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.
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