Terms of Sale
General Terms of Sale of BEMO SYSTEMS GmbH, Max-Eyth-Strasse 2, 74532 Ilshofen
Version: January 2018
Art. 1 Scope
1. These Terms of Sale apply solely to companies, legal entities under public law or special public assets in the sense of Art. 310 (1) BGB (German Civil Code). The Purchaser’s terms which are contrary to or deviate from our Terms of Sale shall only be recognised by us if we agree in writing to accept them.
2. These Terms of Sale also apply to all future business with the Purchaser, insofar as these are legal transactions of a similar nature.
Art. 2 Offer and conclusion of an agreement
Insofar as an order is to be considered an offer in accordance with Art. 145 GBG, we can accept it within two weeks.
Art. 3 Documents placed at disposal
We reserve proprietary and intellectual property rights over all documents placed at the Purchaser’s disposal in connection with placing of an order, such as calculations, drawings, etc. These documents must not be made available to third parties unless we give our express written agreement to the Purchaser. Should we not accept the offer of the Purchaser within the period stipulated under Art. 2, these documents must be returned to us immediately.
Art. 4 Prices and payment
1. Unless otherwise agreed in writing, our prices apply ex works excluding packaging plus VAT. Cost of packaging will be invoiced separately.
2. Payment of the purchase price is to be made solely to the bank account given overleaf. The application of a discount is only possible following a separate written agreement.
3. Unless otherwise agreed, the purchase price is to be paid within 10 days of delivery. Interest on arrears shall be calculated at 5 % above the relevant prime lending rate p.a. and a fixed fee of € 40.00. We reserve the right to apply a higher level of damages caused by arrears.
4. Unless a fixed price has been agreed, we reserve the right to make appropriate price modifications due to changing wage, material and distribution costs for deliveries made 3 months or later than the conclusion of the agreement.
Art. 5 Right of retention
The Purchaser is only entitled to exercise the right of retention when his counterclaim is based on the same contractual relationship.
Art. 6 Delivery time
1. The start of the delivery period stated by us presupposes the timely and correct fulfilment of the Purchaser’s obligations. Objection to non- performance of the contract is reserved.
2. Should the Purchaser be in default of acceptance, or should he violate culpably other obligations to co-operate, we are entitled to demand any damage to be compensated that may ensue to us, including any extra costs. Further claims remain reserved. Insofar as the preceding requirements are satisfied, the risk of accidental destruction or accidental deterioration of the sales item shall be transferred to the Purchaser at the point in time when the latter is in default of acceptance or default of the debtor.
3. We shall not be liable for a delay in delivery that is not caused intentionally or through gross negligence for each full week of delay within the limits of a fixed rate of compensation for delay to the amount of 2% of the value of goods to be delivered, but to a maximum value not exceeding 10% of the value of goods to be delivered.
4. Further statutory claims and rights of the Purchaser due to a delay in delivery remain unaffected.
Art. 7 Transfer of risk for shipment
If the goods are dispatched to the Purchaser at his request, the risk of accidental destruction or accidental deterioration of the sales item shall be transferred to the Purchaser with the dispatch of the goods to the Purchaser, at the latest on leaving the works/warehouse. This applies independent of whether the goods are dispatched from the place of performance or who bears the cost of freight.
Art. 8 Reservation of proprietary rights
1. We reserve proprietary rights over the delivered goods until all claims arising from the contract for delivery have been satisfied in full. This applies to all future deliveries as well, even if we do not make express reference to this. We are entitled to retrieve the sales item if the Purchaser violates the contract.
2. The Purchaser is required to treat the sales item with care as long as ownership has not been transferred to him. He is required in particular to insure it appropriately at replacement value at his own expense against theft, fire and water damage. As long as ownership has not been transferred, the Purchaser must inform us immediately in writing if the delivered item is seized or exposed to other interventions of third parties. To the extent that the third party is not able to compensate us for the judicial and extrajudicial costs of an action in accordance with Art. 771 of the German Code of Civil Procedure, the Purchaser shall be liable to us for the loss incurred.
