Legal
Terms and Conditions
General Terms and Conditions of Purchase
As of May 2021
Bergmann Maschinenbau GmbH & Co. KG, 49716 Meppen
§ 1 General – Scope
1. These General Terms and Conditions of Purchase (GTC) apply to all business relationships with our business partners and suppliers. The GTC only apply if the supplier is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2. Our GTC apply exclusively; we do not recognize any terms and conditions of the supplier that conflict with or deviate from our terms and conditions of purchase unless we have expressly agreed to their validity in writing. Our terms and conditions of purchase also apply if we accept the supplier’s delivery without reservation despite knowing that the supplier’s terms and conditions conflict with or deviate from our terms and conditions of purchase.
3. The GTC apply in particular to contracts for the sale and/or delivery of movable items (“goods”), regardless of whether the supplier manufactures the goods itself or purchases them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Purchase in the version valid at the time of the buyer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
4. Legally relevant declarations and notifications from the supplier in relation to the contract (e.g. setting a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and other evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.
5. References to the validity of statutory provisions are only intended to clarify. Even without such clarification, the statutory provisions therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions of Purchase.
6. Individual agreements made with the supplier in individual cases (including ancillary agreements, additions and changes) always take precedence over these General Terms and Conditions of Purchase. A written contract or our written confirmation is decisive for the content of such agreements, unless there is evidence to the contrary.
§ 2 Offer – offer documents – conclusion of contract
1. We are bound to the offer to conclude a purchase contract (order) for two weeks. The supplier can only accept the offer within these two weeks by making a written declaration to us with the minimum content of price, quantity and delivery time (order confirmation).
2. The supplier is obliged to confirm our order in writing within a period of 3 weeks or, in particular, to execute it without reservation by sending the goods (acceptance)
3. Orders and delivery requests as well as their changes and additions must be made in writing. Subsidiary agreements and changes to the order/contract, including this written form requirement, must also be in writing to be effective, unless they were demonstrably negotiated between the parties.
4. We reserve ownership and copyright to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They are to be used exclusively for production based on our order; after the order has been processed, they must be returned to us without request. They must be kept secret from third parties; in this respect, the provisions of Section 11 apply in addition.
§ 3 Prices – Terms of payment
1. The price stated in the order is binding. In the absence of a different written agreement, the price includes delivery “delivered, duty paid” (Delivered Duty Paid, Incoterm 2020) Essener Straße 7, 49716 Meppen including packaging. The return of the packaging requires a special agreement.
2. The statutory sales tax is included in the price.
3. Our order number, article number, delivery quantity and delivery address must be stated in all order confirmations, delivery documents and invoices. If one or more of these details are missing and this delays our processing as part of our normal business operations, the payment periods specified in paragraph 4 will be extended by the period of delay.
4. Unless otherwise agreed in writing, we will pay the purchase price within 14 days from delivery and receipt of the invoice, with a 3% discount, or within 30 days of receipt of the invoice net.
5. We are entitled to set-off and retention rights to the extent permitted by law.
6. In the event of late payment, we owe default interest of five percentage points above the base interest rate in accordance with Section 247 of the German Civil Code.
§ 4 Delivery time
1. The delivery time specified in the order is binding. In particular, the reservation of timely self-supply is excluded. The decisive factor for compliance with the delivery period or delivery date is the receipt of the goods at the place of receipt specified in the order or in the contract. Early deliveries are not permitted.
2. The supplier is obliged to inform us immediately in writing if circumstances arise or become apparent to him which indicate that the agreed delivery time cannot be met.
3. In the event of delays in delivery, we are entitled, after prior written warning to the supplier, to demand a contractual penalty of 0.5%, up to a maximum of 5%, of the respective order value for each week of delay in delivery. The contractual penalty is to be offset against the damage caused by the delay to be compensated by the supplier. Further claims and rights remain reserved. Both we and the supplier also reserve the right to prove that no damage was incurred or that lower or higher damage was incurred.
4. The unconditional acceptance of the delayed delivery does not constitute a waiver of the claims to which we are entitled due to the delayed delivery.
5. Partial deliveries are generally not permitted unless we have expressly agreed to them and they are reasonable for us. Deliveries before the agreed delivery date are only permitted if we have expressly agreed to them. In the case of delivery before the agreed delivery date, the payment period does not begin until the day of the originally agreed delivery date.
6. If the supplier’s financial situation deteriorates during the term of the order in a way that seriously endangers the fulfillment of the contract, he stops making payments (even temporarily), an application for the opening of insolvency proceedings is filed against him and the implementation of the insolvency proceedings is rejected due to insufficient assets, we are entitled to withdraw from the contract for the part not fulfilled. We are entitled to withdraw completely if partial fulfillment is of no interest to us.
§ 5 Transfer of risk – documents
1. Unless otherwise agreed in writing, delivery must be made “delivered, duty paid” (Incoterm 2020) Essener Straße 7, 49716 Meppen.
2. The supplier is obliged to state our order number and article number exactly on all shipping documents and delivery notes; if he fails to do so, we are not responsible for delays in processing.
3. Even if shipping has been agreed, the risk is only transferred to us when the goods are handed over to us at the agreed destination.
§ 6 Defect investigation – liability for defects
1. Our rights in the event of material and legal defects in the goods (including incorrect and incomplete deliveries as well as improper assembly, defective assembly, operating or user instructions) and in the event of other breaches of duty by the seller are subject to the statutory provisions, unless otherwise specified below.
2. The statutory provisions (§§ 377, 381 HGB) apply to the commercial obligation to inspect and give notice of defects with the following proviso: Our obligation to inspect is limited to defects that are clearly apparent during our incoming goods inspection under external inspection including the delivery documents (e.g. transport damage, incorrect and incomplete deliveries) or that are recognizable during our quality control in a random sample procedure. If acceptance has been agreed, there is no obligation to inspect. In all other respects, it depends on the extent to which an inspection is feasible in the normal course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected. Without prejudice to our obligation to inspect, our complaint (notification of defects) is deemed to be immediate and timely if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
3. The supplier guarantees that its deliveries and services, including their labeling, comply with all legal provisions, official regulations and trade practices in the Federal Republic of Germany and EU standards and do not infringe the rights of third parties, in particular the industrial property rights of third parties, and are also not encumbered with the rights of third parties. This also applies in particular to goods of foreign origin.
4. The supplier guarantees that the goods in terms of form, presentation, packaging and quality comply with the recognized rules of technology and all safety and accident prevention regulations.
5. If we incur damage due to non-delivery, partial delivery, defective delivery or incorrect delivery for which the supplier is responsible, the supplier must compensate us for any damage. The claim for damages to be compensated also includes the claims for consequential damages recognized by law, in particular compensation for lost profits.
6. We are otherwise entitled to the statutory claims for defects in full. In any case, we are entitled to demand that the supplier remedy the defect or deliver a new item at our discretion. In this case, the supplier is obliged to bear all expenses required for the purpose of remedying the defect or making a subsequent delivery. In the event of imminent danger or in the event of great urgency, we are entitled to remedy the defect ourselves at the supplier’s expense. The right to compensation, in particular the right to compensation in lieu of performance, is expressly reserved.
7. Subsequent performance also includes the removal of the defective goods and their reinstallation, provided that the goods have been installed in or attached to another item in accordance with their type and intended use; our statutory claim to reimbursement of corresponding expenses remains unaffected. The seller shall bear the expenses required for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of unjustified requests for the rectification of defects remains unaffected; however, we are only liable in this respect if we recognized or grossly negligently failed to recognize that there was no defect.
8. The warranty also applies in full to parts from the supplier’s subcontractors.
9. Claims for defects – regardless of the legal basis – expire 36 months after the transfer of risk. Longer statutory limitation periods remain unaffected.
10. If the supplier fulfills its obligation to provide subsequent performance by supplying replacement parts, the limitation period for the goods supplied as replacements begins again after their delivery.
