General Conditions of Sale of BECKER-Antriebe GmbH, Sinn
§1 Validity of the terms and conditions
All contractual relations between BECKER-Antriebe GmbH (hereinafter referred to as the Manufacturer), as the seller, and its customers (hereinafter referred to as the Purchaser), as the buyers, shall from 1 March 2021 be subject exclusively to the following General Conditions of Sale (AVB). Under the above premise, these shall also apply to all future business relations, even if they are not expressly agreed again. When the Purchaser orders goods based on the Manufacturer‘s quotation, these terms and conditions shall be considered to be accepted. Any counterprovisions of the Purchaser with reference to their General or Purchasing Terms and Conditions are hereby negated. Such provisions shall only apply if the Manufacturer has expressly agreed to them in advance. All agreements which are reached between the Manufacturer and the Purchaser and which the Manufacturer is obliged to adhere to for the purpose of implementing the Contract must be put in writing in order to take effect.
§2 Offer and placing of orders
Offers from the Manufacturer that are not expressly defined in writing as binding are not legally binding. Orders placed by the Purchaser are legally binding contractual offers. Documents that form part of the offer, such as catalogues, figures, drawings, specifications of weights and dimensions, are only approximate unless expressly designated as binding or the contractual usability and functionality of the purchased items is compromised by subsequent deviations. The Manufacturer retains proprietary rights and copyrights to all cost proposals, drawings, samples and other documents. These must not be made accessible to third parties. The Manufacturer is obliged to only give third parties access to plans designated by the Purchaser as confidential with the Purchaser‘s consent.
As long as nothing in the order confirmation is stated to the contrary, prices are ex works including loading, but excluding packaging, freight, carriage and insurance. Statutory VAT is not included in the prices. This is stated separately on the invoice at the statutory rate on the date of delivery or service. Additional deliveries or services are invoiced separately. The Manufacturer will only arrange insurance against transport damage at the express request of the Purchaser, and on their account.
§4 Time of delivery and service
Agreements on dates or deadlines for a delivery or service are not binding unless put in writing.
If the Manufacturer is unable to meet binding delivery deadlines for reasons for which it is not responsible (non-availability of the service), it shall inform the Purchaser without undue delay and, at the same time, confirm the expected new delivery deadline. If the service is also not available within the new delivery period, the Manufacturer shall be entitled to fully or partially withdraw from the contract; the Manufacturer shall immediately reimburse any consideration already paid by the Purchaser. A case of non-availability of the service in this sense shall be deemed to be, in particular, failure by the Manufacturer‘s supplier to deliver on time if the Manufacturer has concluded a congruent hedging transaction, neither it nor its supplier is at fault or the Manufacturer is not obliged to procure the service in the individual case.
In the event of obstacles of only temporary duration, the deadlines for delivery or service shall be extended or postponed by the period of the hindrance plus a reasonable lead time. Insofar as the Purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by way of immediate written declaration to the Manufacturer.
In the event of an incident attributable to force majeure, the provisions pursuant to Para. 2 Sentences 1 and 2 shall apply accordingly. Force majeure shall also be deemed to include epidemics, pandemics, war, riots, industrial disputes, strikes, lockouts, official directives or measures, unavoidable shortages of energy or raw materials, unintentional transport bottlenecks, unforeseeable operational disruption, for example, due to fire, water and machinery damage and any other hindrances which, when viewed objectively, have not been caused negligently by the Manufacturer.
The occurrence of delivery default by the Manufacturer shall be determined according to the statutory provisions. However, in each case a reminder by the Purchaser is required. If the Manufacturer defaults on delivery, the Purchaser may demand lumpsum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total no more than 5% of the delivery value of the goods delivered late. The Manufacturer reserves the right to prove that the Purchaser has not incurred any damage or loss or that the damage or loss is substantially less than the aforementioned lump sum.
Fulfilment of supply and service obligations on the part of the Manufacturer is subject to the Purchaser‘s obligations being fulfilled on time and correctly. If the Purchaser delays acceptance, the Manufacturer is entitled to demand compensation for the loss they have incurred as a result; on commencement of the delay in acceptance, the risk of accidental deterioration and accidental loss passes to the Purchaser.
If the Manufacturer defaults on a delivery or service or if it becomes impossible for it to carry out a delivery or service, for whatever reason, the Manufacturer’s liability for damages shall be limited according to § 11 of these General Conditions of Sale.
