General Provisions, Scope of Application
- The present General Terms and Conditions of Sale (GTCS) shall apply to all business relationships of the company Beefer Grillgeräte GmbH (hereinafter also: “Beefer”) with customers of Beefer (“Buyer”). The GTCS shall apply only if the Buyer is an entrepreneur (Section 14 of the BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
- The GTCS shall apply, in particular, to any agreements on the sale and/or delivery of movable things (“Goods”), regardless of whether Beefer manufactures the Goods itself or purchases them from any component suppliers (Sections 433, 651 of the BGB). Unless otherwise agreed upon, the GTCS shall apply as a framework agreement in the respective valid version at the time the order is placed by the Buyer (retrievable at [www.beefer.de/…]), including for any similar future agreements, without Beefer being obliged to refer to them again in each individual case.
Beefer’s GTCS shall apply exclusively. Any deviating, conflicting or complementing General Terms and Provisions of the Buyer shall become an integral part of the agreement only if and to the extent that Beefer has explicitly given its consent to their application. Such requirement of consent shall apply in any case, including but not limited to those cases where Beefer carries out the delivery to the Buyer while being aware of the Buyer’s GTC.
- Any legally relevant declarations and notices to be made by the Buyer vis-à-vis Beefer after the conclusion of the agreement (for ex. setting of time limits, notices of defects, declaration of withdrawal or price reduction) shall require written form to become effective.
Conclusion of the Agreement
- Ordering of the Goods by the Buyer shall be regarded as a binding contractual offer. Unless otherwise provided for in the purchase order, Beefer shall be entitled to accept such contractual offer within a period of 14 days from its receipt by Beefer.
- The acceptance may be declared either in writing (for ex. by means of an order confirmation) or by delivery of the Goods to the Buyer.
Delivery Period and Default in Delivery
- Any delivery periods shall be agreed individually and/or specified by Beefer upon acceptance of the order. If this is not the case, delivery shall be carried out once the ordered Goods are available.
- If Beefer is unable to comply with any binding delivery periods for any reasons not attributable to Beefer (non-availability of the service), Beefer shall notify the Buyer about this without undue delay, communicating the expected new delivery period. If the service is not available even within the new delivery period, Beefer shall be entitled to withdraw from the agreement, either in whole or in part; any service in return already rendered by the Buyer shall be reimbursed to Beefer without undue delay. Cases where the service shall be deemed to be unavailable within this meaning shall include, in particular, the failure of any component suppliers of Beefer to perform self-delivery in due time if Beefer has entered into a congruent hedging transaction, if neither Beefer is nor Beefer’s component suppliers are at fault or if Beefer is not obliged to perform procurement in the individual case.
- The rights of the Buyer in accordance with section 8 of the present GTCS and the legal rights of Beefer, in particular in case of any exclusion of the duty to perform (for ex. due to any impossibility or unreasonableness of performance and/or cure), shall remain unaffected.
Delivery, Passing of Risk, Acceptance, Default in Acceptance
- Delivery shall be carried out ex works; this place shall also be the place of performance for the delivery and for any cure, where applicable. Upon request and at the expense of the Buyer, the Goods shall be shipped to another place of destination (sales shipment). Unless otherwise agreed upon, Beefer shall be entitled to define the type of shipment itself (including but not limited to transport companies, dispatch route, packaging).
- The risk of accidental loss and of accidental deterioration of the Goods shall pass to the Buyer upon handover at the latest. In case of any sales shipment, however, the risk of accidental loss or of accidental deterioration of the Goods, as well as the risk of delay shall already pass to the freight forwarder, the freight carrier or any other individual or institution determined to execute the shipment upon delivery of the Goods.
Prices and Terms of Payment
- Unless otherwise agreed upon in the individual case, Beefer’s respective current prices at the time the agreement is concluded shall apply, i.e. ex works, plus the statutory value added tax.
- In case of any sales shipment (section 4 para. 1), the Buyer shall bear the transport costs ex works and the costs of any transport insurance desired by the Buyer, where applicable. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
- The purchase price shall be due and payable within a period of 8 days from invoicing and delivery and/or acceptance of the Goods. However, Beefer shall be entitled at any time, also within the scope of any ongoing business relationship, to carry out a given delivery, either in whole or in part, only against payment in advance. Any corresponding reservation shall be declared by Beefer with the order confirmation at the latest.
- The Buyer shall be entitled to any rights of set-off or retention only to the extent that the Buyer’s claim has been legally established or is undisputed. If the delivery exhibits any defects, the Buyer’s opposing rights, in particular in accordance with section 7 para. 6 sentence 2 of the present GTCS, shall remain unaffected.
