General Terms and Conditions (GTC)
Bänfer GmbH (hereinafter: “Bänfer”), represented by its Chief Executive Officer (CEO) Jörn Bänfer, carries out your orders on the basis of the following General Terms and Conditions (hereinafter: “GTC”).
- Our offers, services and deliveries as well as the conclusion and execution of the contract shall be based exclusively on these GTC of sale. These GTC shall be deemed to have been accepted by our contractual partner (hereinafter: “Buyer”) at the latest upon receipt of the goods or services. Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing.
- These GTC of sale shall also apply to all future transactions between the parties and also if we carry out the delivery of the goods in the knowledge of deviating or conflicting terms and conditions.
Our offers are subject to change and non-binding. Declarations of acceptance and all orders shall only become legally effective upon our written confirmation or confirmation by fax.
Verbal promises made prior to the conclusion of this contract are not legally binding and shall only become legally effective upon our written confirmation or confirmation by fax. If we do not specifically confirm in writing a contract concluded orally or by telephone, the invoice issued by us shall be deemed to be the confirmation.
- The prices stated and agreed by the contracting parties, which are reflected in an order confirmation, shall be decisive.
- Our prices do not include packaging and shipping costs, the respective statutory value-added tax, customs duties for export deliveries, and fees and other public charges.
- Delivery is ex works.
The Buyer must provide for appropriate unloading personnel. All deliveries that are not carried out with our own trucks will be dispatched by forwarding agent or rail at the cost and expense of the Buyer or at the cost of our customer – after consultation. In this case, the Buyer shall also bear the costs of any transport insurance requested by him.
Corresponding freight documents must already be provided when the order is placed (i.e. delivery note and railway or forwarding documents). Delays due to late submission of the freight documents shall be borne by the Buyer. We charge a flat-rate fee of 5.00 EUR/order if the corresponding freight documents are prepared by us.
- In principle, deliveries to the Buyer’s warehouse are made without packaging or, in the case of large-volume goods, with free dust packaging, depending on the item. Delivery with freight packaging shall only be made upon express request. The prices set out in the respective price list at the time of the conclusion of the contract shall apply.
- Unless otherwise agreed in writing, our invoices are payable within 10 days of the invoice date with a 3% discount or within 28 days of the invoice date and delivery or acceptance of the goods without deduction. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
- Upon expiry of the last-mentioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB of the German Commercial Code) remains unaffected.
- A payment shall only be deemed to have been made when we can dispose of the amount. In the case of submission of a cheque and bills of exchange, this payment shall only be deemed to have been made upon encashment.
- Payments by bill of exchange must be agreed in writing in advance.
- All costs associated with the payment, in particular all discount and bill of exchange costs incurred, shall be borne by the Buyer.
- If the Buyer does not fulfil his payment obligation, in particular if a cheque cannot be cashed or if he stops his payment or if we become aware of other circumstances which call into question the creditworthiness of the Buyer, we are entitled to call due the entire remaining debt, even if we have accepted cheques. In this case we are also entitled to demand advance payments or securities and to withdraw from current contracts – if necessary after setting a deadline. The statutory regulations on the dispensability of setting a deadline remain unaffected.
- The Buyer is only entitled to set-off, retention or reduction, even if notices of defects and counterclaims have been asserted, if the counterclaims have been legally established or recognised by us.
- We reserve the right to agree the delivery period for each individual order or call. The date of the final confirmation letter shall be decisive for the specification of the delivery time. The stated delivery times shall be deemed to be approximate. They are not fixed dates within the meaning of § 376 HGB.
- An agreed delivery period shall always commence only upon conclusion of the contract, but not before complete provision of the documents to be provided by the Buyer and also not before receipt of an agreed prepayment.
- Subsequent requests for changes and additions by the Buyer shall extend the delivery time appropriately.
- Delivery dates and deadlines refer to the time of dispatch ex works.
- Damages due to delayed delivery are excluded, other claims for damages with the exception of liability for damages resulting from injury to life, body or health are limited to cases of delays caused intentionally and by gross negligence.