§5 Order cancellation, framework agreements
Order cancellations by the Purchaser for customer-specific products or for products commissioned exclusively by the Purchaser will not be accepted. Cancellations for other products require the Manufacturer‘s express approval.
Unless a term has been agreed, framework agreements have a maximum term of 12 months. If the Supplier fails to plan call-ups, the Manufacturer is entitled to organise them itself. Should the average agreed purchase volume not meet the expected demand, the Manufacturer is entitled to supply partial quantities at any time at its own discretion. Unless otherwise agreed, the Manufacturer is entitled at the end of the contractual term to deliver all the residual quantities or to bill the Purchaser for materials, any additional costs incurred and any lost profit.
§6 Part deliveries
The Manufacturer shall be entitled to make part deliveries or deliver partial services at any time if the part delivery can be used by the Purchaser within the context of the contractually intended purpose, the supply of the remaining ordered goods is guaranteed and this does not result in any significant extra expenditure or additional costs for the Purchaser.
Goods that have been ordered and supplied correctly and in perfect condition by the Manufacturer cannot be returned. In exceptional circumstances and with prior written approval from the Manufacturer, goods may be returned. With one-off returns, the Manufacturer shall apply a fixed processing fee of at least €20 plus statutory VAT. Costs for larger returns will be calculated based on the expenditure. This does not apply to items returned on account of justified complaints.
Acceptance of the items can be denied if they are returned without a return note from the Manufacturer. Costs incurred as a result shall be borne by the Purchaser. The Manufacturer will not accept the return of custom-made or cut-to-size items.
§8 Third-party industrial property rights
If the Manufacturer is obliged to deliver a product to the Purchaser‘s specifications (drawings, models, patterns, sketches, etc.), the Purchaser must ensure that no third-party industrial property rights are infringed as a result. In the event of culpable violation of duty, the Purchaser shall be obliged to indemnify the Manufacturer against any claims by third parties when first requested to do so.
§9 Place of fulfilment/Passing of risk
The place of fulfilment for the Manufacturer‘s services is the Manufacturer‘s registered office. Unless the order confirmation states to the contrary, upon delivery of the item the risk of accidental loss or accidental deterioration passes to the Purchaser, who is responsible for any expenses associated with the item after delivery. In the event that the delivery item is shipped somewhere other than the place of fulfilment, the risk of loss of or damage to the delivery item passes to the Purchaser when the item is delivered to the shipping company, the carrier or any other person or agency tasked with shipping.
For warranty claims in the event of material defects in roller shutter, sun protection and door drives as well as their control unit components, the following applies:
1.1 These warranty and guarantee provisions apply to products used in roller shutter, sun protection and door systems.
1.2 The Manufacturer guarantees to remedy any defects in new products for a period of 2 years in accordance with the provisions of law unless agreed otherwise in these General Conditions of Sale. For used products, the warranty period is 1 year.
1.3 The warranty commences upon delivery of the products to the Purchaser. If the Purchaser is unable to prove the precise delivery date, the date of manufacture of the delivery item plus a three-month period of grace is applicable.
1.4 The requirement for warranty is the prior performance of an inspection of the rejected product at the Manufacturer‘s premises, during which a defect has been determined that the Manufacturer is responsible for. The Purchaser is obliged to make the disputed product available to the Manufacturer, as well as all the information and verifiable documents that are required in order to establish that there is a defect.
1.5 There are no grounds for a warranty claim if it becomes evident in the course of inspection in accordance with Item 1.4 that the complaint is based on improper handling of the delivery item or that, for other reasons, the problem is not the responsibility of the Manufacturer. In this event, the Purchaser is obliged to reimburse the Manufacturer for the expenses and costs incurred by inspecting the item in accordance with Item 1.4.
1.6 Natural wear and tear and use do not constitute a material defect. The following are, in particular, deemed consumable parts: rechargeable batteries, batteries and other wear products. The statutory guarantee is not affected. The guarantee pursuant to Item 2.1 does not cover used wear parts or consumables.
1.7 In the event of a warranty claim, the Manufacturer is entitled to initially attempt to rectify the issue. The Manufacturer hereby reserves the right to decide whether to carry out a repair, or supply a replacement or new unit.
