General terms and conditions (GTC)
General terms and conditions
BORCO HÖHNS GMBH, 27356 Rotenburg (Wümme)
(hereinafter referred to as ‘BORCO HÖHNS’)
1.1 The following general terms and conditions apply exclusively to all BORCO HÖHNS sales, delivery and ancillary transactions if the contracting party (customer) is an entrepreneur, a legal entity under public law or a special fund under public law. BORCO HÖHNS does not accept any of the customer’s terms and conditions that are contrary to, are supplementary to or deviate from these terms and conditions, unless BORCO HÖHNS has expressly agreed to the validity of the same in writing. Our terms and conditions also apply if BORCO HÖHNS carries out the delivery without reservation in the knowledge that the customer’s terms and conditions are contrary to or deviate from our terms and conditions.
1.2 Our terms and conditions also apply as a framework agreement in their currently valid version to all future contracts regulating the sale and/or delivery of movable items with the customer, without the need for any reference to their validity.
1.3 All contractual agreements, including side agreements and modifications to the contract, as well as agreements with representatives and field staff, must be in writing. This particularly applies to warranties and pre-contractual agreements. No verbal side agreements have been made.
1.4 All quotes are non-binding.
1.5 By placing an order, the customer bindingly declares that they would like to purchase the ordered goods. BORCO HÖHNS is entitled to accept the contractual offer contained in the purchase order within six weeks of BORCO HÖHNS receiving the same.
1.6 Purchase orders only lead to the acceptance of the offer and thus to the conclusion of the delivery contract on written order confirmation by BORCO HÖHNS.
1.7 Any deviations in the order confirmation compared to the purchase order, particularly with regard to the design of the deliverable, the price or the terms of payment and delivery, are deemed to have been accepted by the customer if the customer does not object in writing on their part within eight days of receiving the written order confirmation or a confirmation of change. The deviations and the length of this period are to be clearly indicated in the order confirmation.
2.1 BORCO HÖHNS reserves the right to make technical changes or deviations to the deliverable in terms of shape and colour, insofar as they become necessary due to changed regulations and new findings and are useful and reasonable for the customer. The same applies to deviations that are customary in the trade.
2.2 Information concerning performance, dimensions and weights, consumption of consumables, operating costs and the like that is provided at the time the contract is concluded is only approximate, unless it has been expressly designated as binding, or usability according to the contractual purpose assumes exact conformity. Replacement of components by equivalent components is permissible.
2.3 The deliverables are special vehicles designed specifically for the intended purpose in question. The deliverables may therefore deviate from design principles, specifications or rules that are otherwise customary or applied in vehicle construction, as well as from design guidelines, specifications, rules or recommendations provided by the manufacturer or supplier without this constituting a defect.
2.4 Unless expressly agreed otherwise, the deliverables are to be manufactured exclusively with regard to the laws, regulations, industrial standards and norms and customs that are applicable or customary in Germany for the deliverables, even in the case of deliveries outside Germany. If the customer and BORCO HÖHNS have agreed on production with regard to non-German laws, regulations, industrial standards and norms or customs, the customer must inform BORCO HÖHNS in good time, completely, in writing and in the German language of the non-German laws, regulations, industrial standards and norms and customs to be observed. BORCO HÖHNS is not responsible for compliance with or observance of such non-German laws, regulations, industrial standards and norms that the customer has not informed BORCO HÖHNS of as specified above.
3.1 The price of the deliverable stated by BORCO HÖHNS is understood to exclude any cash discounts or other reductions, but includes the statutory value added tax applicable at the time of delivery.
3.2 The price quoted by BORCO HÖHNS upon conclusion of the contract for a deliverable that is to be individually manufactured according to the order applies subject to the reservation of unchanged prime costs between the time that the contract is concluded and the deliverable is completed. BORCO HÖHNS reserves the right to change the prices accordingly if cost reductions or cost increases occur following conclusion of the contract, particularly due to collective agreements or material price changes. BORCO HÖHNS is to provide the customer with proof to this effect on request.