§ 7 Product liability – indemnification – liability insurance cover
1. If the supplier is responsible for product damage, he must indemnify us against third-party claims to the extent that the cause lies within his sphere of control and organization and he is himself liable in external relations.
2. As part of his indemnification obligation, the supplier must reimburse expenses in accordance with §§ 683, 670 BGB that arise from or in connection with a claim by third parties, including recall campaigns carried out by us. We will inform the supplier about the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further statutory claims remain unaffected.
3. The supplier undertakes, at his own expense, to maintain product liability insurance with a coverage amount of EUR 10 million per personal injury/property damage. If we are entitled to further claims for damages, these remain unaffected. The supplier must provide us with proof of coverage upon request.
§ 8 Third-party property rights
1. The supplier guarantees that its delivery/service and its use do not infringe any patents or other third-party property rights at home or abroad. The supplier shall indemnify us on first request against all third-party claims arising from an alleged possible infringement of rights and shall reimburse us for all expenses required to avert them. In the event of an infringement of third-party rights, we are entitled to clarify the alleged infringement in court at the supplier’s expense, but only obliged to do so if the supplier provides us with the expected costs in advance.
2. If the use of the delivery is impaired by existing third-party property rights, the supplier must either acquire the corresponding approval at its own expense or modify or replace the affected parts of the delivery in such a way that the use no longer conflicts with third-party property rights and at the same time complies with the contractual agreements.
§ 9 Retention of title – provision – tools
1. If we provide parts to the supplier, we retain ownership of them. Processing or transformation by the supplier is carried out for us. If our reserved goods are processed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of our item (purchase price plus VAT) to the other processed items at the time of processing.
2. If the item provided by us is inseparably mixed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of the reserved item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the supplier’s item is to be regarded as the main item, it is agreed that the supplier transfers proportionate joint ownership to us; the supplier keeps the sole ownership or the rental property for us.
3. We retain ownership of tools; the supplier is obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at their new value against fire, water and theft at his own expense. At the same time, the supplier hereby assigns to us all claims for compensation from this insurance; we hereby accept the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work on our tools as well as all maintenance and repair work in a timely manner at his own expense. He must notify us of any malfunctions immediately; if he negligently fails to do so, claims for damages remain unaffected.
4. If the security rights to which we are entitled under clause 1 and/or clause 2 exceed the purchase price of all of our unpaid reserved goods by more than 10%, we are obliged to release the security rights at our discretion at the request of the supplier.
§10 Supplier recourse
1. We are entitled to our legally determined recourse claims within a supply chain (supplier recourse according to §§ 445a, 445b, 478 BGB) in addition to the claims for defects without restriction. In particular, we are entitled to demand from the seller exactly the type of subsequent performance (repair or replacement delivery) that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) is not restricted by this.
2. Before we recognize or fulfill a claim for defects asserted by our customer (including reimbursement of expenses according to §§ 445a para. 1, 439 paras. 2 and 3 BGB), we will notify the seller and ask for a written statement with a brief explanation of the facts. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by us is deemed to be owed to our customer. In this case, the seller is responsible for providing evidence to the contrary.
3. Our claims for recourse against suppliers also apply if the defective goods were further processed by us or another company, e.g. by incorporating them into another product.
§ 11 Confidentiality
1. The supplier is obliged to keep all information provided by us as part of the contractual relationship secret and to use this information exclusively for the purposes of the respective order processing. The supplier may not pass this information on or make it accessible to third parties, with the exception of passing it on to employees, agents and consultants who are involved in the processes and who absolutely need the confidential information for their work. The supplier guarantees and warrants that this agreement is also observed by these persons; he will oblige them to the same extent.
2. Confidential information within the meaning of these General Terms and Conditions of Business is all information, notes, documents, data carriers, drawings, samples and other documents, regardless of whether they are transmitted verbally, in writing, electronically or in any other way, which the supplier receives with regard to the business relationship with us and its initiation as well as the respective order processing, as well as all written or other information, documents and documents that contain information about principles, working methods, production, new developments, improvements, ideas, goals, customer data and other details and information from and about us. In addition, confidential information includes information about the business relationship between the parties, its scope and its specific form.
3. The confidentiality agreement does not apply to information which, at the time of disclosure,
• is generally known;
• is published;
• is part of general technical knowledge;
• is generally state of the art;
• is individually known to the supplier. The supplier will inform us in writing about such prior individual knowledge;
after the time of disclosure,
• becomes generally known without any action by the supplier that violates the confidentiality agreement;
• is made known to the supplier individually by third parties without these third parties violating a
confidentiality obligation regarding the confidential information;
• is discovered or developed by the supplier independently and independently of the confidential information;
• is made public by us in writing;
• must be disclosed in accordance with mandatory legal regulations.
4. In the event that the supplier is legally obliged to disclose confidential information to third parties, he will notify us of this in advance, immediately after he himself has become aware of this obligation. The supplier will only pass on or publish that part of the confidential information to third parties that the supplier is obliged to pass on or publish in accordance with the relevant legal provisions.
5. Documents and other records containing confidential information that are handed over to the supplier must be returned on first request. This also applies to copies of all kinds. Documents containing such confidential information that are created or further processed by the supplier must be destroyed on request and the completeness of the return and destruction must be confirmed in writing.
6. The confidentiality obligation continues to apply even after the collaboration or the order has ended, as long as the information received has not become public knowledge through no fault of the supplier, its employees, consultants or other persons commissioned by the supplier in any way, for which the supplier bears the burden of proof.
7. For each case of culpable violation of the above confidentiality obligations, the supplier undertakes to pay a contractual penalty to be determined by us at our reasonable discretion and to be reviewed by the competent court in the event of a dispute. The right to claim further damages, however, subject to full deduction of the contractual penalty, remains unaffected.
12. Liability for antitrust violations
1. If the supplier was demonstrably involved in a restriction of competition that is prohibited under European or national law and that affected the service we purchased, we are entitled to a flat-rate claim for damages for the period of proven participation in the violation (“relevant period”).
2. In the case of proven price and customer agreements, the flat-rate claim for damages amounts to 5% of the turnover in relation to the cartel-affected services provided by suppliers to us in the relevant period.
3. In the case of an impermissible exchange of information, the flat-rate claim for damages amounts to 0.3% of the turnover in relation to the cartel-affected services provided by suppliers to us in the relevant period, but not more than EUR 25,000.
4. The supplier is free to prove that the damage was lower. We are free to assert further claims for damages.
5. The obligation to pay damages also applies if the term of the contract has already expired at the time the claims are asserted or the contract has been terminated.
6. Participation in an inadmissible restriction of competition is proven by a legally binding decision of an authority or a court or by the conclusion of a corresponding settlement.
§ 13 Assurance of compliance with §1 MiLoG and other regulations
The supplier guarantees that all workers employed by him will be paid at least in accordance with the requirements of §§1,2 and 20 of the Minimum Wage Act and other legal provisions and collective agreements for the compliance with which the client is liable under § 14 of the Posted Workers Act and/or other comparable regulations.
§ 14 Transfer of risk – REACH documents
The supplier guarantees that its deliveries comply with the provisions of Regulation EC 1907/2006 on the registration, evaluation, authorization and restriction of chemicals (REACH regulation). The substances contained in the supplier’s products are pre-registered, as required under the provisions of the REACH regulation, or registered after the expiry of the transitional periods, unless the substance is exempted from registration. The supplier provides safety data sheets or the information required under Art. 32 of the REACH regulation in accordance with the provisions of the REACH regulation. On request, the supplier will also provide us with the information in accordance with Art. 33 of the REACH regulation.
§ 15 Energy efficiency
The products and services ordered must be designed in accordance with the legal framework and standards of energy efficiency. We expect the products to be manufactured in an environmentally friendly and energy-efficient manner. Suppliers who are certified according to DIN EN ISO 14001 or EMAS and DIN EN 16001 are preferred.