- We shall not be liable for delays in delivery and performance due to force majeure and due to other events which were not foreseeable at the time of conclusion of the contract and for which we are not responsible and which make delivery significantly more difficult or impossible for us – this also includes difficulties in procuring materials, operational disruptions of any kind, strike, lockout, shortage of personnel, shortage of means of transport, official directives, shortage of energy, fire, mobilisation and war, blocking of railway lines, pandemics (e.g. the COVID-19-pandemic) or due to other causes. Such events entitle us to cancel the delivery contract in whole or in part if the hindrance is not only of temporary duration. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period.
- We are entitled to partial delivery and partial performance of separately usable products included in an order, whereby we shall bear the additional shipping costs caused thereby. However, if the partial delivery or partial performance takes place at the request of the customer, the customer shall bear the shipping costs of the respective partial deliveries or partial performances.
- The goods delivered by us remain our property until full payment of the purchase price. If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), we reserve ownership of the delivery item until full settlement of all claims to which we are entitled against the Buyer from the entire business relationship, including any costs and interest. This also applies to the inclusion of individual claims in a current account. Despite the reservation of title, the Buyer shall bear the risk of loss or insurance of the goods. The Buyer is obliged to store and secure the reserved goods carefully and free of charge.
- The Buyer is entitled to resell the goods subject to retention of title in the ordinary course of business. If the purchased goods are resold by the Buyer, the Buyer hereby assigns to us the purchase price claims to which he is entitled from such sales, including all ancillary rights, up to the amount of these claims, regardless of whether this resale takes place before or after any processing of the goods delivered under retention of title. We hereby accept this assignment.
- The Buyer undertakes in any case, at our request, to notify his customer of this assignment and to provide us with the information we require to assert our rights. We revocably authorise the Buyer to collect the claim assigned to us for our account in his own name. The direct debit mandate can only be revoked if the Buyer does not properly fulfil his payment obligations, an application for the opening of insolvency or similar proceedings has been filed or there is a lack of the Buyer’s ability to pay.
- Pledges or transfers of ownership by way of security on the part of the Buyer are not permitted. In addition to the assignment already regulated with regard to the claim from a resale, the Buyer already now assigns to us in full all claims arising from another legal ground (e.g. insurance, tort) with regard to the reserved goods.
- Our right of ownership extends to new goods created by processing, mixing, blending or filling; in the event of processing of the delivered goods or their combination with third-party material, we shall acquire co-ownership of the new item produced in the ratio of the value of the reserved goods to the value of the new item created by processing. The time of processing shall be decisive for the valuation both for the value of the reserved goods and for the value of the processing. During processing, the Buyer shall act for us as manufacturer without thereby acquiring claims against us due to the processing. The Buyer is obliged to keep the reserved goods for us carefully and free of charge. If we do not acquire co-ownership when combining several items, the Buyer shall already transfer to us by legal transaction the co-ownership share determined in accordance with the provision contained in sentences 2 and 3 of this paragraph in the ratio of the value of the delivered goods subject to retention of title to the value of the new item created by processing.
- If the realisable value of the securities exceeds the claims to which we are entitled by more than 10 %, we are obliged to release the exceeding part of the securities to which we are entitled to the Buyer at his request, at our discretion.
- The Buyer shall notify us immediately in writing by registered letter if execution is levied against goods subject to retention of title or goods which are co-owned by us as well as against claims which have been assigned to us by way of assignment in advance. The Buyer shall immediately notify the enforcement body and the enforcement creditor that the goods are still in our reserved ownership or in our co-ownership or that the claim has been assigned to us.
- In the event of breach of contract by the Buyer – in particular default of payment – we shall be entitled to take back the reserved goods or, if applicable, to demand assignment of the Buyer’s claims for return against third parties. The taking back or seizure of the goods subject to retention of title by us does not constitute a withdrawal from the contract, unless mandatory statutory provisions to the contrary apply.