3.3 If, by way of exception, a fixed price is expressly agreed, this only applies if no circumstances that are attributable to the customer have led to an increase in the deliverable’s manufacturing costs. BORCO HÖHNS also has the rights under (3.2) if the order is postponed at the customer’s request and the prime costs increase in the meantime.
3.4 Price changes due to general economic developments are only permissible if there are more than six months between the conclusion of the contract and the agreed delivery and BORCO HÖHNS has increased its generally valid prices by more than 5% since the conclusion of the contract; in this case, the guide price applies from the delivery date.
3.5 Cost increases may, in principle, also be charged to the customer if they are based on their subsequent requests or instructions, if they occur during a delay in acceptance by the customer or if they are otherwise culpably caused by the customer.
4. Delivery, delivery period, delay in delivery
4.1 All deliverables of BORCO HÖHNS are delivered ex-works in principle.
4.2 If, by way of exception, delivery or dispatch is agreed, this is for the account and at the risk of the customer.
4.3 Deliverables are to be accepted by the customer upon delivery according to commercial practice. The prerequisite for delivery is cash payment of the purchase object or the fulfilment of an agreed substitute arrangement for the payment of the purchase price.
4.4 The risk of accidental loss and accidental deterioration of the goods passes to the customer when the goods are handed over to the customer, or when the goods are handed over to the forwarding agent or carrier (but no later than when the goods leave the warehouse) in the case of sale by dispatch to a place other than the place of performance, or when the goods leave the factory in the case of direct shipment ex-works. This also applies if partial deliveries are made or BORCO HÖHNS has taken over additional services.
4.5 If the customer delays in accepting the goods, this is equivalent to handover.
4.6 Delivery periods and deadlines commence when the order confirmation is sent, but not before all the details of execution have been agreed on and all the information that the customer requires is available, and not before BORCO HÖHNS has received the agreed down payment; they end upon notice of completion.
4.7 Conclusion of the contract is subject to correct and timely delivery by our suppliers. This only applies in the event that BORCO HÖHNS is not responsible for the failure to deliver, particularly if a congruent hedging transaction has been concluded with the supplier. The customer is to be informed immediately of the service’s non-availability. The consideration must be refunded immediately.
4.8 In the case of custom-made deliverables from BORCO HÖHNS in line with the customer’s special requests, compliance with the agreed delivery periods depends on BORCO HÖHNS receiving the materials required for this on time. If the production of the ordered deliverable has to be suspended to meet the customer’s subsequent change and supplement requests, the customer bears the risk of the BORCO HÖHNS vehicle plant’s production programme potentially needing to be rescheduled. If the customer makes subsequent change requests and the already-prefabricated parts or specially purchased materials of BORCO HÖHNS can no longer be used for the customer’s order, BORCO HÖHNS is entitled to charge the customer for these materials at cost price and to make them available.
4.9 Delays in delivery due to force majeure, natural disasters or other unforeseeable obstacles on the premises of BORCO HÖHNS and their suppliers or sub-suppliers that BORCO HÖHNS did not culpably cause are accepted by the customer insofar as they do not exceed four months. Once this period has elapsed, the customer must declare whether they will adhere to the purchase order at the next possible date or withdraw from the contract.
5. Payment, default of payment
5.1 Unless agreed otherwise, down payments must be made immediately on receipt of the order confirmation.
5.2 If the parties have agreed that the down payment of one-third of the purchase price is to be paid at the latest by the date specified in the order confirmation, the following applies: If the customer remains in arrears with the down payment in the amount of one-third of the purchase price for more than 14 days, BORCO HÖHNS is entitled to declare that it refuses acceptance of the performance (down payment) after setting a grace period of 14 days. Once this period has elapsed, BORCO HÖHNS is entitled to claim damages for non-performance and to withdraw from the contract (section 326 of the German Civil Code). A grace period does not need to be set if the customer seriously and conclusively refuses acceptance or is obviously unable to pay the purchase price within this period. If BORCO HÖHNS demands compensation for damages, this amounts to 15% of the purchase price. The amount of damages is set higher or lower if BORCO HÖHNS proves higher damages or the customer proves lower damages.