§ 16 Place of performance – Place of jurisdiction – Applicable law
1. The place of performance for all deliveries and services is the place of handover or acceptance determined by us.
2. The law of the Federal Republic of Germany applies, excluding the reference standards of German international private law and the UN Convention on Contracts for the International Sale of Goods.
3. If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship is our place of business in Meppen. The same applies if the seller is an entrepreneur within the meaning of Section 14 of the German Civil Code. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a priority individual agreement or at the general place of jurisdiction of the seller. Priority statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.
Rental agreement conditions
General rental contract terms and conditions
As of June 2015
§ 1 General – Scope
1. The following terms and conditions apply exclusively to rental contracts of Bergmann Maschinenbau GmbH & Co. KG and Bergmann Baumaschinen GmbH (hereinafter referred to as
“lessor”). The lessor does not accept any conditions of the lessee that conflict with or deviate from these general rental contract terms and conditions (hereinafter referred to as “GTC”), unless they are expressly confirmed in writing by the lessor.
2. These GTC apply in their respective versions as a framework agreement for all future transactions of the same type with the lessee, without the lessor having to refer to them again in each individual case; in this case the lessor will inform the lessee immediately of any changes.
3. Individual agreements made with the lessee in individual cases (including ancillary agreements, additions and changes) always take precedence over these GTC. A written contract or written confirmation from the lessor is decisive for the content of such agreements.
4. Legally relevant declarations and notifications that the tenant must make to the landlord after the contract has been concluded must be in writing to be effective.
5. These AMB only apply to entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code.
Section 2 Offers – General rights and obligations of landlord and tenant
1. Unless otherwise stated, the landlord’s rental contract offers are subject to change.
2. The landlord undertakes to rent the rental object to the tenant for the agreed rental period.
3. The tenant undertakes to use the rental object only for its intended purpose, in particular to carefully observe the relevant accident prevention and occupational health and safety regulations as well as road traffic regulations, in particular with regard to loading and transport of the rental object, to pay the rent as agreed, to treat the rental object properly and to return it cleaned and, if necessary, with a full tank at the end of the rental period.
4. The tenant is obliged to inform the landlord immediately upon request of the current location or place of use of the rental object and any intended change of location or place of use.
§ 3 Default by the landlord
1. In the event of default, the landlord is entitled to provide the tenant with a functionally equivalent rental object to remedy the damage, provided this is reasonable for the tenant.
2. The landlord is liable in accordance with the statutory provisions in the event of impossibility and delay in performance, insofar as this is due to intent or gross negligence, including intent or gross negligence on the part of the landlord’s representatives or vicarious agents. In cases of gross negligence, however, the landlord’s liability is limited to the foreseeable damage typical for the contract.
3. In the event of slight negligence, the landlord’s liability for impossibility is limited to compensation for damages and reimbursement of wasted expenditure per working day to a maximum of the amount of the daily net rental price. Further claims by the tenant due to impossibility of performance are excluded.
4. In addition, the landlord’s liability for delay in the event of slight negligence is limited to compensation for damages in addition to the service per working day, to a maximum of the amount of the daily net rental price. Further claims by the tenant due to delay in the service are excluded – even after expiry of a deadline set for us to provide the service. These regulations also apply to the reimbursement of wasted expenditure.
5. The restrictions of this Section 3, points 2 to 4 do not apply if liability is incurred due to injury to life, body or health or due to the violation of essential contractual obligations. Essential contractual obligations are those whose fulfillment characterizes the contract and on which the tenant can rely. The above regulations do not involve a change in the burden of proof to the detriment of the tenant.
§ 4 Defects when the rental object is handed over
1. The tenant is entitled and obliged to inspect the rental object in good time before the start of the rental period and to report any defects. The tenant bears the costs of an inspection.
2. Defects that are visible when the object is handed over and that significantly affect the intended use can no longer be complained about if they are not reported to the landlord in writing immediately after the inspection. Other defects that were already present when the object was handed over and that could not be identified through an appropriate inspection (hidden defects) must be reported in writing immediately after discovery.
3. The landlord must remedy defects that were present when the object was handed over and that were reported in good time. At the landlord’s discretion, he can also have the tenant carry out the repair; in this case, the landlord bears the necessary costs. The landlord is also entitled to provide the tenant with a functionally equivalent rental object if this is reasonable for the tenant. In the event of significant impairments to the rental object, the tenant’s obligation to pay is postponed by the time during which the suitability for contractual use is no longer met. For the period during which the suitability is reduced, the tenant only has to pay an appropriately reduced rent. An insignificant reduction in suitability is not taken into account.
§ 5 Limitation of liability of the landlord in the event of defects
1. The landlord’s liability regardless of fault for defects in the rental property that existed when the rental agreement was concluded is excluded – subject to § 4.
2. If the life, body or health of the tenant or his employees is injured by a defect that arises later, the landlord is nevertheless liable if he, his legal representative or his vicarious agents can be accused of intent or gross negligence or if the landlord was in default with the elimination of the
defect. The same applies to the culpable violation of essential contractual obligations. Essential contractual obligations are those whose fulfillment characterizes the contract and on which the tenant can rely. The landlord is only liable for other defects, breaches of duty and damage that arise later if he or his vicarious agents can be accused of intent or gross negligence.
3. Mandatory liability under the Product Liability Act remains unaffected.
4. The exclusion of liability does not apply if the landlord has specifically guaranteed that the rental property is free of defects or a certain property or has fraudulently concealed a defect.
§ 6 Limitation of liability in other respects
1. Any further liability for damages than that provided for in detail in the above conditions is excluded – regardless of the legal nature of the claim asserted. This applies in particular to claims for damages due to negligence when concluding the contract, due to other breaches of duty or due to tort claims for compensation for property damage in accordance with § 823 BGB. In addition, the landlord is not liable if the tenant is held liable under the provisions of industrial property law.
2. The limitation also applies if the tenant demands compensation for wasted expenditure instead of a claim for compensation for damages instead of performance.
3. If liability for damages is excluded or limited towards the landlord, this also applies with regard to the personal liability for damages of his employees and workers, employee representatives and vicarious agents.
§ 7 Limitation Period
1. In deviation from § 548 BGB, the landlord’s claims for compensation due to changes or deterioration of the rental property expire one year from the time the landlord receives the rental property back.
2. The tenant’s claims against the landlord – regardless of the legal basis – also expire one year after they arise. This does not apply in the case of intent or fraudulent concealment of a defect or if the landlord has given a guarantee. This limitation period also does not apply to claims for damages in cases of injury to life, body, health or freedom, in the case of claims under the Product Liability Act or in the case of a grossly negligent breach of duty or the breach of essential contractual obligations; essential contractual obligations are those whose fulfillment characterizes the contract and on which the tenant can rely. The above provisions do not involve a change in the burden of proof to the detriment of the tenant.
§ 8 Rental price and payment, assignment to secure the rental debt
1. The rental price for the intended rental period and its due date are set out in the rental agreement.
2. For overtime of the device that exceeds the contractually agreed daily working hours of the device, the rental fee is 1/40 of the weekly rental fee per overtime hour.
3. The costs for the outward and return transport, including loading and unloading time and empty journeys, are borne by the renter. The renter bears the risk for the rental item for the entire period from the time of handover to the time of return delivery.
4. Unless otherwise stated, all prices are exclusive of statutory VAT at the applicable rate. Unless otherwise agreed, payment of the invoice must be made immediately, net, without any discount.
5. The tenant is only entitled to set-off and retention rights if his counterclaims have been legally established, are undisputed or have been recognized by us, or if a consideration resulting from the contractual relationship is affected, in particular in the case of a counterclaim that has arisen from a claim for a service in kind that justifies refusal of performance. The tenant is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 9 Security – Deposit – Value protection
1. The landlord is entitled to demand an appropriate, interest-free deposit from the tenant at any time as security.
2. The tenant assigns to the landlord, as security, all current and future claims against his clients in relation to the tenant’s services for which the rental object was used, in the amount of the landlord’s current and future claims. The landlord accepts the assignment. The landlord undertakes to the tenant not to disclose the assignment of the claim to the third-party debtor(s) as long as the tenant is not in arrears with payment or the tenancy has not been terminated for good cause.
