General Terms and Conditions
The following General Terms and Conditions (GTC) of BeA GmbH (hereinafter also referred to as “Supplier”) are, by mutual agreement, part of the contract; They have priority over any deviating conditions of the purchaser (hereinafter also referred to as “customer” or “purchaser”). This also applies if the supplier provides services in the knowledge of contradictory or deviating general terms and conditions of the customer.
I. Sales and delivery conditions
Placement of orders
A contract is only concluded with written confirmation from the supplier or through execution of the order. Additions, changes and additional agreements must be made in writing.
This also applies to this regulation itself.
The customer is liable for the accuracy of the documents to be delivered, such as drawings, gauges and samples.
The purchaser must be informed of obvious errors that the supplier notices when specifying dimensions and calculations in good time before the order is carried out.
The supplier is not obliged to inspect them.
Samples are delivered against payment unless otherwise agreed in individual cases.
The information, drawings, illustrations and service descriptions contained in brochures, catalogs, price lists or the documents accompanying the offer are approximate values that are standard in the industry.
Performance time, impossibility, delay
Those specified by the supplier Delivery dates are deemed to be agreed only approximately, unless a fixed delivery or service time has been specifically agreed. A delivery date is deemed to have been met if the goods have been handed over to the shipping agent at the agreed time in accordance with Section 5.2 or if the customer has been notified of readiness for shipping if shipping is possible.
In the event of later contract changes that affect the delivery date, the delivery time will be extended to a reasonable extent.
If the supplier is prevented from fulfilling his delivery obligation due to the occurrence of unforeseeable, extraordinary and non-culpable events, which he was unable to avert despite taking reasonable care in the circumstances of the individual case – regardless of whether they occurred at the supplier’s factory or at his Suppliers, in particular official interventions, operational disruptions, labor disputes, delays in the delivery of essential raw and auxiliary materials as well as force majeure – the delivery time will be extended to a reasonable extent. If, as a result of the aforementioned events, the execution of the contract becomes unreasonable for one of the contracting parties, in particular if the execution of the contract is delayed in essential parts by more than 6 months, this party may withdraw from the contract.
If the goods intended to fulfill the order are not delivered to the supplier correctly, on time or damaged, he is released from the obligation to deliver the goods sold, provided he has ensured timely delivery to himself. The supplier will immediately inform the purchaser of the unavailability and immediately reimburse the purchaser for any consideration already provided.
If the supplier is responsible for non-compliance with delivery dates or delivery deadlines, the customer can withdraw from the contract after a reasonable grace period set in writing has expired without result. The customer can only claim damages in accordance with Section 12 of these General Terms and Conditions. The same applies in the event of impossibility for which the supplier is responsible.
In the event of impossibility for which the supplier is not responsible, the customer must reimburse the supplier’s advance work made before the implementation of the contract was impossible, based on the fair value. The same applies if the supplier is entitled to withdraw due to contractual or legal provisions. Further rights of the supplier remain unaffected.
Pricing
The prices are – unless otherwise expressly agreed – ex works and do not include packaging, freight, postage and insurance. All prices are exclusive of statutory sales tax.
If prices are not stated or only with the reservation “current list price”, the list prices valid on the day of delivery will be calculated. If the agreed price is not based on a list price, but on an agreement made between the contracting parties, and the list price otherwise held by suppliers for this service, the market price or the price of a relevant upstream supplier for the service has increased since the time the agreement was concluded has increased by more than 5%, the supplier can demand a corresponding adjustment of the agreed price (exemption limit). This applies if a delivery period of more than four months has been agreed or the delivery takes place more than four months after conclusion of the agreement for actual reasons for which the purchaser is responsible. The above regulation applies to price increases of up to 10%. In the event of higher price adjustments, a new price agreement is required. If the comparison prices mentioned above have increased by more than 25% and the parties do not agree on a price increase, the supplier is entitled to withdraw from the contract. The customer has no further rights in this case.
Payment conditions
Payments are due upon receipt of the invoice and are payable without deductions after 15 days. The supplier is entitled to send invoices to the customer electronically, for example by email.
