General sales, delivery and payment conditions

 

I. Placing of order

  1. As soon as you place an order with us, regardless of the way the order is submitted but upon the acceptance of our goods or services at the latest, the purchaser recognises the exclusive validity of our general sales, delivery and payment conditions. 
  2. They shall apply to all future business relations, even when they are not expressly agreed once again. 
  3. We hereby contradict purchaser's counter-confirmations which refer to his/her deviating business conditions. 
  4. Deviations from our terms shall require our written consent. An interdiction of assignment included in the orderer's business terms is herewith explicitly disclaimed. 

 

II Conclusion of a contract.

  1. Our quotations are without engagement and they are not binding. 
  2. Every order and statement of acceptance require our written consent before they become legally effective; the same applies to modifications or side agreements. 

 

III. Pricing

  1. The prices stated by us shall only apply to the respective order: repeat orders shall be deemed to be new orders. 
  2. Should it come to an unforeseeable increase in labour or material costs, we reserve the right to adapt our prices accordingly without calculation of an additional profit. 
  3. Our prices are ex factory and exclude packaging and do not include the legal value added tax.

 

IV. Terms of payment 

  1. Invoices shall be payable without deduction from the date of invoice. 
  2. Discounts or other special conditions will only be granted upon separate agreement and written confirmation.
  3. If the purchaser is in arrears with respect to a claim, all other outstanding debts of this purchaser will immediately become due for payment. 
  4. We have assigned our claims to
    BFS finance GmbH
    Gütersloher Straße 123
    D-33415 Verl

    Payments with debt-discharging effect can only be made to BFS finance GmbH. For bank details, please refer to the respective information given in invoices.
  5. Payments shall be deemed to have been given, when the respective amount is available to the payee without any restrictions. Payments by cheque shall be deemed to have been made, when the cheque is cashed and the respective amount is available to the payee without any restrictions. 
  6. The debtor is automatically in default, when payment is not made by the 24th calendar day from the date of invoice. No special reminder is required to trigger the legal consequences of such default. 
  7. In case of default, we are entitled to charge default interests in the amount of 5% above the respective base interest rate of Deutsche Bundesbank (§ 247 civil code). The enforcement of further damage caused by delay shall be unaffected therefrom. 
  8. Bills can be accepted only after separate agreement and only on account of payment taking the usual discount charges and other costs for bills into consideration.
  9. If, following the conclusion of the agreement, it comes to a substantial deterioration of the purchaser's financial situation or if we get to know circum¬stances that might decrease the purchaser's creditworthiness, our entire claims shall become due for payment immediately. In addition, we are entitled in such a case to withhold outstanding deliveries and to request prepayment or securities and to withdraw from such contracts, if the purchaser does not provide compensation or security within an appropriate period of time which we will determine. 
  10. The purchaser may not offset any counterclaims unless we have acknowledged them and unless they have been held to be legally effective. 
  11. The enforcement of the right of retention by the purchaser is excluded, unless it is based on the same contractual relationship and is acknowledged by us in writing or if it is legally established.
  12. We are entitled to assign claims arising from our business relations to third parties.

 

V. Reservation of title 

Our deliveries shall only be carried out on the basis of the reservation of title described more in detail here below. The same applies to all future deliveries even if we do not always expressly point out to that fact. 