3. The following also applies to tenancy agreements that are concluded for a period longer than one year: If the consumer price index for Germany determined by the Federal Statistical Office, which was valued at 100 points in the base year 2010, changes by more than 10% (percent, not points) compared to the level at the start of the contract or compared to the last rent adjustment, the rent must then also be adjusted accordingly to the increased or decreased consumer price index. The changed rent takes effect at the beginning of the month after next following the justified request for an increase or reduction by one party.
§ 10 Shutdown clause
1. If work at the workplace for which the equipment is rented is suspended for at least ten consecutive days due to circumstances for which neither the tenant nor the client is responsible (e.g. frost, flooding, strikes, civil unrest, war events, official orders), this period is considered to be the shutdown period.
2. The rental period agreed for a specific period is extended by the shutdown period.
3. The tenant must pay the full monthly rent for the shutdown period of up to ten consecutive calendar days and 75% of the agreed monthly rent from the eleventh shutdown day.
4. The tenant must immediately notify the landlord in writing of both the cessation of work and its resumption and provide evidence of the shutdown period with documents upon request.
5. A reduction in rent is excluded if the tenant is prevented from exercising the right of use through his own fault or through the fault of the client.
§ 11 Tenant’s maintenance obligation – maintenance – repair
1. The tenant always keeps the rental object in a proper and safe condition during the term of the contract and protects it from excessive use. The tenant is obliged to repair any damage and signs of wear and tear caused by rental use or otherwise attributable to his sphere of risk at his own expense in a professional and competent manner in accordance with the instructions in the operating instructions. The tenant must therefore also maintain, service and repair all accessories and safety equipment provided to him for use at his own expense. He must obtain any necessary spare parts from the landlord, the manufacturer of the rental object, for quality assurance purposes.
2. The above regulations do not apply if the necessary maintenance, repair, servicing or repair is based on a defect in the rental object that was already present when the rental object was handed over to the tenant, was not recognizable during the inspection and inspection by the tenant and is also due to the fault of the landlord.
3. The landlord is entitled to inspect the rental property at any time and, after prior agreement with the tenant, to examine it himself or have it examined by a representative. The tenant is obliged to facilitate the inspection for the landlord in every way. The landlord bears the costs of the inspection.
§ 12 Inspection
1. The tenant is obliged to have the regular inspections carried out professionally.
2. The landlord bears the costs for this if the contract term is up to six months, and the tenant if the contract term is longer than this.
§ 13 Termination
1. During the term of a rental agreement concluded for a specific rental period, the right to ordinary termination is excluded.
2. The same applies to the minimum rental period within the framework of a rental agreement concluded for an indefinite period.
3. After the expiry of the fixed or minimum rental period, the parties have the right to terminate the rental agreement, which is then for an indefinite period, with a notice period of one week if the previous rental period was less than six months, and with a notice period of four weeks if the previous rental period was more than six months. Terminations must be in writing.
4. For rental agreements for an indefinite period without a minimum rental period, the notice period is also generally four weeks.
5. The landlord is entitled to terminate the rental agreement – even during a fixed contract term or minimum rental period – after giving notice without observing a notice period
a) if the tenant is more than 14 days late in paying the rent;
b) if the tenant does not use the rental object or part of it as intended or moves it to another location without the consent of the landlord;
c) in cases of violations of § 11 no. 1.
6. In the cases of § 13 no. 5 a) to c), the tenant has no right to compensation.
§ 14 Return at the end of the rental period – return of the rental object
1. The tenant is obliged to notify the landlord of the intended return of the rental object in good time.
2. Before the return, a joint acceptance takes place at the location where the rental object is used, for which an acceptance report must be drawn up. The landlord undertakes to prepare a final report with a cost estimate for the final repair within two weeks. Sweat marks, scratches and slight dents or dings are considered normal signs of wear and tear. The tenant undertakes to have the repairs identified carried out at his own expense.
3. At the end of the rental period, the rental object must be returned to the lessor’s storage area or to another agreed destination in a proper and contractual condition with all parts required for its operation.
4. The lessee must return the rental object in an operational, leak-free, if necessary fully fueled and cleaned condition or, if otherwise agreed, have it ready for collection; Section 11 No. 1 applies accordingly.
5. The return delivery must take place during the lessor’s normal business hours in such a timely manner that the lessor is able to inspect the rental object on the same day.
Section 15 Further obligations of the lessee
1. The lessee may not hand over the rental object to a third party, nor assign rights from this contract or grant rights of any kind to the rental object.
2. If a third party asserts rights to the rental object through confiscation, attachment or similar, the tenant is obliged to immediately notify the landlord in writing and verbally in advance and to immediately notify the third party of this by means of verifiable written notification.
3. The tenant must take suitable measures to protect the rental object against theft.
4. The tenant must inform the landlord of all accidents and await his instructions. In the event of traffic accidents and suspected criminal offenses (e.g. theft, damage to property), the police must be called.
5. If the tenant culpably violates the above provisions of § 14 no. 1 to 5, he is obliged to compensate the landlord for any damage caused as a result.
§ 16 Data protection – GPS tracking units
The rental object is equipped with a mobile data recording device (GPS tracking unit) that enables location determination and evaluation of various technical data. The location data of the device as well as technical operating data and data on the functionality of the rental object are processed for the purpose of protecting against theft and misuse or for control purposes of billing and operational audits as well as for the administration of inspection and maintenance work. The renter hereby agrees to this.
§ 17 Applicable law and place of jurisdiction
1. The law of the Federal Republic of Germany applies, excluding the reference standards of German international private law and the UN Convention on Contracts for the International Sale of Goods.
2. The place of performance for all services arising from or in connection with the contract is the registered office of the lessor or the registered office of its branch that concluded the contract.
3. If the tenant is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the lessor or – at his discretion – the registered office of its branch that concluded the contract. The landlord can also appeal to the court responsible for the tenant.
Status: June 2015
Right of withdrawal
Right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason.
The withdrawal period is fourteen days from the day on which you or a third party other than the carrier designated by you took possession of the last goods.
To exercise your right of withdrawal, you must inform us (Bergmann Maschinenbau GmbH & Co. KG, Essener Straße 7, 49716 Meppen, telephone: +49 (0) 5932/7292-0, fax: +49 (0) 5932/7292-92, email: info(at)bergmann-mb.de) of your decision to withdraw from this contract by means of a clear declaration (e.g. a letter sent by post, fax or email).
You can use the attached sample withdrawal form for this purpose, but this is not mandatory.
To meet the cancellation deadline, it is sufficient that you send your notification of exercising your right of cancellation before the cancellation period has expired.
Consequences of cancellation
If you cancel this contract, we will refund all payments that we have received from you, including delivery costs (with the exception of additional costs resulting from your choosing a different type of delivery than the cheapest standard delivery offered by us), promptly and at the latest within fourteen days from the day on which we received notification of your cancellation of this contract. For this refund, we will use the same means of payment that you used for the original transaction, unless something else was expressly agreed with you; under no circumstances will you be charged any fees for this refund.
We may refuse to refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is earlier.
You must return or hand over the goods to us promptly and in any event no later than fourteen days from the date on which you notify us that you have cancelled this contract. This deadline is met if you send the goods before the expiry of the fourteen-day period.
We will bear the costs of returning the goods.
You only have to pay for any loss of value of the goods if this loss of value is due to handling of the goods which is not necessary to check their quality, properties and functioning.
Exclusion of the right of cancellation
The right of cancellation does not apply to contracts for the delivery of goods which are not prefabricated and for whose production an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer.