If, after conclusion of the contract, the supplier becomes aware of facts about a significant deterioration in the purchaser’s financial circumstances that are likely to jeopardize his claim to the consideration, he can provide suitable security in accordance with Section 232 Para. 1 BGB within a reasonable period of time or instead demand delivery on a step-by-step basis. The purchaser can also provide a suitable guarantor as security, who will provide security without waiving the defense of advance action and who will provide payment upon immediate demand. If the purchaser does not comply with the supplier’s request or does not comply with it in a timely manner, the supplier can withdraw from the contract. In the event of withdrawal, the supplier’s advance work must be reimbursed according to the fair value.
If the purchaser does not meet his payment obligations despite a reminder, the supplier is entitled, in addition to asserting the claim for performance and/or other legal or contractual rights, to stop further processing of all orders placed by the purchaser.
Shipping and transfer of risk
Shipping takes place ex works. Unless a specific agreement has been made, the supplier is not obliged to choose the cheapest shipping method.
The risk passes to the customer when the goods have been handed over to the shipping agent. If the goods are ready for dispatch and the dispatch or dispatch or acceptance is delayed for reasons for which the supplier is not responsible, the risk is transferred to the purchaser upon receipt of notification of readiness for dispatch.
Minimum order quantity/tolerances
The supplier only accepts orders with a delivery value of €250 or more. For orders under €250, the supplier reserves the right to charge a small quantity surcharge of €25. Unless otherwise agreed, delivery will be made in the shipping units shown in the order documents.
Partial deliveries to a reasonable extent as well as production-related excess or short deliveries of up to 10% of the total order quantity are permitted. The purchaser is obliged to take this circumstance into account when placing the order without deriving any claims against the supplier from this.
Intellectual property rights
The supplier reserves ownership rights and copyright to the illustrations, drawings and other documents provided by him; They may not be made accessible to others without the supplier’s consent and must be returned to him immediately upon request.
If the property rights of third parties are violated during the production of the goods based on drawings, samples or other information provided by the purchaser, the supplier will release the supplier from all resulting claims or, at his discretion, compensate him for any damage caused as a result.
Retention of title
The supplier reserves ownership of the delivered goods until all claims arising from the business relationship with the customer have been fulfilled (reserved goods). In the case of payment on a check/bill of exchange basis, the retention of title remains in effect until the bill of exchange is redeemed by the customer. Checks will also only be accepted on account of performance and not in lieu of performance. In the case of current invoices, the retention of title serves to secure the supplier’s balance claim. The purchaser is obliged to adequately insure the reserved goods at his own expense against all usual risks, in particular fire and burglary risks, and to provide proof of this upon request.
Acquisition of ownership by the purchaser in accordance with Section 950 of the German Civil Code (BGB) is excluded. Any combination, mixing, filling and processing of the reserved goods with other goods that do not belong to the supplier is carried out for the supplier in such a way that the supplier acquires co-ownership of the new item with the share corresponding to the The invoice value of the reserved goods corresponds to the total sales value of the new item. The new item is considered reserved goods within the meaning of these conditions and is (also) stored by the purchaser for the supplier. If the purchaser acquires sole ownership of the new item, he now transfers the co-ownership share to the supplier in accordance with the value of the processed reserved goods.
The purchaser may only sell the reserved goods in the normal course of business and only as long as he is not in default. The purchaser hereby assigns to the supplier all claims that arise from the resale of the reserved goods to third parties. This assignment takes place on account of performance. The assignment also extends to all future claims arising from resale of the reserved goods. If the reserved goods are sold by the purchaser together with other goods not delivered by the supplier or in a processed condition, the assignment of the claim from the resale only applies to the amount of the invoice value of the reserved goods that were (co-)sold. When reselling new items in which the supplier has acquired co-ownership, the assignment of the claim applies in the amount of the value of the co-ownership share. The assigned claims serve to secure the claims of the supplier to the same extent as the reserved goods. The customer may collect the assigned claims himself as long as he meets his payment obligations from the business relationship, does not default on payments and no application for insolvency is filed.
