TERMS AND CONDITIONS OF BUSINESS
§ 1 General Information, Area of Application
1. These sales, delivery and payment terms apply exclusively. Any deviating or supplementary general terms and conditions of the Customer do not apply unless they were agreed upon expressly in writing. An objection to the Customer‘s general terms and conditions applies also in case the Customer has specified a special form for the objection.
2. These terms apply for continuous business relationships as well as for future businesses in which reference is not exclusively made to these terms and conditions, as long as these were effective during an earlier business transaction with Beck+Heun GmbH as a subject-matter of a contract.
3. These terms and conditions apply only when they are not contrary to any mandatory legal provisions.
4. There are no side agreements, unless made expressly in writing.
§ 2 Conclusion of the Contract
1. The purchase order from the Customer represents a binding offer.
2. A contract between the Customer and Beck+Heun GmbH shall be concluded – in the absence of a special agreement with the written order confirmation from Beck+Heun GbmH or with the shipment of the ordered goods.
3. Otherwise, the offers from Beck+Heun GmbH shall remain subject to change.
4. Beck+Heun GmbH reserves the unrestricted exploitation rights to ownership and copyrighted cost estimates, drawings and other documentation. These may only be made accessible to third parties upon prior approval from Beck+Heun GmbH. Any drawings and other documentation pertaining to offers must be returned immediately upon request should a contract not be signed between the Customer and Beck+Heun GmbH.
§ 3 Prices, Payment Terms
1. The prices mentioned by Beck+Heun GmbH are to be understood as prices in Euros and are considered net prices plus the VAT applicable at the time of order placement. They are to be understood ex works excluding costs for packing, insurance or installation.
2. The invoices from Beck+Heun GmbH are due within 14 days from the date of invoice, without discount.
3. The payments shall be effected free point of payment of the Supplier.
4. The Customer can only offset counter claims when its claims have been undisputed or determined to be legally valid. The Customer shall be entitled to a right of retention only when its counter-claim is based on the same contractual relationship.
5. Contracts for which no firm prices were agreed upon will be invoiced at the list prices valid on the day of delivery by Beck+Heun GmbH.
6. Beck+Heun GmbH reserves the right to increase its prices on contracts with an agreed delivery time of more than 4 months in accordance with the cost increases incurred due to bargaining agreements that are asserted between Beck+Heun or other subsidiaries of Beck+Heun GmbH that are involved in the production and its respective employees, or due to increases in material prices. If the increase is more than 5 % of the agreed price, the Customer has the right to withdraw from the contract.
§ 4 Delivery and Acceptance
1. Deliveries shall be effected ex works.
2. The delivery time results from the agreements between the parties. Meeting the delivery date presumes that all commercial and technical questions between the contract parties have been clarified and that the Customer has met all of its obligations. If that is not the case the delivery time shall be extended accordingly. This does not apply if Beck+Heun GmbH is responsible for the delay.
3. We reserve the right to partial shipments reasonable for the Customer.
4. Meeting the delivery date is subject to the correct and timely delivery to ourselves. Beck+Heun GmbH shall notify the Customer as soon as possible of any foreseeable delays.
5. The delivery date is considered met if the delivery item has left Beck+Heun GmbH on or before its expiration or if the Customer was notified that the goods are ready for shipment.
6. If the shipment of the delivery item is delayed for reasons that the Customer is responsible for, the latter will be invoiced for any costs incurred as a result of the delay beginning one month after notification that the goods are ready for shipment. Any risk shall be transferred to the Customer on the day of notification that the goods are ready for shipment.
7. If the delivery date cannot be met due to force majeure, labor disputes, official directives, lack of energy or other events that are beyond the sphere of influence of Beck+Heun GmbH, the delivery date shall be extended accordingly. The Customer shall be informed of the beginning and end of such circumstances as soon as possible.
8. In case of later changes and supplements to the contract that have an influence on the delivery time, it shall be extended to a reasonable extent.
9. If not otherwise agreed upon, Beck+Heun GmbH shall also be entitled to early delivery.
10. The Customer may withdraw from the contract without fixing of a time limit when it is impossible for Beck+Heun GmbH to fulfill its final delivery obligation prior to the transfer of risk (Section 275 BGB). Furthermore, the Customer may withdraw from the contract if the execution of a portion of the delivery of an order becomes impossible and if the Customer has a legitimate interest in the refusal of the partial delivery. If that is not the case the Customer must pay for the portion of the contract price that covers the partial shipment. If the impossibility of performance occurs during the Customer‘s default of acceptance or if the Customer is solely or for the most part responsible for the circumstances on which the impossibility is based, the Customer shall be obligated to counter-perform.
