Benien Produktionstechnik GmbH – General Terms and Conditions
1. Scope
1.1.
These terms and conditions are applicable on companies, legal persons of public authorities as well as separate assets of public law.
1.2.
Our deliveries, performances and offers are entirely subject to our general terms and conditions as listed below. They are also valid for all current and future business and do not need to be approved by extra agreements again. Exceptions from these terms and conditions are only valid with our written approval. Different purchase conditions will not become valid even if they exclude the acceptation of our general terms and conditions or we did not specifically protest against these different conditions.
2. Conclusion of contract
Our offers are always non-binding. Contracts for our deliveries and performances are only concluded by sending our written order confirmation or – if such order confirmation is not sent – by delivering our goods according to the order.
3. Character of our Achievements
Only the characteristics of the contracted products can be regarded as approved which are listed in our order confirmation. A guarantee for certain characteristics of the goods is only applicable with our specific written description and approval.
4. Prices
All prices shall apply exclusive of value-added tax, which shall be added at the respective statutory rate. All prices are ex works. All additional costs, especially costs for packaging, transport, postage, insurance, etc, are at the contractor's expense.
5. Payments, discounts, delayed payments, interdiction to count up open accounts
5.1.
Our outstanding accounts are directly payable without any discount and without reduction of any extra payment fees so that we can dispose over the full amount at the expiry date, unless any extra written agreement has been concluded.
5.2.
Any agreed cash discount is only applicable on the pure value of the goods without additional charges. A pre-condition for granting cash discounts is that all due accounts are balanced by the debtor at the time of deducting the cash discount. Unless different written agreement, the period counting for the granting cash discounts starts with the invoice date.
5.3.
If the ordering party is overdue with more than 15 % of the total due outstanding amount for more than 10 days, we are entitled to ask for immediate payment of all outstanding accounts, even if different payments terms were agreed upon and even if some of the invoices have not reached the agreed due date. In this case, other payments conditions are not decisive, further deliveries will only be effected on the receipt of pre-payments or by providing us with sufficient financial securities.
5.4.
The right to count up receivable and payable accounts is only allowed if the mutual counterclaims are accepted by both parties and are legally binding.
6. Deliveries, delayed deliveries
6.1.
Delivery dates and delivery periods, unless specifically confirmed by writing and described as binding, are regarded as non-binding. The delivery period is starting with the sending of the order confirmation. It ends with the dispatch or collection advice respectively on the day the contracted goods are handed over to the rail or forwarding agent, carrier or contractor.
6.2.
The Contractor can ask us within two weeks after over-passing the non – binding delivery date or delivery period by writing to effect a delivery within an adequate period. When receiving the demand, the default starts. The Contractor can insist on his right for a delivery and besides this claim possible costs standing in relation of a non delivery. If there is only a slight negligence from our side, these extra costs are restricted to 5 % of the agreed price.
If the set adequate period is expired and the delivery is still not accomplished, the Contractor has the right to send a written information that they withdraw from the contract. If there is only a slight negligence from our side, the claim for compensation of loss is limited to the damages being in typical and foreseeable connection with the contract. In this case, a requirement on the delivery is excluded.
If a delivery becomes impossible by accident within the period of default, we can be held responsible subject to paragraphs 1 + 2, unless the damage would also have happened if delivery had been made in time.
6.3.
If a binding delivery date or period is exceeded, the default starts already at the moment of the binding date. The rights of the ordering party are subject to paragraph 6.2..
6.4.
Circumstances beyond our control or a disruption of production and operation on our or our supplier's side i.e. by riots, strike, lock – outs, destruction of our production facilities, which are causing a delay of delivery within the agreed periods or dates which are not subject to our influence, prolong binding and nonbinding delivery dates and periods for the durability of these circumstances, preventing us from a regular performance.
7. Defaults of collection, passing of risk, dispatch, immediate claim
7.1.
Uncollected or unaccepted contracted goods can either be dispatched at the Contractors expense or alternatively be stored at the contractors risk and expense.
7.2.
Unless something else has been concluded by writing, we can choose the ways and means of transport. By handing the goods over to the rail or forwarding agent, the carrier, the contractor respectively with the moment of storage, all risks and expenses are falling into the responsibility of the contractor, even if free delivered terms were agreed upon. An insurance will only be concluded if specifically requested by the ordering party.
7.3.
The Contractor has to check the contracted goods upon receipt or delivery and to claim visible faults and defects immediately. If the goods are delivered by a carrier, a written remark, stating precisely and clearly the claim and detected defaults, has to be made on the accompanying papers and delivery notes. Otherwise the contractor will loose its right to claim due to neglecting its legal duties. §§ 377, 378 HGB (German Commercial Code) remain untouched.