5.3 The purchase price plus remuneration for additional services is due upon handover of the deliverable. The customer is in default of payment at the latest 30 days after receiving the invoice.
5.4 If partial payments have been agreed, the entire remaining debt becomes due for payment immediately if the customer is more than 14 days in arrears with an instalment, if it does not suspend its payments through no fault of its own, or if insolvency proceedings have been applied for in respect of its assets.
5.5 If the customer is in arrears with payments in the case of partial payment agreements with two consecutive instalments, BORCO HÖHNS is entitled to withdraw from the contract after setting a reasonable grace period and to claim damages for non-performance.
5.6 During the default period, the customer pays interest on the debt at a rate of 8% above the base rate. If the customer is a merchant, BORCO HÖHNS is entitled to interest according to section 353 of the German Commercial Code from the time that the payment claims fall due.
5.7 BORCO HÖHNS reserves the right to prove and claim from the customer higher damages caused by the delay.
5.8 The customer may only offset claims made by BORCO HÖHNS if the customer’s counterclaim is undisputed or if a legally enforceable title exists; the customer may only assert a right of retention if it is based on claims from the same contract.
6.1 Unless agreed otherwise, the customer is obligated to accept the deliverable at the agreed location within eight days of receiving notification of readiness and, at the same time, is entitled to inspect the deliverable for execution according to the contract. If the deliverable has more than insignificant defects at the time of acceptance, the customer may set a deadline of 30 days for the defects to be rectified and postpone acceptance. If this period elapses unsuccessfully, the customer may refuse acceptance and withdraw from the contract.
6.2 If the customer does not accept the deliverable within eight days of receiving the notification of readiness, after setting a grace period of 14 days BORCO HÖHNS is entitled to declare that it will refuse acceptance of the services once the grace period has elapsed and is then entitled to withdraw from the contract and demand compensation for damages. A grace period does not need to be set if the customer seriously and conclusively refuses acceptance or is obviously unable to pay the purchase price even within this period. If BORCO HÖHNS demands compensation for damages, this amounts to 15% of the purchase price. The amount of damages is set higher or lower if BORCO HÖHNS proves higher damages or the customer proves lower damages.
6.3 If the customer does not accept the deliverable within eight days of receiving the notification of readiness, they bear storage costs amounting to 0.25% of the invoice amount for the items to be delivered per expired week. BORCO HÖHNS reserves the right to prove and claim additional storage costs, and the customer reserves the right to prove and claim lower storage costs.
7. Retention of title
7.1 The delivered goods (goods that are subject to retention of title) remain the property of BORCO HÖHNS until all claims that BORCO HÖHNS is entitled to against the customer, whether now or in the future, including all current account balance claims, have been met. If the customer behaves in a way that is contrary to the contract – particularly if it is in default with paying a payment claim – BORCO HÖHNS has the right to withdraw from the contract after setting a deadline. The transport costs incurred for taking back the goods are borne by the customer. If BORCO HÖHNS takes back the goods that are subject to retention of title, this already constitutes withdrawal from the contract. BORCO HÖHNS seizing the goods that are subject to retention of title also constitutes withdrawal from the contract. BORCO HÖHNS is entitled to use goods that are subject to retention of title that it has taken back. The proceeds of such utilisation is offset against the amounts that the customer owes to BORCO HÖHNS once BORCO HÖHNS has deducted an appropriate amount for the costs of the utilisation.
7.2 The customer must treat the goods that are subject to retention of title with care. It must insure them at its own expense against damage caused by fire, water and theft at their replacement value. Where maintenance and inspection work becomes necessary, the customer must carry out such work in good time at its own expense.
7.3 The customer may use the goods that are subject to retention of title and resell them in the ordinary course of business as long as they are not in default of payment. However, they may not pledge the goods that are subject to retention of title or assign them by way of security. The customer hereby assigns to us in full, by way of security, the customer’s payment claims against its customers arising from the resale of the goods that are subject to retention of title, as well as the customer’s claims relating to the goods that are subject to retention of title that arise against its customers or third parties for any other legal reason (particularly claims arising from tort and claims to insurance benefits), including all current account balance claims. We accept this assignment.
