General sales, delivery and business terms of Beck+Heun GmbH
§ 1 Area of applicability
(1) Our sales, delivery and payment conditions (T&Cs) apply for all business relationships with our customers (buyers), provided that the buyer is an entrepreneur (§ 14 BGB). Our T&Cs shall apply in particular for contracts for sale and/or delivery of movable objects („Goods“) without taking into consideration whether we produce the goods or purchase them from suppliers (§§ 433, 651 BGB).
(2) Unless otherwise agreed, the T&Cs shall apply as a framework agreement in the version valid at the time the buyer places the order, or in any case in the version last communicated to the buyer in text form; and the T&Cs shall also apply for similar future contracts, without us having to refer to the T&C again in each individual case.
(3) Our T&Cs shall apply exclusively. Conditions of the buyer that deviate from, conflict with or supplement our T&Cs only have validity, if we have expressly consented to their inclusion in writing. This consent requirement shall apply in any case, for example, even if we, with knowledge of the buyer’s T&Cs, carry out delivery to the buyer without reservation.
(4) Individual agreements entered into with the buyer on a case by case basis (including ancillary-agreements, supplements and amendments) shall always take precedence over these T&Cs. In the absence of proof to the contrary, our written confirmation shall be authoritative for the existence and content of such agreements.
(5) Legally relevant declarations and notifications, which must be submitted to us by the buyer after the contract is signed (e.g. Setting of deadlines, notifications of defects, declaration of cancellation or reduction), require written form in order to be valid.
(6) References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without such a clarification, insofar as they are not directly changed or are explicitly excluded in these T&Cs.
§ 2 Effective date of the contract
(1) Our offers are always subject to alteration and are not binding. This shall also apply, if we have entrusted documentation, product descriptions or other written and electronic documentation to the buyer beforehand.
(2) The ordering of the goods or service on the part of the buyer shall be considered a binding offer. We shall be entitled to accept this offer either by sending an order confirmation (in writing or in text form) or through delivery of goods within one week after receipt of the offer.
§ 3 Prices, time limits
(1) Orders for which fixed prices have not been expressly agreed, shall be calculated at the list prices valid on the day of delivery.
(2) The prices are ex works – excluding VAT and costs of the packaging or installation. Our invoices are due and payable within 10 days after the invoice date. The payments shall be made to the supplier’s designated account, free of transaction charges. The buyer shall only be entitled to set-off claims that are undisputed or legally binding.
(3) We reserve without limitation all rights of ownership and the rights to the use of copyright in respect of price quotations, drawings and other documents; third parties may only be given access to any of these items with our prior consent. Drawings and other documents related to offers must promptly be returned to us on request should the order not be placed with the provider.
(4) Unless expressly provided otherwise, the delivery time shall only be agreed on an approximate basis. The delivery time shall begin with the day the order confirmation is sent – however not before clarification of all execution details, and the delivery times shall be complied with, if by the end of the delivery time the goods have left the plant/warehouse, or at such time readiness for shipment of the goods is announced. In the event of premature delivery, its delivery time and not the originally agreed date shall be authoritative. We reserve right of correct and timely self-supply. The delivery time shall be appropriately extended – even if there is a delay in delivery – if unforeseeable obstacles arise which the supplier was unable to prevent in spite of exercising reasonable care according to the circumstances of the case – whether in the supplier’s plant or at the facilities of the supplier’s sub-suppliers – e.g. Interruption of operations, regulatory intervention, energy supply difficulties, delays in delivery of essential raw materials and building materials. The same shall also apply for strike and lockout. The supplier shall notify the buyer of such obstacles without delay. In important cases the buyer should be notified of the beginning and end of such obstacles as soon as possible. In the event of subsequent amendments of the contract that can influence the delivery time, the delivery time shall be extended appropriately, unless other special agreements have been made in this regard.
