General Terms and Conditions
General Terms of Sale – valid from 12/2018
§ 1 General – Scope
(1) These General Terms and Conditions apply exclusively to our offers and contracts, to all services and ancillary services, and to their billing. We do not recognize any deviating, conflicting, or supplementary terms and conditions of the purchaser. The purchaser's terms and conditions shall only apply to the extent that we expressly agree to them in writing. Our terms and conditions shall also apply if we carry out the delivery to the purchaser without reservation while being aware of the purchaser's conflicting or deviating terms and conditions.
(2) We sell our goods and other services exclusively to purchasers who have reached the age of 18 and are to be considered entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). Furthermore, these General Terms and Conditions apply exclusively to entrepreneurs, legal entities under public law, or special funds under public law within the meaning of Section 310 (1) of the German Civil Code.
(3) Our contract language is exclusively German.
(4) Our General Terms and Conditions also apply to all future transactions with the purchaser.
§ 2 Offer – Offer Documents – Acceptance – Conclusion of Contract
(1) Individual agreements made with the purchaser in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these General Terms and Conditions. A written contract or our written confirmation is authoritative for the content of such agreements.
(2) Orders placed verbally are also binding on the purchaser. As a rule, we only provide an order confirmation if it is expressly requested by the purchaser.
(3) If the order is to be classified as an offer pursuant to Section 145 of the German Civil Code (BGB), we may accept it within 2 weeks.
(4) Documents belonging to the offer, such as illustrations, invoices, and weight specifications, are only authoritative to the extent customary in the trade and reasonable, even if they are included in the offer itself, unless they are expressly designated as binding. If "approximately" is agreed upon, we have the right to deliver up to 5% more or less within the scope of customary commercial tolerances.
(5) We reserve all property rights and copyrights to illustrations, drawings, calculations, and other documents. This also applies to written documents that are designated as "confidential." The purchaser requires our express written consent before passing them on to third parties.
(6) Our offers, particularly in brochures, advertisements, etc., are subject to change and non-binding, including regarding price information. We are bound by an individually prepared offer for 30 calendar days.
(7) Our employees are not authorized to make verbal collateral agreements or give verbal assurances that go beyond the content of the written contract.
(8) Our product presentation in the webshop does not constitute a binding offer to conclude a purchase contract. Rather, it is a non-binding invitation to place an online order for goods in the webshop.
(9) An online order in our webshop constitutes an offer to us to conclude a purchase contract. When such an order is placed, the purchaser receives an email confirming receipt of the order and detailing its contents (order confirmation). This order confirmation does not constitute acceptance of the offer, but is intended only to inform the purchaser that the order has been received by us. A purchase contract is only concluded when we ship the ordered product to the purchaser and confirm the shipment to the purchaser with a second email (shipping confirmation). No purchase contract is concluded for products from the same order that are not listed in the shipping confirmation.
§ 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices are "ex works," excluding packaging; this will be invoiced separately.
(2) The net prices stated in the currently valid price list or order confirmation, plus the respective statutory value-added tax, are authoritative. Additional deliveries and services will be charged separately.
There is generally no entitlement to receive goods at previously or subsequently applicable lower prices. If, in exceptional cases, we do take into account price reductions that occur before the goods are delivered for a current order, this is done voluntarily and without any legal obligation.
(3) Unless otherwise stated in the order confirmation, invoices are to be paid within 14 days of the invoice date. Any discount deduction requires a special agreement.
(4) In the event of payment default, statutory regulations apply. The purchaser only has a right of set-off if their counterclaims have been legally established, are undisputed, or have been acknowledged by us.
(5) The purchaser is entitled to exercise a right of retention only to the extent that their counterclaim is based on the same contractual relationship.
(6) Notwithstanding any contrary provisions by the purchaser, we are entitled to apply payments first to the purchaser's older debts. We will inform the purchaser of the type of settlement made. If costs and interest have already been incurred, we are entitled to apply the payment first to the costs, then to the interest, and finally to the principal amount.
(7) The payment methods we accept are invoice via prepayment, cash on delivery, credit card, PayPal, direct debit, or check.
If you choose to pay by prepayment, we will provide our bank details in the order confirmation.
When paying by credit card, the purchase price is reserved on your credit card at the time of the order (authorization). Your credit card account will be charged at the time we ship the goods to you.
When paying by direct debit, you may be required to cover any costs incurred as a result of a payment transaction being reversed due to insufficient funds in your account or because you provided incorrect bank details.
When paying by check, payment is only considered complete once we have access to the purchase price following the clearing of the check.
§ 4 Delivery and Performance Time
(1) Delivery dates or deadlines, whether agreed as binding or non-binding, must be in at least text form.