11. In case of non-acceptance of the goods by the Customer, Beck+Heun GmbH may exercise its legal rights. Should Beck+Heun GmbH demand compensation for damages this will amount to 15 % of the purchase price. The compensation for damages shall be set higher or lower when Beck+Heun GmbH is able to proof higher damages or when the Customer is able to prove that fewer damages or even no damages were incurred.
§ 5 Transfer of Risk, Transport and Freight
1. The mode of transportation shall be at the discretion of Beck+Heun GmbH. The freight costs will be invoiced to the Customer.
2. The risk shall be transferred to the Customer as soon as the delivery item has left the plant; this is also the case when authorized partial shipments are made or when Beck+Heun GmbH has absorbed other services, e.g. shipping costs.
§ 6 Reservation of Title
1. Until all claims from the business relationship between the Customer and Beck+Heun GmbH, including future demands regardless of its origin, have been fully satisfied, Beck+Heun GmbH retains ownership to the delivery items. This reservation of title ensures the respective receivables for open invoices.
2. If the Customer becomes the sole or part owner of the delivery item through assembly, blending, mixing, processing, or treatment, Beck+Heun GmbH is entitled to ownership in the amount that corresponds to the ratio of the delivery item (delivery prices including VAT, without discounts) of the other assembled, blended, mixed, processed or treated objects. Processing or treatment according to Section 950 BGB [German civil code] is done on behalf of Beck+Heun GmbH and without further obligation. In case of a collision of this clause with those of other suppliers the processing is done jointly for all and the portion of ownership depends on the ratio of each individual‘s shipment. Its storage shall be free of charge.
3. If the securities the Seller is entitled to due to the reservation of title exceed the value of the secured claims by more than 10 % the securities in this respect shall be considered released.
4. The Customer promises to insure the delivery items, including those parts the Customer wishes to store at Beck+Heun GmbH against fire, lightning, explosion, water and other risks at replacement value, and to transfer any rights of compensation to Beck+Heun GmbH. The Customer further promises to add the delivery items to its company‘s liability insurance and to indemnify Beck+Heun GmbH in this respect from third party claims.
5. The resale of goods that are subject to retention of title by the Customer during normal business transactions is permitted only at the condition that the Customer agrees with its client on a retention of title according to the aforementioned paragraphs. The Customer is not entitled to any other disposals of the goods subject to retention of title, in particular pledges and transfer of ownership by way of security.
6. In the event of the Customer reselling the goods, the Customer hereby already assigns all of its receivables and other justified claims against its clients with all ancillary rights to Beck+Heun GmbH, until any and all claims towards Beck+Heun GmbH resulting from the resale have been fulfilled. The Customer promises, if so requested, to inform Beck+Heun GmbH immediately and submit documentation required to Beck+Heun GmbH to file the claims against the Customer‘s clients.
7. If the goods subject to retention are assembled, blended, mixed, processed or treated and resold with other goods not belonging to Beck+Heun GmbH, the assignment of the purchase price claim in accordance with the aforementioned paragraph shall be limited to the invoice amount for the goods subject to retention issued by Beck+Heun GmbH.
8. Beck+Heun GmbH shall be notified immediately of any pledges or confiscations of the goods subject to retention by third parties. In any case, any resulting intervention costs shall be the responsibility of the Customer, provided these are not already borne by third parties.
9. If Beck+Heun GmbH makes use of its reservation of title by taking back the goods subject to retention in accordance with the aforementioned provisions, it is entitled to sell or auction off the goods. Asserting its reservation of title and in particular demanding its return represent a withdrawal from the contract. Taking back the goods subject to retention shall be done at the earned profits, maximum however at the agreed delivery prices. Beck+Heun GmbH shall reserve the right to any further claims for compensation, in particular the loss of profit.
10. If the securities the seller is entitled to due to the reservation of title exceed the value of the secured receivables by more than 20 %, the securities in this respect shall be considered released.
