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General Conditions of Sale and Delivery of BHV-Automation GmbH
§ 1 Exclusive validity
All deliveries and services of BHV-Automation are exclusively based on these terms and conditions, unless otherwise expressly agreed in writing in individual cases, either in total or for individual regulations. They also apply to future business relations. Any general terms and conditions of business of the customer are not recognized by us as a whole, even if we do not expressly object to them or execute deliveries and services without reservation in the knowledge of the customer's general terms and conditions of business.
§ 2 Offer, written form, cancellation
- Our offers are subject to change.
- Orders and declarations of acceptance require our written confirmation to be legally effective. In case of immediate delivery / performance, the written confirmation can also be replaced by invoicing.
- Deviations, changes and/or additions to agreements between the customer and BHV-Automation, including these terms and conditions, must be in writing, which can only be waived in writing.
- As far as these General Terms and Conditions of Sale and Delivery or individual legal transactions between BHV-Automation GmbH and the customer require the written form, the facilitations of § 127 para. 2 apply.
- If the customer cancels the contract for reasons for which we are not responsible, we shall be entitled to demand reimbursement of the costs incurred up to the time of cancellation. This shall not exclude the assertion of further damages.
- In the case of business transactions within the scope of electronic business transactions, § 312e para. 1 sentence 1 no. 1 to 3 and sentence 2 of the German Civil Code (BGB) shall not apply unless the customer is a consumer within the meaning of the BGB
§ 3 Delivery time and delivery
- Dates and delivery periods are non-binding, unless otherwise expressly agreed in writing. The indication of certain delivery periods and delivery dates by us is subject to correct and timely delivery by suppliers and manufacturers.
- The delivery period does not run during the duration of force majeure, operational or traffic disturbances, in particular strikes or other unforeseeable events for which we are not responsible. If delivery is delayed by more than 8 (eight) weeks as a result of such circumstances, either party shall be entitled to withdraw from the contract in whole or in part (to the extent of the quantity affected by the delivery disruption). The delivery period shall also be extended by the period of time by which the customer himself is in default with the performance of his contractual obligations.
- If the delivery period is extended in application of item 2 or if we are released from our obligation by withdrawal of one party, the customer cannot derive any claims for damages from this.
- Our deliveries and services are "ex works".
- BHV-Automation GmbH is entitled to make partial deliveries and provide partial services. In the case of supply contracts, each partial delivery and partial performance shall be deemed an independent performance.
§ 4 Default of Acceptance
- For the duration of the default of acceptance by the customer, we shall be entitled to store the delivery items at the risk and expense of the customer. For this purpose we may also use a forwarding agency or a warehouse keeper.
- The customer is obliged to reimburse us for all costs associated with the default of acceptance, in particular storage costs. This does not exclude the assertion of further damages.
- If the orderer does not accept the delivery items for reasons for which we are not responsible, we shall be entitled, after the expiry of a reasonable period, to withdraw from the contract and/or to demand compensation for futile expenditure or damages in lieu of performance.
§ 5 Transfer of risk
The risk of accidental damage or accidental destruction (loss) of the delivery item shall pass to the customer upon its dispatch or delivery to the shipping agent, but at the latest when it leaves our factory, irrespective of whether the dispatch is made from the place of performance or who bears the freight costs. If the orderer is in default of acceptance, the risk shall pass to the orderer upon the occurrence of the default. If special instructions from the customer are awaited for shipment, the risk shall pass to the customer upon notification of readiness for shipment. The risk shall also pass to the customer upon notification of readiness for dispatch if dispatch is then delayed or becomes impossible through no fault of ours.
§ 6 Notice of defects, liability for defects
- Information on the object of delivery and performance (e.g. in catalogs, product information, electronic media or on labels) is based on our general experience and knowledge and is only a guideline or identification. Neither these product details nor expressly agreed performance features/purposes of use shall release the customer from the obligation to test the suitability of the product for the intended purpose. Information on the durability, condition (property) or possible uses of our products does not constitute a guarantee within the meaning of § 443 BGB (German Civil Code) unless it is expressly designated as such in writing.
- The customer shall examine the goods immediately after delivery to determine whether they comply with the contractually agreed quantity and quality and are suitable for the intended purpose. Recognizable defects/differences in quantity must be notified to BHV-Automation GmbH in writing without delay, but within 14 days at the latest; nonrecognizable defects/differences in quantity must be notified to BHV-Automation GmbH without delay after discovery, but within 1 (one) year after delivery of the goods to the customer at the latest, stating the order data and the invoice and delivery note number as well as a brief description of the defect. Failure to give notice of defects in due time shall exclude any claims for defects against us, unless we have fraudulently concealed the defect or assumed a guarantee.
