1.1. These General Terms and conditions apply to all offers, confirmations, deliveries and performances supplied by BerlinerLuft. They are automatically accepted by the purchase order, on the time of handover of the deliveries of Performances at latest.
1.2. Reverse General Terms and Conditions of due purchaser are definitely not accepted concerning the contract between the parties, even BerlinerLuft has not denied them explicitly.
1.3. All modifications of the agreements between BerlinerLuft and the Purchaser including these Terms and Conditions must be agreed in writing
2.1. Our Offers are tentatively. The Purchaser is bound to its order for three weeks.
2.2. The Contract first is effective only upon the signature of the contract by both parties or the Purchaser’s receipt of BerlinerLuft`s written confirmation of the purchase order issued by the Purchaser or delivery or performance.
2.3. No contract may be cancelled or altered by the Purchaser, except on terms and conditions acceptable to BerlinerLuft, as evidenced by BerlinerLuft`s written consent.
3.1. BerlinerLuft keeps its absolute ownership and industrial property rights concerning their calculations, printings, and other documentation (hereinafter "documentation"). The Purchaser is not allowed, to give access to the documentation at third party without written consent by BerlinerLuft. Furthermore the Purchaser has to return all documentation, if an order is not placed.
3.2. Regarding standard software the Purchaser has the non-exclusive survitude within the contractual use of the agreed deliveries. The Purchaser is allowed to create a backup-copy of the software without written acceptance of BerlinerLuft.
4.1. Delivery times are only binding as written agreements by the parties.
4.2. The term of delivery begins with sending of the BerlinerLuft`s written confirmation of the purchase order issued by the Purchaser at latest, not yet before necessary documentation of the Purchaser and not before the receipt of contractual agreed advance payment.
4.3. The term of delivery is abided, if readiness for shipment is declared or the delivery item has left factory. The term of delivery will extend subject to an event of force majeure or an event beyond the control of BerlinerLuft or its component or system suppliers, such as war, acts of God, governmental interventions and bans, energy and raw-material shortages, strikes, civil unrest, transport damages or delay. BerlinerLuft shall be entitled to extend the time of delivery set forth in BerlinerLuft`s offer, provided BerlinerLuft notifies Purchaser within 10 bank working days in writing of such event.
4.4. BerlinerLuft in one’s sole discretion can ask for advance payment or security bonds before delivery.
Delivery of products to a carrier by BerlinerLuft shall constitute delivery to Purchaser. All risk or damage in transit shall be borne by Purchaser. Risk is passed to the Purchaser corresponding to the pricing according INCOTERMS 2000 including the amendments valid at the time of the conclusion of contract. This also applies if, after at the Purchaser’s site, BerlinerLuft still has to perform installation work.
6.1. The prizes which have been agreed upon are only valid for the current order which has been completed. Regarding offers are based on a period of validity caused by the prize list on the day of delivery.
6.2. The prizes are net ex works, unloaded, without costs of packing, freight, insurance and additional documentation, duty unpaid, exclusive turnover tax. The costs are calculated and listed separately.
6.3. Agreed prizes apply only to current contract.
6.4. In case BerlinerLuft has been committed to installation or assembling and nothing else is agreed between the parties, the Purchaser has to defray besides the agreed compensation all necessary additional travel cost, for carrying instruments and personal luggage as well as releases.
7.1. Our invoices become due thirty days from date of invoice, if nothing else is agreed between the parties.
7.2. The payments by acceptance, check or the assignment of debts regarding our rights to compensation if agreed by BerlinerLuft in compliance with the requirement of receipt of payment. Transaction fees and cost as well as any complications with these payments and corresponding charges are for the Purchaser’s account.
7.3. In the case of exceeding of grace period BerlinerLuft exercise the right to demand default interest of 8 % above the current prime rate. Furthermore BerlinerLuft reverse the right to demand assertion of further claims.
7.4. In the case of default of payment and reasonable doubts concerning the solvency or credit rating of the Purchaser BerlinerLuft is authorized - irrespective of all other legal possibilities - to ask for securities or advance payments for outstanding deliveries. At the same time BerlinerLuft is authorized to demand all claims of the current business connection.
7.5. The Purchaser is only authorised for liens or right of set-off in cases of res judicata. The right of retention is excepted if this is based by another legal relationship.
8.1. The products supplied shall, unless otherwise agreed, remain the property of BerlinerLuft until all debts owing to BerlinerLuft or to be created in the future and arising from business connection with the Purchaser have been paid in full. The Purchaser is obliged, to take care for the deliveries and to insure them on own costs against damages by fire, water and burglary. If maintenances or inspections are necessary, these are also to do on own cost by the Purchaser.
8.2. Even on an open item basis the products supplied shall, unless otherwise agreed, remain property of BerlinerLuft until all debts owing to BerlinerLuft or to be created in the future and arising from the business connection with the Purchaser have been paid full. Title Retention is bearing on the agreed balance. As far as BerlinerLuft has agreed with the Purchaser in their commercial relationship the possibility of payments by checks or acceptance, this right under restriction does not end at the time of the invoice-related credit memo than finally at the time of total exemption from liability.
8.3. The Purchase is allowed to dispose of the products within ordinary business development.
8.4. Title retention also remains after processing, mixing or assembling of the product delivered by BerlinerLuft with new products. BerlinerLuft still remains manufacturer of its products. In the cases of processing, mixing or assembling of the products BerlinerLuft also still purchases co-ownership of the product. If the reservation of ownership in the forgoing form is not effective under the law of the country of destination, the Purchaser must co-operate in establishing a similar security right complying with provisions of his country, in favour of BerlinerLuft.
