Section 1 General Information—Scope
- These general terms and conditions exclusively apply to our quotations and conclusions of contract, to all services and incidental services as well as to their invoicing. We do not accept any deviating, contrary or additional conditions of the purchaser. Terms and conditions of the purchaser apply only insofar as we expressly agree to them in writing. Our terms and conditions also apply if we perform the delivery to the purchaser unconditionally while being aware of the purchaser’s contradictory conditions or conditions which differ from our terms and conditions.
- We sell our goods and other services exclusively to purchasers who are 18 years or older and are considered businesspeople as per Sect. 14 German Civil Code. Furthermore, these general terms and conditions exclusively apply to companies, legal entities under public law or special funds under public law in line with Sect. 310 Para. 1 German Civil Code.
- Our contractual language is exclusively German.
- Our general terms and conditions also apply to all future business with the purchaser.
Sect. 2. Quotation—Quotation Documents——Acceptance—Conclusion of Contract
- Special agreements made in individual cases with the purchaser (including supplementary agreements, additions and changes) always take precedence over these terms and conditions. A written contract and/or our written confirmation is authoritative for the contents of such agreements.
- Orders given verbally are also binding for the purchaser. An order confirmation on our part is generally only made if the purchaser expressly demands it.
- If the order is to be qualified as a quotation according to Sect. 145 German Civil Code, we may accept it within two weeks.
- The documents belonging to the quotation, such as illustrations, invoices and weight specifications, are, even if they are included in the quotation itself, only authoritative in a customary and reasonable scope, insofar as they are not expressly designated as being binding. If “approximately” is agreed, we have the right to deliver +/-5% within customary tolerances.
- We reserve the right of ownership and copyrights to illustrations, drawings, calculations or other documents. The same applies to written documents classified as “confidential”. The purchaser requires our express written consent prior to disclosing them to third parties.
- Our quotations, in particular in brochures, advertisements, etc. are non-obligatory and non-binding also in terms of price specifications. A customised quotation is valid for 30 days.
- Our employees are not authorised to conclude verbal arrangements or make verbal assurances going beyond the contents of the written contract.
- Our product display in our online shop is no binding quotation to conclude a purchase contract. In fact, it is a non-binding request to order goods online in our web shop.
- An online order in our online shop is an offer to us to conclude a purchase contract. If such an order is placed, the purchaser receives an e-mail confirming that we have received the order and listing the order details (order confirmation). This order confirmation is no acceptance of the offer; it only informs the purchaser about the fact that we have received the order. A purchase contract is only concluded when we send the ordered product to the purchaser and confirm the shipment to the purchaser with a second e-mail (shipment confirmation). No purchase contract is concluded for products from the same order, which are not listed in the shipment confirmation.
Sect. 3 Pricing—Payment Terms
- In case nothing else arises from the order confirmation, our prices are “ex works”, plus packaging, which is charged separately.
- The net prices, plus applicable value-added tax, stated in the applicable price list or order confirmation are authoritative. Additional deliveries or services are charged separately.
There is no entitlement to receive goods at lower prices applicable previously or later. Insofar as we make an exception and consider price reductions, which occur prior to delivering the goods, for a current order, this is considered voluntary and no legal obligations arise from it.
- Unless the order confirmation specifies something else, invoices are payable within 14 weeks from invoice date. Early payment discount must be agreed separately.
- Statutory regulations apply in case of delayed payments. The purchaser may offset claims only if their counterclaims have been legally determined, are undisputed or acknowledged on our part.
- The purchaser is only allowed to exercise a right of retention if their counterclaim is based on the same contractual relationship.
- We are entitled to offset payments first against the purchaser’s older debts, despite contrary provisions of the purchaser. We inform the purchaser about the type of settlement applied. If costs and interest have already been incurred, we are entitled to offset the payment first against the costs, then against the interest and then against the main performance.
- The payment method we accept is either by invoice by cash in advance, cash on delivery, credit card, Paypal, direct debit or cheque.
