GENERAL DELIVERY AND PAYMENT TERMS AND CONDITIONS OF BEAK ELECTRONIC ENGINEERING GMBH
§ 1 General / Scope
- The following terms and conditions apply to all business relationships with clients of BEAK electronic engineering GmbH & Co. KG, hereafter referred to as “BEAK“. They also apply to all subsequent business relationships, even when this has not been expressly agreed upon. New amendments of these terms and conditions become an integral part of the contract, if the customer does not object in writing within two weeks of their receipt.
- General terms and conditions of the buyer that are contrary to, or deviate from these general sales terms are hereby precluded. The sales terms of BEAK also apply when BEAK unconditionally delivers the order in the knowledge that the buyer’s terms are contrary or deviate from its own.
- The customer’s terms and conditions shall not in any circumstances become contractual components.
- Employees of BEAK are not authorized to enter into verbal contractual agreements, verbal modi cations of these terms and conditions and other verbal agreements. Additional or divergent agreements require written confirmation from BEAK.
§ 2 Quotations
- Quotations from BEAK are non-binding, the contract only becomes valid with written confirmation of the customer’s order.
§ 3 Prices and Payment Terms
- Delivery and services of BEAK are provided at the prices and conditions included in the written order confirmation; furthermore, prices valid at the time of contract completion apply if no prices were specified in the order confirmation.
- Within the Federal Republic of Germany, prices do not include VAT and, unless otherwise individually agreed, are ex factory. They do not include packaging, shipping, transport insurance and, if applicable, cash on delivery or transfer fees.
- Payment is due in full upon delivery or acceptance unless a separate agreement has been made with the customer. Without further declaration from BEAK, the customer is in default 30 days after due date if payment has not been received.
- In the event of defects the customer is not entitled to right of retention, unless the delivery is clearly defective or the customer is clearly entitled to refuse to accept the work. In such a case, the customer is entitled to retention only to the extent that the retained amount is in reasonable relation to the defects and the probable costs of subsequent fulfillment (particularly remedial action). The client is not entitled to assert claims and rights if they have not met payment obligations and insofar as the amount due (including any payments already made) is in reasonable relation to the value of the defective delivery or work.
- An early payment discount requires a separately written agreement. An early payment discount initiated solely by the purchaser will not be recognized.
§ 4 Transport Insurance
- If the buyer expressly so requests when placing the order, BEAK will cover the delivery with transport insurance whereby the buyer shall bear all associated costs.
§ 5 Delivery Time and Shipping
- BEAK is only obligated to deliver after clarification of all technical issues. If goods are to be produced according to customer specifications, BEAK is not required to manufacture and deliver prior to final production approval by the purchaser. This does not apply to the production and delivery of goods in accordance with manufacturer specifications. This requires the punctual and orderly fulfillment of all agreements and other obligations of the buyer.
- Specification of delivery dates by BEAK is non-binding, unless they are expressly designated as binding in writing.
- BEAK is not responsible for delays in delivery or services insofar as BEAK is not responsible for the cause thereof. These causes include without limitation force majeure, acts or omissions of the buyer, civilian or military authorities, re, strikes, floods, earthquakes, transport delays, etc., or the impossibility to obtain skilled labor, material or supplies. In case of delay, the contractually agreed delivery date shall be extended by the period corresponding to such a delay, without BEAK incurring liability for damages or penalties.
- BEAK has the right to refuse or delay delivery, if the buyer does not immediately effect an overdue payment to BEAK, whether this results from the same or another contractual relationship with BEAK.
- BEAK has the right to fulfill the work to be performed in partial deliveries within the specified deadline, within a reasonable scope.
§ 6 Retention of Title
- The good to be delivered remain the property of BEAK until all claims against the client from the business relationship are fulfilled.
- If the customer breaches his contractual obligations, especially default of payment, BEAK is entitled to demand surrender of the delivered or new goods without notice and/or – if necessary after a deadline has been set – to terminate the contract; the client is obligated to surrender the goods. A request of surrender of the delivered / new product is not a declaration of cancellation on the part of BEAK, unless this is expressly stated.
- The purchaser is entitled to resell the goods in the ordinary course of business; prior to this he assigns to BEAK all accounts receivable in the value of the total invoice sum including value-added tax arising from the resale to his customers or third parties, irrespective of whether the goods have been resold before or after having been processed.