(2) The commencement of the delivery period specified by us is conditional upon the clarification of all relevant technical questions and circumstances. The agreed delivery time does not begin until all documents to be provided by the customer have been fully submitted. Subsequent changes or additions by the customer will extend the delivery time accordingly.
(3) Compliance with our delivery obligations is further conditional upon the timely and proper fulfillment of the customer's obligations. The right to plead non-performance of the contract remains reserved.
(4) If information required for the execution of the order or the delivery and/or service is not provided to us by the customer in a timely manner, or if the customer otherwise fails to fulfill or violates an obligation to cooperate, the delivery time shall be extended in accordance with the time lost due to such circumstances.
(5) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage we incur in this respect, including any additional expenses. Further claims remain reserved.
(6) If the conditions of Section 4 (5) are met, the risk of accidental loss or accidental deterioration of the goods passes to the customer at the time they are in default of acceptance or payment.
(7) We are liable according to statutory provisions if the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We are also liable according to statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to claim that their interest in the further performance of the contract has ceased.
(8) We are further liable according to statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; the fault of our representatives or vicarious agents shall be attributed to us. Unless the delay in delivery is based on an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage.
(9) We are also liable according to statutory provisions if the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, liability for damages is limited to the foreseeable, typically occurring damage.
(10) Furthermore, in the event of a delay in delivery, we shall be liable for each completed week of delay in the form of a lump-sum compensation for delay amounting to 3% of the delivery value, but not exceeding a maximum of 5%-8% of the delivery value.
(11) Further statutory claims and rights of the customer remain reserved.
(12) We are entitled to make partial deliveries and provide partial services at any time.
Section 5 Shipping, Transfer of Risk, Shipping Costs, Packaging Costs
(1) Unless otherwise stated in the order confirmation, delivery is agreed as "ex works." Delivery is at the customer's risk, even if we carry out the shipment ourselves.
(2) Unless otherwise expressly agreed in writing, the customer shall bear the costs of shipping and packaging. Unless otherwise agreed, we are entitled to determine the method of shipment (in particular the transport company, shipping route, and packaging) at our own discretion.
(3) Transport packaging and all other packaging in accordance with the German Packaging Ordinance will not be taken back, with the exception of pallets. The customer is obligated to dispose of the packaging at their own expense.
(4) Upon the customer's request, we will cover the delivery with transport insurance; the costs incurred for this shall be borne by the customer.
(5) Delivered items must be accepted by the customer, even if they exhibit minor defects, without prejudice to the customer's warranty rights.
Section 6 Liability for Defects / Warranty
(1) Only our own specifications and the manufacturer's product descriptions are binding regarding the quality of the goods. Public statements, claims, or other forms of advertising have no significance.
(2) The customer's claims for defects are conditional upon the customer having duly complied with their inspection and notification obligations as required by Section 377 of the German Commercial Code (HGB).
(3) If there is a defect in the purchased goods, the purchaser may, after prior written notification of the defect to us, demand subsequent performance at their discretion in the form of defect rectification—following our written approval and commissioning—or the delivery of a new, defect-free item. In the case of defect rectification, we are obligated to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor, and material costs, provided that these are not increased by the fact that the purchased goods were moved to a location other than the place of performance.
If we permit the purchaser to carry out the subsequent performance in the form of defect rectification themselves and at our expense, the purchaser must in any case submit the cost estimate to us and have it approved in writing before commissioning a third party.
(4) If subsequent performance fails at least twice, the purchaser is entitled, at their discretion, to withdraw from the contract or to reduce the purchase price.
(5) Subject to § 7 (1), we are liable in accordance with statutory provisions if the purchaser asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. To the extent that we are not accused of an intentional breach of contract, liability for defects is limited to the foreseeable, typically occurring damage.
(6) We are liable in accordance with statutory provisions if we culpably breach a material contractual obligation; in this case, however, liability for damages is limited to the foreseeable, typically occurring damage.
(7) To the extent that the purchaser is entitled to a claim for damages instead of performance, our liability is also limited within the scope of § 6 (3) to compensation for foreseeable, typically occurring damage.
(8) Liability for culpable injury to life, limb, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(9) Unless otherwise stipulated above, liability is excluded.
(10) The warranty period is one year from the delivery of the goods. This limitation does not apply to claims based on damages resulting from injury to life, limb, or health, or from the breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (cardinal obligation), as well as for claims based on other damages resulting from an intentional or grossly negligent breach of duty by the user or their vicarious agents. The limitation period in the case of a supplier recourse according to §§ 478, 479 of the German Civil Code (BGB) remains unaffected; it is five years, calculated from the delivery of the defective item.
(11) If our installation, operating, and maintenance instructions are not followed, changes are made to the products, parts are replaced, or consumables are used that do not correspond to the original specifications, as well as in the event of installation and operating errors, any liability for defects is excluded, as these do not constitute product defects. This applies accordingly to improper swimming pool water treatment.
