Conditions
| General Terms and contitions of company
1. Our deliveries and
services are exclusively based to these General Terms of
2. Different terms of the
purchaser which we have not specially accepted in writing, are not binding
for us, even if we do not specially contradict them.
3. Our offers are subject
to being sold: Any order from the purchaser (no matter in which form) becomes
binding only upon written confirmation by us. The documents enclosed in our
catalogues, brochures as well as offers, especially pictures, drawings and
specifications in weight and measure are only binding if they have been
specially confirmed by us in writing. The same applies for subsidiary
agreements. We are only obligated to confirmations and other declarations if
this have been defined and confirmed in writing by us or by another persons
who have been appointed proxies.
4. Concerning the extent
of the delivery, our written confirmation of order is relevant; in case of
not confirming the order in time, our limited-binding offer and acceptance of
it in time is valid.
II. PRICES AND PAYMENT
1. If no special
agreement is reached, the prices are ex works including loading, exclusive of
packing, freight and other additional services like insurance, assembly,
expenses as well as the purchase tax respective to the legal rate.
2. Cheques and
rediscountable bills are only accepted for compliance. Discounts and other bank
expenses are payable by the purchaser.
3. In sort and extent, we
are entitled to usual securities concerning our claims, also if these are
conditional or limited.
4. The retaining of
payments or any offsetting is only acceptable with an undisputed or
judicially determined counter claim.
5. In case that the
purchaser not fulfil his obligation to pay or if we become aware of
circumstances that challenge his credit standing, all our claims will be
immediately due, even if we have accepted a respite or a bill. If the
customer does not offer cash payment, we have the right to claim damages
instead of the complete payment and, if deliveries are not yet effected, to
retire of the contract.
6. Upon delay of payment,
interest for arrears will be invoiced in legal rate.
III. DELIVERY TIME
1. Times and dates of
deliveries are only binding in case we expressly confirmed them in writing.
Agreed times of delivery will start with the sending of the order
confirmation, however not before the documents, approvals and releases
supplied from the purchaser has placed to our disposal; as well as not before
the receipt of an agreed down payment. The time of delivery is met if the
good has left the works until the expiry of the deadline or if the purchaser
has been informed about the advise of despatch. We have the right for part
delivery.
2. The time of deliver
extends in a reasonable period of time in case of Act of God, lockouts, scarcity
of raw material, breakdowns, riots, wars and other circumstances for which we
are not standing for. This also applies for circumstances occurred by our
sub-contractors. We do also not stand for the above-mentioned circumstances
if they occur during and existing delay.
3. The precondition for
meeting the deadline is the purchaser` s performance of his contractual
obligations. In case of claiming compensation for damages due to delays, we
are only liable for gross negligence of intent. The liability for mild
negligence is excluded.
4. The liability for
delay damages are limited to a maximum rate of 2 per cent for the
correspondent part of the total delivery which –due to the delay- cannot be
used in time or in compliance with the contract. In all cases, the purchaser
has the right to a rescission of the contract only if he has grant us a
reasonable period of an extension after the delay and we have let this
expired vainly.
5. If the purchaser is in
delay with the acceptance of the goods, we have the right to grant a
reasonable period of an extension for acceptance. If this extension expired,
we have the right to other injunction of the good as well as to deliver the
purchaser within an appropriate extended date.
IV. TRANSFER OF RISK AND ACCEPTANCE
1. The place of
performance and other services is our mill. The purchaser takes the risk with
the delivery to the forwarder or carrier or, at the latest, with leaving our
works. This also applies for part deliveries or in cases we have taken other
services like shipping charges or
cartage and installation. In all cases, we decide about the route and means
of transport.
2. If the shipping is
delayed due to circumstances put down to the purchaser, he takes the risk
beginning from the day the goods have been ready for dispatch. Upon request
and charge of the purchaser, we are obligated to instruct the insurances
demanded by him.
3. Delivered goods have
to been accepted from the purchaser irrespective of the rights mentioned in
section VI, even if these goods showed immaterial defects.
V. RESERVATION OF TITLE
1. We reserve property
for the good until the purchase price is completely paid as well as all other
claims resulting from our business relationship. The suspension of separate
claims in a current invoice as well as a balance draw with his acceptance do
not touch the reservation of title. The receipt of the consideration is valid
as payment. If payment by bill of exchange or by cheque and bill of exchange
is agreed, the property will devolve on the purchaser after the bill of
exchange has been honoured.
2. It is neither allowed
for the purchaser to pawn the good nor assign it as collateral. In case of an
attachment as well as confiscation or other disposals through a third party,
the purchaser has to inform us immediately. The same applies for the disposal
of his claims with a factoring-contract.
3. In frame of a duly
managed business, the purchaser has the right to process and/or resell the
good. If the purchaser resells the good, he already assigns now his claims
resulting from the resale. We here declare the acceptance of the resale.
4. If the purchaser is in
delay with the payment of one of his current contracts or if he not fulfil
his obligations concerning the reservation of title, we have the right to
claim for the good and to use it by our own treaty. The taking-back of the
good is not a rescission of contract. In this case, the purchaser has not the
right to proper the delivered goods with reservation of title.
5. In case of a process,
combination or mixing the reserved goods with other goods which are not in
our property, we are entitled to a joint property of the new product. Our
joint property is proportional to the value of our reserved good and the
other processed goods at the time of the process, combination or mixing. In
this cases, the purchaser keeps the reserved goods in our order. | 6. In the above-mentioned
terms, we are obligated to release the security entitled for us to our
choice, in so far as the realizable value of the security exceeds the claims
secured for more than 20%.
