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General terms and conditions

Following are the general terms and conditions of Büter Hebetechnik GmbH.

Sales conditions

§ 1 General – scope of application

  1. Our sales conditions apply exclusively; we do not recognise conflicting or deviating customer terms and conditions, unless we have expressly agreed to these in writing. Our sales conditions shall also apply, even though we are aware that the customers has conditions conflicting or deviating from our sales conditions and we still supply the goods to the customer without reservation.
  2. All agreements made between us and the customer for the purpose of this contract are contained in writing in this contract.
  3. Our sales conditions only apply to companies as defined in § 310 Paragraph 1 BGB (Civil Code).
  4. Our sales conditions also apply to all future transactions with the customer.

§ 2 Offer – offer documentation – scope of delivery

  1. Our offer is without obligation unless otherwise agreed in the order confirmation.
  2. We reserve the right of ownership and copyright of samples, illustrations, drawings, calculations and other documents as well as similar information of a corporeal and incorporeal nature, including in electronic format. This also applies to written documentation which are marked as ‘confidential’. The customer must receive our express written consent before passing them on to third parties.
  3. Structural and changes to the form of the goods are reserved if the purchased item is not substantially changed and the changes are reasonable for the customer.

§ 3 Prices – payment conditions

  1. Unless the order confirmation states otherwise, our prices are ‘ex-factory’, excluding packaging and unloading, which shall be invoiced separately.
  2. We reserve the right to change our prices accordingly if after conclusion of the contract, cost reductions or cost increases occur, especially due to collective agreements or material price changes. We will provide the customer with the proof on request.
  3. Our prices exclude statutory VAT; the statutory amount will be shown separately on the invoice on the date the invoice is issued.
  4. A special written agreement is required for a deduction of a cash discount.
  5. Unless the order confirmation states otherwise, the net purchase price (without deduction) is immediately due for payment. The statutory provisions regarding the consequences of late payment apply.
  6. The customer only has a right to offsetting if his counterclaims are legally established, undisputed or recognised by us. Furthermore, he has the right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 4 Supplier lead time

  1. The start of the supplier lead time specified by us (delivery deadline, delivery date) requires the clarification of all commercial and technical issues beforehand.
  2. Compliance with a delivery deadline or a delivery date is subject to correct and punctual supply by our suppliers. We will notify the customer as soon as possible of any impending delays.
  3. Compliance with a delivery deadline or a delivery date presupposes the timely and proper fulfilment of the obligation of the customer. The defence of breach of contract is reserved.
  4. If the customer defaults on acceptance or culpably violates other cooperation obligations, we are entitled to compensation for damages in this respect, including any additional costs. Further claims are reserved.
  5. Provided that the conditions of Para (4) exist, the risk of accidental loss or accidental deterioration of the goods is passed onto the client at the time that he defaults on acceptance or payment.
  6. We are liable in accordance with statutory provisions if the underlying purchase contract is a fixed date transaction according to § 286 Para 2 No. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We shall also be liable in accordance with statutory provisions insofar as the customer is entitled to claim cessation of his interest in continuing the performance of the contract as a result of a delay in delivery for which we are responsible.
  7. In addition, we shall be liable in accordance with statutory provisions insofar as the delay in delivery is due to an intentional or grossly negligent breach of contract on our part; a fault on the part of our representatives or vicarious agents is to be attributed to us. Insofar as the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to predictable and typical damage.
  8. We shall also be liable in accordance with statutory provisions insofar as the delay in delivery, for which we are responsible, is due to the culpable breach of a fundamental contractual duty; in this case, however, our liability for damages shall be limited to predictable and typical damage.
  9. Furthermore, in the event of a delay in delivery, we shall be liable for each completed week of the delay to pay lump-sum compensation for damage resulting from delay in the amount of 0.5 % of the value of the goods to be delivered, but not more than 5 % of the value of the goods to be delivered.
  10. The above is subject to additional statutory claims and rights of the customer.

§ 5 Passing of risk – packing costs

  1. Unless the order confirmation states otherwise, delivery is agreed as ‘ex-factory’.
  2. Transportation and all other packaging according to the packaging regulations cannot be returned except for pallets. The customer is obliged to provide for disposal of the packaging at his own expense.
  3. If desired by the customer, we shall arrange for insurance cover for the transport of the consignment; costs arising in this regard shall be borne by the customer.
  4. Partial deliveries are permissible if they are reasonable for the customer.
  5. The risk passes to the customer when the goods have left the factory, and also when partial deliveries are made or if we have assumed other performances, such as shipping costs or the delivery and installation in exceptional cases. If acceptance is required to take place, it is decisive for the transfer of risk. It must be carried out without delay on the acceptance date or, alternatively, following our notification of readiness for acceptance.
  6. If shipping or acceptance is delayed or not performed owing to circumstances for which we are not responsible, the risk shall pass to the customer on the date of reporting readiness for shipping or acceptance. We agree to take out the insurance demanded by the customer at his expense.

