Ogólne warunki dostaw (T&CD)

1. Scope of validity

1.1. Our deliveries, services and offers are made exclusively in accordance with these terms. The terms also apply to all future transactions even if they are not expressly agreed again. Customer acknowledgements referring to his own business and/or purchasing conditions shall not become part of the contract.

1.2. Our sales conditions only apply in terms of businesses within the meaning of § 310 Para. 1 BGB (German Civil Code)

2. Offer and conclusion of contract

2.1. Our offers are unbinding to the extent that obligation has not been expressly referred to in the offer.

2.2. Drawings, illustrations, dimensions, weights or other performance characteristics are only binding if this has been expressly agreed in writing.

2.3. We reserve ownership rights and copyright to quotation documents, illustrations, drawings, calculations and other documentation. These may not be passed on to third parties.

2.4. Documents that are marked "confidential" are subject to secrecy. The customer requires our express written permission before passing documents such as these on to third parties.

3. Prices, payment conditions, setoff, retention

3.1. Prices are deemed to be ex factory plus applicable statutory value added tax.

3.2. Unless otherwise stated we shall be bound by the prices contained in our quotations marked as binding for four weeks from the date of the quotation.

3.3. Unless otherwise agreed our invoices are payable without deduction 30 days after the invoice has been issued. This period is calculated by the date of receipt of payment by us.
Notwithstanding any contrary instructions of the customer, we are entitled to apply payments to any of the customer's older debts first, and shall inform the customer of the method used to allocate payment. Should costs and interest already have arisen, we shall be entitled to set off the payment against the costs first, then against the interest and finally against the principal service.

3.4. Deduction of a discount requires a special written agreement.

3.5. Should the customer fall behind with payments, we shall be entitled to demand interest of 8% above the basic annual interest rate from the relevant date (§ 247 BGB). The option of our asserting further claims against the customer remains unaffected by this.

3.6. Should we become aware of circumstances that cast doubt on the customer's creditworthiness, particularly if a cheque and/or a bill of exchange is not honoured, we shall be entitled to make the remaining debt payable, even where we have accepted cheques.
In this case we shall also be entitled to demand pre-payments or a form of security.

3.7. The customer shall only be entitled to setoff rights where his counter-claims have been legally determined, are undisputed or are recognised by us. Furthermore, he shall only be entitled to exercise the right of retention to the extent that his counter-claim is based on the same contractual relationship, and has been legally determined, is undisputed or is recognised by us.

4. Delivery period, partial deliveries, trading units, delay in acceptance

4.1. Delivery dates or periods require written confirmation from us to be binding. In all other cases delivery dates or periods are non-binding.

4.2. The delivery period shall be observed on condition that we receive the correct supplies at the correct time. We shall notify the customer as soon as possible should delays arise.

4.3. We shall be entitled to make partial deliveries or perform partial services at any time.

4.4. We reserve the right to round the customer's order quantities up or down to complete trading units.

4.5. Observing our delivery and performance obligations requires the customer to fulfil his obligations properly and in good time.

4.6 Should the customer delay acceptance or should he infringe other obligations to co-operate, we shall be entitled to demand any damages arising including any additional expenses. In this case, the risk of any accidental loss or any accidental deterioration in the article purchased shall pass to the customer at the point in time at which he delays acceptance.

5. Transfer of risk

5.1. Goods shall be transported or collected after consultation with the customer.

5.2 The risk is transferred to the customer as soon as the consignment has been handed to the person responsible for transportation or as soon as it has left our factory (ex ramp) for despatch (delivery date). Should the despatch be impossible through no fault of our own the risk is transferred to the customer on notification that the goods are ready for despatch.

6. Claims for defects

6.1. Where a defect in the item purchased exists, for which we are responsible, the customer shall be entitled to demand a remedy within a reasonable time.

6.2 Claims for defects by the customer presuppose that he has carried out the testing obligations and complied with the obligation to notify defects in time in accordance with § 377 HGB (German Commercial Code).

6.3. The notice of defect shall be sent to us in writing as soon as a defect has been detected.

6.4. Claims by the customer for expenses required for remedying the defect, in particular transport, despatch, labour and material costs shall be precluded if costs increase because the purchased item was taken to a place other than the place of fulfilment unless this complied with its use according to the regulations.

6.5. Should the second remedy fail after a reasonable period and/or it is not possible or reasonable to effect a replacement delivery, the customer may demand either a reduction in the price or cancellation of the contract. Claims for damages may only be made under the provisions of Clause 8 of these General terms and conditions of delivery.

6.6. No claims for defects may be made for insignificant defects and for natural wear and tear.

6.7. Claims for defects may only be made within 24 (twenty-four) months of delivery.

6.8. The above provisions only include claims for defects in the purchased item and exclude other claims for defects of any kind.

7. Commercial protection rights and copyright

7.1. Should claims be made against the customer for infringing commercial protection rights or a copyright as a result of his use of the purchased article within a year of delivery, we shall be obliged to procure for the customer the right to continued use. A requirement for this shall be that the customer inform us immediately in writing of any third-party claims. We reserve the right to take any defensive measures and any out of court measures. Under these conditions, should further use of the item not be possible under economically viable conditions, it shall be considered agreed that we shall either convert the purchased item to eliminate the deficiency in title or replace or withdraw the item and refund the purchase price paid to us less an amount to cover the age of the purchase.