If you want to cancel the contract, please fill out this form and send it back:
To: Bergmann Maschinenbau GmbH & Co. KG Essener Straße 7
49716 Meppen
Telephone: +49 (0) 5932/7292-0
Fax: +49 (0) 5932/7292-92
E-mail: info@bergmann-mb.de
I/we (*) hereby cancel the contract concluded by me/us (*) for the purchase of the following goods (*) / the provision of the following service (*)
Ordered on (*) / received on (*):
Name of the consumer(s):
Address of the consumer(s):
Signature of the consumer(s) (only if notification is made on paper):
Date:
(*)Delete as appropriate
Terms and Conditions of Sale and Payment (GTC)
Terms and Conditions of Sale and Payment (GTC)
May 2021
Bergmann Maschinenbau GmbH & Co. KG, 49716 Meppen
1. Scope
1.1 The following terms and conditions apply exclusively to our deliveries and services. We do not recognize any terms and conditions of the client that conflict with or deviate from these terms and conditions of sale and payment (GTC), unless they are expressly confirmed by us in writing. These GTC also apply if we carry out the delivery to the client without reservation despite knowing that the client’s terms and conditions conflict with or deviate from these GTC.
1.2 These GTC only apply to entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.3 These GTC are part of all contracts that we conclude with our contractual partners (hereinafter also referred to as “clients”) regarding the deliveries or services offered by them. They also apply to all future deliveries, services or offers to the client, even if they are not separately agreed again.
2. Offer and conclusion of contract
2.1 All our offers are non-binding and subject to change unless they are expressly marked as binding or contain a specific acceptance period. The seller can accept orders or contracts within 4 weeks of receipt.
2.2 The sole basis for the legal relationship between us and the client is the written purchase contract, including these General Terms and Conditions of Delivery. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the seller before the conclusion of this contract are legally non-binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding. We reserve ownership or copyright to all offers and cost estimates made by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the client. The customer may not make these items accessible to third parties, either as such or in terms of content, without our express consent, disclose them, use them himself or through third parties or reproduce them. At our request, he must return these items to us in full and destroy any copies made if he no longer needs them in the normal course of business or if negotiations do not lead to the conclusion of a contract. Excepted from this is the storage of data provided electronically for the purpose of normal data backup.
2.3 All information on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately relevant unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted as long as they do not impair the usability for the contractually intended purpose.
2.4 All orders are only binding for us after our written confirmation.
3. Delivery and execution
3.1 The start of the delivery time specified by us requires the clarification of all technical questions and the timely receipt of all documents to be provided by the customer, necessary permits and approvals, in particular plans, as well as compliance with the agreed payment terms and other obligations by the customer. If these requirements are not met in time, the deadlines will be extended accordingly; this does not apply if we are responsible for the delay.
3.2 Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipping has been agreed, delivery periods and delivery dates refer to the time of handover to the freight forwarder, carrier or other third party commissioned with the transport.
3.3 Partial deliveries are permitted if:
· the partial delivery can be used by the customer for the contractually intended purpose,
· the delivery of the remaining ordered goods is guaranteed and
· the customer does not incur any significant additional expenditure or costs as a result (unless we agree to cover these costs).
3.4 We are not liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure, incorrect or untimely delivery by suppliers) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for us and the hindrance is not only temporary, we are entitled to withdraw from the contract. In the case of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the obstacle plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by immediately submitting a written declaration.
3.5 We are liable in the event of impossibility and delay in performance, insofar as this is due to intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents, in accordance with the statutory provisions. However, in cases of gross negligence, our liability is limited to the foreseeable damage typical for the contract.
3.5.1 In the event of slight negligence, our liability for damages and for reimbursement of wasted expenditure due to impossibility is also limited to the foreseeable damage typical for the contract. Further claims by the customer due to impossibility of performance are excluded. The customer’s right to withdraw from the contract remains unaffected.
3.5.2 In the event of slight negligence, our liability for delays in performance is limited to a total of 10% of the value of the service for damages in addition to the service and for damages instead of the service. Further claims by the client for delays in performance are excluded – even after expiry of a deadline set for us to perform the service. These regulations also apply to the reimbursement of wasted expenditure.
3.5.3 The restrictions in sections 3.5 and 3.6 do not apply if liability is incurred due to injury to life, body or health or due to the violation of essential contractual obligations. Essential contractual obligations are those whose fulfillment characterizes the contract and on which the client can rely. The above regulations do not involve a change in the burden of proof to the detriment of the client.
4. Delivery ex works, transfer of risk, packaging
4.1 Unless otherwise agreed, delivery ex warehouse/works (“ex works”, Incoterm 2020) Essener Straße 7, 49176 Meppen is agreed.
4.2 The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest upon handover. In the case of a sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes upon delivery of the goods to the freight forwarder, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on work contracts also apply accordingly to an agreed acceptance. It is equivalent to handover or acceptance if the buyer is in default of acceptance
4.3 If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this regard are borne by the customer.
4.4 . Reusable means of transport are only loaned to the customer; the customer is obliged to return them in proper condition, i.e. empty and undamaged.
5. Reservation of self-supply
We do not assume the procurement risk. If, despite having concluded a corresponding purchase contract on our part, we do not receive the delivery item or do not receive it in full with regard to essential parts of the delivery item, we are entitled to withdraw from the contract with the customer. Our liability for intent and negligence remains unaffected. We will inform the customer immediately about the unavailability or the late availability of the delivery item and, if we wish to withdraw, exercise the right of withdrawal immediately. In the event of withdrawal, we will immediately reimburse the customer for any consideration already paid.
6. The client’s duty to cooperate
6.1 As a key contractual obligation, the client provides the agreed cooperation and provision services in the required quality and on the agreed dates or those required after the order has been processed. The obligation to provide the services ends as soon as the components provided are no longer required for the order processing.
6.2 If the client provides us with drafts, drawings, parts lists, production specifications, models, samples, materials, etc. for the execution of the order, the client ensures that these have been carefully checked by him or on his behalf, in particular for their suitability and plausibility. For the client’s designs, the client must provide the general stress proof, proof of load-bearing safety, usability, proof of operability and any other necessary static proofs and carry out the weld seam calculation. The client is fully liable for the accuracy and completeness of the information provided to us.
6.3 If the client provides us with materials for processing, he undertakes, particularly in cases of contract manufacturing, to have checked the quality, processing and suitability of the material before handing it over to us. The client ensures in particular that he has properly fulfilled his inspection and testing obligations if he has obtained the material from a third party. If the product we manufacture is faulty due to a defect in the material provided and/or if processing fails due to a defect that is causally attributable to a defect in the material provided, we are nevertheless entitled, without prejudice to further claims, to demand the agreed remuneration taking into account any savings in expenses.
6.4 The provisions of the above section 6.3 apply accordingly in cases in which our services are based on preliminary work by the client or a third party commissioned by the client.
6.5 The client is obliged, particularly in the case of agreed contract manufacturing, to inform us truthfully and completely in writing about the expected loads (stresses, forces, weights, temperatures and temperature fluctuations, tensile loads, etc.) to which the end product will be exposed when used as intended. The client is also obliged to inform us in writing about any health risks that arise and/or may arise from the components provided.
6.6 The client shall indemnify us upon first request against claims for damages by third parties arising from the aforementioned rights, in particular product liability, insofar as the cause lies within his area of organization, risk and responsibility.
7. Advice/installation and assembly
7.1 We are only liable for advice and information within the scope of the care we take for our own affairs, unless something else is expressly agreed in the contract.
7.2 The following provisions apply to installation and assembly, unless otherwise agreed in writing:
7.2.1 The client must take on and provide in a timely manner at his own expense: all earthworks, construction work and other ancillary work outside the industry, including the required skilled and unskilled workers, building materials and tools; the supplies and materials required for assembly and commissioning; energy and water at the place of use, including heating and lighting connections; suitable rooms for storing machine parts, tools, materials, semi-finished products, etc., as well as other requirements required for proper execution, taking our interests into account, that are necessary for the assembly and installation.