- If our operating or maintenance instructions are not followed, modifications are made, housings are opened, parts are replaced or consumables are used that do not comply with the original specifications, any liability for defects shall lapse insofar as the defect is based thereon. This shall also apply if the defect is due to improper use, storage and handling of the products or third party intervention.
- Our liability for defects shall be limited to subsequent performance, i.e. to the right of the customer to demand at our expense - and at his discretion - the elimination of the defect or the delivery of a defect-free item; § 439 para. 3 BGB shall remain unaffected.
If subsequent performance fails after a reasonable period of time, for whatever reason, the customer may - at his discretion - demand a reduction in the purchase price or withdraw from the contract; in this case, the right to claim damages or reimbursement of futile expenses shall also remain unaffected - subject to the provisions of § 7.
The customer shall be entitled to these rights immediately, i.e. without expiry of a reasonable period of time, if we refuse subsequent performance or if it is unreasonable for the customer for other reasons. The above provisions shall not affect the customer's claims arising from the assumption of a guarantee by BHV-Automation GmbH and the rights of recourse in accordance with §§ 478, 479 BGB (German Civil Code); however, in the event of recourse, the customer shall also be entitled to claims for damages only in accordance with § 7 of these terms and conditions.
- Liability for defects for normal wear and tear is excluded. Furthermore, claims for defects shall not exist for wear parts.
- Warranty claims against us are subject to a limitation period of 1 (one) year, beginning with the delivery of the goods, unless we have fraudulently concealed the defect, in which case the regular limitation period of 3 years applies.
- Only the orderer is entitled to claims for defects against us and these are not transferable.
§ 7 Limitation of liability
- We are only liable for damages or futile expenses - regardless of the legal basis - if they are based on an intentional or grossly negligent breach of duty and/or tort by BHV-Automation GmbH or a legal representative or vicarious agent. Our liability is therefore excluded in cases of simple negligence. This exclusion of liability shall not apply if we or our legal representatives or vicarious agents violate a material contractual obligation. In this case, however, the amount of compensation for damages/expenses is limited to the damages/expenses that BHV-Automation GmbH typically had to expect based on the circumstances known to it at the time of the conclusion of the contract and were therefore foreseeable at that time, unless intent or gross negligence exists.
- Our liability for damages resulting from injury to life, body or health as well as under the Product Liability Act and from the assumption of a guarantee remains unaffected by the above provisions.
- The liability regulations according to clauses 1 and 2 shall also apply to application-related information and advice.
- Insofar as our liability is excluded or limited in accordance with the above provisions, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
§ 8 Retention of title
- We reserve title to the goods delivered by us until all claims arising from the business relationship with the customer have been paid in full. Ownership is only transferred to the customer when he has paid all his liabilities to us.
- Any processing or alteration is always carried out for us as manufacturer in the sense of § 950 BGB, but without any obligation for us. If the goods are processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of purchase (final invoice amount, including value added tax) to the other processed objects at the time of processing. If the goods are combined or inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of purchase (final invoice amount, including value added tax) to the other combined or mixed objects at the time of combination or mixing. If the combination or mixing is carried out in such a way that the customer's item is to be regarded as the main item, it is hereby agreed that the customer's (co-)ownership of the uniform item shall pass to us in proportion to its value. The customer shall keep the items in question in safekeeping for us free of charge with the care of a prudent businessman. If the goods created by processing, combining or mixing are resold, the advance assignment agreed below shall apply only to the value of the goods subject to retention of title.
- The customer is entitled to process and/or sell the goods subject to retention of title in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security is not permitted. By way of security, the customer hereby assigns to us in full (including VAT) all claims arising from resale or other legal grounds (insurance, tort) in respect of the reserved goods (including all balance claims from current account). We accept this assignment already now. We revocably authorize him to collect the claims assigned to us for his account in his own name.
However, the collection authorization can only be revoked if the customer does not properly meet his payment obligations. In this case, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment.