If the purchaser does not fulfill his contractual obligations, especially in the case of late payment, the supplier is entitled to demand the temporary release of the reserved goods at the purchaser’s expense, even without exercising the right of withdrawal and without setting a grace period.
If third parties access the reserved goods or the claims or other securities assigned to the supplier, in particular in the event of compulsory enforcement measures or seizures, the purchaser will point out the property of the supplier and inform the supplier immediately and hand over the documents necessary for an intervention; This also applies to impairments of any other kind. The purchaser must reimburse the supplier for the costs incurred in order to prevent such attacks.
The supplier undertakes to release the securities to which he is entitled in accordance with the above conditions at the purchaser’s request, at his discretion, to the extent that the value of the goods transferred as security exceeds the claims to be secured by more than 10 percent.
Molds and tools
The costs for molds or tools to be manufactured will be invoiced to the purchaser proportionately and separately from the value of the goods. By paying shares in the costs for molds/tools, the purchaser does not acquire any claim to these; Rather, the molds/tools remain the property and possession of the supplier. The supplier undertakes to keep the molds/tools for the customer for a period of one year from the last delivery. If the customer informs us before this deadline that orders will be placed within another year, the retention period will be extended by another year. After the deadline has expired, the supplier can freely dispose of the molds/tools. However, the customer can purchase the molds/tools by paying the full cost.
Warranty
If the goods delivered are defective, the supplier is entitled, at his discretion, to supplementary performance in the form of remedying the defect or to deliver defect-free goods. He is obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel and material costs, provided that these do not increase due to the goods being transported to a location other than the place of performance, unless the transport corresponds to this intended use.
If the supplementary performance does not take place within a reasonable period of time, which is at least 2 weeks, or if it fails even in the second attempt, the purchaser is entitled, at his discretion, to demand withdrawal or a reduction in price.
A warranty obligation does not apply if the purchaser does not use original fasteners or spare parts approved by the supplier when using staplers and pneumatic nailers. The same applies to damage caused by the effects of chemical influences on the fasteners used, provided that these cannot be foreseen according to the contract.
No warranty is given for defects caused by unsuitable or improper use, natural wear and tear, incorrect assembly or commissioning by the customer or third parties or by incorrect or negligent handling, nor for the consequences of improper changes made without the consent of the supplier or repair work by the customer or third parties.
Section 12 applies to claims for damages. Section 12.5 applies to the statute of limitations for warranty claims.
Duty to inspect and give notice of complaints
The purchaser must inspect the goods immediately after delivery, at the latest immediately after unloading from the means of transport. He must immediately report any defects, incorrect deliveries or stock shortages. To be valid, the complaint must be made in text form. If the goods are forwarded by the customer, the inspection must still take place at the first destination. If your own expertise is not sufficient, experts must be called in.
The notice period for goods that are in breach of contract is, if defects can be identified during a commercial inspection in the normal course of business, two weeks from the date of delivery or release at the agreed location, and in the case of initially undetectable (hidden) defects, two weeks from the time of discovery.
With the notification of defects, the purchaser must give the supplier the opportunity to immediately convince himself of the defect and, to do this, inform him of the location where the goods are located and provide access to the goods. If this obligation is violated or if the goods are further processed, forwarded or changed beforehand, the goods are deemed to have been approved if defects can be identified beforehand. In the case of hidden defects, the customer bears the burden of proof that the goods were already in a defective condition at the time of delivery.
The goods are valid in the event of a breach of the obligation in accordance with 11.1. until 11.3. and if the complaint is not made in due form or in a timely manner with regard to the defects that can be identified during a proper inspection, it will be deemed approved. Unless otherwise stipulated in these General Terms and Conditions, Section 377 of the German Commercial Code (HGB) applies.
Compensation for damages in the event of breaches of duty
The supplier is liable without limitation in accordance with the statutory provisions for damages that are based on intent or gross negligence. Deviating from this, in the case of grossly negligent breach of contract by simple vicarious agents, liability is limited to the foreseeable, typically resulting damage.