3. The Purchaser is entitled to sell on the goods subject to retention of title in the normal course of business. The Purchaser herewith cedes to us the claims against the buyer of the goods subject to retention of title and sold on to the amount of the total amount agreed with us and invoiced (including VAT). This act of cession applies independent of whether the sales item is sold on with or without being further processed. The Purchaser shall continue to be entitled to recovery of receivables even after the act of cession. Our authority to recover the receivables ourselves shall remain unaffected. However, we will not recover the receivables as long as the Purchaser fulfils his payment obligations from the proceeds collected, is not in default of payment and in particular no application has been made to open insolvency proceeds or for cessation of payment.
4. Processing and adaptation or transformation of the sales item by the Purchaser shall always be in our name and on our behalf. In this case the right conferring prospective entitlement of the Purchaser to the sales item shall be transferred to the transformed item. Insofar as the sales item is processed using other objects that do not belong to us, we shall acquire joint ownership of the new item at the objective value of our sales item in proportion to the other processed objects at the time of processing. The same applies to combination.
5. If the result of combination is that the Purchaser’s item can be considered to be the main part, it is understood as agreed that the Purchaser shall transfer pro rata co-ownership to us and shall maintain sole or co-ownership thus created to our benefit. To secure our claims against the Purchaser, the Purchaser shall also cede such claims to us which he acquires against a third party through the goods subject to retention of title being linked to a piece of real estate; we herewith accept this act of cession.
Art. 9 Warranty and notice of defects as well as right of recourse/regress of the manufacturer
1. Warranty rights of the Purchaser require that the Purchaser has duly fulfilled his inspection and complaint obligations in accordance with Art. 377 HGB (German Commercial Code).
2. Claims for defects shall lapse 24 months after delivery of the goods supplied by us to the Purchaser. Claims for compensation in cases of intent and gross negligence and harm to life, body and health resulting from an intentional or negligent violation of the obligations of the user are subject to the statutory period of limitation.
Insofar as the law prescribes longer periods in accordance with Art. 438 (1) 2 BGB (Civil engineering works and objects for civil engineering works) and Art .479 (1) BGB, the longer periods shall apply. Our agreement must be obtained before any goods can be returned.
3. Should, despite all care taken, the delivered goods should present a defect which was present at the time of the transfer of risk, we shall repair the goods or supply a replacement at our discretion, subject to timely notification of defects. We shall always be given the opportunity of supplementary performance within an appropriate period. Regress claims remain unaffected by the preceding provision without limitation.
4. If supplementary performance fails, the Purchaser can - without prejudice to any claims for compensation - withdraw from the contract or pay a lower purchase price.
5. Claims for defects do not apply to merely negligible deviations from the agreed condition, to negligible limitation of serviceability, to natural wear and tear or to damage which occurs after the transfer of risk as a result of erroneous or careless handling, excessive operational demands, unsuitable operating resources, an unsuitable support medium or as a result of special external influences which are not assumed according to the contract. If inappropriate repair work or modifications are undertaken by the Purchaser or third parties, no claims can be made for such work and the resulting consequences.
6. Claims of the Purchaser are excluded for expenses which occur for the purposes of supplementary performance, in particular for costs of transport, transport infrastructure, labour and material, insofar as the expenses are increased because the sales item delivered by us is brought to a location other than the Purchaser’s premises, unless such shipment corresponds to its designated use.
7. Regress claims of the Purchaser against us apply only insofar as the Purchaser does not conclude any agreements with his customer which exceed the statutory claims for defects. Paragraph 6 applies correspondingly to the scope of regress claims of the Purchaser against the Supplier.
Art. 10 Miscellaneous
1. This contract and all legal relations of the Parties are subject to the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. Place of performance and exclusive jurisdiction and for all disputes arising from this contract is the location of our registered office, unless otherwise stated in the confirmation of order.
3. All agreements made between the Parties for the purposes of contract execution, insofar as they made deviate from these Terms of Sale, must be stated in writing in this contract or else they shall be null and void.
4. Oral agreements with the Purchaser are not valid unless confirmed by us in writing.