- If dispatch is delayed through no fault of our own, the risk shall pass to the Buyer upon receipt of the notification of readiness for dispatch.
- Damage and losses occurring during transport shall be borne by the Buyer.
In the event of transport damage, a statement of the facts must be arranged immediately with the responsible transport company.
- The incoming goods shall be inspected immediately upon delivery to the Buyer or to the third party designated by him for any transport damage; such damage shall be noted on the consignment note or other transport documents. In addition, the incoming goods must be inspected carefully immediately after delivery, in particular for any manufacturing defects. The goods shall be deemed to have been approved by the Buyer with regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful inspection if we do not receive a notice of defect within seven days of delivery.
- This does not apply to hidden defects. With regard to hidden defects, the goods shall be deemed to have been approved by the Buyer if the notice of defect is not received by us within seven days of the time at which the defect became apparent.
- Subsequent claims due to any defects shall not be recognised.
- Any incompleteness must be objected to in writing immediately upon receipt of the consignment.
- Flawless goods and items are excluded from exchange & return.
- Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax), to Bänfer itself, not to its employees/drivers. Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, shall remain unaffected.
- Claims from supplier recourse are excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product.
- If the goods are defective or if warranted characteristics are missing and if the recipient has complained about these in good time, we are initially obliged, at our discretion, to repair the defective items or to replace them with faultless items. If, however, our rectifications or our replacements fail, the Buyer may, at his option, demand a reduction of the remuneration or rescission of the contract. The statutory provisions shall apply to the limitation of warranty claims.
- We shall be liable for damages – irrespective of the legal grounds – within the scope of culpability in the event of intent and gross negligence on our part or on the part of our representatives or vicarious agents; likewise in the event of culpable breach of essential contractual obligations. Insofar as there is no intentional breach of contract, our liability for damages shall be limited to the value of the goods delivered.
- We accept liability for our products only in the case of normal use or proper treatment (e.g. in sports lessons). Liability is excluded, for example, in the case of external impact by hard objects, which has led to cracks and the like, and also in the case of improper grinding of the sports mats over floors, which increases the risk of damage. Furthermore, we shall not be liable if the goods have been modified by the Buyer after delivery. This also applies if repair work is/was not carried out by us for reasons for which we are not responsible.
- The limitation period for claims for defects is one year from the transfer of risk. This shall not apply insofar as the law pursuant to §§ 438 para. 1 no. 2 (buildings and objects for buildings), 478, 479 (Supplier recourse) and 634 a para. 1 no. 2 of the German Civil Code, BGB („Bürgerliches Gesetzbuch”) (construction defects) prescribes longer periods as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by Bänfer and in the event of fraudulent concealment of a defect.
- The above limitations of liability do not apply to liability on our part for culpable injury to life, limb or health, for guaranteed characteristics and liability under the Product Liability Act. In all other respects, our liability is excluded.
If the Buyer fails to meet the agreed acceptance deadline, we are entitled to claim damages for default. Optionally, we may also withdraw from the contract in accordance with § 323 BGB. The right to claim damages remains unaffected by this. We are also entitled to store the goods elsewhere if the Buyer’s obligation to take delivery is delayed by more than four weeks and we are not responsible for this delay. This shall be for the account and at the risk of the Buyer.
- The place of performance for all claims arising from the business relationship or from the individual contract is 34537 Bad Wildungen.
- The Fritzlar Local Court shall have jurisdiction over all disputes without regard to the amount in dispute.
- All contractual relationships with Bänfer shall be governed by German Law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- Subsidiary agreements, assurances, amendments or supplements to the contract require our written confirmation.
- Should individual provisions of these GTC or other contractual agreements be invalid in whole or in part, the remaining provisions shall remain valid.
- In place of the invalid provision, such valid and enforceable provision which the parties – taking into account the economic purpose of the business relationship – would reasonably have agreed if they had known at the time of entering into this Agreement that the relevant provision was invalid, unenforceable or missing, shall be deemed to have been agreed by the parties.