§ 1
General matters – scope
1.
The following Terms and Conditions apply only to entrepre-neurs within the meaning of section 14 of the German Civil Code (BGB). They apply to all purchase contracts, delivery contracts, and contracts to produce a work concluded with us that came into effect through use of our webshop. The “Gen-eral Terms and Conditions of Sale and Delivery of Borne-mann-GmbH” apply to contracts that are not concluded through the webshop.
2.
Our Terms and Conditions apply exclusively. We do not acknowledge terms and conditions of the customer that con-flict with or deviate from our Terms and Conditions. The fore-going does not apply if we expressly consent in writing to the deviating terms and conditions of the customer. If we carry out a delivery without reservation despite awareness of the devi-ating terms and conditions of the supplied customer, this does not mean that we acknowledge the deviating terms and con-ditions of the customer.
3.
All agreements made between us, and the customer are set out in this contract. There are no collateral or supplementary agreements to this contract.
§ 2
Conclusion of contract
1.
Offers are subject to change and non-binding.
2.
Our prices are ex works plus VAT, packaging, shipping costs and transport insurance.
3.
Our offers as well as samples and production documents sent with offers shall remain our property. We shall also retain all other rights thereto, in particular copyrights. Offers and the samples and production documents provided with them must be treated confidentially. They may not be made accessible to third parties or used in the context of order negotiations with third parties or for follow-up projects without our express prior written consent.
4.
If a contract is concluded via the webshop, the following applies:
4.1.
The customer can make a selection from the webshop product range and collect the selected products in a shopping cart by clicking on the button “Add to shopping cart”. By clicking on the button “Place order”, the customer submits a binding re-quest to purchase the goods contained in the shopping cart. Prior to sending the request, the customer can at any time view and change the data, particularly the goods contained in the shopping cart. Prior to submitting the binding request, the customer can delete goods from the shopping cart, add addi-tional ones, or change the number of ordered goods.
4.2.
In response, we will send the customer an automatic confirmation of receipt by email, which once again lists the customer’s order and which the customer can print out using the “Print” feature. The automatic confirmation of receipt merely documents that the customer’s order has been received by us. It is does not constitute acceptance of the request. The contract first comes into effect when we send the order confirmation by separate email.
4.3.
The contract is concluded in German or English, depending on which of the two languages the customer selected.
4.4.
The customer can at any time view its order history in its customer account. We store orders in the system for a period of three years, and the customer may request them during the storage period.
§ 3
Quality
1.
The item offered by us (the “Purchased Item”) is suitable solely for combination with other items.
2.
It is the customer’s responsibility to check whether he can use the purchased item, in particular whether the material of which the purchased item is made of and the material of which the item to be combined with the purchased item is made of are compatible with each other. For orders that are not placed via our web store, we will provide the customer with samples for this purpose at the customer’s request.
§ 4
Prices – Payment – Payment reminder fee
1.
Our claims are due for payment immediately (from the date of invoice). The terms of payment specified in the order confir-mation shall apply.
2.
In the case of an order via the webshop, the customer must pay the purchase price in advance and delivery will be made after receipt of payment, unless a different payment term has been agreed in advance.
3.
Offsetting against counterclaims of the customer or the with-holding of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally estab-lished or arise from the same order under which the delivery in question was made.
4.
We hereby inform you that we reserve the right to assess the credit risk on the basis of mathematical-statistical procedures at the credit agencies “Verband der Vereine Creditreform e.V., Hammfelddamm 13, 41460 Neuss”, “CRIF GmbH, Leo-poldstraße 244, 80807 Munich” and “Dun Bradstreet Deutschland GmbH, Brüsseler Straße 1-3, 60327 Frankfurt am Main”. For this purpose, the personal data required for the credit check (surname, first name, company name, address, bank details) is transferred to the credit agency. The data is therefore processed and forwarded for the purpose of a credit check to avoid payment default and on the basis of Art. 6 para. 1 sentence 1 lit. b) GDPR and Art. 6 para. 1 sentence 1 lit. f) GDPR. Based on this information, a statistical probability of a credit default and thus your solvency is calculated.
§ 5
Shipping – Delivery – Delivery amount – Transfer of risk
1.
