General business terms for sales and delivery
Beckenbach Formen- und Modellbau GmbH
I.
General information/scope
1.
The following business terms shall apply exclusively to all of our services/deliveries. Opposing or supplementary terms and conditions of our contractual partners or terms and conditions which deviate from our business terms – even if in the knowledge of opposing, deviating or supplementary terms and conditions we carry out the sale or the delivery – shall not be recognised and their inclusion in the contract is hereby expressly objected to unless their validity is expressly agreed in writing.
2.
The business terms and conditions shall apply to all current and future business relations.
3.
The general business terms are not determined for use towards consumers.
II.
Offer/conclusion of contract
1.
Our offers are without obligation. Our cost estimates are non-binding. A contract shall only be concluded with the receipt of a written order confirmation by the buyer. The buyer shall not be entitled to a right of revocation even with if applicable late or delayed receipt of the order confirmation.
2.
We reserve the property rights and copyrights to diagrams, drawings, calculations and other documents. They may not be made accessible to third parties.
3.
The scope of the deliveries and services shall be finally stipulated in our order confirmation.
Orders and changes require our written confirmation.
Dimensions, weights, diagrams and drawings are only binding for the execution if this is expressly confirmed by us in writing. Advice from our employees in the internal sales service and field service is only given to the best of their knowledge and belief and according to the status of technology and is based on normal business circumstances.
III.
Prices and terms of payment
1.
The prices stated by us are, insofar as not otherwise agreed in writing, ex works, excluding packaging and shipment. Packaging costs and shipment costs are invoiced separately.
2.
The prices stated by us are respectively plus the applicable rate of value added tax on the date upon which the invoice is issued.
3.
The deduction of cash discount requires a separate written agreement.
4.
Insofar as not otherwise agreed the purchase price shall be due with receipt of the invoice and payable within 14 days without deduction.
5.
The offsetting against counter-claims of the buyer is excluded unless the counter-claims have been determined final and binding or have been recognised by us.
6.
The assertion of a right of retention by the buyer is only permitted insofar as his counter-claim stems from the same contractual relationship.
7.
If not otherwise agreed in writing then the following terms of payment shall apply to tool manufacturing orders: 1/3 after confirmation of the order, 1/3 after the first die-cut parts, 1/3 after completion.
8.
If the buyer is in default of payment we are entitled to request interest in the amount of 8% above the base lending rate of the European Central Bank. The right is reserved to prove higher damages on default.
9.
Changes to the tools, molds or parts for which orders are placed with us, which are based on the fact that the buyer provides new information or submits changes for requests after the order is placed are to be remunerated separately, in addition these changes shall extend our delivery time to a reasonable extent.
10.
The regulations concerning the remuneration which is to be agreed upon in this respect as well as extension of delivery time are as a rule carried out in writing. Should no written agreement be reached, no matter for what reason, we shall be entitled to the customary local remuneration as well as necessary extension of the delivery time.
11.
Bills of exchange or cheques are accepted as conditional payment. The costs for the discounting and the collection shall be borne by the buyer.
IV Delivery
1.
Our delivery times are principally only approximate and non-binding. Agreements upon a binding delivery time which deviate from this must be reached individually, expressly and in writing. Possible agreed delivery dates/deadlines shall be deemed as observed if the goods were handed over to the transport company or other transport persons within this deadline.
2.
However, the start of the thus expressly agreed written delivery time presumes the clarification of all technical questions as well as the timely and proper satisfaction of all obligations of the buyer. A possible agreed delivery time shall not begin before receipt of the order confirmation by the buyer.
3.
Unforeseeable events for which we are not responsible, such as for example shortage of energy, delays in the delivery of essential parts and components/materials, interferences to operation and traffic, strikes, lock-out and force majeure shall extend the delivery by a reasonable extent.
No further claims or rights shall be derived in this case.
4.
The buyer can cancel the contract if we are in default with the delivery for reasons for which we are responsible and if the buyer has unsuccessfully set us a reasonable final deadline. Further claims shall be determined according to Subclause VIII of these terms and conditions.
Insofar as we should accordingly be obligated to pay damages only the concrete and proven damages shall be reimbursed.
The reimbursement of flat rate damages is excluded as well as the payment of a conventional penalty.
5.
If not otherwise agreed the delivery shall be made “ex works”. The risk shall pass to the buyer as soon as the object of service has left our plant. This shall also apply if we assume the other services, such as for example carriage paid shipment, delivery, etc. In the event of the shipment the risk of loss of the object shall pass to the buyer when it is handed over to the carrier. If the object of service remains in our house the risk shall pass to the buyer with the full payment of the object of service.
6.
In case of partial deliveries a cancellation of the whole contract owing to interferences to service is excluded with only a partial delivery.
7.
The delivered goods shall only be insured at the express wish and for the account of the buyer.