In the case of simple negligence, the supplier is liable if he violates an essential contractual obligation. Essential contractual obligations are in particular those whose fulfillment is a prerequisite for achieving the purpose pursued by the purchaser in executing the contract and on whose compliance the purchaser can reasonably rely. Liability is limited to the foreseeable, typically occurring damage. In addition, this liability is limited to a maximum amount of 2,500 euros. This maximum liability amount is only available once (total maximum amount), even in the event of multiple breaches of duty.
The supplier has unlimited liability in accordance with legal regulations for damages resulting from injury to life, body or health. The supplier’s mandatory liability under the Product Liability Act also remains unaffected. Limitations of liability according to Section 12.1. or 12.2. then do not apply.
Unless otherwise stipulated above, claims for damages by the purchaser are excluded. The provisions of this section also apply to non-contractual claims for damages and in favor of the supplier’s employees and other vicarious agents.
Except for cases in which the supplier has unlimited liability in accordance with the above provisions of this Section 12, all claims for defects expire 12 months from the start of the statutory limitation period. This also applies to claims for consequential defects. The limitation period in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected. It is 2 years.
Applicable law, place of performance and jurisdiction
German law applies to all contractual obligations and their execution as well as the resulting claims, excluding the UN Convention on Contracts for the International Sale of Goods.
The place of performance for all contractual obligations is the headquarters of BeA GmbH.
The place of jurisdiction for all disputes arising from or in connection with this contract is Hamburg. The supplier is entitled to sue the purchaser at the headquarters of his branch.
Effectiveness in the event of partial invalidity, offsetting
If individual provisions of these contract conditions are or become ineffective, the effectiveness of the remaining provisions will not be affected. The ineffective provision must be replaced by a valid one that comes as close as possible to the intended goal.
The purchaser is not entitled to set off the supplier’s claim for payment of the purchase price or other claims arising from or in connection with the contract or to assert a right of retention unless his claim is recognized, undisputed or legally established. He is only authorized to exercise a right of retention if he relies on warranty claims from the same contractual relationship.
II. Special conditions for repair conditions
For repair orders that are not provided within the scope of a warranty in accordance with Section 10, the following provisions apply in addition to Section I. To the extent that the following regulations deviate from the regulations under section I., the following regulations take precedence.
Costs for orders not carried out
If a repair order cannot be carried out because the fault complained about If the rules of technology could not be determined or the order was withdrawn during execution, the expense incurred and to be documented will be invoiced to the purchaser.
Remuneration for a cost estimate If a cost estimate is created on behalf of the customer, the customer must reimburse the costs incurred in accordance with the time required.
Extended lien on movable items
Due to his claim arising from the order, the supplier is entitled to a lien on the customer’s item that came into his possession as a result of the order. The lien can also be asserted due to claims from previously carried out work, spare part deliveries or other services, provided they are related to the item. The lien only applies to other claims arising from the business relationship if they are undisputed or legally binding.
If the item is not picked up within 4 weeks of the collection request, the delivery person may charge a reasonable storage fee upon expiry of this period. If collection is not carried out no later than 3 months after the collection request, the obligation to store the goods and any liability for minor negligent damage or loss will no longer apply. A sales threat must be sent to the purchaser one month before the end of this period. The supplier is entitled to sell the item at market value after this period has expired to cover his claims. Any additional proceeds must be reimbursed to the purchaser.
Retention of title
If the spare parts or similar inserted during repairs do not become essential components, the supplier reserves ownership of these installed parts until all claims of the supplier under the contract have been settled.
If the purchaser defaults on payment, the supplier can demand that the purchaser return the item for the purpose of removing the inserted parts. The purchaser bears the costs for retrieval and dismantling.
If the repair is carried out at the purchaser’s site, the purchaser must give the supplier the opportunity to carry out the removal at the purchaser’s site. Labor and travel costs are borne by the purchaser.