(1) All deliveries, services and offers of the Seller shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery. They are an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as “Customer”) for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their application in individual cases. Even if the Seller refers to a letter that contains or refers to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
(3) These General Terms and Conditions of Sale and Delivery shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(1) All offers of the Seller are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within fourteen days of receipt. The Seller reserves the right to correct any obvious calculation or printing errors in offers; such correction shall be made immediately after the error has been identified.
(2) The legal relationship between the Seller and the Customer shall be governed solely by the written purchase contract, including these General Terms and Conditions of Sale and Delivery. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by the Seller prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
(3) Legally relevant declarations and notifications of the Customer with regard to a contract concluded under the application of these General Terms and Conditions (e.g., setting of a deadline, reminder, withdrawal) shall be made in writing. Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(4) With the exception of managing directors or authorized signatories, the Seller’s employees are not entitled to make deviating verbal agreements.
(5) Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(6) Information provided by the Seller on the object of the delivery or service (e.g., weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g., drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
(7) The Seller retains ownership or copyright of all offers and cost estimates made by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. Without the express consent of the Seller, the Customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them. At the request of the Seller, he shall return these items in full to the Seller and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EURO ex works plus packaging and, if applicable, transport (EXW Incoterms 2010), statutory value added tax, customs duties in the case of export deliveries, as well as fees and other public charges, unless expressly stated otherwise in the order confirmation, such as USD as the relevant currency.
(2) If the agreed prices are based on the Seller’s list prices and the delivery is to take place more than four months after conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount deduction). If a contract is concluded under agreement of individual prices and if there are more than four months between conclusion of the contract and delivery, the Seller shall be entitled or obliged to adjust the prices upwards or downwards in accordance with the actual percentage change if the Seller’s purchase prices have changed by at least 3 % at the time of conclusion of the contract until delivery. An increase in one cost factor must, if possible, be offset by decreasing costs in other areas on the part of the Seller. A price increase may therefore only take place if the total price has increased overall, taking into account all cost factors. In the event of a price adjustment, the Customer must be informed of which cost factors have increased and how this affects the increase in the total price.
(3) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Cheques shall only be deemed to be payment after they have been cashed. If the Customer fails to make payment when due, interest of 5% p.a. shall be payable on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting with counterclaims of the Customer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
(5) The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, circumstances become known to the Seller which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the Seller’s outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
(1) Deliveries are made ex works (EXW Incoterms ® 2020).
(2) Deadlines and dates for deliveries and services promised by the Seller are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Customer – demand from the Customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the Customer fails to meet its contractual obligations towards the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not culpable. If such events make it considerably more difficult or impossible for the Seller to deliver or perform and the hindrance is not only of temporary duration, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended, or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the Customer may withdraw from the contract by means of an immediate written declaration to the Seller.
(5) The Seller is only entitled to make partial deliveries if
a. the partial delivery is usable for the Customer within the scope of the contractual intended purpose,
b. the delivery of the remaining ordered goods is ensured and
c. the Customer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear these costs).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
(1) The place of performance for all obligations arising from the contractual relationship is Bergkirchen, OT Günding (Upper Bavaria), unless otherwise specified. If the Seller is also responsible for the installation, the place of performance shall be the place where the installation is to be carried out.
(2) The mode of dispatch and the packaging are subject to the dutiful discretion of the Seller.
(3) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made, or the Seller has assumed other services (e.g., shipping or installation). If the shipment or handover is delayed due to a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the delivery item is ready for shipment and the Seller has notified the Customer of this.
(4) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the Seller, the storage costs shall amount to [0.25]% of the invoice amount of the delivery items to be stored per expired week. The assertion and proof of further or lower storage costs remain reserved.
(5) The shipment shall only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Customer and at the Customer’s expense.
(6) Insofar as acceptance is to take place, the object of sale shall be deemed to have been accepted when
a. the delivery and, if the Seller also owes the installation, the installation has been completed,
b. the Seller has notified the Customer thereof with reference to the deemed acceptance pursuant to this § 5 (6) and has requested the Customer to accept the goods,
c. [twelve] working days have elapsed since delivery or installation or the Customer has started to use the purchased item (e.g., has put the delivered system into operation) and in this case [six] working days have elapsed since delivery or installation and
d. the Customer has failed to accept the goods within this period for a reason other than a defect notified to the Seller which makes the use of the purchased goods impossible or significantly impairs their use.
(1) The statutory provisions shall apply to the rights of the Customer in the event of material defects and defects of title (including incorrect 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 unprocessed goods to a consumer (§ 13 BGB), even if the consumer has processed them further (supplier’s recourse pursuant to § 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Customer or another entrepreneur, e.g., by installation in another product.
(2) The basis of any liability for defects on the part of the Seller is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract, or which were publicly announced by the Seller (for example in catalogues provided by him) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods. Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not. The Seller shall not be liable for public statements made by the manufacturer or other third parties (e.g., advertising statements) to which the Customer has not explicitly referred to the Seller as being decisive for the purchase.
