Terms & Conditions of Purchase (international)

BEGA Gantenbrink-Leuchten KG

 
I. Preamble

(A) BEGA is a manufacturer of high-quality luminaries for almost all areas of architecture.

(B) Supplier offers to provide BEGA with goods specified and to the price agreed upon in the Order.

(C) The Parties agree on the following terms & conditions as the exclusive legal grounds of this purchase (“Order”). Deviating, conflicting and or supplementary general terms & conditions of the Supplier do not become part of the agreement. The agreement on the terms & conditions contains the entire agreement with respect to the Order and supersedes any prior oral or written agreements and understandings between the Parties with respect thereto.

 

II. Contract conclusion & Supplier obligation

(1) The Supplier shall notify BEGA of errors and incompletenesses of the Order including the Order documents for the purpose of correction or completion prior to processing the Order.

(2) Any drawings, technical and constructive specifications or other documents contained in the Order shall be decisive for the goods to be delivered by the Supplier. The Supplier is obliged to verify the dimensions of the drawings before delivery of the goods. If the production of samples has been agreed upon in the course of the Order and the goods to be delivered are hence the result of a technical development process between the Parties, BEGA shall be entitled to modify the technical and design specifications of the goods until BEGA’s final written approval. Deviations from agreed dimensions, specifications, functions and other characteristics of the goods as agreed upon in the Order are only permissible with BEGA’s written consent. The Supplier agrees to inform BEGA of any reservations regarding the dimensions, specifications, functions and other characteristics of the goods prior to delivery of the goods.

(3) The Supplier agrees to take appropriate control measures to ensure that

a) measurable characteristics of the goods, such as dimensions, galvanic coatings, etc, are designed in such a way that random samples are sufficient on our part for acceptance;

b) the goods comply with the applicable legal requirements (e.g. RoHs, REACH, etc.);

c) intermediate and final checks are carried out using state of the art technology and are not limited to a mere random sample check;

d) the packaging of the goods in no case impairs any characteristics of the goods.

(4) The Supplier accepts BEGA’s Order. The Supplier assures that the goods are free of third party intellectual property rights; in particular that they do not infringe any patent, utility model or design rights of third parties and indemnifies BEGA against all claims of third parties arising from the infringement of third party rights. This obligation shall not apply insofar as the goods have been manufactured in accordance with BEGA’s explicit specifications.

 

III. Delivery time & delay in delivery

(1) The delivery time as stated in the Order is binding. The Supplier agrees to inform BEGA immediately in writing if it is likely that the Supplier will not be able to meet the agreed delivery times for whatever reason.

(2) The Parties agree that if the Supplier does not deliver the goods in the Order within the agreed delivery period or if the Supplier is in default, BEGA’s rights – in particular to rescission – shall be determined in accordance with the applicable statutory provisions. The provisions in paragraph (3) remain unaffected.

(3) If the Supplier is in default, BEGA may – in addition to further legal claims – claim lump-sum compensation for the damages caused by default amounting to 1% of the net price agreed upon in the Order per completed calendar week, but not more than 5% in total of the price agreed upon in the Order of the goods delivered late. BEGA reserves the right to prove that a higher damage has occurred. The Supplier reserves the right to prove that no damage at all or only considerable less damage has been incurred.

 

IV. Performance, Delivery, Prices, Passing of Risk & Default of acceptance

(1) The Supplier shall be entitled to have the performance owed by him performed by third parties (e.g. subcontractors). The Supplier bears the risk of procurement for the goods.

(2) The Supplier agrees to deliver the goods as agreed upon in the Order to the place indicated in the Order as the place of performance of the Supplier’s obligation.

(3) The Supplier agrees that his delivery must be accompanied by a delivery note stating the date (issue and dispatch), the contents of the delivery (article number and quantity) and BEGA’s order identification (date and number). If the delivery note is missing or incomplete, BEGA is not responsible for any resulting delays in processing and payment.

(4) The Supplier agrees to bear the risk of accidental loss and accidental deterioration of the goods until delivery at the place of performance and acceptance by BEGA.

(5) In case of BEGA’s default of acceptance the applicable statutory provisions apply. However, the Supplier is obliged to explicitly offer his services to BEGA as well if a specific or determinable calendar period has been agreed upon in the Order for an action or cooperation on the part of BEGA (e.g. provision of material, drawings, samples). If BEGA is in default of acceptance, the Supplier may demand reimbursement of his additional expenses in accordance with the statutory provisions.

 

V. Terms of payment

(1) The Parties agree that the price as specified in the Order includes all services and ancillary services of the Supplier as well as ancillary costs (e.g. proper packaging, transportation costs including any transport and liability insurance). Packaging is to be set off against the purchase price in case of CPT (carriage paid to) return by BEGA.

(2) The Parties agree that the price specified in the Order has to be paid by BEGA within 14 days of receipt of the goods with 3% discount or within 60 days net. In the case of Bank transfer, payment is deemed to have been made on time if BEGA’s transfer order is received by its bank before the expiry of the payment deadline. BEGA is not responsible for delays caused by the banks involved in the payment process.

(3) BEGA does not owe any interest on maturity. The statutory provisions shall apply to default in payment.

(4) BEGA is entitled to exercise set-off and retention rights as well as the defense of non-performance of the contract to the extent permitted by law. In particular, BEGA is entitled to withhold due payments as long as BEGA is still entitled to claims for fault or deficiency of the goods against the Supplier.

(5) The Supplier has a right of set-off or retention only on the basis of legally established or undisputed counterclaims.