Excess or short deliveries of up to 10% shall be deemed to be performance in accordance with the contract.
2.
Delivery times stated by us shall commence at the time at which the customer has provided us with all information and materials required for processing his order, in particular all materials and technical information required for production. If an advance payment has been agreed with the customer, the stated delivery time shall not commence before we have re-ceived this payment.
If the customer subsequently requests changes and an agreement is reached in this respect, the delivery times shall be ex-tended to a reasonable extent.
3.
If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the ser-vice), we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is also unavailable within the new delivery period, we shall be entitled to withdraw from the con-tract in whole or in part; we shall immediately reimburse any counter-performance already rendered by the customer. Non-availability of the service exists, for example, in the event of late delivery by our suppliers, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure or if we are not obliged to procure in individual cases.
4.
The risk of accidental loss and accidental deterioration of the item shall pass to the customer as soon as the item has left our premises for delivery to the customer.
5.
The following applies to orders placed via the webshop:
The customer is free to choose between the “Express” or “Standard” shipping methods. If the customer does not specify a shipping method, we will ship the goods using the cheapest shipping method as it appears to us at the time of order confirmation. For deliveries to Switzerland and non-EU countries, the customer shall bear the customs and import duties.
§ 6
Securing of our claims
1.
The object of sale delivered by us shall remain our property until all claims arising from the business relationship with the customer have been paid in full.
If the purchased item is combined with other goods by the customer and our ownership of the purchased item expires as a result and we do not acquire ownership of the uniform item (new item) created by the combination by operation of law, the customer shall transfer co-ownership of the new item to us at the time of conclusion of the contract in the ratio of the value of the purchased item to the value of the goods combined with the purchased item.
The same shall apply in the event that the purchased item is inseparably mixed with other items not owned by us or the purchased item is processed or transformed.
The customer shall keep the new items in our (co-)ownership for us.
2.
The customer may only sell purchased items/new items in our ownership (including co-ownership) in the ordinary course of business under his normal terms and conditions and as long as he is not in default. The customer hereby assigns his claims from the resale to us. In the case of the sale of new items in which we have co-ownership shares in accordance with § 6 No. 1, a part of the claim corresponding to our co-ownership share shall be assigned to us.
If the purchased item/new item is sold by the customer to-gether with other goods not owned by us, the claim from the resale shall be assigned to us in the ratio of the value of the item delivered by us to the other goods sold.
We accept the aforementioned assignments by the customer.
3.
The customer is entitled to collect claims from the resale un-less we revoke the collection authorization. At our request, the customer is obliged to inform his customers immediately of the assignment of the claim to us and to provide us with the infor-mation and documents required for collection.
4.
The customer is not entitled to further assignment of the claim.
5.
The items subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full.
6.
If the customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods based on the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to merely demand the return of the goods and reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reason-able deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
7.
We undertake to release the securities to which we are enti-tled at the customer’s request to the extent that their realiza-ble value exceeds the claims to be secured by 10%.
§ 7
Warranty
We provide a warranty for defects in accordance with the fol-lowing specifications:
1.
In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the customer arising from separately issued guarantees, in particular on the part of the manufacturer, remain unaffected.
2.
The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods. All product descriptions and manufacturer’s specifications which are the subject matter of the individual contract, or which were publicly announced by us (in catalogues or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement on quality in this sense. If the quality has not been agreed, it shall be assessed in accordance with the statutory regulations whether a defect exists or not (§ 434 Para. 3 BGB). Public statements made by the manufacturer or on its behalf, in advertising or on the label of the goods, take precedence over statements made by other third parties.
3.
We are generally not liable for defects that the customer is aware of or is grossly negligent in not being aware of when the contract is concluded (§ 442 BGB). Furthermore, the buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of goods intended for installation or other further processing, an inspection must always be carried out immediately prior to processing. If a defect is discovered dur-ing delivery, inspection or at any later time, we must be notified immediately in writing. In any case, obvious defects must be reported in writing within 7 working days of delivery and de-fects not recognizable during the inspection within the same period from discovery. If the customer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of an item intended for fitting, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing because of a breach of one of these obligations; in this case, in particular, the customer shall have no claims for reimbursement of the corresponding costs (“removal and installation costs”).
