Terms of service of Beilharz GmbH
General Terms and Conditions of Sale and Delivery of Beilharz GmbH
Road equipment sector - status: 1.1.2024
1. General - Scope
(1) Our terms of sale apply exclusively; We do not recognize conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our terms of sale also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating terms of the customer.
(2) All agreements made between us and the customer for the purpose of executing this contract must be recorded in writing.
2. Offer - offer documents - catalogues
(1) If the customer's order qualifies as an offer in accordance with § 145 BGB, we can accept it within 4 weeks. Our offers are always non-binding.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties. Before passing them on to third parties, the customer requires our express written consent.
(3) Descriptions of our products are merely indications of quality and in no way represent a guarantee for the quality of the goods.
(4) Technical changes to our products that increase or maintain their value are permitted at any time and without prior notice.
(5) A cost estimate obtained from us is subject to a charge if no order is placed.
3. Tools - devices etc.
(1) Tools, devices and similar facilities that are manufactured or procured for production based on the customer's documents remain our property even if they are paid for in whole or in part by the customer.
(2) In the absence of a special agreement, the scope of services does not include assembly and commissioning of the delivery at the customer's site.
4. Prices - Terms of Payment - Default
(1) Unless otherwise stated in the order confirmation, our prices apply "ex works", excluding packaging; this will be invoiced separately.
(2) Statutory value added tax is not included in our prices; it is shown separately on the invoice at the statutory rate on the day of invoicing.
(3) The deduction of cash discount requires a special written agreement.
(4) Unless otherwise stated in our order confirmation, the purchase price is due for payment immediately net (without deduction). The customer is in default if he does not pay due payments at the latest four to ten days after receipt of an invoice or an equivalent request for payment. We reserve the right to bring about the delay at an earlier point in time by issuing a reminder that is received after the due date. Contrary to sentences 1 and 2, the customer is in default if it has been agreed that the purchase price is to be paid at a specific or determinable calendar time and the customer does not pay by this time at the latest.
(5) If the customer is in default of payment, we are entitled to demand interest on arrears at a rate of 9% above the respective base interest rate p.a. If we are able to prove a higher damage caused by delay, we are entitled to assert this.
(6) The customer is only entitled to offsetting rights if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, he is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(1) The start of the delivery time specified by us presupposes that all technical questions have been clarified. Unless otherwise agreed, a delivery time specified by us is non-binding.
(2) If we are in default of delivery for reasons for which we are responsible, liability for damages that are the direct result of the late delivery is limited to the amount of the foreseeable damage.
(3) If the customer sets us a reasonable grace period after we have already fallen into arrears, he is entitled to withdraw from the contract after this grace period has expired without result. If a reasonable period of grace has expired without result, the customer is obliged to declare within a period of two weeks after the period of grace has expired whether he is withdrawing from the contract or whether he still insists on performance.
(4) If we are also liable for damages instead of performance, claims in the case of ordinary negligence are limited to the amount of the foreseeable damage.
(5) In the event of ordinary negligence, we are never liable for consequential damages resulting from delayed or non-performance, in particular for a loss of profit on the part of the customer or other production loss costs.
(6) Compliance with our delivery obligation presupposes the timely and proper fulfillment of the customer's obligations.
(7) If the customer is in default of acceptance or violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item also passes to the customer at the point in time at which he is in default of acceptance.
6. Passing of Risk
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. The risk passes to the customer when the delivery item has left the factory, even if partial deliveries are made or we have taken on other services, e.g. the shipping costs or delivery and installation. Insofar as an acceptance has to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively immediately after our notification of readiness for acceptance. The customer may not refuse acceptance if there is an insignificant defect.
(2) If the shipment or acceptance is delayed or does not take place due to circumstances for which we are not responsible, the risk passes to the customer from the day of notification of readiness for shipment or acceptance.
(3) Partial deliveries are permitted as long as they are reasonable for the customer.
(4) If the customer so desires, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
7. Warranty for Defects - Warranty Period
(1) The customer's warranty rights presuppose that he has properly fulfilled his inspection and complaint obligations according to § 377 HGB.
(2) If there is a defect in the purchased item for which we are responsible, we are entitled to choose between remedying the defect or delivering a defect-free item.
(3) If we are not willing or able to remedy the defect or deliver a replacement, in particular if this is delayed beyond a reasonable period of time for reasons for which we are responsible, or if the remedy of the defect or replacement delivery fails in any other way, the customer is entitled to choose to withdraw from the contract or to demand a corresponding reduction in the purchase price. If a reasonable period of grace has expired without result, the customer is obliged to declare within a period of two weeks after the period of grace has expired whether he is withdrawing from the contract or whether he still insists on performance.
(4) Unless otherwise stated below, further claims by the customer - regardless of the legal grounds - are excluded. We are therefore not liable for damage that has not occurred to the delivery item itself; in particular, we are not liable for lost profits or other financial losses suffered by the customer. Insofar as liability for such damage does exist, claims for damages are limited to the amount of the foreseeable damage.
(5) The above disclaimer of liability does not apply insofar as mandatory statutory provisions justify liability, in particular insofar as the cause of the damage is based on intent or gross negligence or claims are asserted from negligence-based injury to life, limb or health. Furthermore, it does not apply if we have assumed a guarantee for a specific quality of the item and this quality is missing.
(6) The warranty period is 1 year, calculated from delivery of the goods. This period is a statute of limitations and also applies to claims for compensation for consequential damages, insofar as no claims from tort are asserted.
8. Retention of title security
(1) We reserve ownership of the purchased item until all payments from the business relationship with the customer have been received. In the event of any breach of contract on the part of the customer, in particular default in payment, we are entitled to exercise our legal rights and take back the purchased item. After taking back the purchased item, we are entitled to sell it.
(2) In the event of attachments or other interventions by third parties, the customer must inform us immediately in writing so that we can file a suit in accordance with § 771 ZPO. If the third party is not in a position to reimburse us for the court and out-of-court costs of such an action, the customer shall be liable for the loss incurred.
(3) The customer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) that accrue to him from the resale against his customers or third parties, regardless of whether the purchased item was resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim itself remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection and hands over the relevant documents.
(4) The processing or transformation of the purchased item by the customer is always carried out for us. If the purchased item is processed with other items that do not belong to us, we acquire co-ownership of the new item in relation to the value of the purchased item to the other processed items at the time of processing. For the rest, the same applies to the item created by processing as to the purchased item delivered under reservation.
(5) We undertake to release the securities to which we are entitled at the request of the customer to the extent that the value of our securities exceeds the claims to be secured by more than 20%; we are responsible for selecting the securities to be released.
9. Jurisdiction - place of performance
(1) If the customer is a merchant, the place of jurisdiction is Rottweil. However, we are also entitled to sue the customer at his place of residence.
(2) Unless otherwise stated in the order confirmation, the place of fulfillment is Vöhringen.
(3) Only the laws of the Federal Republic of Germany apply to this contract.