(3) The Seller shall in principle not be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence. In addition, the Customer’s claims for defects presuppose that he has fulfilled his obligations to inspect and give notice of defects. The delivered items are to be inspected carefully immediately after delivery to the Customer or to the third party designated by him. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful examination, they shall be deemed to have been approved by the Customer if the Seller does not receive a written notice of defect within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if the Seller does not receive a written notice of defect within five working days of the time at which the defect became apparent; however, if the defect was already apparent to the Customer at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect. In the case of all goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. At the request of the Seller, a delivery item which is the subject of a complaint shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(4) In the event of material defects of the delivered items, the Seller shall first be obliged and entitled to rectify the defect or make a replacement delivery, at its discretion to be made within a reasonable period of time. In the event of failure, i.e., impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the contract or reduce the purchase price appropriately. In the case of an insignificant defect, however, there is no right of withdrawal.
(5) The Seller shall reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, the Seller 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 apparent to the Customer.
(6) In urgent cases, e.g., if operational safety is at risk or to prevent disproportionate damage, the Customer shall have the right to remedy the defect itself and to demand reimbursement from the Seller of the expenses objectively necessary for this purpose. The Seller shall be notified immediately of any such self-remedy, if possible before it is carried out. The right of self-execution does not exist if the Seller would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(7) Claims of the Customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with the provisions of § 8 and are otherwise excluded.
(8) In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. In the event of such defects, warranty claims against the Seller shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against the Seller shall be suspended.
(9) The warranty shall not apply if the Customer modifies the delivery item or has it modified by a third party without the consent of the Seller and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of the rectification of defects arising from the modification.
(10) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
(1) The Seller warrants in accordance with this § 7 that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a license agreement. If he does not succeed in doing so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Customer are subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Customer or assign them to the Customer. Claims against the Seller shall only exist in these cases in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.
(1) The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is involved in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees, or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item on time, its freedom from defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations that are intended to enable the Customer to use the delivery item in accordance with the contract or are intended to protect the life or limb of the Customer’s personnel or to protect the Customer’s property from significant damage.
(3) Insofar as the Seller is liable on the merits for damages in accordance with § 8 (2), this liability shall be limited to damages which the Seller had foreseen at the time of the conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen by exercising due care. Indirect damage and consequential damage which are the result of defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence, the Seller’s obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 2,000,000.00 per case of damage, even if this involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees, and other vicarious agents of the Seller.
(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 do not apply to the liability of the Seller for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
(8) Due to a breach of duty that does not consist of a defect, the Customer may only withdraw or terminate the contract if the Seller is responsible for the breach of duty. A free right of termination of the Customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
(1) In deviation from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery; if acceptance has been agreed, the limitation period shall commence with acceptance.
(2) If the goods are 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 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). The other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
(3) The above limitation periods of 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 individual cases. Claims for damages of the Customer according to § 8 para. 2 and para. 7 as well as according to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
(1) The following agreed reservation of title serves to secure all current and future claims of the Seller against the Customer arising from the business relationship between the contracting parties (including balance claims from a current account relationship limited to this delivery relationship).
(2) The goods delivered by the Seller to the Customer remain the property of the Seller until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place according to the following provisions are hereinafter referred to as “goods subject to retention of title”.
(3) The Customer shall store the goods subject to retention of title free of charge for the Seller.
(4) The Customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realization (paragraph 9). Pledges and transfers by way of security are not permitted.
(5) If the goods subject to retention of title are processed by the Customer, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer and that the Seller shall acquire direct ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Customer hereby transfers his future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to the Seller as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall, insofar as the main item belongs to it, transfer to the Customer pro rata co-ownership of the uniform item in the ratio specified in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the Customer hereby assigns to the Seller by way of security the resulting claim against the purchaser – in the event of co-ownership of the Seller in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorizes the Customer to collect the claims assigned to the Seller in its own name. The Seller may only revoke this collection authorization in the event of realization.
(7) If third parties seize the goods subject to retention of title, in particular by way of attachment, the Customer shall immediately notify them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable to the Seller for this.
(8) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The choice of the items to be released thereafter lies with the Seller.
(9) If the Seller withdraws from the contract in the event of behavior contrary to the contract on the part of the Customer – in particular default of payment – (case of realization), he is entitled to demand the return of the goods subject to retention of title.
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be, at the Seller’s discretion, Munich or the Customer’s registered office. In these cases, however, Munich shall be the exclusive place of jurisdiction for actions against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed in order to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
(4) Should any provision of this contract be or become invalid, void or unenforceable in whole or in part at present or in the future, this shall not affect the validity of the remaining provisions of this contract. § 139 BGB (partial invalidity) is expressly waived.
Personal data of the Customer will only be used for the purpose of contract execution and Customer service. In the context of the contractual relationship and for the implementation necessary personal data of the Customer are stored to this extent with the Seller. Insofar as this is necessary for the execution of the contract, the data will also be transmitted to other companies which are entrusted by the Seller in a permissible manner with the execution of the contract or parts thereof. In this case, the Seller undertakes to conclude a contract processing agreement with the third party and to set up appropriate technical and organizational measures (TOMs).
Status: January 2022
Beckmann Electronics GmbH
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