- If, after the agreement is entered into, it becomes apparent (for ex. on account of any application for initiation of insolvency proceedings) that Beefer’s entitlement to claim the purchase price will be jeopardised by the Buyer’s inability to perform, Beefer shall be entitled, in accordance with the legal regulations, to refuse performance and, where applicable after setting of a time limit, to withdraw from the agreement (Section 321 of the BGB). In case of any agreements on the manufacture of non-substitutable items (individual productions), Beefer may immediately declare its withdrawal; the legal regulations on the dispensability of setting a time limit shall remain unaffected.
Retention of Title
- Until full payment of all present and future claims of Beefer from the purchase agreement and from any ongoing business relationship (secured claims), Beefer retains title to the Goods sold.
- The Goods subject to retention of title must be neither pledged nor assigned by way of security to any third parties before the secured claims have been paid in full. The Buyer shall notify Beefer in writing without undue delay if any application for the initiation of insolvency proceedings is filed or to the extent that an access by third parties (for ex. pledges) to the Goods belonging to Beefer takes place.
- In the event that the Buyer acts in any way contrary to the contractual obligations, including but not limited to any failure to pay the purchase price due, Beefer shall be entitled, in accordance with the legal regulations, to withdraw from the agreement and/or to request surrender of the Goods on account of the retention of title. The request for surrender shall not automatically include the declaration of withdrawal. Beefer shall rather be entitled to merely request surrender of the Goods and to reserve the right of withdrawal. If the Buyer does not pay the purchase price due, Beefer may assert these rights only if Beefer has unsuccessfully set the Buyer a reasonable time limit in advance or if the setting of any such time limit is dispensable in accordance with the legal regulations.
- Until any revocation is made in accordance with letter c) below, the Buyer shall be authorised to resell and/or process the Goods subject to retention of title in the proper course of business. In this case, the provisions below shall apply as a complement.
- The retention of title shall cover the full value of any products created by processing, blending or combining the Goods of Beefer, with Beefer being deemed to be the manufacturer. If, in the case of any processing, mingling or combination with any goods of third parties, the right of ownership of such third parties remains in force, Beefer shall acquire joint ownership in proportion to the invoice values of the processed, mingled or combined goods. Apart from that, the created product shall be subject to the same regulations as those applicable to the Goods delivered subject to retention of title.
- The claims against third parties resulting from the resale of the Goods or of the product shall already now be assigned by way of security by the Buyer in their entirety and/or in the amount of any joint ownership share of Beefer, where applicable, in accordance with the paragraph above. Beefer shall accept the assignment. The Buyer’s obligations specified in para. 2 shall also apply in consideration of the claims assigned.
- The Buyer shall remain authorised to collect the claim besides Beefer. Beefer shall be obligated to not collect the claim as long as the Buyer meets the Buyer’s payment obligations vis-à-vis Beefer, no defect exists in the Buyer’s ability to perform and Beefer does not assert the retention of title by exercising any right in accordance with para. 3. If this is the case, however, Beefer may require the Buyer to notify Beefer of the claims assigned and of their debtors, to provide any information required for the collection, to hand over the associated documents and to inform the debtors (third parties) of the assignment. In addition, Beefer shall be entitled in this case to revoke the authority of the Buyer to perform any further alienation and processing of the Goods subject to retention of title.
- If the realisable value of the collateral securities exceeds Beefer’s claims by more than 10%, Beefer shall release collateral securities at the option of Beefer, when requested to do so by the Buyer.
Claims for Defects of the Buyer
- The rights of the Buyer in any case of material and legal defects (including an incorrect and short delivery, as well as any improper installation or inadequate installation instructions) shall be governed by the legal regulations, unless anything to the contrary is stipulated below. The special legal regulations in case of any final delivery of the Goods to a consumer shall remain unaffected in any case (recourse against suppliers in accordance with Sections 478, 479 of the BGB).
- The basis of the liability for defects of Beefer shall be, in particular, the agreement concluded on the quality of the Goods. An agreement on the quality of the Goods shall be considered as those product descriptions designated as such (including those of the manufacturer) that have been provided to the Buyer before the order was placed by the Buyer or have been involved in the agreement in the same manner as the present GTCS.
- To the extent that no quality has been agreed upon, it shall be assessed in accordance with the legal regulations whether or not any defect exists (Section 434 Para. 1 S. 2 and 3 of the BGB). However, Beefer shall not assume any liability for any public statements of the manufacturer or of any other third parties (for ex. advertising statements).
- The claims for defects of the Buyer shall imply that the Buyer has met the legal obligations of inspection and notification of defects incumbent upon the Buyer (Sections 377, 381 of the HGB [German Commercial Code]). If any defect becomes evident during the inspection or at any later point in time, Beefer shall be notified thereof in writing without undue delay. The notice shall be deemed to have been given without undue delay if it is given within a period of two weeks, with the timely dispatch of the notice being sufficient to meet the time limit. Irrespective of such obligation of inspection and notification of defects, the Buyer shall notify any obvious defects (including any incorrect and short delivery) within a period of two weeks from delivery, with the timely dispatch of the notice being sufficient to meet the time limit in this case, too. If the Buyer fails to perform proper inspection and/or notification of defects, the liability of Beefer for the defect not notified shall be excluded.