  1. We do reserve the right to our property until payment in full of all outstanding bills from current supply contracts. In the event of any breach of contract by the customer, we shall have the right to take back the item of sale. 
  2. The orderer is obliged to treat the purchased goods carefully until ownership has been transferred to him; he is especially obliged to sufficiently insure them at his own cost against fire and water damage and theft at the original value if the goods are high quality goods. If maintenance and inspection work has to be carried out, the client must ensure that this is done in a timely manner at his/her own expense. The purchaser must inform us in writing in the event of attachment or any other third-party interference until ownership has been transferred to him. In as far as the third party is not capable of refunding us with the cost of the action in and out of court according to §771 ZPO (German Civil Proceedings Code), the customer shall be liable for our loss.
  3. The purchaser may onsell the goods subject to retention of title in the normal course of business. The client herewith transfers to us the claims of the purchaser arising from the resale of the reserved goods in the amount of the agreed final invoice total (including value added tax). This transfer applies irrespective of whether the purchased goods are resold before or after processing. The purchaser remains authorized for collection of these receivables even after assignment. Our authority of collecting the receivables ourselves remains untouched by this. However, we undertake not to collect the claims so long as the buyer meets his payment obligations from the proceeds received, is not late in making payments and - especially - has not applied to open insolvency proceeds or suspended payments. The purchaser is obliged to indicate the name and address of the client to whom the goods subject to the agreed retention of title were supplied.
  4. Any processing or restructuring of the goods by the Buyer shall always be performed on our behalf. In this case, the expectant right of the client to the purchased goods / transformed article is continued. If the purchased goods are processed along with other items which do not belong to us, we will acquire co-ownership of the new item at the ratio of the objective value of the purchased goods to the other processed items at the time of processing. The same shall apply to cases where the products of the seller are blended with those of another. If mixing is done in such a manner that the purchaser's item can be regarded as the main item, it is considered as agreed that the client will transfer co-ownership proportionately to us and preserve sole or co-ownership acquired in this way on our behalf. The orderer also assigns to us the receivables for securing our claims against him, which are created against a third party by the combination of the purchased goods with real property here and now and we accept such assignment.
  5. The enforcement of our right to retention of title shall not constitute rescission of the contract.
  6. We are entitled to enforce our rights resulting from the retention of title - and in particular the withdrawal of goods subject to retention - without having to rescind the respective purchase contract before.

 

VI. Supply

  1. Delivery periods stated shall not be binding, unless such periods were expressly agreed upon in writing. 
  2. Cases of force majeure, strikes, lock-out, business interruptions, failure of our suppliers to deliver material due to reasons for which we are not responsible, extend the delivery time accordingly. However, if we are in default of delivery and are not capable to remedy the situation within an additional period of time of 6 weeks, the client may rescind that part of the contract that is not fulfilled. Claims for damages on the part of the purchaser on the grounds of delay and/or non-performance due to a delay are only justified if we are in default due to at least gross negligence on our part.
  3. We are entitled to carry out partial deliveries to a reasonable extent, each partial delivery legally representing a separate contract.

 

VII. Dispatch and passage of risk

  1. The risk of accidental destruction or deterioration passes over to the customer as soon as the item to be delivered is dispatched. This also applies, when we carry out the transport of goods.
  2. In case the shipment is delayed through our fault, the risk is also transferred to the orderer from the day of the readiness of shipment.
  3. Transport is effected at the expense of the orderer. Packing will be charged at costs.

 

VIII. Default in acceptance on the part of the orderer 

  1. If the ordering party fails to take delivery of goods at due date, we are entitled to either set an appropriate extension period and to dispose of the non accepted goods otherwise if that period has expired without result, or to charge him for the goods immediately and to store them at the risk and cost of the orderer. However, our rights to rescind the contract and/or to claim compensation if the prerequisites are fulfilled, shall be unaffected thereby. If we decide to demand compensation on account of non-fulfilment, we are entitled to set a flat rate for the damage and without proof in the amount of 20% of the total amount of the invoice incl. VAT and to demand payment of such amount. If the customer is able to prove that the damage occurred is substantially smaller, only this can be claimed.
  2. We reserve the right to claim a higher, actual loss.

