General terms and conditions of Berky GmbH
(Status 01.01.2021)

§ 1 General
These terms and conditions apply exclusively; Terms and conditions of the buyer that are contrary to or deviate from these conditions are not recognized by the seller unless he has expressly consented to their inclusion in the contractual relationship in writing.
"Seller" in the sense of these general terms and conditions is Berky GmbH.

§ 2 Offer
(1) Our offer is non-binding, unless otherwise stated in the order confirmation.
(2) The seller reserves all property rights and copyrights to all images, drawings, samples, plans, calculations, cost estimates and other documents (hereinafter referred to as "documents"). Any transfer of the documents to third parties is prohibited unless the seller's written consent for this transfer has been obtained in advance.

§ 3 Price - Payment
(1) All prices are net prices and do not include any costs for packaging, loading and shipping. The statutory value added tax will be charged additionally at the respective statutory rate at the expense of the buyer.
(2) The delivery / collection of the object of purchase takes place EX Works, unless otherwise expressly agreed in writing between the parties. The address is: Wacholderweg 27, 49733 Haren (Ems), Germany
(3)   If the delivery is to take place more than 4 months after the conclusion of the contract, the seller is entitled to pass on any price increases by his suppliers or any increases in wage and salary costs to the buyer in the same amount.
(4) Unless otherwise expressly agreed between the parties, the purchase price plus any ancillary costs (e.g. transport, packaging, loading) is due for payment immediately after invoicing and is to be paid cashless to an account to be specified by the seller.
(5) The buyer is only entitled to set-off and retention rights insofar as his claim has been legally established or the seller has expressly agreed to this.

§ 4 Delivery Time - Delivery Delays
(1) The delivery dates agreed between the parties are generally non-binding, unless the parties have expressly agreed otherwise. Any delays that are not the responsibility of the seller and prevent compliance with the delivery date lead to a reasonable extension of the delivery date without the buyer being able to assert any claims against the seller. The same applies to the breach of any obligations to cooperate by the buyer. In these cases, the right of withdrawal of the buyer is excluded.
(2) As soon as the seller becomes aware of circumstances which jeopardize compliance with the delivery date, the seller will inform the buyer about this immediately.
(3) The delivery is deemed to have been met if a) the object of purchase was offered for collection; b) the object of purchase has been handed over to the carrier or c) if an acceptance has to take place, the acceptance has been offered.
(4) If the buyer is in default with the acceptance or, if such has been agreed, with the collection of the object of purchase, the seller is entitled to impose a contractual penalty of 0.2% for each completed calendar day of the delay, up to a maximum of 5% of the to demand the net purchase price of the object of purchase. The contractual penalty applies in addition to the other claims to which the seller is entitled from the delay against the buyer; the assertion of further damage remains expressly unaffected.

§ 5 Transfer of Risk - Acceptance
(1) The risk is transferred to the buyer when the item is made available for collection by the seller on the agreed delivery date at the seller's plant; If the object of purchase is to be dispatched, the risk is transferred to the buyer when the object of purchase is handed over to the carrier / forwarding agent. Minor defects in the object of purchase do not entitle the buyer to refuse acceptance.
(2) If the shipment is delayed or not carried out due to circumstances for which the buyer is responsible, the risk is transferred to the buyer on the day of readiness for shipment. Partial deliveries are permitted if these are reasonable for the buyer.

§ 6 Retention of Title
(1) The seller retains ownership of the purchase item until all payments from the purchase contract have been received. Insofar as the parties are in a plurality of contractual relationships, the parties hereby agree to a current account retention of title instead of the retention of title in sentence 1, so that the seller remains the owner of the object of purchase until all claims of the seller against the buyer from the contractual relationship have been met.
(2) In the event of a breach of contract by the buyer, in particular in the event of default in payment, the seller is entitled to reclaim the purchase item including accessories after setting a reasonable deadline. It is then up to the seller to freely utilize the object of purchase and to initially use the proceeds to meet the outstanding liabilities. Any excess proceeds will be paid out to the buyer, less reasonable administration costs.
(3) In the event of seizures or other interventions by third parties, the buyer must immediately notify the seller in writing so that the seller can assert his rights insofar as the transfer of ownership has not yet occurred. The buyer is entitled to resell the delivery item in the ordinary course of business; However, buyer immediately assigns to the seller all claims in the amount of the sales price (including VAT) that arise from the resale against his customers or third parties, regardless of whether the object of purchase was without or after processing has been resold.

§ 7 Claims for Defects
Claims of the buyer against the seller from material defects only exist insofar as these are expressly listed here. Otherwise, these are excluded. No guarantees were agreed upon.
(1) The buyer's warranty rights presuppose that he has properly complied with his inspection and complaint obligations according to Section 377 of the German Commercial Code (HGB).
(2) If, in spite of all due care, the object of purchase shows a defect that already existed at the time of the transfer of risk, the seller will either repair the goods or make a replacement delivery, subject to a timely notification of defects.
(3) If the supplementary performance fails twice and the reported defect persists, the seller has the right to withdraw from the contract.
(4) Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, as well as damage that occurs after the transfer of risk as a result of incorrect or negligent treatment, excessive use, unsuitable operating resources or due to special external influences arise that were not required by the contract. If the buyer or a third party undertakes improper repair work or changes to the object of purchase, no claims for defects exist or the consequences arising from it.
(5) The limitation period for warranty claims is 12 months. The period begins at the time the risk passes to the buyer.
(6) As far as used items are concerned, all warranty claims are excluded.

§ 8 General Limitation of Liability
(1) Claims for damages by the buyer are excluded, unless otherwise specified below. The above exclusion of liability also applies in favor of the legal representatives and vicarious agents of the seller, provided that the buyer asserts claims against them.
(2) The exclusion of liability specified in section 1 does not include claims for damages due to injury to life, limb, health and claims for damages resulting from the breach of essential contractual obligations. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
(3) The exclusion of liability also excludes liability for damage based on an intentional or grossly negligent breach of duty by the seller, his legal representatives or his vicarious agents. The amount of liability in the event of gross negligence is limited to the purchase price of the object of purchase.
(4) The provisions of the Product Liability Act (ProdHaftG) remain unaffected.
(5) Liability for indirect damage and loss of profit is excluded.

§ 9 Offsetting/ Right of Retention
(1) Offsetting against the buyer's claims against the seller is only possible insofar as the counterclaim has been expressly recognized by the seller, or if it is a claim that has been legally established. Incidentally, the buyer is not entitled to offset against the seller.
(2) Any rights of retention of the buyer against the seller are excluded, unless this is based on a legally established counterclaim.

§ 10 Applicable Law - Place of Jurisdiction - Place of Performance - Written Form
(1) The law of the Federal Republic of Germany applies exclusively and UN sales law is excluded.
(2) The place of jurisdiction is the court responsible for the registered office of the seller.
(3) Unless otherwise stated in the contract, the place of performance is 49733 Haren (Ems)
(4) Changes and / or additions to these General Terms and Conditions as well as all contractual agreements must be made in writing to be effective. The written form also applies if this form requirement is to be deviated from.