VI. LIABILITY FOR FAULTS OF THE DELIVERY
1. Claims for defects are
subject to a time bar period of 12 months beginning after the passing of
risks.
2. For the assessment of
a fault, the good` s condition when leaving our works is decisive.
3. The delivery is faulty
if the defect occurs before the passing of risks –especially due to faulty
kind of building, bad building materials or not contractual execution- so
that the good is of no use or its usefulness is not insignificant and is not
only temporary impaired. Concerning the performance of the devices and
machines, the results on the inspection state in our works is relevant. We
are not liable for failures resulting from insufficient installation or inappropriate
maintenance. The same is for faults which are resulting from the following
(or similar) reasons: unsuitable or inappropriate use, faulty installation or
activation by the purchaser or a third party, natural and technical signs of
wear and tear, faulty or negligent handling and operation, inappropriate
operating means and materials like sewing cotton or labels, faulty construction
works, inappropriate building plots, chemical, electrochemical and electric
influence.
4. Complaints from
merchants can only be considered, if these are raised in writing as per §377
Commercial Register Code (HGB). Perceptible faults must be immediately
reported after delivery or operational installation (if the assembly owed by
us) within 8 days at the latest. After this, it is not possible to bring a
complaint. This regulations are also valid as per §378 Commercial Register
Code (HGB). After the expiry of the deadline, a warranty claim is excluded.
The notice of defect must be effected in writing. Faults which also cannot be
found out within this deadline in spite of a careful verification must be
immediately notified to us after discovery without a delay. Our liability is
excluded if the affair has been dismantled or changed in another way before
we have been informed.
5. For claims which are
justified and notified to us in time, we have the right to choice the
following: repairing, replacement or rescission of the contract. In addition,
concerning delivered outsourced products, we can assign our warranty claims
against our manufacturer to the purchaser. The purchaser must grant us, at no
extra charge and in our reasonable discretion, a reasonable period of time
and reasonable opportunity to deliver substitutes and alternative devices.
6. The purchaser has to
grant us, in our reasonable discretion, a reasonable period of time and
reasonable opportunity to make necessary changes or to deliver substitutes,
otherwise we are exempt from the warranty. Only in cases of emergency
relating to operational security or to avoid unreasonably high damages, the
purchaser has the right, after informing us, to remedy the defect itself or
by a third party. The demand of an advance payment is excluded.
7. We have the right to
refuse the defect removal if and as long as the purchaser violate his
contractual obligations. This is especially, but not only, valid for agreed
payments. Also a justified complaint does not exempt the purchaser from his
obligation to pay.
8. In case of a justified
complaint, we will bear all direct costs for repairing or substitute
deliveries, especially costs for substitutes as well as the costs of
disassembly and assembly. We do not bear indirect costs or damages. The
obligation also does not exist if there is no reasonable relationship
concerning transport costs or other forwarding costs.
9. The statutory period
for rights and claims concerning defects has no influence to defect repairs
already carried out or any substitute deliveries. Unchanged, the statutory
period begins with the passing of risks or the origin delivery to the
purchaser. If the purchaser or a third party makes improper changes or
installation works without having informed us, we are not liable for any
damages resulting from it.
VII. LIABILITY
1. Our liability is
exclusively based on these General Terms of
2. In case of a
fraudulent concealment of a defect as well as a case of guarantee at un
underwriting guarantee of state or durability , disclaimer of liability and
limitation of liability are not valid as per §443 German Civil Code (BGB).
They are also not valid in case of intention or gross negligent by our authority,
owner or our leading staff members and vicarious agents. Additionally, there
are not valid for damages from injuries to life, body or health which are
based on a negligent breach of duties of our legal representatives or
vicarious agents. Also, there are not valid for damages which have to be
replaced according to the Product Liability Act.
VIII. PROPRIETARY RIGHT
1. We reserve us the
right for title and copyright concerning all cost estimates, drawings and
other documents; it is not allowed to give these to a third party without our
agreement and must be given back to us on demand.
2. Our right to title and
copyright concerning plans made by us and other technical documents are
staying untouchable, even if we place them to the purchaser` s disposal in a frame of a contract. It is not
allowed to give the plans and technical documents to a third party. On our
demand, which is possible without a justification, they must be handed over
to us. The same applies for construction information and other information
that are going beyond usual operating instructions. Only the purchaser is
liable for the legal use of drawings and drafts sent to him. We are not
obligated to verify the above-mentioned documents, especially concerning
existing industrials property rights of third parties. The purchaser holds
harmless for damages resulting from an enforcement of industrial property
rights of third parties. Our drafts and construction proposals are only
allowed to give to a third party with our acceptance, otherwise the purchaser
is liable for any arising damages to us.
IX. VENUE; APPLICABLE LAW
1. For all disputes
arising from the contractual relationship, in case the purchaser is a
merchant, legal person of the public law or a public-law special assets, the
charge has to be preferred at the court of competent jurisdiction of our
company. We are also entitled to prefer charge at the place of the purchaser.
2. If a specific
provision is or becomes invalid, the remaining provisions shall remain valid.
The law applies complementary.
3. The contractual
relationship, including these General Terms of Sale and its interpretation,
is exclusively governed by the laws of the Federal Republic of Germany, even
in case of international operations. The application of the Convention for
the International Sales of Goods (CISG) is excluded.
Stand: October 2006 Beckmann Automation GmbH Kreuzweg 60, D-48607 Ochtrup Telefon: 0049 2553 2058, Telefax: 0049 2553 6762
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