(12) Liability for defects also does not apply if the following limit values are exceeded or fallen short of: No. 1.4301 (V2A) max. disinfection content 1.0 mg/l, chloride content up to 150 mg/l, pH value 7.0 to 7.6; for stainless steel materials No. 1.4571 (V4A): disinfection content max. 1.3 mg/l, chloride content up to 500 mg/l, pH value 6.8 to 7.8; and for material No. 1.4539, chloride content up to 4500 mg/l, pH value 7.0 to 7.6. The same applies accordingly to wear parts.
§ 7 Total Liability
(1) Any liability for damages beyond that provided for in § 6 is, regardless of the legal nature of the asserted claim, fundamentally excluded.
Regarding tortious acts, non-essential contractual obligations, and ancillary duties, we are only liable for intent and gross negligence. In accordance with the customs and practices common in commercial transactions, this also applies to our vicarious agents and also if they should be held directly liable. The limitation of liability does not apply to injury to life, limb, or health, or to mandatory liability under the Product Liability Act.
(2) To the extent that liability for damages toward us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, staff, representatives, and vicarious agents.
§ 8 Retention of Title
(1) We reserve title to all deliveries and services until the purchaser has fulfilled all claims, including claims from the current account as well as all incidental expenses such as interest and costs that have arisen or will arise from the business relationship. In the event of conduct by the purchaser in breach of contract, particularly in the event of default in payment, we are entitled to take back the purchased goods. The taking back of the purchased goods by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The attachment of the purchased goods by us always constitutes a withdrawal from the contract. We are authorized to dispose of the purchased goods after taking them back; the proceeds of the disposal shall be credited against the purchaser's liabilities, less reasonable disposal costs.
(2) The purchaser is obligated to handle the purchased goods with care; in particular, they are obligated to insure them sufficiently at their own expense against fire, water, and theft damage at replacement value. If maintenance and inspection work is required, the purchaser must carry this out in a timely manner at their own expense.
(3) In the event of attachments or other interventions by third parties, the purchaser must notify us immediately in writing so that we can file a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). To the extent that the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the purchaser is liable for the loss incurred by us.
(4) The purchaser is entitled to resell the purchased goods in the ordinary course of business; however, the purchaser hereby assigns to us all claims in the amount of the final invoice total (including VAT) that accrue to them from the resale against their customers or third parties, regardless of whether the purchased goods were resold without or after processing. The purchaser remains authorized to collect these claims even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the purchaser meets their payment obligations from the collected proceeds, is not in default of payment, and in particular, no application for the opening of bankruptcy, composition, or insolvency proceedings has been filed or payments have been suspended. If this is the case, we may demand that the purchaser disclose the assigned claims and their debtors to us, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment.
(5) Any processing or transformation of the purchased item by the purchaser is always carried out on our behalf. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. Otherwise, the same provisions apply to the item resulting from processing as to the purchased item delivered under retention of title.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing occurs in such a way that the purchaser's item is to be considered the main item, it is agreed that the purchaser shall transfer proportional co-ownership to us. The purchaser shall hold the resulting sole ownership or co-ownership in safe custody for us.
(7) To secure our claims against the purchaser, the purchaser also assigns to us any claims against third parties arising from the connection of the purchased item with a property.
(8) We undertake to release the securities to which we are entitled at the purchaser's request, provided that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be at our discretion.
§ 9 Use of Deliveries and Services
(1) Before purchasing the delivery and/or service, the purchaser must thoroughly inform themselves and ensure that it is suitable for their intended use.
(2) If the purchaser uses goods acquired from us for installation in equipment and/or premises of any kind, they should obtain written approval from us in advance.
§ 10 Design Changes
We reserve the right to make design changes at any time at our reasonable discretion; however, we are not obligated to make such changes to products that have already been delivered.
§ 11 Set-off/Right of Retention
(1) You are only entitled to a right of set-off if your counterclaim has been legally established, is undisputed or acknowledged by us, or has a close reciprocal relationship to our claim.
(2) You may only exercise a right of retention if your counterclaim is based on the same contractual relationship.
§ 12 Data Protection
We use information received in connection with an order or offer to process orders, deliver goods, and handle payments. We also use this information to communicate with the purchaser regarding orders and products, as well as to update records and maintain and manage customer accounts.
Further information can be found in the privacy policy on our website www.behncke.com/datenschutz/.
§ 13 Place of Jurisdiction – Place of Performance
(1) Should one or more provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected.
(2) If the purchaser is a merchant, our place of business shall be the place of jurisdiction; however, we are also entitled to sue the purchaser at their place of residence.
(3) The law of the Federal Republic of Germany shall apply exclusively; the application of the UN Sales Convention is excluded.
Unless otherwise stated in the order confirmation, our place of business is the place of performance.