8.5. With respect to the case of resale of claims . in any condition whatsoever - the Purchaser agrees to assign and assigns to BerlinerLuft by way of security, at the conclusion of the contract and effective up to the time of payment of all debts owing by the Purchaser to BerlinerLuft, any claims against the Purchaser’s customers which may have arisen or arise in future from the resale, and undertakes to notify BerlinerLuft at its request of the names of third-party debtors and of the amount of the debts owing by these to the Purchaser. As long as the Purchaser complies with his payment obligation and no detrimental change occurs in its financial standing, BerlinerLuft will not collect the debts assigned.
8.6. BerlinerLuft has to be informed by registered letter, if third party access to products of BerlinerLuft and concerning claims are happening. All cost of claiming of BerlinerLuft concerning these activities shall be borne by Purchaser, if third party does not compensate them.
8.7. Title retention by BerlinerLuft does not mean the cancellation of the contract.
8.8. The Purchaser is not allowed to assign products of BerlinerLuft and concerning claims to third party before complete payment.
8.9. If the total value of all securities granted by Purchaser to BerlinerLuft will exceed 20 %, BerlinerLuft will release at their own choice getting securities.
9.1. The rights of express warranty of the Purchaser require that Purchaser has fulfilled its obligation of investigation and reprove in due form concerning the following section of the German Commercial Code (HGB): 377.
9.2. Claims for the remedy of defects become statue barred after the lapse of twelve months or of the period otherwise agreed upon ("period of limitation"). This does not apply if the statute provides for longer periods in the following sections of the German Civil Code (BGB): 438 Para. 1 no. 2 (edifices and goods for constructing edifices), 479 Para. 1 (regress claim), and 634a Para. 1 no. 2 (defects in edifices), or promontory liabilities under the Product Liability Act, or that liability is generally imperative in cases of intent or gross negligence, injuries to persons including their health, the providing of a guarantee for characteristics of goods or because of the violation of essential contractual obligations.
9.3. The ascertainment of such defects must be contested to BerlinerLuft by the Purchaser in writing without delay.
9.4. Initially the Purchaser shall allow BerlinerLuft the opportunity to remedy the defects within an adequate period of time.
9.5. In either case BerlinerLuft has the choice between remedy of defects or shipment of new products. In case the defects are not remedied within an adequate period of time, the Purchaser is entitled to rescind the order or to reduce the purchase prize, notwithstanding any damages claims in clause 10.
9.6. Claims for the remedy of defects will not exist in cases of only minor deviation from the agreed quality, minor reduction of the merchantability, natural wear and tear, damage occurring after the transfer of risk due to improper or unsuitable handling, excessive stressing, unsuitable operating material, faulty construction work, unsuitable foundations or due to special external influences (e.g. chemical, electrochemical or electrical influences or extraordinary temperature or weather conditions) of a nature not provided for according to the contract. On improper alterations or repairs carried out by the Purchaser or third parties the warranty obligations of BerlinerLuft and its liability for consequences caused thereby are rendered void.
9.7. Claims of the Purchaser concerning supplementary performances and its costs, as they are cost of transportation, of travel, workmanship, material are excluded.
9.8. Claims for the remedy of defects become statute barred after the lapse of the period agreed upon ("period of limitation"). This does not apply if the statute provides for longer periods in the following sections of the German Civil Code (BGB): 478. No. 9.7 of these General Terms and Conditions furthermore applies concerning further claims of remedy of the Purchaser according to 478 Para. 2.
9.9. For Indemnity claims applies No. 10 of these General Terms and Conditions. Advanced claims, which are not listed in No. 9 of these General Terms and Conditions are definitively excluded.
10.1. Irrespective of legal basis claims of indemnity and reimbursement of expenses of the Purchaser are excluded, in particular concerning defects, delay, further defaults and claims in tort.
10.2. Purchaser shall be liable for damages, if Purchaser is held responsible concerning the product liability act and for intent or gross negligence and liability for indirect and/or consequential damages of human’s life, body or health, including loss of property or profit, costs of product recall. For the Purchaser that does not mean an reversed onus of proof.
10.3. If the agreed supply is or becomes impossible to be rendered, the Purchaser may ask for damages, unless BerlinerLuft is not liable for the impossibility. The damages claim is limited to 10 % of the prize of that part of the supply which cannot be used for its purpose. This shall not apply to the extent and provided that liability is peremptory in cases of intent or gross negligence or due to injuries to persons including their health. The preceding stipulations may not be interpreted as altering the burden of proof to the detriment of the Purchaser. The right of the Purchaser to rescind the order remains unaffected.
10.4. The Purchase only is allowed to withdraw from the contract in case of legal regulations, if BerlinerLuft argues a breach of duty; in the case of defects legal regulations still are remaining. The Purchaser has to present BerlinerLuft all stated breach of duty within a reasonable time, especially if he want to cancel the contract or still demands on the delivery.
11.1. The contract and the whole privity of contract of the parties shall be exclusively construed and interpreted according to the German law. It is mutually agreed that the United Nations Convention on Contracts for the Sale of Goods (CISG) does not apply.
11.2. In case of controversies or disputes between BerlinerLuft and the Purchaser the competent courts for BerlinerLuft`s seat in Berlin, Germany, shall have jurisdiction. BerlinerLuft shall however also have the right to bring a claim before another court, which has jurisdiction for the Purchaser’s seat or domicile.
11.3.Even in the event of individual clauses of the contract or these Terms and Conditions being invalid, its remaining parts shall continue to be binding. These Terms and Conditions were originally issued in German language and the German version shall apply. The English translation shall serve to the better understanding of the Purchaser only.