7.2. Claims against us are precluded where rights infringements are caused because the purchased item was not used in the manner provided for in the contract. For the rest, provisions pursuant to item 8 shall apply.

7.3. We shall not be liable for infringements of the law resulting from the purchased item to the extent that these are based on construction documentation or other specifications prepared by the customer.

8. Limitation of liability

We shall only be liable in case of
a) wilfulness
b) gross negligence
c) culpable damage to life, limb or health
d) deliberate concealment of defects, or defects whose absence we have guaranteed
e) the law on product liability
irrespective of the legal grounds. In the case of culpable breach of significant contractual obligations, we shall also be liable in the case of slight negligence. This shall however be limited to foreseeable, reasonable damage typical for this type of contract.
Further claims are precluded.

9. Reservation of title

9.1. The goods shall remain our property (goods subject to reservation of title) until all payments have been made (including any balancing payments from the current account) that are due to us from the customer for any legal reason either now or in the future. Finishing or re-modelling is always carried out for us as the manufacturer but without any obligation on our part. We shall be entitled to joint ownership of the new article in the ratio of the value of the goods subject to reservation of title (invoice value) to the new article. In this case the customer shall keep the article safe for us free of charge. Where the customer disposes of the new article, the provisions of item 9.3 shall apply accordingly.

9.2. We undertake to release the securities we are entitled to on request either in whole or in part to the extent that their value exceeds our claims permanently by more than 20%.

9.3. Provided that the customer receives payment from his customer in turn or makes the proviso that title only passes to his customer once he has fulfilled his payment obligations, he shall be entitled to process and dispose of the goods subject to reservation of title properly as long as he is not in arrears. Pledging or security transfers of title are not permitted. The customer is obliged to insure the goods subject to reservation of title against all normal risks. The customer shall cede to us immediately as a precaution all receivables relating to the goods subject to reservation of title arising from reselling or for any other legal reason (insurance, unauthorised action). We authorise the customer to collect the receivables ceded to us in his own name for our account. This may be cancelled at any time. This authorisation to collect payments may only be cancelled if the customer does not comply properly with his payment obligations.

9.4 In the case of third-party access to the goods subject to reservation of title, especially in the event of impoundment, the customer shall indicate our title and inform us immediately so that we may assert our rights to title. Should the third party not be in a position to refund any court or out of court costs arising from this, the customer shall be liable for these costs.

10. Installations, repairs and other services

The following shall also apply to installations, repairs and other services to the extent that this has been separately agreed:

10.1. In the case of provision of services, the risk transfers to the customer on acceptance of the services. Our deliverables are considered accepted 2 weeks after our notification that they are ready to be inspected unless the customer complains about major existing defects in writing within this period.

10.2. The customer shall instruct our personnel about safety regulations and risks at his own expense and take all necessary measures to protect persons and property in the workplace.

10.3. The customer shall support our personnel as required when carrying out the work at his own expense and shall provide any necessary assistance.

10.4. The customer's auxiliary services must guarantee that our work can be started as soon as our personnel arrive and can be carried out without delays until inspection and acceptance.

10.5. Should the customer not fulfil his obligations we shall be entitled, but not obliged, to carry out the actions that are the customer's responsibility on his behalf and at his expense.

10.6. Where a service cannot performed for reasons for which we are not responsible, the customer shall pay for the services we have already performed and any costs incurred.

10.7. Parts that have been replaced become our property.

10.8. Should the service founder or be downgraded through no fault of our own before acceptance, the customer shall pay the price less any costs saved.

10.9. Repair periods are only binding if they have been confirmed by us in writing.

10.10. In the case of installations, repairs and other services, the customer shall be entitled to a reduction as set out in the legal provisions if—taking into consideration the legal exception cases—during the delay a reasonable period set for us to perform the service elapses without the services being performed. The right to demand a reduction shall also apply in other cases where defects have failed to be remedied. The customer is only entitled to withdraw if the installations, repairs and other services are demonstrably of no use to the customer in spite of the reduction.

11. Confidentiality

Where no express agreement in writing exists to the contrary, the information supplied to us in connection with orders shall not be considered confidential.

12. General provisions

12.1. The item purchased must be approved and only designated for use or consumption in the Federal Republic of Germany.

12.2. When operating decarbonation equipment, the customer shall undertake to observe maintenance requirements as per DIN 1988 and to return to us the decarbonation units supplied by us once they have exhausted their capacity in order to guarantee proper regeneration at the manufacturers (DIN 1988).

12.3 Should a provision of these conditions and any additional agreements concluded be or become unworkable, the validity of the remaining conditions shall not be affected by this. The contractual partners shall undertake to replace the unworkable provision with a ruling that most closely approximates the desired economic result.

12.4. To the extent that the customer is a merchant under the terms of the German Commercial Code, a legal person in public law or a separate estate governed by public law, Wiesbaden shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship unless another place of jurisdiction is compulsorily prescribed.

12.5. German law applies exclusively to the contractual relationships between us and the customer excluding the law of conflicts and the United Nations convention on contracts for the international sale of goods (CISG).

As at: March 2005

Ogólne warunki dostaw

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BRITA Polska Sp. z o.o.
Ołtarzew, ul. Domaniewska 6
PL-05-850 Ożarów Mazowiecki
tel + 48 (0) 22 721 24 40
fax + 48 (0) 22 721 24 49

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