- Processing or modi cation of the purchased goods by the buyer is always carried out on behalf of BEAK. If the goods are processed together with other items not belonging to BEAK, BEAK shall acquire joint ownership of the new items in proportion to the value of the goods relative to the other processed items at the time of their processing. For the items created by processing, the same provisions apply as for the conditionally delivered goods.
§ 7 Warranty Against Defects
- The warranty rights of the buyer require that the customer has properly fulfilled his obligation to examine and provide notice of defects according to §377 of the German Commercial Code. The buyer shall fully examine the goods, regardless of whether or not the delivery is only a transitional business for the buyer. The goods are deemed as accepted by the buyer, if he does not refuse acceptance within a reasonable time. This period is 10 days from receipt of the goods. BEAK does not waive objection to delayed notice of defects. Claims arising from a delay in delivery are not accepted, unless they are made before receiving the goods. The acceptance of the goods constitutes a waiver of any claim based on delay of delivery. Returns will only be accepted if the appropriate “Return Material Authorization” has been obtained from BEAK in advance. Goods must be returned without damage and exclusively in the original packaging.
- BEAK excludes any warranty for the product sold to the buyer as well as the assurance of their suitability for special purposes of the client, insofar as this is legally permissible.
- If there is a guarantee obligation from BEAK, the warranty period is one year. Stoppage and recommencement of the period of limitation is excluded.
- Beyond the framework of the guarantee, BEAK is obligated to supply or produce goods. Particularly, BEAK is not obligated to supply potential replacement parts.
- If there is a justifiable lack of goods from BEAK, BEAK is entitled to either repair or replace the goods. BEAK has the right to choose between repair and replacement. The customer’s request for rectification shall be in writing. BEAK shall be allowed a period of 6 weeks for rectification. In case of repair, BEAK is obligated to bear all costs of rectification, in particular transport, travel, labor and material costs, provided these are not increased because the goods have been brought to a location different from the place of delivery. BEAK does not waive the right to repair, even if the buyer’s business is urgent.
- If nothing contrary emerges under the clauses below including § 8, further claims of the buyer, irrespective of their legal grounds, are excluded. BEAK is therefore not liable for damage that has not been incurred on the delivery item itself; BEAK is in particular not liable for lost profits or other financial damage to the buyer. BEAK is in no case liable for indirect incidental or consequential damages.
- Compensation to the buyer as a result of his demand, regardless of the type of claim, is limited either due to a guarantee or to the purchase price paid by him for the goods or under the contract.
- Claims for damages, irrespective of their legal grounds, expire after one y ear. This excludes claims for damages for personal injury as well as claims for damages under the Product Liability Act.
§ 8 Liability
- Any further liability for compensation is excluded, regardless of the legal nature of the asserted claim. This does not apply in cases of intent or gross negligence of BEAK, or with a culpably caused injury to life, limb or health in accordance with statutory provisions. The liability of BEAK is however limited in cases of gross negligence to the foreseeable damage typical to the contract concerned. Moreover, BEAK is liable only under the Product Liability Act, for the culpable violation of fundamental contractual obligations or if the seller has fraudulently concealed the defect. The claim for damages for breach of fundamental contractual obligations is however limited to the foreseeable damage typical to the contract concerned.
- The provision in paragraph 1 shall not apply to claims according to §§ 1,4 of the Product Liability Act. Any obligations from BEAK to release the buyer from third-party claims exist only insofar as they are compulsory in the Product Liability Act. The same applies for initial incapability or justifiable impossibility of execution.
- BEAK is liable for impossibility of delivery in cases of intent or gross negligence of the supplier or an agent or subcontractors as well as with culpably caused injury to life, limb or health in accordance with statutory provisions. The liability of BEAK, however, is limited in cases of gross negligence to the foreseeable damage typical to the contract concerned. Outside of the cases in clauses 1 and 2, the supplier’s liability for damages and for reimbursement of needless expense due to impossibility of execution is limited to 10% of the value of the delivery. Further claims of the supplier due to impossibility of delivery are excluded, even after expiry of the supplier’s deadline for service. The customer’s right to withdraw from the contract remains intact. A reverse of burden of proof to the detriment of the customer is not connected with the preceding provisions.