§ 4 Transfer of risk, dispatch and freight
(1) If the goods are sent to the buyer at the buyer’s request, when the goods are delivered to the appointed carrier, at the latest when the goods leave the factory, the risk of accidental destruction and accidental deterioration of the goods shall be transferred to the buyer irrespective of whether they goods dispatched from the place of performance and regardless of who is responsible for the freight charges. This shall also apply for carriage-paid deliveries. If the goods are ready for dispatch and dispatch or acceptance is delayed for reasons for which the supplier is not responsible, then risk shall be transferred to the buyer with receipt of the readiness for.
(2) If an acceptance is agreed, acceptance shall be authoritative for the transfer of risk. In all other aspects, the statutory regulations concerning contracts for work and services shall apply accordingly. Default of acceptance on the part of the buyer shall be equivalent to delivery or acceptance.
(3) If the buyer is in default of acceptance, or if he fails to perform an act of cooperation or if our delivery is delayed for other reasons, for which the buyer is responsible, then we shall be entitled to demand compensation for any loss including additional expenditures (e.g. storage costs).
§ 5 Prices and terms of payment
(1) If nothing to the contrary is agreed in the specific case, our prices valid at the time the contract is assigned shall apply ex warehouse plus VAT at the statutory rate.
(2) The purchase price shall be due and payable within 14 days from invoicing and delivery or acceptance of the goods. However, we shall also be entitled as part of an ongoing business relationship, to execute a delivery in whole or in part only against advance payment.
(3) Complaints concerning a bill can only be asserted within eight days of receipt.
(4) With expiry of the payment period referred to in the foregoing paragraph 2 the buyer shall be in default. During the default, interest of 5 percent above the basic lending rate shall be paid on the purchase price. We reserve the right to assert more extensive default damages. The claim for commercial maturity interest (§ 353 HGB) shall remain unaffected.
(5) The buyer shall only be entitled to execute offsets or retentions in so far as his claim is legally binding or undisputed. If a delivery is faulty the contrary rights of the buyer shall be unaffected.
(6) If after conclusion of the contract it becomes apparent that our claim for payment of the purchase price is jeopardized through the buyer’s inability to pay (e.g.an application for commencement of insolvency proceedings) we shall be entitled in accordance with the statutory regulations to refuse to perform and – if necessary after fixing a time limit – to withdraw from the contract (§ 321 BGB). The buyer shall be entitled to avoid the withdrawal by providing security for his debt. With contracts for the manufacture of non-fungible goods (custom-built products), the withdrawal may be declared immediately; the statutory regulations regarding the dispensability of the setting of a deadline shall remain unaffected.
§ 6 Retention of title
(1) We shall retain title to the delivered goods until payment in full for all of our current and future claims arising from the contract and arising from an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The buyer shall be obligated to notify us without delay in writing, if a request to open insolvency proceedings or if third party seizures (e.g. Attachments) occur on goods that belong to us.
(3) In the event the buyer is in breach of the contract, particularly non-payment of the purchase price, in accordance with statutory regulations, we shall be entitled to withdraw from the contract and to claim return of the delivery item on the basis of the retention of title and rescission. If the buyer fails to pay the purchase price due, we shall only be entitled to assert these rights after having set a reasonable grace period for payment, and such deadline has elapsed without payment being made, or where the setting of any such grace period is not required by law.
(4) Until this permission is revoked in accordance with (c) below, the buyer shall be entitled to resell and/or process the goods subject to retention of title in the normal course of business. In this case the following provisions shall additionally apply.
(a) The retention of title shall extends to any and all products resulting from the processing, intermingling or combining of our goods at their full value, with ourselves being deemed as the producer. If in the event of processing, intermingling or combining with third-party goods, the third-party’s title should remain, we shall procure joint ownership at the ratio of the amounts invoiced for said processed, intermingled or combined goods. In all other aspects the same shall apply to the ensuing products as applies to the goods delivered subject to retention of title.
(b) The buyer shall assign to us now and immediately all claims against third parties arising from the resale of the goods or product equal to the amount of our approximate share of joint ownership pursuant to the aforementioned clause as security. We herewith accept such assignment. The obligations of the buyer stated in para. 2 shall also apply with regard to the assigned claims.
