co ownership of the new goods at the ratio of the value of the goods (final invoice amount, including VAT) to the other items or materials combined or incorporated at the time of such combination or incorporation. Where combination or incorporation occurs in such a way that the customer's good is to be regarded as the principal good, it shall be deemed to have been agreed that the customer assign to us correspondingly proportional co ownership. The customer shall hold and keep the sole property or co property thus occurring for us and on our behalf.
(6) The customer shall also assign to us the amounts receivable for securement of our amounts receivable due to him from a third party as a result of combination or incorporation of the goods with a real estate site.
(7) We hereby undertake upon demand by the customer to release the securities to which we are entitled to the extent that the realizable value of such securities exceeds the amounts receivable to be secured by more than 10 %; selection of the securities to be released shall be at our discretion.

§ 9
Miscellaneous provisions
(1) Exclusive venue shall be Wuppertal.
(2) The Law of the Federal Republic of Germany shall apply to this contract; the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
(3) Where no provision to the contrary is made in the order confirmation, our place of business shall be deemed to be the place of fulfilment.
(4) Where a provision or provisions of this contract is or proves to be invalid or null and void or become(s) invalid or null and void, such circumstance shall not affect the validity of all remaining provisions and of the contract as a whole.

Status: February, 2013