7.2.2 Before assembly/installation work begins, the client must provide us with the necessary information about the location of concealed electricity, gas, water pipes or similar systems as well as the required static information without being asked to do so.
7.2.3 Before assembly and installation begins, the supplies and items required to start the work must be at the assembly/installation site and the preparatory work before construction begins must be sufficiently advanced so that assembly or installation can begin as agreed and be carried out without interruption. Delivery routes and assembly or installation sites must be cleared.
7.2.4 If assembly/installation and/or commissioning is delayed due to circumstances beyond our control, the client must bear the associated costs.
7.2.5 If we provide a service and acceptance has been agreed, the client is obliged to accept it immediately. Acceptance may not be refused due to insignificant defects. If acceptance is required, the item is deemed to have been accepted if
•the delivery and, if we are also responsible for installation, the installation has been completed,
•we have informed the customer of this, referring to the acceptance fiction and have requested acceptance,
•twelve working days have passed since delivery or installation or the customer has started using the purchased item (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation and
•the customer has failed to accept the item within this period for a reason other than a reported defect that makes the use of the purchased item impossible or significantly impairs it.
8. Prices and payments
8.1 The prices shown in our current price lists plus the respective statutory sales tax are decisive. Subsequent changes or additions to the order or the essential order results are recorded in writing and confirmed by both parties. The client must pay for expenses already incurred as well as deliveries and services provided in accordance with the agreement. We will carry out subsequent changes at the client’s request, provided this is possible without additional costs or postponements. If the change causes expenses that exceed the originally agreed expenses and the originally agreed remuneration, we will inform the client of the change in costs, remuneration and deadlines within 10 working days. If the client does not reject the change within a further 10 working days or if an amicable arrangement is not agreed in advance, the change requested by the client and the changes to the cost, remuneration and deadlines communicated by us are deemed to have been agreed.
8.2 Unless otherwise agreed, prices are ex works (Incoterm 2020) Essener Straße 7, 49176 Meppen, excluding packaging. We are entitled to increase the agreed price if the costs for raw materials, energy, wages and salaries, freight, customs duties, taxes, etc. have increased between the order being placed and delivery, making delivery more expensive. The customer must be notified of a price increase in advance; he can object to the price increase within seven days of receiving notification of the price increase. In the event of an objection, we have the choice between withdrawing from the contract or delivering at the originally agreed price. We must inform the customer of our decision immediately. If we declare withdrawal from the contract, further claims by the customer are excluded.
8.3 Unless expressly agreed otherwise, the invoice amount is due 14 days after the invoice is issued without any deductions.
8.4 The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the client is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
8.5 Payments should only be made by bank transfer or using the SEPA direct debit procedure. Checks and bills of exchange, which we reserve the right to accept in each individual case, are only considered payment after they have been cashed. Any discount and bank charges are borne by the client.
8.6 For payments using the SEPA direct debit procedure, the client must give us a SEPA company mandate. The direct debit is collected 10 days after the invoice date. The period for pre-notification is reduced to 1 day. The client guarantees to ensure that the account is covered. Costs that arise due to non-payment or reversal of the direct debit are borne by the client, as long as the non-payment or reversal was not caused by us.
8.7 It may be agreed between the parties that the principal shall open a documentary credit through his bank (or another bank acceptable to us). In this case, it is stipulated that the opening of the credit shall be carried out in accordance with the General Customs and Practice for Documentary Credits, Revision 2007, ICC Publication No. 600 (“UCP”).
9. Due date – interest – consequences of default
9.1 If payment is made after the payment deadline of 14 days, default interest must be paid to us in the amount provided for by law. Any further claims for damages remain unaffected.
9.2 As long as the customer is in default of payment, we are not obliged to make further deliveries, regardless of the legal basis for our delivery obligation.
9.3 If the customer’s financial situation deteriorates significantly, in particular if insolvency proceedings are initiated, we can demand cash payment or other security before delivery of the goods for any outstanding deliveries, with the payment deadline no longer applicable.
9.4 If installment payments and/or partial payments have been agreed between the customer and us, the following also applies: If the customer is in arrears with the payment of an installment or partial payment for more than three days, the remaining outstanding amount will become due immediately and in full at once.
9.5 If the customer is in default of acceptance on the due date, he must still pay the purchase price. In these cases, we will store the goods at the customer’s risk and expense.
9.6 If security for payment of the purchase price has been provided by a bank or another third party and the delivery of the goods cannot take place due to circumstances beyond our control, we are also entitled to demand the total remaining purchase price from the bank or another third party upon presentation of proof that the goods have been stored. Such storage takes place at the customer’s expense and risk. The date on which the goods are stored by us is considered the delivery date. All delivery documents and other documents that must be handed over by us in order to receive payment from a bank or another third party must be handed over to us immediately by the issuer of these documents.
10. Warranty
10.1 The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which in each case expire according to the statutory provisions.
10.2 The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by him. With regard to obvious defects or other defects that would have been apparent upon immediate, careful inspection, they are deemed to have been approved by the buyer if the seller does not receive a written complaint within seven days of delivery. With regard to other defects, the delivered items are deemed to have been approved by the buyer if the complaint is not received by the seller within seven days of the time at which the defect became apparent; if the defect was already obvious at an earlier point in time during normal use, this earlier point in time is decisive for the start of the complaint period. At the seller’s request, a defective delivery item must be returned to the seller freight paid. If the complaint is justified, the costs of the cheapest shipping method will be borne; this does not apply if the costs increase because the delivery item is located at a location other than the location of its intended use.
10.3 No guarantee is given for special items, e.g. used machines.
10.4 Weights, dimensions, performance data, yields and other data stated in sales brochures, advertisements and similar documents are to be regarded as guidelines only. The same applies to samples demonstrated or provided.
10.5 If there is a defect in the delivery item for which we are responsible, we are entitled, at our discretion, to subsequent performance in the form of remedying the defect or to delivering a new, defect-free item. In the event of remedying the defect, we are obliged to bear all expenses required for the purpose of remedying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the delivery item being transported to a location other than the place of performance.
10.6 If the subsequent performance fails, which is to be assumed after the second attempt at improvement or subsequent performance at the earliest, the customer is entitled to withdraw from the contract or demand a reduction in price. Unless otherwise stated in Section 11 below, further claims by the customer – regardless of the legal reasons – are excluded. We are therefore not liable for damage that did not occur on the delivery item itself; in particular, we are not liable for production downtime, business interruption, the costs of any recall campaign, lost profits or other financial losses of the customer.
10.7 In the case of defects in components from other manufacturers that we cannot remedy for licensing or factual reasons, the seller will, at its discretion, assert its warranty claims against the manufacturers and suppliers on behalf of the customer or assign them to the customer. Warranty claims against us for such defects exist under the other conditions and in accordance with these General Terms and Conditions of Delivery only if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example due to insolvency, is futile. During the duration of the legal dispute, the limitation period for the relevant warranty claims of the customer against us is suspended.
10.8 The warranty is void if the customer changes the delivery item or has it changed by third parties without our consent and this makes the elimination of the defect impossible or unreasonably difficult. In any case, the customer must bear the additional costs of eliminating the defect resulting from the change.
11. Other liability
11.1 Unless otherwise stated in these General Terms and Conditions, including the following provisions, we are liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
11.2 We are liable for damages – regardless of the legal basis – within the scope of liability for fault in the event of intent and gross negligence. In the case of simple negligence, we are liable, subject to statutory limitations of liability (e.g. care in one’s own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (obligation whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damage.
11.3 The limitations of liability resulting from paragraph 2 also apply to third parties and to breaches of duty by persons (including in their favour) whose fault we are responsible for according to statutory provisions. They do not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods was given and for claims by the buyer under the Product Liability Act.
11.4 The buyer can only withdraw or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. The buyer’s right to freely terminate the contract (in particular in accordance with Sections 650 and 648 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply.