1.8 If rectification of the issue is ultimately unsuccessful, a deadline is set following which the Purchaser retains their rights from § 437 Clauses 2 and 3 BGB. The deadline must be set in writing; it must be of an appropriate length and no less than 14 working days. If the Purchaser has the legal right to withdraw from the contract, the obligation to compensate in accordance with § 346 Para. 3 Clause 3 of the BGB (German Civil Code) only fails to apply if the Purchaser has observed the due diligence of a prudent businessman.
1.9 The law of the Federal Republic of Germany alone shall be applicable to warranty claims to the exclusion of UN purchase law.
1.10 By purchasing products from the Manufacturer, the Purchaser acknowledges the valid form of the Manufacturer‘s warranty and guarantee provisions as set out in these General Conditions of Sale.
2. Guarantee for roller shutter and sun protection drives
2.1 Irrespective of the warranty rights described in Item 1, the Manufacturer provides a five-year guarantee on roller shutter and sun protection drives, with the effect that drives purchased as new items from the Becker catalogue will be replaced free of charge for a period of up to 5 years from the date of manufacture. The provisions in §10 Clauses 1.3-1.5, 1.9 and 1.10 apply here accordingly.
It is the Manufacturer‘s responsibility to decide whether to effect a repair, or supply an equivalent replacement unit or new unit, and the decision is based on economic considerations. The Manufacturer shall not be liable for any additional costs.
2.2 Should the Purchaser invoke the rights in a guarantee, it is their responsibility to prove that the circumstances warrant their claim.
2.3 This provision does not apply to devices that are not used in roller shutter or sun protection applications in the conventional sense, including fire protection systems, swimming pool systems, sports or similar facilities and used equipment.
3. Right of recourse against supplier
Claims by the Purchaser in the context of the right of recourse against supplier shall become statute-barred pursuant to Item 1.2 unless the Purchaser informs the Manufacturer in writing of a defect asserted by its customer within this limitation period. In this case, the statutory limitation periods apply to the right of recourse against supplier. Before the Purchaser recognises or fulfils a claim for defects asserted by its customer (including reimbursement of expenses pursuant to §§ 445a Para. 1, 439 Para. 2 and 3 BGB), it shall notify the Manufacturer, providing a brief account of the facts, and request written comments.
4. Obligation to inspect and give notice of defects
The Purchaser shall accept an obligation to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB) in respect of all deliveries and services from the Manufacturer. When a works contract is signed, § 377 of the German Commercial Code (HGB) applies by analogy. After the transfer of risk or acceptance of the product, the Purchaser shall immediately inspect it to find out whether it is in working order and notify the Manufacturer in writing in a comprehensible form of any defects found as well as hidden defects after their discovery without undue delay, at the latest within 10 days. The Purchaser is obliged to make available to the Manufacturer all the information and verifiable documents that are required in order to establish that there is a defect. If the defect cannot be found during an inspection by the Manufacturer, the Purchaser shall bear the costs of the inspection.
§11 Limitation of liability
Irrespective of their legal basis, claims for compensation against the Manufacturer, their employees or vicarious agents are excluded provided there is no case of wilful misconduct or gross negligence.
In the event of wilful misconduct or gross negligence, the Manufacturer‘s liability is limited to foreseeable damages typical for the type of contract. In the event of an ordinary breach of key contractual obligations due to actions or negligence by non-executive employees, the Manufacturer‘s liability is limited to the reasonable foreseeable damage typical for the type of contract.
In all cases, the Manufacturer‘s liability for damage to life, body and health, their liability under the German Product Liability Act and other claims arising from manufacturer‘s liability remain unaffected.
§12 Liability for defects when processing sent in parts
With any kind of processing of sent in or supplied material, the Manufacturer shall not be liable for any defects that arise due to the properties or deficiencies of the material per se. If parts which have been sent in become unusable during processing or assembly due to material faults or other deficiencies, the Manufacturer must be compensated for the processing costs incurred or for any other resulting damages.
§13 Reservation of proprietary rights
Until full settlement of all claims (including all current account balance claims) against the Purchaser which the Manufacturer is entitled to now or in the future regardless of their legal basis, the Manufacturer is granted the following securities that they can release on demand and at will where their value exceeds the claims consistently by more than 10%.