(c) In addition to us, the customer shall remain authorised to collect the receivable. We shall be obligated to not collect the receivable as long as the buyer fulfils his payment obligations to us, no other deficiency of the buyer’s financial capacity occurs, and we do not assert the retention of title through exercise of a right in accordance with para. 3. Should this, however, be the case, we can require that the buyer disclose the receivables assigned and their debtors, provide all details necessary for their collection, hand over the associated documentation and notify the debtor (third party) of the assignment. Moreover, we shall be entitled in this case to revoke the buyer’s authorisation to resell and process the goods under retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will on buyer’s request release securities at our discretion.
§ 7 Buyer's warranty claims
(1) For the buyer’s rights in case of defects of quality and defects of title of the goods (including wrong delivery and short delivery, as well as incorrect assembly and inadequate assembly instructions) the statutory provisions shall apply unless agreed otherwise below. The special legal provisions for ultimate delivery of the goods to a consumer (suppliers‘ recourse according to §§ 478, 479 BGB).
(2) The primary basis of our liability for defects shall be the agreement made concerning the quality of the goods. Agreements as to the condition of the goods shall include any product descriptions so designated (including those of the manufacturer) which have been provided to the buyer prior to his purchase order or have been incorporated in the contract in the same manner as these T&C.
(3) If the condition has not been agreed, in accordance with the statutory regulation an assessment must be made as to whether or not a defect is present (§ 434 para. 1 p. 2 and 3 BGB). However, we assume no liability for public statements of the manufacturer or other third party (e.g. Advertising clams).
(4) Warranty claims do not arise, if the error is due to violations of operating, maintenance, and installation instructions, unsuitable or improper use, faulty or negligent handling and natural wear, or for interventions in the delivery objects on the part of the buyer or third parties.
(5) Claims for defects asserted by the buyer presuppose that the buyer has fulfilled his statutory obligations pertaining to inspection and notification of defects (§§ 377, 381 HGB). In the event that a defect is detected during the inspection or at a later date, we must be notified in writing without delay. The notification shall be deemed as without delay if it occurs within two weeks; timely dispatch shall suffice to meet the deadline. Irrespective of this obligation for inspection and reporting of complaints the Buyer must report obvious defects (including wrong delivery and short delivery) within one week from delivery in writing, whereby timely despatch of the report is also sufficient here to meet the deadline. If the buyer fails to perform the proper inspection and/or report defects, our liability for the defect that was not reported in good time shall be excluded.
(6) If the delivered object is defective, as subsequent fulfilment the buyer shall be entitled, first at our discretion to demand rectification of defect (repair) or delivery of a defect-free object (replacement delivery).
(7) We shall be entitled to make subsequent performance contingent upon the buyer paying the purchase price that is due. However the Buyer shall be entitled to retain a part of the purchase price which is reasonable in the ratio to the defect.
(8) The Buyer shall be obligated to give us the necessary time and opportunity for due subsequent fulfilment and shall, in particular, hand over the rejected goods for purposes of inspection. In the case of replacement delivery, the Buyer shall be obligated to return the defective object to us in accordance with the statutory regulations. The subsequent fulfilment shall include neither removal of the defective object, nor re-installation, if we were not originally obligated to perform the installation.
(9) The expenditures required for the purpose of the test and subsequent fulfilment, in particular transport, road, labour and material costs (not: Removal and installation costs), shall be our responsibility if a defect is actually present. Otherwise we can demand that the Buyer reimburse the costs incurred due to the unjustified demand for rectification of defects (in particular inspection and transport costs) unless the lack of defect was not identifiable for the buyer.
(10) In urgent cases, if, for example, the safety of operations is at stake, or in order to avoid disproportionate damage, the buyer has the right to rectify the defect himself and to demand reimbursement from us for objectively required expenses in this regard. We shall be advised without delay, if possible beforehand, of self-rectification of defects. There is no right to carry out rectification, if we would be justified in refusing appropriate subsequent fulfilment in accordance with statutory regulations.
