General Terms and Conditions of Trade of Beckermann Küchen GmbH, referred to hereinafter as Beckermann
Section 1 General
1. Our terms of delivery shall apply exclusively. General terms and conditions of trade contrary to, differing from or additional to our terms of delivery will not be accepted, even if despite knowledge of them they are not expressly opposed and/or delivery is made without reservation.
2. These terms of delivery shall apply to all present and future business relations. Any different conditions previously stipulated between the parties hereto are hereby voided.
3. A ‘consumer’ for the purposes of these terms of delivery shall be deemed any individual concluding a transaction for a purpose not attributable to that individual's commercial or self-employed professional activity (Section 13 of the German Civil Code). An ‘entrepreneur’ for the purposes of these terms of delivery shall be deemed any individual or legal entity or a partnership having legal personality acting when concluding a transaction in the exercise of its commercial or self-employed professional activity (Section 14 of the German Civil Code). The term “customer” as used below shall be deemed to denote both consumers and entrepreneurs.
Section 2 Offer and Conclusion
1. Our offers are without obligation. We reserve the right to a reasonable extent to make technical modifications and changes to shape, colour and/or weight.
2. By placing the order the customer makes a firm commitment to purchasing the thing ordered. The offer shall not be deemed accepted until an acknowledgment is sent or the goods are delivered. Collateral agreements or promises shall be set down in writing.
3. Beckermann retains ownership of and copyright in quotations, drawings and similar documents. This shall also apply to documents designated “confidential”. Such documents shall not be made accessible to third parties without our express prior consent.
Section 3 Prices and Terms of Payment
1. Prices are “ex factory” exclusive of packing and exclusive of value added tax. The latter will be shown separately on the invoice at the current rate on the date of invoicing. If the customer requests that the goods be shipped, the transport costs will be charged in addition.
3. Expenses arising due to changes to the nature or scope of the delivery at the customer’s request after our acknowledgment and/or due to compliance with subsequent or unforeseeable official conditions and requirements shall likewise be invoiced separately from the purchase price offered.
4. Installation costs shall be invoiced separately.
5. Deduction of discount requires special written agreement.
6. Unless otherwise stipulated the purchase price is due and payable without deduction within 14 days from the invoice date. As for the rest, the statutory rules concerning default in payment shall apply.
7. The customer shall have a right of set-off only if its counterclaims are undisputed or legally enforceable or are accepted by us.
8. The customer may exercise rights of retention only if the counterclaim arises from the same contractual relationship.
Section 4 Passing of Risk
1. Delivery is “ex factory”.
2. The risk of accidental loss and accidental deterioration of the object of sale shall pass to the customer at delivery or, in the case of sale to destination according to buyer's instructions, at handover of the object of sale to the carrier if the customer is an entrepreneur.
3. The risk of accidental loss and accidental deterioration of the object of sale shall pass to the customer at delivery of the goods, including in the case of sale to destination according to buyer’s instructions, if the customer is a consumer.
4. If the customer is in default in taking delivery, the risk of accidental loss and accidental deterioration of the object of sale shall pass to the customer from the date of readiness for shipment. Any storage costs arising shall be to the customer’s account.
5. Clauses 1 – 4 above shall also apply to part shipments.
Section 5 Times of Delivery
1. Lead times and delivery dates quoted shall be considered only approximate unless a firm delivery date is promised in writing by Beckermann.
2. The lead time shall not commence until all technical questions have been clarified with the
3. The delivery period shall be extended appropriately if unforeseen events occur for which Beckermann is not responsible, such as force majeure, strike or breakdowns. The customer shall be informed without delay about the reason for and expected duration of the delay. If it appears likely that the hindrance will not be removed within an appropriate time, both the customer and Beckermann shall be entitled to withdraw fully or partly from the contract.
Section 6 Retention of Title
1. Beckermann shall retain ownership of the object of sale until full payment of the purchase price. In case of behaviour contrary to the contract by the customer, in particular in case of default in payment, Beckermann shall be entitled after setting an appropriate extension of time to withdraw from the contract and claim recovery of possession of the object of sale. After taking back the object of sale Beckermann shall be entitled to realize it. The proceeds of realisation shall be set against the customer’s liabilities, less appropriate realisation expenses. If the supplier’s right of withdrawal from the contract cannot be realized the supplier shall have a corresponding claim for damages in the cases provided for by law.
2. The customer shall treat the object of sale with care. In particular the customer shall at its own expense regularly carry out maintenance and servicing if necessary.
3. The customer shall notify Beckermann immediately of any seizure, other third party encroachment or any damage to or destruction of the object of sale. Beckermann shall also be notified without delay of any change of possession of the object of sale and of the customer’s own change of residence.
4. If the reserved goods are processed by the buyer to make a new movable, processing shall be carried out on behalf of the seller without thereby placing the latter under an obligation; the new thing shall become the seller’s property. In case of processing with goods not belonging to the seller, the seller shall acquire joint ownership of the new thing in the proportion of the value of the reserved goods to the other goods at the time of processing. If the reserved goods are combined, mixed or blended with goods not belonging to the seller in accordance with sections 947 and 948 of the German Civil Code, the seller shall become the joint owner in accordance with the provisions of law. If the buyer acquires sole ownership through combination, mixing or blending, the buyer hereby assigns joint ownership to the seller in proportion to the value of the reserved goods to the other goods at the time of combination, mixing or blending. In such cases the buyer shall keep the thing which is the seller’s property or joint property, which shall likewise be deemed reserved goods in accordance with the above provisions, in safe custody without payment.
