§ 1 Scope
(1) All services of Bänninger Kunststoff-Produkte GmbH (hereinafter referred to as „manufacturer“) are subject to these General Sales and Delivery terms. They also refer to all future business with a partner (hereinafter referred to as “authorized dealer”) without any need to expressly agree them again. Any contrary sales terms of the authorized dealer deviating from these sales and delivery terms shall not be accepted by the manufacturer unless the manufacturer expressly agrees hereto in written form.
(2) Any terms agreed between the manufacturer and the authorized dealer for executing the sales contract shall be fixed in this contract in written form. Any additional verbal agreements shall not be met between manufacturer and authorized dealer.
(3) These sales and delivery terms shall latest be accepted at the time of receipt of goods and/or services by the authorized dealer.
§ 2 Quotation, Conclusion of Contract, Warranty
(1) Any quotations provided by the manufacturer are subject to change. Any acceptance and all orders shall be confirmed in written form by the manufacturer to become effective. In case the manufacturer does not provide an order confirmation to the authorized dealer the contract shall be effective if the manufacturer delivers based on the order and the authorized dealer accepts the goods.
(2) Drawings, pictures, measurements, weight and other data included in tables, flyers, catalogues etc. of the manufacturer are only binding if this is agreed expressly in written form.
(3) Any warranty shall be considered as being accepted by the manufacturer if he has declared the corresponding feature as “guaranteed” in written form.
§ 3 Delivery Times and Performance Period
(1) Fix delivery times shall be agreed expressly in written form. Any other deliver dates shall be considered as non binding or approximate delivery times which the manufacturer shall try to meet.
(2) Delivery times shall start with the date of order confirmation sent by the manufacturer, however, not before all details of delivery performance have been clarified and all agreed conditions from authorized dealer’s side are fulfilled. In case of any changes requested by the authorized dealer after having placed the order the new delivery time shall start with the date of manufacturer’s confirmation of this amendment.
(3) Deliveries before expiry of the agreed delivery time are possible. In case of immediate delivery of the goods an order confirmation can be waived being replaced by a delivery note.
(4) Delivery day shall be the day on which goods are ready for shipment resp. the day of shipping the goods. Call off orders shall be delivered within 6 months after date of order confirmation.
(5) The manufacturer is allowed to make partial shipments, each of which is an independent business transaction.
(6) In case of delay in delivery times the authorized dealer shall indicate a period of grace to the manufacturer to deliver the goods. In case this period has expired the authorized dealer shall be allowed to cancel the pending order.
(7) If the manufacturer is faced with any delays in delivery or services of his component manufacturers which are not caused by him or in case of force majeure the manufacturer will inform the authorized dealer in written form in time. This fact will extend the delivery time by the duration of the obstruction. Cases of force majeure are strikes, public intervention, shortages in energy and raw material, narrows in transportation not caused by the manufacturer, obstructions in the shops such as damages caused by fire, water and defective machinery and any other obstructions which in fact have not culpably been caused by the manufacturer. In case a delivery time or period has bindingly been fixed and the agreed time or period will be delayed by more than two months due to several events the authorized dealer shall have the right to cancel the pending part of the sales contract.
§ 4 Shipping and Transfer of Perils
(1) Delivery terms are fixed in the Authorised Distributor contract according to the existing Incoterms in which also the transfer of perils is mentioned and included.
(2) In case the delivery of the goods is delayed by the fact that the manufacturer makes use of his right of retention because of full or partly delay in payment of the authorized dealer or any other reason caused by the authorized dealer the risk shall be transferred to the authorized dealer latest on the date on which he has been informed about readiness of despatch of the goods.
(3) Goods ready for shipment shall immediately be called off. In case of any delay the manufacturer shall have the right to ship the goods as agreed in the Authorised Distributor Agreement or to store the goods at authorized dealer’s risk and expense.
(4) Installation instructions for the delivered goods are available on the homepage of the manufacturer (www.beanninger.de). In case the authorized dealer requires the printed version he shall inform the manufacturer accordingly. The manufacturer will arrange that the authorized dealer receives the technical installation instructions.
§ 5 Pricing and Payment Terms
(1) The payment terms are agreed and fixed in the Authorised Distributor Agreement.
(2) In case the authorized dealer does not keep the agreed payment terms or in case of any circumstances causing reasonable doubts concerning the financial standing of the authorized dealer – even facts which were unknown but existing at the date of concluding the sales contract – the manufacturer shall have the right, independent from further rights, to stop any deliveries and any continuation on existing sales contracts. He shall have the right to claim additional securities or advance payments for pending deliveries. After a certain period of unsuccessful expiry of a reasonable period of grace during which he has not received such securities the manufacturer shall have the right – independent from any further rights – to cancel the sales contract. The authorized dealer shall be obliged to compensate any occurred damages to the manufacturer caused by the non-performance of the sales contract.