 

VI. Confidentiality & reservation of title

(1) BEGA reserves ownership rights and copyrights to illustrations, plans, drawings, calculations, implementation instructions, product descriptions and other documents. Such documents shall be used exclusively for performance of the Order and shall be returned to BEGA after completion of the contract. The Supplier agrees to keep these documents provided by BEGA secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall not expire until and to the extent that the knowledge contained in the documents provided has become generally known.

(2) The provision VI. (1) shall also apply to materials, software, samples, materials, moulds, tools and other items which BEGA provides to the Supplier for performance of the Order. Such objects shall – as long as they are not processed – be kept separately at the Supplier’s expense and insured to an appropriate extent against destruction and losses.

(3) The Supplier confirms that the transfer of ownership of the goods to BEGA specified in the Order will take place unconditionally and regardless of the payment of the purchase price and excludes any forms of retention of title.

 

VII. Warranty & defective delivery

(1) The Parties agree that the statutory provisions shall apply to BEGA’s rights in the event of material defects and defects of title of the goods and in the event of other breaches of duty by the Supplier, unless otherwise specified below.

(2) In accordance with the statutory provisions, the Supplier shall be liable for ensuring that the goods have the agreed quality upon transfer of risk to BEGA. Agreed outturn samples and agreed sample quantities shall represent the entire goods. The Parties agree that any product descriptions included in the Order are considered agreements on quality.

(3) The Parties agree that BEGA is entitled to raise claims based for fault or deficiency of the goods even if the defect remained unknown to BEGA at the time of conclusion of the contract due to gross negligence.

(4) In case of fault or deficiency of the goods, the Parties agree that supplementary performance shall also include the removal of the defective goods and their reinstallation if the goods have been installed in another item or attached to another item in accordance with their type and intended use; BEGA’s statutory claim to reimbursement of corresponding expenses shall remain unaffected. The Supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that no defect actually existed. BEGA’s liability for damages in the event of an unjustified demand to remedy defects shall remain unaffected. However, the Parties agree that BEGA shall only be liable if BEGA has recognized or grossly negligently failed to recognize that no defect existed.

(5) The Parties agree that if the Supplier does not fulfill his obligation to supplementary performance as defined by BEGA (rectification or replacement delivery) within a reasonable period set by us, BEGA is entitled to remedy the defect and demand from the Supplier reimbursement of the expenses required for this or an appropriate advance payment. If supplementary performance by the Supplier has failed or is unreasonable for BEGA (e.g. due to particular urgency, endangerment of operational safety or imminent occurrence of disproportionate damages) no deadline shall be set by BEGA. However, BEGA is obliged to inform the Supplier of such circumstances immediately, if possible in advance.

(6) In addition, BEGA shall be entitled to reduce the purchase price as agreed in the Order or withdraw from the contract in the event of material defect or defect of title in accordance with the statutory provisions. Furthermore, BEGA is entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

 

VIII. Supplier Recourse

(1) The Parties agree that BEGA is entitled to unrestricted recourse claims within a supply chain in addition to the claims based on defects. In particular, BEGA is entitled to demand from the Supplier exactly the type of supplementary performance (rectification of defects or replacement delivery) which BEGA owes to its customers in the individual case.

(2) Before BEGA acknowledges or fulfills claims for defects asserted by its customers (including reimbursement of expenses related to the dismounting and mounting of the goods) BEGA agrees to notify the Supplier and to request the Supplier’s written statement, briefly explaining the facts of the case. If the Supplier’s substantiated statement is not made within a reasonable period and no amicable solution is reached, the claim for defects actually granted by BEGA shall be deemed to be owed to BEGA’s customer.

(3) The Parties agree that BEGA’s claim arising from supplier recourse shall also apply if the defective goods have been further processed by us or another entity, e.g. by installation in another product.

 

IX. Manufacturer’s liability & third party claims

(1) The Parties agree that if the Supplier is responsible for product damage, the Supplier shall indemnify BEGA from third party claims to the extent that the cause lies within the Supplier’s sphere of control.

(2) Within the scope of the Supplier’s obligation stipulated in IX. (1), the Supplier shall reimburse expenses which arise from or in connection with claims asserted by third parties against BEGA, included recall actions. As far as possible and reasonable, BEGA agrees to inform the Supplier of the content and scope of recall measures and give the Supplier the opportunity to comment. BEGA reserves further legal claims.

 

X. Limitation

(1) The mutual claims of the contracting parties shall lapse in accordance with the statutory provisions, unless otherwise stipulated below.

(2) The Parties agree that the general limitation period for claims based on fault or deficiency of the goods against the Supplier shall be 3 years starting from the acceptance of the goods, including claims for recourse arising in BEGA’s supply chain.

 

XI. Choice of law, place of jurisdiction & final provisions

(1) The Parties agree on these terms & conditions of the Order shall be governed by the law of the Federal Republic of Germany, but with the exception of UN Sales Law (CISG) and the conflict of laws rules.

(2) The Parties agree that the place for all disputes arising from this Agreement is Menden (Sauerland) / Germany. All mandatory statutory provisions governing exclusive jurisdiction remain unaffected.

(3) If any provision of this agreement should become invalid in whole or in part, this will be without prejudice to the remaining provisions hereof. The Parties agree already now to replace the invalid provision by a legally permissible provision which comes as close as possible to the economic intention of the invalid one. The same applies in case of an unintended omission in the agreement.

As amended in March 2019