§ 6 Liability for defects

  1. The rights of the customer with regard to defects are subject to his having duly met his responsibilities to check the consignment and to provide notification of defects as required by § 377 HGB (German Commercial Code).
  2. Insofar as there is a defect in the purchased object, we are entitled to opt to remedy the defect or to deliver a new object without defects by way of subsequent performance. In the event of our opting to remedy the defect, we are obliged to assume all of the costs arising in connection with the remedy of the defect, particularly costs of transport, infrastructure, labour and materials insofar as there is no increase in these costs caused by transporting the object of sale to a place other than the place of performance. In the case of remedy of defects, we shall only assume the costs up to the amount of the purchase price.
  3. Insofar as there is a defect in the purchased object, we are entitled to opt to remedy the defect or to deliver a new object without defects by way of subsequent performance. In the event of our opting to remedy the defect, we are obliged to assume all of the costs arising in connection with the remedy of the defect, particularly costs of transport, infrastructure, labour and materials insofar as there is no increase in these costs caused by transporting the object of sale to a place other than the place of performance. In the case of remedy of defects, we shall only assume the costs up to the amount of the purchase price.
  4. We do not assume any liability for damages resulting from the following: Unsuitable or improper use, improper hydraulic influences, faulty assembly / installation or commissioning by the customer or third parties, improper maintenance, improper equipment, chemical, electrochemical and electrical influences, provided they are not caused by us. Also excluded is liability for normal wear. If a defect is rectified improperly by the customer or a third party, we bear no liability for the resultant consequences. The same applies to modifications made to the purchased object without our prior consent.
  5. We shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for compensation which are due to intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we have been accused of intentional breach of contract, liability regarding compensation shall be limited to predictable and typical damage.
  6. We shall be liable in accordance with the statutory provisions in the event of our culpably committing a fundamental breach of contract; in such case, however, liability regarding compensation shall be limited to predictable and typical damage.
  7. If the customer is entitled to damages in lieu of performance, our liability under Para. (3) shall be to limit the predictable, typically occurring damage.
  8. Liability due to culpable injury to life, limb or health shall remain unaffected; this also applies to liability which is compulsory pursuant to the Product Liability Act.
  9. Liability is excluded unless otherwise stipulated above.
  10. The customer's right to make claims for defects becomes statute-barred in all cases from the time of passing of risk in 12 months, in case of a consumer transaction, in 24 months. Used goods we guarantee for consumers for 12 months from the transfer of risk, in all other cases only when this has been explicitly agreed in writing with the customer.
  11. The liability period for claims for defects is 12 months from the transfer of risk.
  12. The statutory period of limitation in the event of a claim to damages based on a defective consignment pursuant to §§ 478, 479 BGB shall remain unaffected; the period is 5 years calculated from delivery of the defective object.

§ 7 Joint and several liability

  1. Additional liability for compensation other than provided for in § 6 is excluded regardless of the legal nature of the asserted claim. This applies, in particular, to claims for damages arising from a violation of mutual confidence in the preparation of the contract (culpa in contrahendo), owing to any other breaches of duty or due to unlawful compensation claims concerning damage to property in accordance with § 823 BGB (German Civil Code).
  2. The limitation pursuant to Para. (1) shall also apply if the customer demands compensation for futile expenses in lieu of claims for damages instead of performance.
  3. Insofar as liability for damages is excluded or limited vis-à-vis our company, this shall also apply to the personal liability for damages in respect of our salaried employees, employees, members of staff, representatives and vicarious agents.