4.
If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, the customer may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
5.
We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
6.
The customer shall give us the time and opportunity required for the subsequent performance owed to hand over the defective items for inspection purposes. In the event of a replace-ment delivery, the customer shall return the defective item to us at our request in accordance with the statutory provisions; however, the customer shall not be entitled to return the item. Subsequent performance shall not include the removal, removal or dis-installation of the defective item or the installation, attachment or installation of a defect-free item if we were not originally obliged to perform these services; the customer’s claims for reimbursement of corresponding costs (“removal and installation costs”) shall remain unaffected.
7.
We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these terms and conditions, if a defect exists. Otherwise, we may demand reimbursement from the customer of the costs arising from the unjustified request for rectification of defects if the customer knew or could have recognized that there was in fact no defect.
8.
If a reasonable deadline to be set by the customer for subsequent performance has expired without success or is dispensable in accordance with the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
9.
Claims by the customer for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded unless the last contract in the supply chain is a consumer sale (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c sentence 2, 327 (5), 327u BGB). The customer’s claims for damages or reimbursement of futile ex-penses (Section 284 BGB) shall only exist in accordance with the following Sections 8 and 9, even in the event of defects in the goods.
§ 8
Liability/Compensation of damage
1.
Claims of the customer for damages and reimbursement of futile expenses against us, our legal representatives and/or vicarious agents for whatever legal reason, for breach of obligations arising from the contract with the customer and/or from tort (hereinafter: “claims for damages”), are excluded.
2.
This shall not apply if we, our legal representatives, our vicar-ious agents or assistants are guilty of intent or gross negli-gence and/or in the event of a breach of material contractual obligations. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies on and may rely on, those that are in a reciprocal relationship to each other.
3.
In the event of non-intentional and non-grossly negligent breach of material contractual obligations, the scope of liability shall be limited to compensation for foreseeable damage typ-ical of the contract.
4.
The provisions of this paragraph shall apply accordingly if the customer demands compensation for useless expenses in-stead of a claim for damages.
5.
The above limitations of liability shall not apply if we are com-pulsorily liable, e.g. under the Product Liability Act or for dam-ages resulting from injury to life, body or health or if we have assumed a guarantee.
6.
Insofar as our liability is excluded or limited by the above pro-visions of this paragraph, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
§ 9
Limitation period
1.
Notwithstanding § 438 Para. 1 No. 3 BGB, the general limita-tion period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon ac-ceptance. Special statutory provisions on the limitation period (§ 438 para. 1 no. 1, no. 2, para. 3, §§ 444, 445b BGB) remain unaffected.
2.
The limitation periods of sales law shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the item, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer which are based on intentional or grossly negligent behaviour on our part in accordance with § 8 No. 2 or to which the customer is entitled due to injury to life, body or health (§ 8 No. 5) as well as claims under the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
§ 10
Force majeure
We do not bear the risk for events and circumstances that are beyond our control and therefore cannot be controlled by us, such as natural disasters, strikes and lockouts, force majeure, etc. If such circumstances and events occur, the rules of frus-tration of contract shall apply between the parties.
§ 11
Customer obligations
1.
We cannot fulfill our contractual obligations without the cooperation of the customer. The customer therefore undertakes to perform all services/acts to be rendered by him which are necessary for the fulfillment of the contract by us in the way they are contractually owed. This applies to acceptance of the purchased item. The customer owes these actions as well as the contractually agreed remuneration. If he violates this obligation, he may be in default of payment.
2.
In the event of seizures or other interventions by third parties in our property, the customer must inform us immediately in writing so that we can take appropriate legal action and remedies.
§ 12
Miscellaneous
1.
The place of performance and exclusive place of jurisdiction for deliveries and payments as well as all disputes arising shall be our registered office. We are entitled to sue the customer at his place of jurisdiction. Overriding statutory provisions, regarding exclusive jurisdiction, shall remain unaffected.
2.
The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the Interna-tional Sale of Goods and international uniform law is excluded.
3.
Should any of these provisions be or become invalid or void, this shall not affect the validity of the remaining provisions.
Status: June 2024