(3) In case of significant changes in respect to increased costs for raw material, salaries and related costs as well as energy expenses the manufacturer shall have the right to reasonably increase his prices provided that the period between conclusion of the sales contract with the authorized dealer and delivery of the goods is at least 2 months.
§ 6 Reservation of Property Rights
(1) The manufacturer shall reserve the property right on the delivered goods (hereinafter referred to as “goods”) until all financial claims of the manufacturer resulting from the business transaction with the authorized dealer are settled.
(2) The authorized dealer shall insure the goods in an appropriate way on his own expense, especially against fire and theft according to the reinstatement value.
(3) The authorized dealer shall have the right to re-sell the goods in a usual way common in regular business. Any other provisions such as pledging or granting a secured property are not allowed.
(4) In case the goods are re-sold and are not completely paid by a third party immediately the authorized dealer shall be obliged to re-sell the goods to the third party under the condition to reserve the property rights for the re-sold goods.
(5) The right to re-sell the goods shall not be applied if the authorized dealers does not pay resp. payment will not be effected within the agreed period to the manufacturer.
(6) The authorized dealer assigns all receivables to the manufacturer including security rights and ancillary rights in the value of the final invoice amount resulting from the re-sale of the goods to his authorized dealer or a third party, independent from the fact if the goods are being re-sold without or after processing.
(7) In case of garnishments or other encroachments of a third party the authorized dealer shall immediately inform the manufacturer in written form, forwarding any necessary documents, enabling the manufacturer to take legal action.
(8) Any processing or alteration of the goods shall be made for the manufacturer. In case the goods are processed with foreign devices not belonging to the manufacturer the manufacturer achieves the co-ownership for the new product in a ratio of invoice value of the goods to the additionally processed products at the time of processing. For any products resulting from this processing the same shall be applied as for conditional sales of goods. In case the goods are inseparably combined with items not owned by the manufacturer the manufacturer shall achieve a co-ownership in ration of invoice value of the goods to the additionally combined products at the time of the processing. If the amalgamation is made in such a way that the product of the authorized dealer will be considered as the main product it shall be agreed that the authorized dealer assigns a proportional co-ownership to the manufacturer. The authorized dealer thus shall coffer the resulting exclusive ownership or co-ownership for the manufacturer.
(9) The authorized dealer shall also assign to the manufacturer the receivables to secure the receivables of the manufacturer against the authorized dealer resulting from the conjunction of the goods with an estate.
(10) The manufacturer shall be obliged to release the securities due to him if requested by the authorized dealer if the feasible value of the manufacturer’s security is more than 20 % higher than the receivable to be secured. It shall be up to the manufacturer which securities will be released.
§ 7 Warranty / Liability
(1) The authorized dealer shall be obliged to check the received goods in respect to obvious faults visible to the naked eye. Obvious faults are e.g. considerable, easily visible damages of the goods. This also refers to any wrong or short shipments. These obvious faults shall be claimed to the manufacturer within 1 week after receipt of shipment in written form. Faults visible at the time of receipt of goods shall immediately be claimed with the forwarder who shall record these faults in written form.
(2) Any faults determined later shall be reported by the authorized dealer to the manufacturer within 1 week after realizing them. In case the authorized dealer does not meet his obligation regarding check and report of faults the goods shall be considered as being approved.
(3) Faults on the delivered goods shall be corrected within one year after delivery upon information of the authorized dealer. The manufacturer shall choose the way to handle it either by subsequent improvement or replacement shipment. In case of replacement shipments the authorized dealer shall be obliged to return the faulty goods.
(4) In case the defect cannot be subsequently improved within a reasonable period or replacement shipment cannot be made because of any reasons the authorized dealer shall either have the right to reduce his payment or cancel the sales contract. Subsequent improvement shall only be considered as being failed if the authorized dealer granted a sufficient period for improvement or replacement within a reasonable period without any success, if the improvement or replacement is being refused or unreasonably delayed, if there are doubts regarding guaranteed success or any other unacceptability for any other reasons.
(5) The liability of the manufacturer shall expressly excluded for slightly negligent breach of duty as long as this does not refer to contractually essential duties, damages affecting life, body or health or guarantees or any claims according to the Product Liability Act. The same shall be applied for any breach of duty caused by assistants of the manufacturer.
(6) Indemnification claims based on slightly negligent breaches of duty as well as other contractual claims against the manufacturer shall become time barred after one year after delivery of the goods. In case contractual essentially duties, damages causing injuries to life, body or health, extensive guarantees or claims according to the Product Liability Act are concerned the legal respites shall be applied.
(7) Any unforeseen damages not typical for the sales contract shall be excluded from liability as long as facts of exclusion according to § 7 (5) do not refer.
(8) The attached warranty certificate is to be understood as part of the sales and delivery terms as well as the authorised dealer contract.
§ 8 Applicable Right, Place of Performance and Jurisdiction
(1). Any details regarding applicable right and place of performance and jurisdiction are fixed in the authorised dealer contract