(11) If the subsequent fulfilment failed or a deadline imposed upon us by the buyer for subsequent fulfilment expired without success or is superfluous according to the statutory regulations, the buyer shall be entitled to withdraw from the contract or to demand a reduction of the purchase price. If an insignificant defect is present, there is however no right of withdrawal.
(12) Even if there are defects, claims on the part of the buyer for damages or for reimbursement of expenses incurred in vain exist only in accordance with § 8 of these T&Cs and in all other aspects are excluded.
§ 8 Other liability
(1) Unless otherwise stated in these T&Cs, including the provisions set forth below, we shall be liable in the event of breach of contractual or non-contractual duties in accordance with the statutory regulations.
(2) We shall be liable for compensation – regardless of legal grounds – within the framework of fault-based liability, for gross negligence. In cases of minor negligence, subject to a milder standard of liability, we shall be liable in accordance with statutory regulations (e.g. Care in our own matters) only
- a) for damages arising from injury to life, physical injury or damage to health,
- b) for damages arising from the not insignificant breach of an essential contractual obligation (obligation whose fulfilment is essential for proper obligation of the contract and on whose fulfilment the contracting parties regularly trust and may trust); however, in this case our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
(3) The limitations of liability arising from para. 2 shall also apply for breaches of duty through or in favour of persons for whose culpability we are responsible in accordance with statutory regulations. These limitations shall not apply if we maliciously conceal a defect or have warranted the condition of the goods, nor shall they apply for claims on the part of the buyer in accordance with the Product Liability Act.
(4) Due to a breach of duty which does not involve a defect the Buyer is only entitled to withdraw from the contract or cancel the contract if we are responsible for the breach of duty. A free right of termination on the part of the buyer (in particular according to §§ 651, 649 BGB) shall be excluded. In all other aspects the statutory prerequisites and legal consequences shall apply.
§ 9 Supplier's right to refuse performance / security deposit
In the case of an essential deterioration in the assets of the buyer that occurs after conclusion of the contract or which only becomes known after conclusion of the contract, we shall be entitled to refuse our performance and to demand that the buyer eliminates the risk to the purpose of the contract by providing adequate security. If the buyer does not honour the request for security deposits within a reasonable time, we shall be entitled, to withdraw from the contract, or to claim damages.
§ 10 Statute of limitation
(1) Notwithstanding § 438 para. 1 no. 3 BGB the general limitation period for claims arising from material and legal defects is one year after delivery. If an acceptance is agreed, the limitation period begins with the acceptance.
(2) However, if the goods are a building or an object which has been used as a building in accordance with its normal use, and which have caused its defectiveness (building material), according to the statutory regulations the period of limitation shall be five years from delivery (§ 438 para. 1 no. 2 BGB). Other additional special regulations concerning the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB) shall remain hereby unaffected.
(3) The foregoing limitation periods of the purchase right shall also apply for contractual and non-contractual damage compensation claims of the part of the buyer that are based on defect of the goods, unless the regular statutory limitation period (§§ 195, 199 BGB) would in the specific case result in a shorter limitation period. However claims for damage compensation on the part of the buyer in accordance with § 8 para. 2 sentence 1 and sentence 2(a), and in accordance with the Product Liability Act shall become statute-barred only after the statutory limitation periods.
(4) In the event of concluded partial performances the limitation period shall commence with partial receipt or partial acceptance.
§ 11 Place of performance
Place of performance shall be our place of business in Mengerskirchen.
§ 12 Final provisions
(1) For these T&Cs and the contractual relationship between us and the buyer the law of the Federal Republic of Germany shall apply with exclusion of the standard international law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) Exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall the competent local court or district court for our place of business in Mengerskirchen, Germany. However we shall also be entitled to bring an action at the place of fulfilment for the delivery commitment in accordance with these T&Cs or a suitable individual agreement or at the general place of jurisdiction for the buyer. Priority statutory regulations, in particular concerning exclusive competences, shall remain unaffected.
(3) Should individual provisions in whole or part be or become invalid, the remaining provisions shall remain unaffected. The ineffective provision shall be replaced by a provision that must nearly approaches the desired economic purpose of the ineffective provision.
Editing status October 2016