If the ordering party instructs us to deliver the contracted goods directly to its customer or a third party of the processing industry, the operating party has to make sure that upon arrival at its customer's/third party's place, possible claims are passed on immediately to the ordering party so that it is possible to remit them to us. The delivery of the contracted goods to its customers/third parties is regarded the same as to the ordering party itself. Subject to prior agreement, the contractor has the right to inspect the goods after date arrangement at our site before loading and delivering them to any third party.
8. Reservation of Ownership
8.1.
We reserve all property rights until all outstanding amounts resulting out of the business connection are entirely paid, also including open accounts and current accounts. This is applicable upon each delivered contracted product.
8.2.
The Contractor has the right to sell or to use the goods, being under reservation of our property rights, within its normal business activities. The proceeds resulting from our delivered goods are automatically assigned to our account in order to secure our sales. Processed and finished goods manufactured from or containing our delivered materials are without obligation for us with respect to § 950 BGB (German Civil Code) and are automatically subject to our property rights. If our materials are mixed with other products, we have a property right on the new finished product and its invoice value, the amount is proportionally depending on the percentage our materials are to be found in the new product. If our property right can not be defined clearly due to mixing or processing, the operating party transmits to us its property rights to the extent of the payable amounts for the delivered materials standing under our property right.
8.3.
If a judge decides that there isn't any protection-worthy interest to preserve any right on granted financial securities, we will release on demand of the ordering party, the amount which is according to the judge's decision not protection – worthy.
9. Warranty
9.1.
The warranty period is effective for one year, starting with the delivery date of the contracted goods ex our warehouse.
9.2.
For claims of our contracted goods, we compensate either by repair or by substituting the delivery (supplementary performance). If a supplementary performance is fruitless, the legal requirements become effective. The ordering party does not have the right to withdraw completely from the contract in case of minor claims or slight damages.
9.3.
There is no obligation for warranty, if the default or defect is caused from the contractor by not giving us the chance to repair or make up for the fault although we asked him to do so from the contractor by not treating the contracted goods in a normal way from the contractor by changing or influencing the goods without our approval and/or if the contractor does not follow his obligations of examination and claiming in accordance to §§ 377, 378 HGB, paragraph 7.3.
10. Limitation of liability, limitation of claim
10.1.
The following limitations of liability are not effecting damages of body and health or loss of life of the ordering party and claims referring to product liability.
10.2.
If there are essential infringements of contractual obligations (cardinal obligations) we are entirely liable for the damages caused by a deliberate act or gross negligence, for slight negligence we reserve limited liability, expenses are only restricted to the compensation of the foreseeable damages being in direct and typical connection with the contractual duties.
10.3.
As far as the liability is excluded or limited from the afore paragraphs, this is also valid for the individual responsibility of implementation and performance obligations.
10 4.
Claims for the compensation of damages from the contractor for a defect on the contacted goods are subject to a limitation period of 12 months from delivery of the goods. This is not valid if damages are caused by a deliberate act or gross negligence from our side or damages of health or loss of life of the buyer.
10.5.
If the buyer can derive rights from a guarantee of characteristics of material, his rights remain untouched from the afore mentioned limitations.
11. Proprietary Rights
11.1.
We reserve all property, using and originating rights for offers, drafts, drawings, graphics, samples, programmes, digital data and data files subject to any different written agreements and as far as they are admissible for originating rights. No access to these rights is allowed to third parties without our prior permission.
11.2.
If we produce contractual goods according to drawings, models, samples or other parameters supplied by the contractor and if by effecting this order originating rights of third parties are infringed, only the client can be held liable. The contractor has got to release us from any demands of third parties for such infringements of rights.
12. Provided forms, tools, test components
12.1.
If the contractor has got to provide forms, tools and other objects, this must be in time, without defects, in sufficient numbers and at the client's expense.
12.2.
If there is not a different written agreement, the contractor remains owner of the provided goods. If these goods are damaged or defective during production, all occurring costs for replacement or repair will be at the contractor's expense.
12.3.
We oblige ourselves to store these objects for a period of 2 years, starting from the moment of last usage.
12.4.
For forms, tools, production devices and similar, the liability is limited to the normal care that is also applicable to our own facilities and devices.
13. Place of performance, court of jurisdiction, choice of law, severability clause
13.1.
Place of performance for the delivery of the contracted goods is 27753 Delmenhorst.
13.2.
For all current and future demands out of a business connection with other companies, also receivables from payments by draft or cheque, the court of jurisdiction is 27753 Delmenhorst.
13.3.
All contractual relations with the client are subject to German substantive law even if the goods are to be delivered into foreign countries or if the concluded contract has any other relation to foreign countries. The German international private law, a foreign law, one-sided or more-sided international conventions, especially UN-conventions, dealing with contracts of for international trade of goods of 11.04.1980, are not applicable.
13.4.
If one point or paragraph of these general terms and conditions becomes invalid or cannot be put into execution, this does not affect the effectiveness of the other points and conditions.
13.5.
The English version of these General Terms and Conditions has been made available for convenience purposes only. The German version shall in any event prevail.