- If the delivered item is defective, Beefer may first choose whether Beefer will perform cure by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Beefer’s right to refuse cure under the statutory conditions shall remain unaffected.
- The Buyer shall provide Beefer with the time and opportunity required for the purposes of cure and shall, in particular, hand over the objected Goods for inspection purposes. In case of any replacement delivery, the Buyer shall return the defective item to Beefer in accordance with the legal regulations. The cure shall include neither the disassembly of the defective item nor its reassembly if Beefer has not been obliged to the assembly in the first place.
- The expenses required for the purposes of inspection and cure, including but not limited to any transport, infrastructure and labour costs and any costs of materials (not included: any disassembly and assembly costs), shall be borne by Beefer, provided that a defect actually exists. Otherwise, Beefer may request the Buyer to reimburse Beefer for the costs incurred as a result of the unjustified request for the remedy of defects (including but not limited to any inspection and transport costs), unless the lack of defectiveness was not recognisable for the Buyer.
- Any claims of the Buyer for compensation for damages and/or reimbursement for any futile expenditure, including in cases of defects, shall only exist in accordance with section 8 and shall be excluded in any other cases.
- Unless provided for otherwise in the present GTCS, including the provisions below, Beefer shall be liable in case of any violation of contractual and non-contractual obligations in accordance with the legal regulations.
- Beefer shall be liable for compensation for damages, for any legal reason whatsoever, within the scope of fault-based liability for intent and gross negligence. In case of slight negligence, Beefer shall be liable, subject to any more lenient standard of liability, in accordance with the legal regulations (for ex. for due care in its own affairs) only:
- for any damage arising from the violation of life, body or health;
- for any damage arising from the not insignificant violation of any essential contractual obligation (an obligation, the fulfilment of which is a prerequisite for enabling proper implementation of the agreement in the first place and on compliance with which the contracting partner regularly relies and may regularly rely on); in this case, however, the liability of Beefer shall be limited to compensation for the foreseeable. typically occurring damage.
- The limitations of liability resulting from para. 2 shall also apply in case of any breaches of duty by and/or for the benefit of any individuals, whose fault is attributable to Beefer in accordance with the legal regulations. They shall not apply to the extent that Beefer has maliciously concealed any damage or has assumed any guarantee for the quality of the Goods, nor for any claims of the Buyer in accordance with the German Product Liability Act.
- The Buyer may withdraw from or terminate the agreement on account of any breach of duty not consisting in a defect only if Beefer is responsible for the breach of duty. Any free right of termination of the Buyer (in particular in accordance with Sections 651, 649 of the BGB) shall be excluded. For all other cases, the conditions and legal consequences shall apply.
- By way of derogation from Section 438 Para. 1 No. 3 of the BGB, the general period of limitation for any claims from material and legal defects shall be one year from the date of delivery. If any acceptance has been agreed upon, the statute of limitations shall start with the date of acceptance.
- The preceding periods of limitation under the law governing the sale of goods shall also apply to any contractual and non-contractual claims for compensation for damages of the Buyer which are based on any defect in the Goods, unless the application of the standard legal statute of limitations (Sections 195, 199 of the BGB) would result in a shorter statute of limitations in the individual case. However, any claims for compensation for damages of the Buyer in accordance with section 8 para. 2 sentence 1 and sentence 2(a) as well as in accordance with the German Product Liability Act shall exclusively become time-barred in accordance with the legal periods of limitation.
Beefer shall enjoy any and all property rights, including copyrights, trademark rights, corporate rights and other marks and know-how (hereinafter: “Property Rights”), as far as they exist, to the Goods, to the information and documents made available by Beefer, such as brochures, catalogues, drawings, sales instructions, advertising and photographic material. The Buyer must not use the Property Rights in the Buyer’s company name or trade name without the prior written consent of Beefer.
Choice of Law and Place of Jurisdiction
- The present GTCS and the contractual relationship between Beefer and the Buyer shall be subject to the laws of the Federal Republic of Germany, to the exclusion of international uniform law, in particular of the United Nations Convention on Contracts for the International Sale of Goods.
- If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive, also international, place of jurisdiction for all disputes directly or indirectly resulting from the contractual relationship shall be the registered office of Beefer in Bad Honnef, Germany. The same shall also apply if the Buyer is an entrepreneur within the meaning of Section 14 of the BGB. However, Beefer shall also be entitled in all cases to file legal action at the place of performance of the delivery obligation in accordance with the present GTCS and/or any overriding individual arrangement or at the Buyer’s usual place of jurisdiction. Any overriding legal regulations, in particular on exclusive competences, shall remain unaffected.