for use in relationships with entrepreneurs and businesses resident outside the Federal Republic of Germany
I. Scope of application
(1) All deliveries and services which BEGA renders to buyers resident outside the Federal Republic of Germany are made exclusively on the basis of these General Terms and Conditions of Delivery. The latter are part of all contracts which we conclude with our contractual partners (hereinafter “buyer”) for the provision of deliveries or services offered by BEGA. They apply in particular but are not limited to the sale of products offered by BEGA. They also apply to all future deliveries and services rendered to the buyer even if the parties do not specifically agree on their application from time to time.
(2) Terms and conditions of business of the buyer or third parties do not apply even if we do not specifically reject them from time to time. Even if we refer to a letter which contains, or makes reference to, terms and conditions of business of the buyer or a third party, or if we render deliveries or services to the buyer without reservation or accept services from the buyer without reservation without rejecting the buyer’s terms and conditions, this must not be deemed to constitute consent to the application of those terms and conditions.
II. Offer for contract conclusion and contract conclusion
(1) Our offers are non-binding and subject to change unless they are explicitly referred to as binding or indicate a certain period for acceptance of the offer. We may accept orders or contract awards within fourteen days from receipt.
(2) The legal relationship between us and the buyer is exclusively governed by the sales contract concluded between us and the buyer, including these General Terms and Conditions of Business, both of which completely and conclusively lay down all agreements made between the contracting parties on the subject matter of the contract. Oral agreements we have made prior to contract conclusion are non-binding in legal respect. They only become effective if we confirm them in writing.
(3) Changes, supplements and amendments to the agreements made between the contracting parties including these General Terms and Conditions of Business must be in writing to be valid. Our employees other than managing directors, sales managers or holders of a comprehensive authority in the form of a “Prokura” are not entitled to make oral agreements contrary to the written form requirement. The written form requirement is deemed satisfied by transmission by telecommunication means including but not limited to facsimile or email transmission provided we thereby receive the copy of the appropriate signed statement or declaration.
(4) The information and data we provide regarding the services to be rendered or the goods to be delivered (e.g. weights, dimensions, utilization values, resilience, tolerances and technical data) as well our illustrations or presentations of the same (e.g. drawings and pictures) are approximate values only unless their use for the contractually agreed purpose requires exact compliance. They do not constitute warranted quality features, but they are mere descriptions or characterizations of the goods or services in question. Deviations which are usual in trade and deviations which are due to legal requirements or constitute technical improvements as well as the substitution of components by equivalent parts are permissible provided they do not impair the usability of the goods or services for the contractually agreed purpose.
(5) We reserve title and copyright to all offers and cost estimates which we submit to the buyer and to all drawings, pictures, illustrations, calculations, prospectuses, catalogues, models, samples, tools and other documents and auxiliary means which we have made available to the buyer. The buyer is not allowed without our written consent to make these materials physically available, or otherwise make the substance or content incorporated or inherent in them available, to third parties or make them publicly available or use, reproduce or copy them or have them used, reproduced or copied by third parties. The buyer is obliged upon our request to return to us all these materials in complete form and destroy any copies made thereof provided the buyer does no longer require them for the purposes of its ordinary course of business, or in case negotiations have not led to contract conclusion. This does not apply to the storage of electronically transmitted data for the purposes of regular and usual data backup.
III. Prices and payment
(1) The prices are those for the scope of services and deliveries specified in the order confirmations. Additional or special services will be charged separately. The prices are in EUR, ex works, plus packaging, statutory VAT and outer packaging in the case of ordered goods being delivered and handed over to a third party designated by the buyer (so-called drop shipment - “Streckengeschäft“). In the case of export delivery, customs duties as well as fees and other public charges are not included in the scope of performance.
(2) If and to the extent that the agreed prices are based on our list prices, the latter are deemed to be the list prices valid upon contract conclusion unless explicitly agreed otherwise with the buyer.
(3) Invoice amounts are due and payable within 30 days from the invoice date, without deductions unless agreed otherwise in writing. The date which is decisive for timely payment is the date when we receive payment. If the buyer fails to pay within the agreed payment period, the buyer will be deemed to be default even without a reminder being issued. In case the buyer fails to pay when due, we reserve the right to charge default interest at the statutory rate on the outstanding amounts from the due date. We reserve the right to claim further damages as well as the right to withdraw from the contract.