12. Limitation period
Claims of the customer against us – regardless of the legal basis – expire one year after they arise. This does not apply in the cases of Sections 438 Paragraph 1 No. 2 and 634a Paragraph 1 No. 2 of the German Civil Code. This also does not apply in the case of intent or fraudulent concealment of a defect or insofar as we have provided a guarantee. The limitation period also does not apply to claims for damages in cases of injury to life, body, health or freedom, in the case of claims under the Product Liability Act or in the case of a grossly negligent breach of duty or the breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment characterizes the contract and on which the buyer can rely. The above provisions do not involve a change in the burden of proof to the detriment of the client.
13. Additional terms and conditions for software
13.1 We grant the client the rights of use for the software to be transferred and other copyrighted work results to the extent of the contractually intended purpose. Unless otherwise agreed, we grant the client a non-transferable, non-exclusive right of use for the duration of the use or contract or for a limited period of time for the installation of this software on a database and for the use of this software as embedded software or application software, as the case may be, in the manner described in the contract. The client is not entitled to transfer the rights of use granted to him in whole or in part to third parties or to grant corresponding rights of use to third parties. We reserve the right to terminate this license if the terms of the license are violated or the client otherwise violates the terms of the underlying contract.
13.2 If the rights of use were only transferred for a limited period of time or if the transfer of the license ends for other reasons, all transferred rights revert to us after the license expires without any further legal action. The client is obliged to delete all licensed products in his possession and to return the documentation.
13.3 The transfer of the source code to the client is excluded unless expressly agreed otherwise.
13.4 If we use the services and work results, in particular rights of use of third parties, to carry out the order, we will acquire their rights of use to the extent necessary for the execution of the order and transfer them to the client. If we are unable to acquire the rights of use to this extent or if there are restrictions on the rights of use or other rights of third parties, we will inform the client of this. The client must observe these restrictions. We are not obliged to ensure the rights of use for services and works that the client provides.
13.5 The client is entitled to make a copy of the software solely for backup purposes, which must be labelled as a copy and marked with a reference to us as the copyright holder.
13.6 The client may not remove any copyright notices.
13.7 The client hereby undertakes not to modify, decompile, reverse engineer or copy the software, except as expressly permitted in these General Terms and Conditions of Sale.
13.8 Maintenance and service measures on transferred software require a separate maintenance and/or service and support agreement.
13.9 We will only transfer the rights of use required to use our products and services to the client to the extent described above once all claims for remuneration, fees and reimbursement of costs relating to the order have been settled.
13.10 In the event of loss of data, we are only liable for the effort required to restore the data if the client has properly backed up the data. In the case of slight negligence, we are only liable if the client has carried out a proper data backup immediately before the measure leading to the data loss.
13.11 Our liability and warranty are excluded if damage and/or disruptions are caused by the client culpably violating the provisions of this contract, changing the software supplied by us contrary to
the contractual provisions or our instructions, or not using the software supplied by us in the system environment agreed in the contract.
13.12 If we are obliged to deliver and transfer items or software or to produce other works, such as reports or analyses, the provisions of Section 10 apply accordingly to the defective delivery and service.
13.13 The limitations of liability apply accordingly to the personal claims made against our employees, representatives and vicarious agents.
14. Retention of title
14.1 The delivered goods remain our property until all claims arising from the business relationship between us and the customer have been paid in full. The inclusion of individual claims in a current invoice and the recognition of the balance do not affect the retention of title. Payment is only deemed to have been made when we receive the equivalent amount.
14.2 The customer is obliged to treat the delivery item with care; in particular, he is obliged to insure it at his own expense against fire, water and theft damage to the replacement value. If maintenance and inspection work is required, the customer must carry this out in a timely manner at his own expense.
14.3 In the event of seizure or other interventions by third parties, we must be notified immediately in writing so that we can file a lawsuit in accordance with Section 771 of the Code of Civil Procedure. If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the customer is liable for the loss incurred.
14.4 The customer is entitled to resell the reserved goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of the claims against us that arise from the resale against his customers or third parties, regardless of whether the delivery item was resold without or after processing. We accept the assignment. If the assigned claim against the purchaser of the reserved goods has been included in a current invoice (current account), the assignment also refers to the recognized balance and, in the event of the purchaser’s insolvency, to the then existing “causal balance”. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been made or payments have been suspended. However, if this is the case, we can demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and inform the debtors (third parties) of the assignment.
14.5 The processing or transformation of the reserved goods by the customer is always carried out for us. If the reserved goods are processed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same applies to the item created through processing as to the goods delivered subject to retention of title.
14.6 If the reserved goods are inseparably mixed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the contractor’s item is to be regarded as the main item, it is agreed that the client transfers proportionate joint ownership to us. The client keeps the sole ownership or joint ownership created in this way safe for us.
14.7 We undertake to release the securities to which we are entitled at the request of the client to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.
15. Intellectual property and industrial property rights, confidentiality
15.1 All intellectual property and industrial property rights relating to the products remain with us. The client undertakes not to assert any intellectual property and industrial property rights in the products, in modifications to the products, in processes related to the systems or in other things that are a reasonable extension of the functions or functionality of the products.
15.2 We declare to the best of our knowledge and belief that the systems provided do not infringe any intellectual property and/or industrial property rights of third parties that apply at the location where the systems are to be installed at the time of signing the contract. If the systems nevertheless infringe such intellectual property rights and/or industrial property rights at the time the contract is signed, we can, at our own discretion:
· obtain the right to continue using the system for the client,
· modify the system in such a way that the infringement no longer exists,
· replace the systems with systems that do not infringe any rights, or
· withdraw from the contract or part of the contract and refund the purchase price paid by the client (less a reasonable amount for any reduction in value that has occurred) for the part of the system that infringes rights. In this case, the systems must be returned to us in exchange for reimbursement of the purchase price.
15.3 Any further liability of our company due to the infringement of intellectual property rights or industrial property rights of third parties is excluded, except in the case of gross negligence or intent. Under no circumstances will we be liable to third parties for claims based on the infringement of intellectual property rights and/or industrial property rights if the claims are related to illustrations, drawings, catalogues, specifications or other materials that were supplied to us by the client or on his behalf.
15.4 We will defend the client – subject to the above limitations of liability – against any claims that arise from an infringement of an industrial property right, copyright and/or other property rights through the contractual use of our products and will assume any costs and damages imposed on the client, provided that he has notified us of such claims in writing and without delay and we reserve the right to take all defensive measures and negotiate settlements.
15.5 All information and documents supplied by us to the client remain our property, may not be copied by the client, may not be disclosed to third parties and may only be used for the agreed purposes.
16. Other provisions
16.1 If the seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from the contractual relationship is our place of business in Meppen. The same applies if the seller is an entrepreneur within the meaning of Section 14 of the German Civil Code. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a priority individual agreement or at the general place of jurisdiction of the seller. Priority statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.
16.2 The place of performance for all deliveries and services is the place of handover or acceptance determined by us.
16.3 The customer is not permitted to transfer any guarantee and warranty rights, licenses and other rights granted to him within the framework of the contractual relationship with us unless we have agreed to the transfer in writing.
16.4 If the client sells the products or software of third-party providers to third parties or exports them, he undertakes to observe the import and export laws applicable to sales of this kind at all times.
16.5 The law of the Federal Republic of Germany applies, excluding the reference standards of German international private law and the UN Convention on Contracts for the International Sale of Goods.
Status: May 2021
Corporate Ethics Policy
Corporate Ethics Policy
As of: May 2019
Corruption, extortion and bribery
We have a zero-tolerance policy towards all forms of corruption, extortion and bribery.
Any form of corruption or bribery is not to be tolerated. No gifts or benefits that could lead to a conflict of interest should be accepted. In particular, bribes or other illegal payments may not be offered, given or accepted.
Financial responsibility and disclosure of information
Applicable laws and recognized standards are applied with regard to accounting.
Our goal is to provide transparent and precise information continuously and promptly and to communicate it in accordance with applicable laws and other guidelines.
