General Terms and Conditions of Beck+Heun GmbH
§ 1 Scope of application
(1) Our Terms and Conditions of Sale, Delivery and Payment (GTC) apply to all business relationships with our customers (purchasers), provided that the purchaser is an entrepreneur (§ 14 BGB). Our GTC apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 651 BGB).
(2) Unless otherwise agreed, the GTC in the version valid at the time of the customer's order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our GTC apply exclusively. Any deviating, conflicting or supplementary terms and conditions of the customer shall only be valid if we have expressly consented to their inclusion in writing. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer's GTC.
(4) Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the existence and content of such agreements.
(5) Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these GTC.
2 Conclusion of the contract
(1) Our offers are always subject to change and non-binding. This also applies if we have provided the customer with documentation, product descriptions or other written and electronic documents in advance.
(2) The order of the goods or services by the customer shall be deemed a binding offer. We may accept this offer either by sending an order confirmation (in writing or in text form) or by delivering the goods within one week of receipt of the offer.
§ 3 Prices, deadlines
(1) Orders for which fixed prices have not been expressly agreed shall be invoiced at the list prices valid on the day of delivery.
(2) Prices are ex works - excluding VAT and costs of packaging or assembly. Our invoices are due for payment within 10 days of the invoice date without deduction. Payments are to be made free supplier's payment office. The Purchaser may only set off such claims as are undisputed or have been finally determined by a court of law.
(3) We reserve unrestricted rights of ownership and copyright exploitation rights to cost estimates, drawings and other documents; they may only be made accessible to third parties with our prior consent. Drawings and other documents belonging to offers must be returned immediately on request if the order is not placed with the supplier.
(4) Unless otherwise expressly stipulated, the delivery time shall be deemed to be only approximately agreed. It shall commence on the date of dispatch of the order confirmation - but not before clarification of all details of execution - and shall be deemed to have been complied with if, by the end of the delivery period, the goods have left the factory/warehouse or, in the event that dispatch is possible, notification has been given that the goods are ready for dispatch. In the event of premature delivery, it is the latter and not the originally agreed date that is decisive. Correct and timely self-delivery is reserved. The delivery period shall be reasonably extended - even within a delay in delivery - in the event of unforeseen hindrances which the supplier was unable to avert despite exercising reasonable care in the circumstances of the case - irrespective of whether they occurred at the supplier's works or at its sub-suppliers - e.g. operational disruption, official interventions, energy supply difficulties, delays in the delivery of essential raw and construction materials. The same shall also apply to strikes and lockouts. The Supplier shall notify the Purchaser of such hindrances without delay. In important cases, the Purchaser shall be informed of the beginning and end of such hindrances as soon as possible. In the event of subsequent amendments to the contract which may affect the delivery period, the delivery period shall be extended accordingly, unless special agreements have been made in this respect.
§ 4 Transfer of risk, shipping and freight
(1) If the goods are sent to the customer at the latter's request, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon their delivery to the supplier's shipping agent, at the latest upon their leaving the factory or the warehouse, irrespective of whether the shipment was made from the place of performance and who bears the freight costs. This also applies to carriage paid deliveries. If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which the supplier is not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for dispatch.
(2) If acceptance has been agreed, this shall be decisive for the transfer of risk. Otherwise, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
(3) If the customer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
(2) The purchase price shall be due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment.
(3) Complaints against an invoice can only be made within eight days of receipt.
(4) Upon expiry of the payment period pursuant to the above paragraph 2, the customer shall be in default. During the period of default, the purchase price shall bear interest at a rate of 5 per cent above the base interest rate. We reserve the right to claim further damage caused by default. The claim to the commercial due date interest (§ 353 HGB) remains unaffected.
(5) The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the customer shall remain unaffected.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the purchaser's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). The customer may avert withdrawal by providing security. In the case of contracts for the manufacture of unjustifiable items (customised products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) Until full payment of all our present and future claims arising from the delivery contract and an ongoing business relationship (secured claims), we retain title to the goods delivered.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the customer 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 to demand the return of the goods on the basis of the retention of title and withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the customer's authorisation to further sell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the customer.
§ 7 Claims for Defects of the Purchaser
(1) The statutory provisions shall apply to the rights of the purchaser in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB).
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which were provided to the purchaser prior to his order or were included in the contract in the same way as these GTC, shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it is to be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) Warranty claims do not arise if the defect is attributable to violations of operating, maintenance and installation instructions, unsuitable or improper use, faulty or negligent handling and natural wear and tear as well as interventions in the delivery item carried out by the purchaser or third parties.
(5) The Purchaser's claims based on defects shall be subject to the condition that the Purchaser has complied with its statutory duties to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or at a later date, we must be notified of this in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer shall notify us in writing of obvious defects (including incorrect and short deliveries) within one week of delivery, whereby timely dispatch of the notification shall also suffice to meet the deadline. If the customer fails to carry out a proper inspection and/or to give notice of defects, our liability for the defect not notified in time shall be excluded.
(6) If the delivered item is defective, the purchaser may initially demand, at the supplier's discretion, rectification of the defect (subsequent improvement) or delivery of a defect-free item (replacement delivery) as subsequent performance.
(7) We are entitled to make the supplementary performance owed dependent on the purchaser paying the purchase price due. The customer shall, however, be entitled to retain an appropriate part of the purchase price in relation to the defect.
(8) The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install it.
(9) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs), if there is actually a defect. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the customer.
(10) In urgent cases, e.g. in the event of a risk to operational safety or to avert disproportionate damage, the customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(11) If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(12) Claims of the customer for damages or reimbursement of futile expenses also exist in the case of defects only in accordance with § 8 of these GTC and are otherwise excluded.
§ 8 Other liability
(1) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages - irrespective of the legal grounds - within the framework of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs) only
a) for damages arising from injury to life, limb or health,
b) for damages arising from the not inconsiderable breach of a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
(4) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination on the part of the customer (in particular in accordance with §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Supplier's right to refuse performance / provision of security
In the event of a significant deterioration in the financial situation of the customer, which occurs after conclusion of the contract or only then becomes known, we have the right to refuse our performance and to demand that the customer eliminates any risk to the purpose of the contract by providing sufficient security. If the customer does not comply with the demand for securities within a reasonable period of time, we are entitled to withdraw from the contract or to demand compensation for damages.
§ 10 Limitation
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance.
(2) If, however, the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be five years from delivery in accordance with the statutory provision (Section 438 (1) No. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB) shall also remain unaffected.
(3) The above limitation periods under the law on sales also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the Purchaser pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
(4) In the case of completed partial performances, the limitation period shall commence with the receipt of parts or the partial acceptance.
§ 11 Place of performance
The place of performance is our registered office in Mengerskirchen.
§ 12 Final provisions
(1) The law of the Federal Republic of Germany shall apply to these GTC and the contractual relationship between us and the Customer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the local or regional court responsible for our registered office in Mengerskirchen. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
(3) Should individual provisions be or become invalid in whole or in part, this shall not affect the remaining provisions. The invalid provision shall be replaced by a provision which comes closest in economic terms to the purpose intended by the invalid provision.
Processing status January 2020