(4) The buyer is only entitled to set its own counter-claims off against our claims or withhold payment on grounds of such counter-claims which are based on the same contractual relationship if these counter-claims are undisputed or have been established by a final and non-appealable court decision (res judicata).
(5) We are entitled to execute or render outstanding deliveries or services only against prepayment or security in the case that, after contract conclusion, we become aware of circumstances which may substantially reduce the buyer’s creditworthiness, and which endanger payment of our outstanding claims by the buyer under the respective contractual relationship (including any other individual orders or contracts which are governed by the same framework agreement).
IV. Delivery and delivery time
(1) Unless agreed otherwise in writing, delivery is made ex works (EXW– Incoterms 2010) to our registered office in Menden (Sauerland)/ Germany.
(2) All delivery times and dates which we have indicated for deliveries and services are approximate only unless we have explicitly warranted, or agreed to comply with, a firm delivery time or date. Where shipment of goods to the buyer was agreed, the delivery times and delivery dates refer to the time of hand-over to the carrier, forwarder or other third party commissioned to carry out shipment.
(3) We may claim from the buyer extension of delivery times and periods for service provision or postponement of delivery dates and dates of service provision by the time during which the buyer has culpably (intentionally or negligently) failed to comply with its contractual obligations, which is however without prejudice to the rights to which we are entitled against the buyer on grounds of the buyer’s default.
(4) We are entitled to make partial deliveries if
- the buyer can use such partial delivery for the contractually agreed purpose,
- delivery of the remaining ordered goods is ensured and
- the buyer does not thereby incur substantial extra expenses or work or additional costs (unless we confirm our willingness to assume such costs).
(5) Where a firmly agreed delivery date is exceeded for reasons which are solely and directly imputable to us, the buyer is obliged to first request us in writing to perform as contractually agreed, thereby granting us a reasonable period for performance of at least 14 days. Only after this period has expired without result, we will be deemed to be in default and only then will the buyer be entitled to exercise its right of choice according to Art. 190 subs. 2 OR (Obligationenrecht - Swiss law of obligations).
V. Reservation of title
(1) All delivered goods and services remain our property until they have been paid by the buyer in full.
(2) Where the aforesaid reservation of title is ineffective or unenforceable under the law of the country where the goods are located, such security is deemed agreed between the parties as corresponds to the said reservation under title under that legislation. The buyer undertakes to take, and contribute to, all measures that are necessary to create and maintain such rights or security or comparable rights or security, for instance for the purposes of registration required under Art. 715 ZGB (Zivilgesetzbuch der Schweiz – Swiss Civil Code).
VI. Place of performance, shipment, packaging, passing of risk
(1) The place of performance for all obligations under the contractual relationship is Menden (Sauerland)/ Germany, unless otherwise agreed in writing. Where it was agreed under the contract that we are also obliged to carry out installation, the place of performance will be the place where the installation was contractually agreed to be carried out.
(2) We choose the mode of shipment and packaging in our duly exercised discretion.
(3) Where delivery of goods which are ready for shipment is delayed due to a circumstance which is imputable to the buyer, the risk passes to the buyer from the day when the goods to be delivered are ready for shipment and we have notified the buyer to that effect.
(4) In this case, we reserve the right to invoice the buyer for the cost of storage. If we store the goods, the cost of storage amounts to 0.25% of the invoice amount charged for the goods to be stored per full week. However, we also reserve the right to evidence higher costs incurred by us and the buyer is entitled to prove that we have not incurred any costs at all or substantially less costs than the aforesaid amount.
(5) We take the risk of breakage only at the buyer’s explicit request and at the buyer’s expense all the way to the delivery address, against separate remuneration in the amount of 1.5 % of the net value of the goods in the case of interior lamps and in the amount of 1% of the net value of the goods in the case of exterior lamps.
(1) The buyer’s warranty rights and claims are governed by the statutory provisions and the provisions set out hereinafter. The warranty period is two (2) years from delivery.
(2) In the case of defects in quality, we are first obliged and entitled, at our choice, to provide either subsequent remedy or substitute delivery.