The goods remain the property of the Manufacturer. Processing or reforming are always carried out on behalf of the Manufacturer as manufacturer, but without any obligation on their part. If the (co)ownership of the Manufacturer expires as a result of merger, it is now hereby agreed that the Purchaser‘s (co)ownership of the uniform item will be transferred to the Manufacturer in proportion to its value (invoice amount). The Purchaser shall keep the Manufacturer‘s (co-owned) property safe free of charge. Goods to which the Manufacturer has claim to (co)ownership shall be referred to as reserved goods hereinafter.
The Purchaser is entitled to process and sell the reserved goods in normal business operations as long as they are not in arrears. Pledging or collateral assignments are inadmissible. The Purchaser now, for the sake of safety, relinquishes any claims (including all current account balance claims) relating to the reserved goods arising from the resale or any other legal reason (insurance, unauthorised action) in their entirety to the Manufacturer. The Manufacturer revocably authorises the Purchaser to collect on claims relinquished to them on their own behalf. This authorisation to collect can only be revoked if the Purchaser fails to honour their payment obligations properly.
Where third parties access reserved goods, especially attachments, the Purchaser shall refer to the ownership of the Manufacturer and immediately inform the Manufacturer to enable them to assert their proprietary rights. Where the third party is unable to reimburse the Manufacturer for judicial or extra-judicial costs that arise in this context, the Purchaser shall be liable for said costs.
In the event of breach of contract by the Purchaser – in particular late payment – the Manufacturer shall be entitled to demand the surrender of the reserved goods or, where applicable, demand that the Purchaser‘s surrender claims against third parties are relinquished. Recovery or pledging of reserved goods by the Manufacturer does not represent a withdrawal from the contract.
Invoices from the Manufacturer are payable in full within 30 days of the invoice date unless any agreement to the contrary is in place. Where payment is made within 10 days of the invoice date, the Manufacturer will grant the Purchaser a discount of 2%.
In the event of overseas delivery, the Manufacturer is entitled to require the Purchaser to transfer an open-ended directly-enforceable security from a German bank to the order value of the goods for the purpose of providing collateral against payment claims.
In the event of part deliveries or partial provision of services, the Manufacturer is entitled to invoice for services that have already been provided. If the Purchaser fails to meet their payment obligations for part deliveries or partial services provided on time, the Manufacturer is entitled to withhold further partial deliveries or services, or to deliver them exclusively on a cash-on-delivery basis at the Purchaser‘s expense.
Where the Manufacturer has reasonable doubts concerning the Purchaser‘s financial reliability, or where the latter has fallen into payment arrears for an earlier delivery or partial delivery, the Manufacturer is entitled to carry out future deliveries or partial deliveries exclusively on a cash-on-delivery basis at the Purchaser‘s expense. Any retention of payments or offsetting against payment claims from the Manufacturer is inadmissible unless there are legally binding, uncontested or acknowledged counterclaims involved.
Should it become apparent after signing the contract (e.g. by an application for the institution of insolvency proceedings), that the Manufacturer’s claim to the purchase price is endangered by the Purchaser‘s inability to pay, the Manufacturer is entitled, according to the statutory provisions, to refuse performance and - if necessary, after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-built items), the Manufacturer may declare its withdrawal immediately; the statutory provisions concerning the dispensability of setting a deadline remain unaffected.
Should the Purchaser fall into payment arrears, the Manufacturer shall be entitled to demand interest at a rate of 10% above the basic interest rate of the European Central Bank as compensation from the time the payment was due. The interest rate applied shall be lower if the Purchaser proves a smaller loss. The Manufacturer is permitted to prove more serious damages.
§15 Applicable law, place of jurisdiction, partial invalidity
These General Conditions of Sale and all legal relations between the Manufacturer and the Purchaser shall be governed by the law of the Federal Republic of Germany. The provisions of the UN sales law are not applicable. If the Purchaser is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or special funds under public law, the registered office of the Manufacturer shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies where the Purchaser has no place of general jurisdiction in Germany or if their domicile or habitual residence are not known at the time of filing legal action. Should one of the provisions in these General Conditions of Sale or one of the provisions within the scope of other agreements be or become invalid, the validity of any other provisions or agreements shall not be affected thereby. The fully or partially ineffective provision should in this case be replaced with an effective provision whose economic purpose comes as close as possible to that of the ineffective provision.
Issue date: 01/03/2021