The customer may collect these claims assigned to BORCO HÖHNS for its account in its own name on behalf of BORCO HÖHNS, as long as BORCO HÖHNS does not revoke this authorisation. The right of BORCO HÖHNS to collect these claims itself is not affected by this; however, BORCO HÖHNS will not assert the claims itself and will not revoke the collection authorisation, as long as the customer duly meets its payment obligations.
However, if the customer behaves in a way that is contrary to the contract – particularly if they are in default with paying a payment claim – BORCO HÖHNS may demand that the customer disclose the assigned claims and the respective debtors, inform the respective debtors of the assignment and hand over all documents to BORCO HÖHNS, in addition to providing all the information that BORCO HÖHNS requires to assert the claims.
7.4 Any processing or transformation of the goods that are subject to retention of title by the customer must always be carried out for BORCO HÖHNS. If the goods that are subject to retention of title are processed with other items that do not belong to BORCO HÖHNS, BORCO HÖHNS acquires co-ownership of the new item in the ratio of the value of the goods that are subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same applies to the new item created by processing as to the goods that are subject to retention of title.
If the goods that are subject to retention of title are inseparably combined or mixed with other items that do not belong to BORCO HÖHNS, BORCO HÖHNS acquires co-ownership of the new item in the ratio of the value of the goods that are subject to retention of title (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the goods that are subject to retention of title are combined or mixed in such a way that the customer’s item is to be regarded as the main item, the customer and BORCO HÖHNS already agree at this point in time that the customer transfers co-ownership of this item to BORCO HÖHNS on a pro rata basis. BORCO HÖHNS accepts this transfer.
The customer retains for BORCO HÖHNS the sole ownership or co-ownership of an item thus created.
7.5 If the goods that are subject to retention of title are seized by third parties, or if third parties otherwise intervene in the same, the customer must point out the ownership of BORCO HÖHNS and inform BORCO HÖHNS immediately in writing to this effect, so that BORCO HÖHNS can enforce its ownership rights. If the third party is unable to reimburse the judicial or extrajudicial costs that BORCO HÖHNS incurs in this context, the customer is liable for the same.
7.6 If the customer so demands, BORCO HÖHNS is obligated to release the securities to which it is entitled to the extent that their realisable value exceeds the value of the open claims against the customer by more than 10%. However, BORCO HÖHNS is not allowed to determine the value.
8. Warranty and liability
8.1 For new deliverables, the warranty period is one year from delivery of the goods, unless agreed otherwise. In the case of used deliverables, BORCO HÖHNS does not assume any liability for defects, unless this has been expressly agreed with the customer in writing. The shortening of the limitation period according to sentences 1 and 2 does not apply if a material defect due to BORCO HÖHNS culpably breaching its duty results in injury to life and limb or harm to health.
The same applies to other damages that are based on an intentional or grossly negligent breach of duty by BORCO HÖHNS, by a legal representative or by a vicarious agent. The legal regulations apply in this respect.
8.2 Replaced parts become the property of BORCO HÖHNS property without reservation. With reference to sentence 1 of (6.1) (‘Acceptance’), it is assumed that the deliverable accepted by the customer without reservation is free of defects. If the customer nevertheless subsequently claims that there are defects, they must provide evidence of the same. Then, BORCO HÖHNS must decide whether and by whom the alleged defects are to be remedied – in a local workshop or in the factory itself.
8.3 If the subsequent performance fails, the customer may, at their discretion, demand a reduction in the remuneration (price reduction) or rescission of the contract (withdrawal). However, if a breach of contract is only minor, particularly in the event of only minor defects, the customer is not entitled to withdraw from the contract. If the customer withdraws from the purchase contract due to a material defect in the purchased item or if they reduce the purchase price due to such a defect, their claim for returning the purchase price becomes time-barred within two years. If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, they are not entitled to any additional claim for damages due to the defect. If the customer chooses compensation for damages after subsequent performance has failed, the deliverable remains with the customer if this is reasonable for the same. The compensation for damages is limited to the difference between the purchase price and the value of the defective item. This does not apply if BORCO HÖHNS has maliciously caused the breach of contract.