§ 9 Patents and Infringements
- BEAK makes no assurance that the goods sold to the purchaser are free from legal claims by third parties arising from a breach or infringement of a patent or trademark or the like, and assumes no warranty or liability in the event of an infringement in connection with the goods. The buyer acknowledges this disclaimer. On the contrary, the buyer is responsible for ensuring that the products he markets in each country does not infringe on any third-party rights. The purchaser agrees, in the event of a claim due to an infringement, only to apply to the manufacturer or licensor of the goods. In addition, the purchaser agrees to protect, defend and hold BEAK harmless against sums, costs, expenses and attorneys’ fees that BEAK incurs or must pay the seller as a result of a claim, a plea or a judgment arising from the use, change or improvement of the goods that the buyer purchased, unless such use, change or improvement was approved by the manufacturer or licensor of the goods in writing.
§ 10 Installation
- The buyer is solely responsible for the assembly and installation as well the operation of the goods sold by BEAK, including and without qualification the obtainment of all permits, licenses or certificates required for assembly and installation as well as for the operation and distribution of these goods.
§ 11 Technical Advice and Data
- Any technical advice that is offered or is made available in connection with the use of the goods is a free courtesy towards the buyer. BEAK has no responsibility and accepts no liability for the content or the application of such advice.
- Only after prior written consent from BEAK may the buyer reproduce or disclose the technical data made available to him.
§ 12 Software
- Any computer software that BEAK should make available to the buyer may not be redistributed to other customers without prior written permission from BEAK.
§ 13 Terms and Conditions of the Buyer
- BEAK endeavors to serve their clients promptly and efficiently. Accordingly, BEAK delivers its goods and provides services solely by the provisions set forth herein.
- The contractual fulfillment of BEAK depends on the consent of the buyer to the sales terms and conditions of BEAK, unless BEAK expresses in writing their agreement with another arrangement. If no such agreement exists, initiation of the service and / or delivery is purely an accommodation to the buyer, and thus is not a valid acceptance of one or all of the terms and conditions of the buyer and cannot be construed as such.
- If a contract has not been previously concluded by mutual agreement, the acceptance of the goods or services is deemed as acknowledgement of these terms and conditions.
§ 14 Export Control
- BEAK points out that delivery of goods may be subject to restrictions and prohibitions under export control regulations. In particular, these include German and European foreign trade law regulations. Furthermore, certain European and national embargo regulations against certain countries and individuals exist that could prohibit a delivery or may be subject to licensing restrictions.
- The buyer agrees to recognize and comply with all applicable export control regulations and, if the delivery of goods falls under US law, also to recognize and comply with US (re)export regulations.
- The buyer is fully liable to BEAK for damage that BEAK incurs due to the culpable non-compliance of applicable export control regulations or US (re) export regulations through the buyer. He therefore exempts BEAK from claims of third parties.
- This o er, contract or order confirmation and the fulfillment of the contract is subject to the allocation from responsible authorities of necessary export and transfer licenses or other foreign economic authorizations or approvals from responsible authorities and there are no other legal barriers regarding export controls and directives to be observed due or to which BEAK must adhere as exporter or transferor.
§ 15 General
- This agreement and the services to be provided by the parties as well as the legal relationship of BEAK to their customers, even if they are based outside of the Federal Republic of Germany, are subject solely to German law under Article 27 of the introductory law of the German Civil Code (EGBGB). The application of the uniform UN purchasing law shall not apply in accordance with Article 6 of the Convention of the International Sales of Goods (CISG).
- All terms, conditions and agreements contained in these term and conditions of sales apply for all legal successors of the buyer and are binding upon them.
- Should one or more provisions in these Purchase Terms be or become invalid, unlawful, immoral or unenforceable, the validity of the remaining provisions shall not be affected.
- The individual headlines serve the parties only as service classifications. The interpretation of the provision shall not be affected.
- The terms and conditions have been drawn up in German and then translated into English. In principle the English version of these terms and conditions apply as a working basis for the parties, however with the stipulation that in the event of any dispute between the parties over the interpretation of a provision, the German version shall be decisive.
§ 16 Client Data
- The client agrees, that personal information required to process the order will be processed by BEAK with help of an automated data processing system. BEAK ensures that the customer’s data will only be used for this purpose.
§ 17 Jurisdiction / Place of Performance
- Place of fulfillment is the registered domicile of BEAK.
- Jurisdiction for all disputes resulting from business relations with companies, legal entities under public law and public legal fund assets is the registered domicile of BEAK. However, BEAK is entitled to initiate legal action at the domicile of the customer’s headquarters.
- Provided that the order conrmation does not state otherwise, the business headquarters of BEAK is the place of performance.