If additional costs are incurred owing to faulty or incomplete information of the buyer concerning the address data then these shall be borne by the customer or reimbursed to us by the customer.
V. Molds/tools
The produced tools and mold inserts shall be stored in our company at the buyer’s request for 2 years after the last delivery from these molds and tools for a possible further use within the framework of follow-up orders. We shall inform the buyer before destruction of the tools and molds thus stored in our company at least 1 month before the destruction.
VI. Warranty
1.
The buyer must inspect the delivered works or parts immediately and if applicable also report any defects immediately. §§ 377, 378 HGB [German Commercial Code] shall apply. If not otherwise derived from the afore-mentioned §§ 377, 378 HGB the object of contract shall be deemed as accepted by no later than 2 weeks after notification that the goods are ready for acceptance.
2.
Insofar as the object of delivery has a defect when the risk passes we shall, at our choice be entitled to subsequent performance through subsequent improvement or new production. The buyer is not entitled to remedy possible defects himself in case of danger with default or with special need for urgency. Warranty claims against us are excluded if the buyer nevertheless carries out such work and attempts to remedy defects.
VIII of these terms and conditions shall apply to further claims.
3.
(In any case the pre-requisite for possible further warranty claims against us is that a reasonable deadline was set for us in advance for the subsequent performance.)
All other claims from warranty, in particular for reimbursement of damages which were not suffered to the object of contract, shall be determined according to VIII of these terms and conditions.
§ 476 BGB [German Civil Code] shall not apply.
VII. Statute-of-limitations
1.
All claims of the buyer from the contract, in particular the claim for warranty of defects and damages shall become statute-barred in one year after delivery of the object of contract, if no delivery has been made, from acceptance of the object of contract. This shall also apply to the infringement of property rights.
2.
Notwithstanding this the legal statute-of-limitations for claims for damages from the injury to life, the body or the health, claims for damages from the grossly negligent or wilful breach of contractual duties as well as for claims according to the Product Liability Act shall apply.
VIII. Restriction to liability
1.
The liability shall be excluded owing to the breach of non-essential contractual duties, in particular with contractual negotiations or owing to default unless these were caused by gross negligence or wilful intent on the part of us or our vicarious agents.
2.
The afore-mentioned shall not apply to claims of the buyer from the Product Liability Act as well as to damages from the injury to life, the body or the health.
IX. Reservation of title
1.
We reserve the right to the property to the object of delivery until the satisfaction of all claims to which we are entitled against the buyer for any legal grounds from the business relationship.
2.
The buyer is entitled to only sell the reserved goods in the customary business transactions at his normal business terms and conditions and as long as he is not in arrears with payments. He is only entitled to resell the reserved goods under the condition that the claim from the resale passes to us according to the following subclauses. He is not entitled to other disposals over the reserved goods.
3.
The buyer hereby now already assigns his claims from a resale of the reserved goods to us irrespective of whether the reserved goods are sold to one or to several buyers.
The buyer is entitled to collect the assigned claims from the resale up to our revocation which is possible at all times, the buyer is not entitled to assign the claim to third parties in any case. We hereby accept the assignment of the claims from the resale.
4.
At our request the buyer is obligated to inform his buyer of the assignment to us immediately, insofar as we do not inform his buyer ourselves, and to provide proof of the notification to us as well as to send the information and documents, which are necessary for the collection of the assigned claims, with this notification.
5.
If the object of delivery is inseparably mixed with other objects which do not belong to us then we shall acquire the co-ownership to the new object as a ratio of the value of the object of delivery to other mixed objects at the time when they were mixed. If the goods are mixed to the extent that the buyer’s object is to be seen as the main object then it is also deemed as agreed that the buyer assigns us pro rata co-ownership. The buyer shall store the thus produced sole ownership or co-ownership on our behalf.
7.
In case of conduct of the buyer which is in breach of the contract, in particular in case of default of payment, or we become aware of circumstances which are suitable for reducing the creditworthiness of the buyer, we shall be entitled to forbid the resale of the reserved goods, cancel the contract and demand that the reserved goods are returned.
8.
In case of access of third parties to the reserved goods the buyer shall point out our ownership and inform us immediately. Insofar as the buyer breaches this obligation and the third party is not in the position to reimburse us the costs incurred in this respect the buyer shall be held liable for these costs.
X. Place of performance/place of jurisdiction/choice of law
1.
The place of performance for both contractual parties is Bretzfeld-Schwabbach.
2.
The place of jurisdiction is the respective County or Regional Court of jurisdiction for Bretzfeld-Schwabbach. We are however entitled at our choice to file action against the buyer at his registered seat.
3.
The law of the Federal Republic of Germany is agreed as binding, with the inclusion of all conflict of law rules and the Convention of the United Nations and the International Sale of Goods (UN right of purchases).
4.
Should individual provisions of these terms and conditions be or become legally invalid in full or in part or a loophole be determined this shall have no effect on the validity of the contract and the other provisions.