8.4 Only the manufacturer’s product description is deemed agreed as the deliverable’s condition. Public statements, recommendations or advertising by third parties do not constitute a contractual description of the goods’ condition.
8.5 If the customer receives defective assembly instructions, the seller is only obligated to deliver assembly instructions that are free of defects, and only if the defect in the assembly instructions prevents proper assembly.
8.6 The customer does not receive any guarantees in the legal sense from BORCO HÖHNS. Third-party guarantees remain unaffected by this.
8.7 BORCO HÖHNS is entitled to reject the customer’s warranty claims if:
a) the delivered item has been modified by third parties and/or subsequent installations and conversions and the defect or damage is causally related to the modification;
b) the customer has not complied with the regulations on handling the delivered item and this has become the cause of the defective condition;
c) the customer has not properly carried out the inspections and maintenance prescribed by the operating and maintenance instructions and this has become the cause of the defective condition;
d) the permissible load is found to have been exceeded as a result of the defective condition;
e) wear and tear and damage caused by culpable or improper handling are the cause of the defective condition.
8.8 BORCO HÖHNS is liable for damages – irrespective of the legal grounds – in the context of fault-based liability in the event of intent and gross negligence. In the case of ordinary negligence, subject to legal limitations of liability (e.g. diligence in its own affairs, insignificant breach of duty), BORCO HÖHNS is liable only for:
a) damages resulting from injury to life and limb or harm to health;
b) damages resulting from the breach of an essential contractual obligation (an obligation whose fulfilment enables proper execution of the contract in the first place and on whose observance the contracting party regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
The aforementioned limitations of liability also apply to third parties, as well as in the case of breaches of duty by individuals (also in their favour) whose fault BORCO HÖHNS is responsible for according to statutory provisions. They do not apply if a defect was fraudulently concealed or a guarantee for the goods’ condition was assumed, and in the event of claims made by the customer under the German Product Liability Act.
Wegen einer Pflichtverletzung, die nicht in einem Mangel besteht, kann der Besteller nur zurücktreten oder kündigen, wenn BORCO HÖHNS die Pflichtverletzung zu Due to a breach of duty that does not consist of a defect, the customer may only withdraw from or terminate the contract if BORCO HÖHNS is responsible for the breach of duty. A free right of termination on the customer’s part (particularly according to sections 650 and 648 of the German Civil Code) is excluded. The statutory requirements and legal consequences apply in all other respects.
8.9 The customer is obligated to carry out any necessary official acceptances, requirements and approvals in these cases at its own expense. This particularly applies to changes to the permissible vehicle weights.
9. Place of performance, place of jurisdiction, applicable law
9.1 The place of performance for mutual present and future claims arising from the business relationship is the registered office of BORCO HÖHNS in Rotenburg (Wümme), Germany.
9.2 The exclusive – and also international – place of jurisdiction (also for legal actions in proceedings for deeds and cheques, in the business relationship with merchants, legal entities under public law and special funds under public law) is the registered office of BORCO HÖHNS in Rotenburg (Wümme), Germany. This also applies to all disputes arising indirectly from the contractual relationship. However, BORCO HÖHNS is also entitled to choose the competent court according to the general legal provisions, particularly that of the customer’s general place of jurisdiction.
9.3 These general terms and conditions and all legal relationships between BORCO HÖHNS and the customer are governed by the laws of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems. In particular, the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. However, the prerequisites and effects of the reservation of title under (7) are governed by the law of the item’s respective place of storage, insofar as the choice of law made in favour of German law is impermissible or invalid thereunder.
Should any provision set out in this contract be or become invalid, this does not affect the validity of the remaining provisions. The parties already agree at this point in time to replace the invalid provision with a provision that reflects as closely as possible the economic purpose that the invalid provision pursued.
Rotenburg (Wümme), Germany, 1 September 2020