If you choose cash in advance as your payment method, we indicate our bank details on the order confirmation.
If you pay by credit card, the purchase price is booked to your credit card at the time of order (authorisation). Your credit card account is debited when we send you the goods.
If you pay by direct debit, you may need to bear costs arising from chargeback of a payment transaction due to insufficient funds in your account or if you have submitted incorrect bank details.
If you pay by cheque, payment is deemed made only when we can avail ourselves of the purchase price after cashing in the cheque.
Sect. 4 Delivery and Performance Period
- Delivery dates or deadlines, which are agreed bindingly or non-bindingly, need to be made at least in text form.
- The beginning of the delivery deadline specified by us presupposes that all relevant technical questions and conditions have been clarified. The agreed delivery period only begins after the purchaser has provided all the documents to be provided by them. Subsequent modifications or amendments by the purchaser extend the delivery period to the necessary extent.
- Meeting our delivery obligation also presupposes that the purchaser has fulfilled their obligations in a timely and proper manner. We reserve the right to object to an unfulfilled contract.
- If the purchaser is late in providing us with information required for executing the order and/or the delivery and/or the service, or if the purchaser misses or violates any other duties of cooperation, the delivery period is extended as per the loss of time incurred.
- If the purchaser fails to accept delivery or otherwise culpably breaches other obligations to cooperate, we are entitled to claim compensation for any damage it incurs including any additional expenses. Claims extending above and beyond this remain reserved.
- In case the requirements in Sect. 4 Para. (5) apply, the risk of an accidental loss or a random degradation of the purchased item is transferred to the purchaser when they are in default of acceptance or default of the debtor.
- We assume liability as legally stipulated insofar as the underlying purchase contract is a fixed transaction as per Sect. 286 Para. 2 No. 4 German Civil Code or Sect. 376 German Commercial Code. We also assume liability as legally stipulated in case the purchaser, as a consequence of a delayed delivery caused by us, is entitled to claim that their interest in further fulfilment of the contract no longer exists.
- We additionally assume liability as legally stipulated in case the delayed delivery is based on an intentional or grossly negligent contract violation caused by us; a fault of our representatives or vicarious agents is to be attributed to us. In case the delivery contract is not based on an intentional contract violation caused by us, our liability for compensation is limited to foreseeable, typically occurring damage.
- We also assume liability as legally stipulated insofar as the delayed delivery we have caused is based on a culpable violation of an essential contractual duty; in that case, however, liability for compensation is limited to foreseeable, typically occurring damage.
- Otherwise, we assume liability for each full week of delay in case of delayed delivery with a lump compensation for delay amounting to 3% of the delivery value, but no more than 5%–8% of the delivery value.
- Further legal claims and rights of the purchaser remain reserved.
- We are entitled to partial deliveries and partial performance at any time.
Sect. 5 Shipment, Transfer of Risk, Shipping Costs, Packaging Costs
- Insofar as the order confirmation does not state anything to the contrary, delivery is agreed “ex works”. Delivery is made at the purchaser’s risk even if we perform the shipment ourselves.
- Unless expressly agreed otherwise in writing, the purchaser bears the shipping and packaging costs. Insofar as nothing else is agreed, we are entitled to determine the type of shipment (in particular transport company, dispatch route, packaging) ourselves.
- We do not take back any transport or other packaging as per the packaging directive; except pallets. The purchaser is obligated to ensure disposal of the packaging at their own expense.
- In case the purchaser requests it, we take out a transport insurance for the delivery; the purchaser bears the costs incurred by it.
- Delivered objects are, even if the show non-essential faults, to be accepted by the purchaser, notwithstanding their warranty rights.
Sect. 6 Liability for Faults / Warranty
- Only our own information and the manufacturers’ product descriptions are binding for the goods’ composition. Public appraisals and statements as well as other advertisements is of no significance.
- Statutory claims for faults on the part of the purchaser assume that they have correctly fulfilled their inspection and reproval obligations pursuant to Sect. 377 of the German Commercial Code.