 

IX. Warranty and liability for defects of goods supplied 

  1. BEWATEC grant a manufacturer's warranty for two years with respect to all electronic goods, telephone sets and LCD devices. Excluded from this warranty are cables and keyboards as well as the MediNet LCD-TV. The manufacturer's warranty covers the fault-freeness (§ 437 of the Civil Code) of the products during the warranty period. In any other case, the legally determined time-limits shall apply.
  2. We are not liable for defective goods which are not newly manufactured.
  3. Our liability remains unaffected in cases of malicious concealment of defects. 
  4. Our liability shall also remain unaffected with respect to the liability claims pursuant to the law regarding the product liability. Every case of liability shall be limited to the damage which was foreseeable when the contract was concluded.
  5. In case of defective newly manufactured goods and if the goods are shown to have been unusable or significantly impaired with respect to its intended use prior to the transfer of risk due to circumstances for reasons we are responsible for, we may at our discretion chose to repair the good, to resupply it or to take the defective good back at the invoiced value.
  6. Liability for defects shall be excluded if the orderer or a third party tries to repair the defect without our consent.
  7. Clause 6 shall also apply in cases, where the client does not use the object acquired according to its intended use or if he uses it in a system that does not comply with the required safety and protection devices and/or if he installs it inappropriately. Damage caused by lightning, water, fire, war or force majeure is not covered by the warranty and guarantee.
  8. The warranty and guarantee do not apply to the consequences arising from defects such as data loss or other consequential damage of any kind.
  9. Prior to the conclusion of the contract, the customer undertakes to point out in writing to special, foreseeable damage risks; otherwise any demand of warranty and guarantee shall be null and void.
  10. The orderer is obliged to check the goods immediately following their supply and to inform us within 8 calendar days following the supply at the latest. Upon expiry of that period, the goods shall be deemed to have been received without any defects.     
  11. We are not committed to subsequent improvements or redelivery as long as the orderer is in arrears with the payment of the purchase price in an amount exceeding the reduced value of the item supplied, such reduction in value having been caused by the defect.
  12. The warranty period starts with the handing over of the object of purchase. 
  13. BEWATEC declares that it will grant a five-year "Bewatec Special Warranty" under a separate agreement upon the purchase of a device. This special warranty only applies to devices listed in the device certificate with a warranty or serial number, respectively.
    1. This warranty applies to material and manufacturing defects exclusively.
    2. Regular inspections, maintenance, repair and/or the exchange of parts due to normal tear and wear are excluded from the special warranty.
    3. Defective devices must be sent to BEWATEC at the customer's expense; the costs for the return delivery in a case of warranty shall be borne by BEWATEC.
    4. Should it emerge that an alleged flaw or defect is not covered by the warranty and if the customer could have recognised that, had he exercised the required diligence, then the customer is obliged to compensate BEWATEC for all costs incurred through the handling of the announced warranty claim.
    5. The five-year special warranty starts on the day of the first handover of the object of purchase and shall not be renewed through processing and/or replacement in a case of warranty.
    6. For the rest, clauses 1-12 for the special warranty shall apply accordingly. 

 

X.   Copyright

Our samples, sketches, designs, models, etc. are under the protection of our intellectual property, and may not be imited by the purchaser or otherwise used for the purpose of reproduction even if they are not specially protected by property rights. Violation against the provision of this clause makes the purchaser liable for damages. 

 

XI.  Privacy

Purchaser hereby gives his consent to his personal data required for the business transaction being stored, processed and evaluated by BEWATEC in their EDP system for as long as the business relation exists. BEWATEC shall use such data for internal purposes exclusively and shall not disclose such data to any third party without the purchaser's express written consent. Upon purchaser's written request, his personal data will be deleted.

 

XII.  Final provisions

  1. The orderer may assign its rights arising from this contract to third parties only with our prior written consent.
  2. Place of fulfilment for all supplies and services shall be Münster, Germany..
  3. To the extent legally permitted, Münster is agreed upon as place of jurisdiction. We are also entitled to bring legal actions at the orderer's place of business.
  4. Only German law applies, unless otherwise bindingly provided otherwise by law. The application of the uniform international law on the sale of goods, the uniformed UN purchase law or of other conventions on law of purchasing goods shall be excluded.
  5. Should any provision laid out in these General Terms of Business be or become invalid, this will have no bearing on the validity of the remaining provisions. In this case, a valid provision shall be deemed to have been agreed which accomplishes as far as possible the intended economic effects of the ineffective provision.

As of March 3, 2012