General Standard Terms and Conditions (AGB) of BEVISTON GmbH

These General Standard Terms and Conditions are pre-formulated terms for a multitude of contracts which BEVISTON GmbH imposes on the other contracting party when concluding a contract. General Standard Terms and Conditions do not apply when the terms are negotiated in detail between the contracting parties (cf. AGB-Gesetz § 1 – German law on General Standard Terms and Conditions). Furthermore, possibly made individual agreements prevail.

01. Offer, conclusion of contract

These General Standard Terms and Conditions apply for all – also future – shipments and services. Contradictory General Standard Terms and Conditions of the purchaser shall be explicitly rejected. They do not even oblige us if we have rejected them explicitly again after their receipt.

Our offers are always subject to our final confirmation. Conclusions of contracts, other agreements, side-agreements become obligatory by our written confirmation. If the customer’s order is proven appropriate as offer in accordance with § 145 BGB, we shall be allowed to accept it within two weeks. The purchaser shall be principally bound to his orders. The purchase contract shall be considered as concluded if

the purchaser receives a written order confirmation,
the shipment is carried out.

Pictures in catalogues and brochures are not binding. We reserve us the right to changes in performance and material. Apparent errors, typing and printing errors or calculation mistakes are not binding. In case of calculation mistakes, we shall be entitled to correct the prices mentioned by us. In this case the purchaser shall have the possibility to withdraw from the contract within an appropriate period after receipt of the correction. Any further claims shall be excluded.

02. Shipment and transfer of risk

Our shipments of goods are ex works Nordholz in accordance with the Incoterms 2010. If the destination of the shipment is changed afterwards by the purchaser’s request, the purchase shall bear all resulting additional costs of the shipment. In all cases the risk of shipment shall be transferred to the purchaser at the moment of provision of the goods in our warehouse, also in case we bear the freight charges due to special agreement. It principally applies that we only take out shipping insurance, particularly when shipping dangerous goods, on demand and at expense of the purchaser. The purchaser shall not be allowed to refuse the acceptance in case of a not essential fault. If the shipment or the acceptance of the shipment is delayed or omitted as a result of circumstances which are not caused by us, the risk shall be transferred to the purchaser on the day of the notification of the readiness for dispatch respectively acceptance. Partial shipments shall be allowed as far as they are acceptable for the purchaser.

03. Prices

We invoice our prices valid at the time of the shipments. In case our prices generally increase in the period between conclusion of the contract and shipment, the customer shall be entitled to withdraw from the contract within two weeks after notification of the price increase. This right to withdrawal does not apply in case of supply contracts established on a lasting basis.

The legal value added tax (VAT) is not included in our prices; it shall be stated separately in the invoice at the applicable rate at the date of the invoice.

04. Time of delivery

An agreed time of delivery shall start with the day of the final clarification of all details respectively of the dispatch of the order confirmation. The time of delivery shall be considered as met if we have shipped the goods on the last day of the agreed time. In case of later change of order, the originally agreed and confirmed time of delivery shall prolong appropriately. If the shipment is delayed for reasons caused by the purchaser, the time is considered as met with notification of the readiness of dispatch within the agreed time. If we are in delay with delivery for reasons we have not caused, the liability for compensations for damages which are immediate results of the delayed delivery shall be limited to the amount of the predictable damages.

05. Terms of payment

Our invoices are payable by the purchaser within 10 days after invoice date with a discount of 2% or within 30 days net unless other conditions will be confirmed by us in the order acknowledgement. Invoices for services are immediately payable due net. The deduction of a higher discount than 2% shall be excluded!

The purchaser shall default if he does not settle due payments within at least 30 days after receipt of invoice or equivalent request for payment. We reserve us the right to effect the default at an earlier date by issuing a reminder received after due date. If the purchaser is in delay of payment, we shall be entitled to claim default interests amounting to 9% p. a. above the relevant base interest rate. If we are able to prove a higher damage, we shall be entitled to claim it. The purchaser shall only have set-off rights if his counterclaims are established as legally valid, uncontested or accepted by us. Furthermore, he shall be authorised to carry out a right of retention insofar as his counterclaim is based on the same contractual relationship.