- In the event of access by third parties to the reserved goods, the customer shall point out our ownership and notify them immediately. Furthermore, he shall also notify us so that we can, if necessary, file a (third-party) objection in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
- If the customer is in default of payment or culpably fails to meet other material contractual obligations, we shall be entitled to take back the goods subject to retention of title or, if applicable, to demand assignment of the customer's claims for return against third parties. Our taking back of the goods subject to retention of title does not constitute a withdrawal from the contract, unless we have expressly declared this.
- If the realizable value of the securities exceeds the claims to be secured (including any interest and ancillary costs) by 10%, we shall release securities of our choice at the request of the customer.
- Insofar as the above provisions on retention of title do not have the same security effect in other countries as in the Federal Republic of Germany, the customer shall do everything in his power to immediately provide BHV-Automation GmbH with appropriate security rights. The customer shall cooperate in all measures that are necessary and beneficial for the effectiveness and enforceability of such security rights.
§ 9 Prices, payment
- Unless otherwise agreed, we shall - in the event that a binding offer is made (see § 2, 1.) - be bound by the prices stated in our offer for 60 (sixty) days from the date of the offer. The prices stated in the order confirmation are decisive. Additional deliveries and services will be charged separately.
- Our prices are "ex works" plus the statutory value-added tax at the respective applicable rate, but excluding transport packaging and transport insurance. Our invoices are due for payment net (without deduction) within 14 (fourteen) days of the invoice date.
- We shall be entitled to set off payments against older debts of the customer despite any provisions of the customer to the contrary. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance. The customer shall be informed of this.
- A payment shall only be deemed to have been made when we can dispose of the amount. Cheques will only be accepted on account of performance and shall only be deemed payment after they have been honoured.
- If the customer is in default of payment, we shall be entitled to charge interest on arrears at a rate of 8 (eight) % above the prime rate. We shall also be entitled to demand a reasonable reminder fee for written reminders.
- All claims shall become due immediately if the customer defaults on payment, culpably fails to comply with other material obligations under the contract or if we become aware of circumstances which are likely to reduce the customer's creditworthiness, in particular cessation of payments or application for or opening of insolvency proceedings. In these cases, we shall be entitled to retain outstanding deliveries or to execute them only against advance payment or securities.
- The customer shall only be entitled to offset or exercise a right of retention if the counterclaims have been legally established or are undisputed. However, the customer is always entitled to withhold payment due to counterclaims from the same contractual relationship.
- If the service is not called off within the agreed time and BHV-Automation GmbH is not responsible for the delay, a processing fee of 150,00€ will be charged.
§ 10 Prohibition of assignment
The assignment of claims against us to third parties is excluded unless we have expressly agreed to the assignment in writing in advance. Insofar as it is not a matter of generally inalienable claims in accordance with § 6 No. 7 of these Terms and Conditions of Business, consent shall be granted if the customer can prove that there are material interests which outweigh our interests in maintaining the prohibition of assignment.
§ 11 Secrecy, limitation of use
The Buyer undertakes to keep secret and not to disclose to third parties any commercial and/or technical information and knowledge (know-how) which has become known to him or has been communicated by us in connection with our deliveries or the performance of the (specific) contract and which is either marked or (orally) designated as "confidential" or is by its nature - taking into account the legal concept of business and trade secrets - to be regarded as confidential, unless it has become generally known or easily accessible due to circumstances other than a breach of contract by the Buyer. Furthermore, the customer shall not use the aforementioned information/knowledge for purposes outside the specific contract, in particular not for the manufacture, use or distribution of products which compete with the specific contractual products. The customer shall also impose corresponding obligations on his employees and other persons who come into contact with the said information/knowledge in accordance with the specific contract. The above obligations shall continue to apply after termination of the specific contract.
§ 12 Final provisions
- These General Terms and Conditions of Sale and Delivery and the entire legal relationship between BHV-Automation GmbH and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) or other bilateral and multilateral agreements serving to standardize international sales.
- Place of performance for deliveries is our respective place of delivery,
for the payment the seat of our company.
- The place of jurisdiction for all disputes arising from or in connection with these General Terms and Conditions of Sale and Delivery as well as from the entire legal relationship between BHV-Automation GmbH and the customer is - if the customer is a merchant - Arnsberg. However, BHV-Automation GmbH is also entitled to sue the customer at the place of jurisdiction generally applicable to the customer.
- Should one or more provisions of these General Terms and Conditions of Sale and Delivery or provisions in legal transactions between BHV-Automation GmbH and the customer be or become invalid, the validity of the remaining provisions shall not be affected.