(3) The warranty is deemed forfeited when the buyer makes, or causes third parties to make, changes to the delivered goods without our written consent and, as a result thereof, defect elimination is rendered impossible or unreasonable. In any case, any additional costs of defect elimination incurred as a result of the change made to the goods are at the buyer’s expense.
(4) Where we provide technical information or render advice – in particular in the form of photometric planning or design – and such information or advice is not part of the contractually agreed scope of performance, such information or advice is rendered free of charge. We do not give any warranty, nor do we accept liability, for these services.
(5) In the case of defects in title, the buyer is entitled to the statutory rights (Art. 192 et. seqq. OR – Swiss law of obligations).
VIII. Industrial property rights and other proprietary rights
(1) Unless otherwise agreed in writing, we are obliged to deliver goods free of third-party industrial property rights and copyrights (hereinafter “proprietary rights”) only with respect to the country of destination of the goods. In case a third party asserts legitimate claims against the buyer for infringement of proprietary rights caused by our goods which were used by the buyer in accordance with the contract, we are liable to the buyer within the period stipulated in sec. VII. 1 as is described in the following: We will, at our choice and expense, either (i) procure the right to use the goods in question, (ii) modify them such that the proprietary right is no longer infringed, or (iii) replace the goods. If none of these remedial measures is feasible for us on objectively reasonable conditions, the buyer is entitled to the statutory rights. We are only liable for damages under the conditions stipulated in sec. IX.
(2) We only accept liability according to the preceding sec. VIII. 1 if and to the extent the buyer informs us, without undue delay and in writing, of the claims asserted by the third party and does not acknowledge the alleged infringement, and all defence measures and settlement negotiations with the third party are reserved to us. Where the buyer discontinues use of the delivered goods for reasons of damage mitigation or other important reasons, the buyer is obliged to make the third party aware that this does not constitute or involve an acknowledgement of the alleged infringement of proprietary rights.
(3) Claims of the buyer are excluded if and to the extent that the infringement of the proprietary right is imputable to the buyer.
(4) Claims of the buyer are excluded also in the case and to the extent that the infringement of the proprietary right is caused by specific requirements imposed by the buyer or by the delivered goods being used or applied in a way unforeseeable for us or by a modification of the delivered goods by the buyer or by the buyer using the delivered goods together with other products which were not delivered by us.
(1) In the case of breach of contractual and non-contractual duties, we are liable according to the statutory provisions, as specified in more detail in the following provisions of this sec. IX.
(2) We may only be held liable for damages, regardless of the legal basis, in the case of intentional or grossly negligent conduct. In the case of simple negligence, we are liable according to the statutory provisions but only for damage caused by an injury of life or limb or health.
(3) Our liability for breaches of duty by persons whose fault (intentional or negligent conduct) is attributable to us according to the statutory provisions is excluded, subject to sentence 2. Our liability for breaches of duty by our own employees is limited to cases of simple negligence.
(4) The preceding provisions are without prejudice to our liability under the Produktehaftpflichtgesetz (Swiss Product Liability Act).
(5) Any liability beyond the aforesaid is hereby explicitly excluded.
X. Final provisions
(1) The place of jurisdiction for all disputes arising from the business relationship between us and the buyer is, at our choice, either Menden (Sauerland)/ Germany or the buyer’s business domicile. However, for actions brought against us, the place of exclusive jurisdiction is Menden (Sauerland)/ Germany. Any mandatory statutory provisions governing exclusive jurisdiction remain unaffected.
(2) The legal relationships between us and the buyer are governed by Swiss law including but not limited to the Swiss “Obligationenrecht” (law of obligations), but with the exception of UN Sales Law (CISG) and the conflict of laws rules.
(3) If any provision of these terms and conditions should be or become invalid in whole or in part, this will be without prejudice to the validity of the remaining provisions hereof. The parties agree already now to replace the invalid provision by a legally permissible provision which approximates nearest to the economic intention of the invalid one. The same applies in the case of an unintended omission in these terms and conditions.
(4) We explicitly point out that any placing on the market of the contract goods outside the territory of the EEA requires our explicit written consent.
As amended in June 2018