06. Retention of title

All our deliveries are subject to retention of title until receipt of all payments from the business relation with the purchaser. In case of delay in payment and purchaser's other behaviour being contrary to the terms of the agreement we shall be entitled to exercise our legal rights and take back the object of purchase. After having taken back the object of purchase we shall also be entitled to re-use it. In case of seizures respectively other interferences by third parties the purchaser shall have to inform us immediately in writing so that we can take action (third party proceedings) in accordance with § 771 ZPO (Civil procedure code of Germany). If the third party is not able to reimburse the judicial and extrajudicial costs of such a claim, the purchaser will be liable for the resulting loss. The purchaser shall have the right to resell the object of purchase within the course of regular business; but at this moment he shall already transfer all claims amounting to the final invoice amount (including value added tax) to us which will accrue to him from the resale towards his customers or third parties, no matter if the object of purchase has been resold without or after processing. The purchaser shall remain entitled to collect this claim even after the transfer. Our entitlement to collect the claim on our own shall remain unaffected. In this respect we shall commit ourselves not to collect the claims as long as the purchaser will meet his liabilities to pay from the proceeds received and will not be in delay of payment and in particular there will not be any application for opening insolvency proceedings or cessation of payment. In this case we shall be allowed to claim that the purchaser notifies the transferred outstanding debits and the debtor to us and, furthermore, gives necessary particulars for collection as well as transfers the respective documents to us. The processing or remodelling of the object of purchase by the purchaser shall always be carried out for us. The goods shall remain in our possession until final payment even if they are delivered to a third party by the purchaser. We shall oblige us to release the securities on demand of the purchaser if the value of our securities exceeds the claims to secure by more than 25%. It shall be our decision which securities we can release.

07. Notice of defect and defects liability

For the goods delivered by us we shall be liable that way that goods with proven defects shall be corrected or replaced free of charge at our choice; in the latter one the purchaser shall have to return the defect goods to us. If a correction / repair is excluded and a replacement particularly in case of a custom-made product is not possible, the purchaser shall be entitled to reduce the purchase price or to revoke the contract.

Defects of a part of the delivery shall not lead to a complaint about the complete delivery if a separation of faultless and defect goods is possible using any reasonable means. In these cases, only reduction of the purchase price and, provided that the goods are objectively worthless, revocation but not compensation can be claimed.

The purchaser shall be obliged to check the delivered goods with actual availability. He shall give us notice of infringements of contract in writing stating exactly the kind and extent of the goods concerned by the defect. The notice of defects shall be effected immediately within 10 working days after actual availability of the goods for the purchaser. Hidden defects can only be given notice of within six weeks from delivery as far as any shorter periods do not apply in accordance with § 377 HGB. The purchaser shall ensure expressly that we can check and determine the notified defect in situ.

Improper storage by the purchaser shall exclude any compensation. The purchaser shall grant us an appropriate period for removal of defects. If this period is refused, we shall be released from the liability for defects. If an appropriate period for correction / repair ends without any results, the purchaser shall be allowed to claim revocation of the contract or reduction of the purchase price. Unless stated differently below, the purchaser shall have no further claims irrespective of the legal basis. This applies in particular to damages not caused to the delivery item itself as well as to claims for loss of profit as well as property damage of the purchaser. Furthermore, compensation can only be claimed in case of intention or gross negligence. The replacement of consequential damage, e. g. due to loss of profit or covering purchase shall be excluded. If claims are lodged due to damages which are covered by our business and production liability insurance, our liability for replacement shall be limited to this insurance. The guarantee period shall be one year from delivery date of the goods. This period is a limitation period. It also applies for claims on replacement of consequential damages provided that any further claims of tortious act will not be lodged.

08. Place of execution/ place of jurisdiction

Provided that the order confirmation will not state anything else, the place of execution shall be Nordholz/ Germany. The place of jurisdiction for all lawsuits resulting from the contract shall be the court responsible for the registered office Nordholz unless in case both contractual partners are registered traders. But we shall have the right, if necessary, to bring an action against the purchaser at the court of his registered office. Only German law applies.

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