5. If reserved goods are sold on their own or together with goods not belonging to the seller, the buyer hereby assigns the claims arising from resale in the amount of the value of the reserved goods with all accessory rights and with priority over the others; the seller accepts assignment. The value of the reserved goods shall be the seller’s invoice amount. This shall be left out of account, however, if there are opposing third party rights.
If the reserved goods resold are the seller’s joint property, assignment of claims shall extend to the amount corresponding to the seller’s share of the value of the joint ownership.
6. If reserved goods are incorporated by the buyer as an essential part of a real property, a ship, a ship under construction or an aircraft belonging to a third party, the buyer hereby assigns the assignable claims to payment arising against the third party or against the person concerned in the amount of the value of the reserved goods with all accessory rights including the right to the granting of a collateral mortgage, with priority over the others; the seller accepts assignment. Paragraph 9.3, clauses 2 and 3 shall apply analogously.
7. If reserved goods are incorporated by the buyer as an essential part of a real property, a ship, a ship under construction or an aircraft belonging to the buyer, the buyer hereby assigns the claims arising from any sale of the real property, title to real estate, the ship, ship under construction or aircraft in the amount of the value of the reserved goods with all accessory rights and with priority over the others; the seller accepts assignment. Paragraph 9.3, clauses 2 and 3 shall apply analogously.
8. The buyer is entitled and authorised to resell, use or incorporate the reserved goods only in the ordinary normal course of business and only on condition that the claims according to paragraphs 3 to 5 are actually transferred to the seller. The buyer is not authorised otherwise to dispose of the reserved goods, in particular by pledging or assigning as security.
9. Subject to revocation the seller hereby authorises the buyer to collect the claims assigned in accordance with paragraphs 3 – 5. The seller shall not make use of its own authority to collect as long as the buyer meets its payment obligations, including with respect to third parties. At the request of the seller the buyer shall name the debtors of the assigned claims and shall advise them of assignment; the seller is also authorised itself to advise the debtors of the assignment.
10. The buyer shall inform the seller without delay about any third party measures of execution affecting the reserved goods or the assigned claims and shall hand over the documents necessary to oppose them.
11. The right of resale, use or incorporation of the reserved goods or the authority to collect the assigned claims shall be terminated by suspension of payments and/or application for commencement of insolvency proceedings; in the case of protest of a cheque or bill the authorisation to collect shall likewise be terminated. This shall not apply to the administrator’s rights.
12. If the value of the securities granted exceeds the claims (less down payments and part payments if applicable) by more than 20% the seller shall be obliged at its option to transfer back or release. Ownership of the reserved goods and the assigned claims shall be transferred to the buyer upon redemption of all the seller’s claims arising from the business relations.
Section 7 Warranty Claims
1. If the customer is an entrepreneur it shall be entitled to make warranty claims only if it has duly performed its duties of examination and notification of defects in accordance with section 377 of the Commercial Code.
2. If the customer is an entrepreneur, Beckermann shall be entitled at its own option to effect subsequent performance either by remedying defects or by replacement. If the customer is a consumer, the customer may first of all choose between subsequent performance by repair or by replacement. However, Beckermann shall be entitled to refuse the chosen type of subsequent performance if it is possible only at a disproportionate cost and the other type of subsequent performance does not imply any significant disadvantages for the customer.
3. Only the manufacturer’s product specification shall in principle be deemed the quality of the object of sale if the customer is an entrepreneur. The manufacturer’s public statements, sales talk or advertising shall not, on the other hand, constitute information about the contractual quality of the goods.
4. Beckermann shall be liable as provided by law if the customer claims damages based on intent or gross negligence or on intent or gross negligence by a representative or agent of Beckermann. If Beckermann is not accused of any intentional or grossly negligent breach of duty, liability for damages shall be limited to the loss typically occurring. This shall not apply to liability for culpable injuries to life, limb or health or to peremptory liability under product liability law.
5. The period of limitation for customer’s warranty claims not subject to the period according to section 438 subsection 1 (2) of the German Civil Code shall be one year from delivery of the goods if the customer is an entrepreneur and the customer has duly discharged its duty of notification according to paragraph 1.
If the customer is a consumer, the period of limitation for warranty claims not subject to the period according to section 438 subsection 1 (2) of the German Civil Code shall be two years from delivery of the goods.
6. Beckermann does not give the customer any guarantees in the legal sense. This shall not affect manufacturer’s warranties.
Section 8 Limitations of Liability
1. As regards other damages claims, in the event of breach of duty through ordinary negligence Beckermann shall be liable only for the loss typically occurring according to the nature of the object of sale. This shall also apply to breaches of duty through ordinary negligence by Beckermann’s legal representatives or agents. Beckermann shall not be liable in case of breaches of non-essential contractual obligations through ordinary negligence if the customer is an entrepreneur.
2. This shall not affect liability for culpable injury to life, limb or health or to peremptory liability under product liability law.
Section 9 Final Provisions
1. The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
2. If the customer is a merchant, the exclusive place of jurisdiction for all disputes arising from this contract shall be Beckermann’s registered office. The same shall apply if the customer is a consumer and has no place of general jurisdiction in Germany or no residence or if the customer’s habitual residence is not known at the time of raising the action.
3. Should any individual provisions of the contract including these Terms of Delivery be or become wholly or partly inoperative, this shall not affect the validity of the other provisions hereof. The wholly or partly inoperative provision shall be replaced by a provision coming as close as possible to the intended economic result of the inoperative provision.