- Insofar as the purchased item has a fault, the purchaser may, following prior fault notification to us in writing, demand a choice of subsequent fulfilment by correction of faults, after written approval and assignment on our part, or delivery of a new fault-free item. In the case of correction of faults, we are obligated to bear all required expenses associated with the correction of faults, in particular transport, infrastructure, labour, and material costs, insofar as these are not increased by the fact that the purchased item has been relocated to somewhere other than the place of fulfilment.
In case we allow the purchaser themselves and at our expense to perform subsequent fulfilment by correcting the faults, the purchaser must always, prior to assigning a third party, present to us their quotation and have it confirmed in writing.
- In case subsequent fulfilment fails twice or more, the purchaser is entitled to demand a choice between annulment of the contract or reduced payment.
- Subject to Sect. 7 (1), we assume liability as legally stipulated if the purchaser claims compensation for damages based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. Insofar as we are not accused of intentional contract violation, liability for faults is limited to foreseeable, typically occurring damage.
- We assume liability as legally stipulated insofar as we culpably violate an essential contractual duty; in that case, however, liability for compensation is limited to foreseeable, typically occurring damage.
- Insofar as the purchaser is entitled to claim compensation for damages instead of performance, our liability also as part of Sect. 6 Para. (3) is limited to compensation for foreseeable, typically occurring damage.
- Liability for culpable violation of life, body or health remains unaffected; this also applies to mandatory liability according to the product liability act.
- Insofar as there are no divergent provisions in the above, liability is excluded.
- The warranty period is one year from delivery of the goods. This limitation does not apply to claims based on damage from injury of life, body or health or from violating a substantial contractual duty that needs to be fulfilled to enable proper execution of the contract and the contractual partner regularly trusts and may trust the compliance with that duty (material contractual duty) as well as to claims based on other damage based on intentional or grossly negligent violations of duty of the user or their vicarious agents. The limitation period in case of a delivery recourse according to Sect. 478, 479 German Civil Code remains unaffected; it is five years from the time of delivery of the faulty good.
- If (i) our installation, operation and maintenance instructions are not followed; (ii) products are modified; (iii) parts are replaced; (iv) supplies are used which fail to fulfil the original specifications; or (v) installation and operating errors occur, any liability for faults lapses as they are no product faults. The same applies to unprofessionally treated swimming pool water.
- Liability for faults also lapses if the following limit values are exceeded or undercut: No. 1.4301 (V2A) max. disinfection content 1.0mg/L, chloride content up to 150mg/L, pH value 7.0–7.6; for stainless steel materials No. 1.4571 (V4A). Disinfection content: max. 1.3mg/L, chloride content up to 500mg/L, pH value 6.8–7.8 and material No. 1.4539, chloride content up to 4500mg/L, pH value 7.0–7.6. The same applies to wear parts.
Sect. 7 Aggregate Liability
- Any liability for compensation above and beyond that intended in Sect. 6 is—without considering the legal nature of the asserted claim—always excluded.
In terms of impermissible actions, non-essential contractual duties and incidental duties, we assume liability only for intent and gross negligence. This applies, in the course of habits and practices customary in trading, also for our vicarious agents and also if they were to be availed of directly. Limitation of liability does not apply to violations of life, body, health or mandatory liability according to the product liability act.
- Insofar as liability for compensation towards us is excluded or limited, this also applies to the personal liability for compensation of our employees, workers, personnel, representatives and vicarious agents.
Sect. 8 Retention of Title
- We reserve ownership of all deliveries and services until the purchaser has fulfilled all receivables including open accounts as well as of all incidental expenses such as interest and costs that have arisen or will arise from the business relationship. If the purchaser behaves contrary to the contract, in particular if they default on payment, we are entitled to withdraw the purchased item. A return of the purchased item by us is not a withdrawal from the contract, unless we assert this in writing. A seizure of the purchased item by us is always a withdrawal from the contract. After redeeming the purchased item, we are entitled to dispose of it and the earnings from this disposal must be offset against the purchaser’s liabilities, minus reasonable costs for disposal.