§ 7 Warranty, Notice of Defects
1. If the purchase is a commercial transaction for both parties the Customer must fulfill its requirement to make a complaint in respect of a defect immediately on receipt of goods per Section 377 HGB [commercial code]. This must be done in writing. The Customer complies with the immediate requirement to inspect when he inspects the delivered goods at the latest on the next workday following the receipt of the goods. The Customer complies with the immediate requirement to notify when he informs Beck+Heun GmbH of the defects noted on the next workday.
2. To begin with, the Customer has the choice of supplementary performance by means of touchup or replacement. Beck+Heun GmbH however is entitled to refuse the Customer‘s choice of supplementary performance if that is possible only with the incurrence of unreasonable costs, and the other form of supplementary performance if that is possible only without major disadvantages for the Principal. During the supplementary performance a reduction in the purchase price or withdrawal from the contract by Principal is excluded. Touchup work shall be considered failed with the second unsuccessful attempt when no other result is obtained from the type of object or defect or from other circumstances. For the rest, the rights to reduce the purchase price (reduction) or withdrawal from the contract according to the legal provisions shall remain.
3. If the use of the delivery item leads to an infringement of domestic industrial property rights or copyrights Beck+Heun GmbH shall procure the Customer‘s right to further use at its own expense or modify the delivery item to a reasonable extent in such a way that an infringement of industrial property rights is no longer given. If that is not possible at economically reasonable conditions or within a reasonable period of time, the Customer is entitled to withdraw from the contract. Under these aforementioned conditions Beck+Heun GmbH shall also be entitled to with draw from the contract. In addition, Beck+Heun GmbH shall indemnify the Customer from undisputed or legally determined claims from the respective holder of industrial property rights. The aforementioned obligations of Beck+Heun GmbH are final subject to the subsequent provisions of Section 8 for the case of infringement of industrial property rights or copyrights. They exist only when the Customer informs Beck+Heun GmbH immediately of any asserted infringements of industrial property rights or copyrights, when the Customer supports Beck+Heun GmbH to a reasonable extent in defending the asserted claims respectively enables Beck+Heun GmbH to initiate modifications in accordance with the aforementioned provision, when Beck+Heun GmbH‘s right to all actions of defense including out-of-court settlements remains reserved, when the defect of title is not based on a customer directive, and when the infringement was not caused by the Customer modifying the delivery item or using it in a non-contractual manner.
§ 8 Liability
1. Beck+Heun GmbH shall be liable in case of intent or gross negligence as defined in the legal provisions. The liability for warranties remains regardless of who is at fault. Beck+Heun GmbH shall be liable for slight negligence exclusively according to the provisions of the product liability law, due to injury to life, body or health or due to violation of major contractual obligations. The claim for damages for the slight negligence of major contractual obligations shall be limited however to the foreseeable damages typical for the contract, provided there is no liability due to injury to life, body or health. Beck+Heun GmbH shall be liable to the same extent if vicarious agents and agents are at fault.
2. The provision listed in the aforementioned paragraph shall extend to compensation for damages in addition to the performance, the compensation for damages instead of the performance, and the claim for replacement due to futile expenses, regardless for what legal ground, including the liability due to defects, delays or impossibility.
§ 9 Statute of Limitation
Any and all claims by the Customer shall become time-barred two years after the legal statute of limitation. The regulations as per Sections 438, Para 1 No. 2, 634a Para 1 No. 2 BGB shall remain unaffected.
§ 10 Special Regulations for the Sale of Safety Supports
1. The following special regulations apply to all business transactions and services of any kind that Beck+Heun GmbH provides to its customers regarding the safety systems of the type „Safe & Light Vario“.
2. In this respect, Beck+Heun GmbH assumes that the customers are entrepreneurs in the sense of Section 14 BGB.
3. The aforementioned safety systems of Beck+Heun GmbH are considered a complete system, always consisting of one safety adapter and the actual safety support. Its function described below can fulfill this safety system only when the safety adapter as well as the safety support are installed together and properly. The safety system is developed exclusively for the use in show jumping and may only be sold or used by the Customer for this purpose. The safety system is used to prevent fracture of the obstacle bar when the horse falls on it with sufficient pressure. In this case the obstacle bar will be released by the safety system. This differentiates the safety system from supports without this function. The safety systems from Beck+Heun GmbH are not intended to contribute to the prevention of other accidents that are quite common in equitation.
4. Not included in the scope of services of Beck+Heun GmbH, however necessary for the proper installation of the safety system, are the so-called keyhole tracks. The keyhole tracks to be used are described in the safety instructions from Beck+Heun GmbH that are included always with the shipments.