Data protection
Protecting privacy and maintaining information security are our top priority. Applicable laws and regulations regarding data protection must be observed.
Fair competition
Business policies and prices are set independently and not agreed with competitors or other independent parties. Customers and suppliers are always treated fairly. Antitrust and competition law regulations must be observed.
Plagiarism / Intellectual property
The company’s intellectual property must be protected. Plagiarism must not be circulated or acquired and must be reported to management immediately. Theft of other people’s intellectual property is strictly prohibited.
Export controls
Bergmann complies with all prescribed export controls and customs laws as well as existing economic sanctions and embargoes.
Preservation of identity and protection against retaliation
In our work environment, employees must feel free to report known or suspected misconduct. Any retaliation against a person who reports an actual or suspected violation in good faith is strictly prohibited. Preservation of identity must be ensured.
Conflicts of interest
If your personal activities conflict with your duties at Bergmann (conflict of interest), you are obliged to inform management immediately. This also applies to potential conflicts of interest and conflicts of interest that you observe in others.
If you discover or suspect violations of this policy, please contact management directly.
Meppen, May 14, 2019
Bergmann Maschinenbau GmbH & Co.KG Essener Str. 7
49716 Meppen
T +49(0) 5932 7292 – 0
F +49(0) 5932 7292 – 92
Mail: info@bergmann-mb.de
Guideline for sustainable procurement of raw materials
Guideline for the sustainable procurement of raw materials
of
Bergmann Maschinenbau GmbH & Co. KG
Essener Straße 7
49716 Meppen-Hüntel
Status: August 2019
Preamble
Sustainable action is an essential factor for long-term success. As a company, we feel committed to sustainability. We express this in our daily thoughts and actions – including in our guidelines.
Responsible raw material procurement
Bergmann Maschinenbau GmbH & Co. KG supports activities that ensure responsible raw material procurement. The procurement and use of raw materials that have been obtained illegally or through ethically reprehensible or unreasonable measures must be avoided. The use of raw materials such as conflict minerals that are affected by embargoes or other import restrictions must be excluded.
General selection process for procurement
Protection of human and labor rights:
Bergmann only purchases goods and services from suppliers who at least comply with the ILO’s core labor standards.
Careful use of ecological resources:
When purchasing goods and services, Bergmann strives to use ecological resources carefully, protect biodiversity and the climate.
Promotion of social enterprises:
When possible, Bergmann Maschinenbau GmbH & Co. KG purchases products and services from sheltered workshops, social projects or development projects.
Promotion of ecological pioneer brands:
Products from suppliers who do pioneering work in favor of a higher sector standard for environmental protection are particularly worthy of support.
Meppen, August 5, 2019
Bergmann Maschinenbau GmbH & Co.KG Essener Str. 7
49716 Meppen
T +49(0) 5932 7292 – 0
F +49(0) 5932 7292 – 92
Mail: info@bergmann-mb.de
Supplier Sustainability Policy
Sustainability guidelines for suppliers
of
Bergmann Maschinenbau GmbH & Co. KG Essener Straße 7 49716 Meppen-Hüntel
Status: July 2019
Preamble Sustainable action is an essential factor for long-term success. As a company, we feel committed to sustainability. We express this in our daily thoughts and actions – including in our guidelines. We want to live this approach not only internally, but also in our business relationships with our suppliers. This sustainability guideline for suppliers therefore formulates the minimum requirements for our suppliers: Prohibition of child and forced labor Compliance with legal standards Compliance with human and employee rights Compliance with ethical principles All business activities within the supply chain must comply with local laws. HUMAN RIGHTS International human rights must be respected. Human trafficking, forced or compulsory labor, and child labor are strictly prohibited.
RESPECT FOR EMPLOYEES’ FUNDAMENTAL RIGHTS
Employees should be provided with a happy and safe environment, both physically and morally.
The following applies:
Promote equal opportunities and equal treatment of employees (regardless of their skin color, race, nationality, social origin, any disability, political or religious beliefs, gender or age)
Respect the personal dignity, privacy and personal rights of each individual
Not to employ anyone against their will or to force them to work
Not to tolerate unacceptable treatment of workers
Comply with the legally established maximum working hours
Not to favor or disadvantage members of employee organizations or unions
Avoid harassment and discrimination
FAIR PAY
Remuneration and social benefits must comply with the basic principles regarding minimum wages, overtime and legal requirements.
Working hours must comply with applicable laws.
Freedom of association
Open and constructive communication with employees is expected. The right to freedom of association and collective bargaining must not be restricted.
DISCRIMINATION AND HARASSMENT
All workplaces should be free from discrimination and harassment based on gender, race, skin color, religion, age, national origin or disability.
Employees deserve mutual respect.
HEALTH AND SAFETY
All employees must be offered a safe and healthy working environment in accordance with applicable laws and regulations. Appropriate measures should be taken to prevent workplace injuries and occupational diseases.
EMPLOYEE DEVELOPMENT
The development of employees is an essential investment in the future. In addition to the development of technical skills, attention must also be paid to the development of social and methodological skills.
ENVIRONMENTAL RESPONSIBILITY
Environmental protection must be observed in accordance with legal norms and international standards. Environmental pollution must be minimized and environmental protection must be continuously improved.
Energy consumption and greenhouse gas emissions must be minimized. The same applies to water consumption. Water resources must be handled carefully. Water and air quality should not be impaired. This requires responsible use of chemicals. In general, it is important to manage resources in a way that is conserving and to avoid waste as much as possible.
CONFLICTS OF INTEREST, GIFTS AND ATTEMPTS AT BRIBERY
Any form of corruption or bribery is not to be tolerated. No gifts or donations that could lead to a conflict of interest should be accepted. In particular, bribes or other illegal payments may not be offered, made or accepted.
FAIR BUSINESS CONDUCT
Business policies and prices are set independently and not agreed with competitors or other independent parties. Customers and suppliers are always treated fairly.
Plagiarism or theft of intellectual property must be prevented.
RESPONSIBILITY
We expect every supplier to feel responsible for complying with this sustainability policy and to adhere to it.
Responsible raw material procurement
The suppliers of Bergmann Maschinenbau GmbH& Co. KG support activities that ensure responsible raw material procurement. The procurement and use of raw materials that have been obtained illegally or through ethically reprehensible or unreasonable measures must be avoided. The use of raw materials such as conflict minerals that are affected by embargoes or other import restrictions must be excluded. Suppliers are therefore obliged to identify these raw materials in manufactured products in the supply chain and to disclose the origin and sources of the raw materials they use.
Meppen, July 10, 2019
Bergmann Maschinenbau GmbH & Co.KG Essener Str. 7
49716 Meppen
T +49(0) 5932 7292 – 0
F +49(0) 5932 7292 – 92
Mail: info@bergmann-mb.de
Environmental Directive
Environmental policy
of
Bergmann Maschinenbau GmbH & Co. KG
Essener Straße 7
49716 Meppen-Hüntel
Status: June 2019
Preamble
Bergmann GmbH & Co. KG has expressly set itself the goal of acting in harmony with our environment in all business activities and thus making a decisive contribution to environmental protection.
To realize our claim, we have defined the environmental guidelines listed below as binding content of our business policy:
We comply with all environmentally relevant laws and requirements
We pay attention to environmentally optimized procedures right from the design of our production facilities and processes.
We consider the economical use of resources to be our social obligation.
We use energy sparingly and reduce greenhouse gas emissions.
We use water sparingly and carefully.
Environmental pollution such as waste, waste water, emissions and noise must be avoided or reduced to a minimum.
Air pollution must be avoided. The design of our production technology supports this.
We use chemicals sparingly and very carefully. All chemicals are recorded in the chemical management system.
We focus on a balanced relationship between ecology and economy.
Meppen, June 14, 2018
Bergmann Maschinenbau GmbH & Co.KG Essener Str. 7
49716 Meppen
T +49(0) 5932 7292 – 0
F +49(0) 5932 7292 – 92
Mail: info@bergmann-mb.de