- The purchaser is obligated to treat the purchased item with care; in particular, to sufficiently insure it, at their own expense, to its replacement value against fire, water and theft damage. In case maintenance and service are required, the purchaser must perform them on time at their own expense.
- If the goods are seized or third parties intervene in other forms, the purchaser must inform us in writing immediately so that we may institute legal proceedings in accordance with Sect. 771 German Code of Civil Procedure. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs for legal proceedings in accordance with Sect. 771 German Code of Civil Procedure, the purchaser accepts liability for the loss we sustain.
- The purchaser is entitled to resell the purchased item during the course of ordinary business; however, they already assign to us all receivables of our receivable in the amount of the invoice total (including VAT), which they accrue from reselling to their buyers or third parties, regardless of whether the purchased item was resold without or after processing. The purchaser may collect this demand even after the assignment. Our authority to collect the receivable ourselves remains unaffected. However, we undertake not to collect receivables while the purchaser (i) meets their payment obligations from the collected profits; (ii) does not fail to pay in due time; and in particular (iii) has not applied to file for bankruptcy, settlement or insolvency proceedings; or (iv) has ceased to pay. If this is the case, however, we may demand that the purchaser states the assigned receivables and their debtors, provides all required information for collection, hands over the associated documents and informs the debtors (third parties) about the assignment.
- Processing or reshaping the purchased item by the purchaser is always carried out on our behalf. If the purchased item is processed with other objects not belonging to us, we acquire co-ownership of the new goods in the ratio of the value of the purchased item (invoice total including VAT) to the other processed objects at the time of processing. Incidentally, the same applies to the goods created by processing as for the purchased item supplied under reservation.
- If the purchased item is mixed irrevocably with other objects not belonging to us, we acquire co-ownership of the new goods in the ratio of the value of the purchased item (invoice total including VAT) to the other mixed objects at the time of mixing. If the mixing is performed in such a way that the purchaser’s goods are deemed the main item, it is agreed that the purchaser transfers co-ownership to us on a pro rata basis. The purchaser keeps this created sole ownership or co-ownership in custody for us.
- The purchaser also assigns to us those receivables for safeguarding our receivables against them, which arise towards third parties from connecting the purchased item with a piece of land.
- We undertake to release the securities to which we are entitled upon the purchaser’s demand to the appropriate extent if the realisable value of our securities exceeds the demands to be secured by more than 10%; we have the right to choose the securities to be released.
Sect. 9 Using Deliveries and Services
- The purchaser is to collect detailed information and to ensure prior to purchasing the delivery and/or service whether it is usable for them.
- In case the purchaser uses goods purchased from us to install them in equipment and/or buildings of any kind, they should obtain a written release certificate from us beforehand.
Sect 10 Design Changes
We reserve the right to make design changes at any time at our equitable discretion; we are, however, not obligated to also perform such changes on already delivered products.
Sect. 11 Offsetting—Right of Retention
- You are entitled to offset only if your counter-claim is judicially binding or has not been contested or has been recognised or has a close synallagmatic relationship with our receivable.
- You may only exercise a right of retention if your counter-claim is based on the same contractual relationship.
Sect. 12 Data Protection
Information we receive as part of an order or a quotation, we use to process orders, deliver goods and handle payments. We also use this information to communicate with the purchaser about orders and products, to update data records as well as to keep and maintain customer accounts.
For more information, please see the privacy statement on our website http://www.behncke.com/datenschutzerklaerung/.
Sect. 13 Legal Venue—Place of Performance
- Should one or more provisions of these T&Cs be or become ineffective, the remaining provisions are not affected.
- Insofar as the purchaser is a merchant, our business location is the legal venue; however, we have the right to take legal action against the purchaser at their place of business.
- The right of the Federal Republic of Germany exclusively applies; the UN law on the sale of goods (CISG) is excluded.
- Insofar as the order confirmation does not state anything to the contrary, our business location is the place of performance.