5. Safety instructions are always included in shipments of the above-mentioned safety systems from Beck+Heun GmbH. Special reference is made to these safety instructions with a sticker on the bottom of the safety support. These safety instructions contain in particular information on the proper inspection, assembly, durability and other necessary accessories.
6. Only when these safety instructions are followed can the safety systems from Beck+Heun GmbH fulfill its function.
7. The Customer promises to submit the safety instructions as well as the stickers that are included in the shipments from Beck+Heun GmbH to the Customer‘s clients respectively in case these are used by the Customer to ensure that these safety instructions are followed when the safety system is used. The Customer promises to ensure that a copy of the safety instructions is generally accessible and visibly displayed at each place of use of the safety system. In addition, The Customer promises to ensure that stickers are available on the safety supports when the safety system is specifically in use.
8. In the event of a resale of the safety system to other brokers or end customers, the Customer must make contractual arrangements that ensure that the safety instructions and the stickers are noted and followed by the specific user (as described in the above paragraph).
9. On the one hand, the Customer pledges not to remove the stickers on the safety supports, and on the other hand to ensure through contractual arrangements that the specific user is made aware of the stickers and the safety instructions. Damages caused due to removal of the stickers shall entitle Beck+Heun GmbH to compensation for damages.
10. Beck+Heun GmbH promises to provide the Customer with additional copies of the safety instructions and stickers for the safety supports, if so requested. Any enquiries to that extent shall be directed to Beck+Heun GmbH. Any respective information shall also be provided to other clients as part of a resale. The Customer also promises to direct enquiries to Beck+Heun GmbH should the stickers/safety instructions become illegible or are lost. This will guarantee that there is always a sticker on hand that refers to the safety instructions available at the site.
11. The Customer pledges to Beck+Heun GmbH, in case the Customer resells the safety systems from Beck+Heun GmbH commercially, to insure the sale of the safety systems with a business liability insurance for an amount of EUR 5.000.000.00 for personal injuries and EUR 500.000.00 per occurrence for property damages for the respective sales territory. Beck+Heun GmbH in turn promises to purchase such business liability insurance as well.
12. Both contract parties are obligated to present proof of such existing insurance to the other party if so requested.
§ 11 Prohibition of Sale
Against the background of unmanageable and enormous liability risks for Beck+Heun GmbH, the Customer pledges to refrain from delivering goods from Beck+Heun GmbH to the US and Canada. This will be permitted only with express written authorization from Beck+Heun GmbH. Should the Customer violate this prohibition it shall indemnify Beck+Heun GmbH from any claims resulting from such sales.
§ 12 Applicable Law, Jurisdiction, Place of Fulfillment
1. For all legal relationships between Beck+Heun GmbH and the Customer the law of the Federal Republic of Germany applies, with the exclusion of the UN convention on the International Sale of Goods. This applies also to shipments abroad, provided no other agreements have been made.
2. The Customer promises, as far as it is legally possible, to sign an agreement with its customers and, should this be another broker, to also sign an appropriate resale obligation as provided for in the regulation of this paragraph, on the aforementioned choice of law clause.
3. The sole place of jurisdiction and place of fulfillment for any disputes that may arise out of this contract is the place of business of Beck+Heun GmbH, Mengerskirchen, provided the Customer is a business person, a legal entity, or special assets under public law. Beck+Heun GmbH shall be entitled however to sue the Customer at its place of business.
4. The Customer promises with regard to the provision in the aforementioned paragraph vis-à-vis Beck+Heun GmbH as well as its clients to agree on a jurisdiction clause in favor of the place of business of Beck+Heun GmbH, if that is legally possible, and, should this be a broker, also with the legal option to agree on a respective obligation to transfer as provided for in this paragraph.
§ 13 Written Form
All changes to the contract and the provisions of these General Terms and Conditions must be made in writing. This applies also to setting aside the written form requirement.
§ 14 Miscellaneous
1. In the event that one of the aforementioned provisions is or shall become ineffective, the effectiveness of the other provisions shall not be affected. An ineffective or void provision shall be replaced by a new provision of the parties that comes closest to the originally intended economic purpose of the invalid one. The same procedure applies to any gaps found.
2. If one of the entitlements listed in these terms and conditions is not asserted once or on several occasions that does not mean that its assertiveness can be waived in the future.
Date edited: 07.12.2015
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