§ 8 Securing of reservation of ownership

  1. We reserve the right to reservation of ownership with regard to the object of sale until all payments arising from the business relationship with the customer have been received. Should the customer act in breach of the contract, particularly in the case of a delay in payment, we are entitled to take back the object of sale. This recovery of the object of sale constitutes a rescission of contract on our part. Should the customer engage in conduct which is in breach of the contract, in particular a default in payment, we shall be entitled to repossess the purchased object. Our repossession of the purchased object shall not constitute a rescission of contract. We are authorised to utilise the repossessed object of sale; the proceeds from such utilisation shall be credited against the financial obligations of the customer after deduction of reasonable utilisation costs.
  2. The customer shall be obliged to treat the purchased object with care; in particular, he shall be obliged to adequately insure it against damage caused by fire, water and theft up to their replacement value and at his own cost. Insofar as maintenance and servicing work is required, the customer shall carry out such work in good time and at his own expense.
  3. The customer is to notify us in writing without delay in the event of levies of execution or any other intervention by third parties so that we can take legal action pursuant to § 771 ZPO (German Code of Civil Procedure). Should the third party be unable to reimburse us with regard to court fees and out-of-court expenses of a lawsuit pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be held liable for losses incurred by us.
  4. The customer is entitled to re-sell the object of sale in an orderly business transaction; the customer shall, however, already assign to us all accounts receivable to the value of the final amount of the invoice (including value-added tax) of our account receivable which accrue to him from the re-sale vis-à-vis his customers or third parties – this applies regardless of whether the object of sale has been re-sold without or after processing or machining. The customer shall still be authorised to collect this account receivable even after this assignment. Our authorisation to collect the account receivable ourselves remains unaffected. We shall, however, undertake not to collect the account receivable as long as the customer meets his financial obligations arising from the proceeds received and he does not get into arrears with payments and, in particular, that no application has been filed for the initiation of insolvency proceedings or that payments have been suspended. Should this be the case, however, we may demand that the customer discloses to us the assigned claims and their debtors, that he furnishes all necessary information and surrenders all appropriate documents and that he notifies the debtors (third parties) of the assignment.
  5. The processing or alteration of the object of sale by the customer is always carried out for us. Should the object of sale be processed together with other objects which do not belong to us, we shall acquire joint ownership of the new object in proportion of the value of the object of sale (final invoice amount, including value-added tax) to the other processed objects at the time of processing. For the rest, the same shall apply to the object resulting from processing as to the object of sale delivered under reserve.
  6. If the purchased object is inseparably mixed or combined with other goods not belonging to us, we shall acquire partial title to the new object in the ratio that the value of the goods belonging to us (final invoice amount including value-added tax) bears to the value of all of the mixed or combined goods at the time. If the mixing or combination takes place in such a manner that the customer's object must be considered the main object, it is agreed that the customer assigns us proportionate partial title. The customer shall hold the resulting sole title or partial title in safe custody for us.
  7. To secure our claims against him the customer shall also assign all claims against a third party that accrue to him through the connection of the purchased object of sale to a property.
  8. We undertake, at the request of the customer, to release the securities to which we are entitled to the extent that the realisable value of our securities exceeds the accounts receivable to be secured by more than 10%; we shall be responsible for the choice of securities to be released.

§ 9 Trademark rights

  1. If the use of the purchased object leads to an infringement of industrial property rights or copyright, we will at our expense provide the customer with the basic right to continue to use the product, or modify the purchased object in a manner reasonable for the purchaser to such extent that the infringement has ceased.
    If this is not possible at commercially reasonable terms or within a reasonable period, the customer is entitled to rescind the contract. Subject to these conditions we also have a right to rescind the contract.
    We will also indemnify the customer against undisputed or legally enforceable claims of the respective property right holders.
  2. The obligations to be met by us in terms of Para. (1) shall be conclusive in the event of a property or copyright infringement. They exist only – if the customer informs us immediately of alleged property or copyright infringements,
    • if the buyer supports us to a reasonable extent in the defence against such claims or allow us to perform modification measures in accordance with Para. (1),
    • if we are reserved all defence measures including an out of court settlement,
    • if the property or copyright infringement is not based on an instruction of the customer and
    • if the infringement was not caused by the customer modifying the goods himself or using it in a non-contractual way.
  3. The customer has the responsibility to ensure that the goods we produce based on his specifications do not violate the property rights of third parties. If an allegation of a property rights infringement are made against us by a third party due to the production or supply of such goods, we shall indemnify the customer against all claims. In such cases we shall only start legal proceedings if the customers so requests and declares his willingness to assume the costs caused hereby. In such cases we are entitled to require security in order to refund the legal costs.

§ 10 Place of jurisdiction and place of performance

  1. Insofar as the customer is a businessman, our corporate domicile (49716 Meppen) is our place of jurisdiction; we are, however, entitled to file action against the customer at the court at his place of residence.
  2. The law of the Federal Republic of Germany shall apply; application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
  3. Unless otherwise stated in the acknowledgement of order, the place of performance shall be our corporate domicile (D-49716 Meppen).

Conditions of purchase

§ 1 General – scope of application

  1. Our terms of purchase apply exclusively; we will not accept any opposing or deviating terms and conditions of purchase of the customer unless we have explicitly agreed to their validity in writing. Our terms of purchase shall also apply if we accept delivery from the supplier without reservation and we are aware of opposing terms and conditions of the supplier or such terms which differ from our terms of purchase.
  2. All agreements made between us and the supplier for the purpose of the performance of this contract are to be set forth in writing in this agreement.
  3. Our terms of purchase only apply to entrepreneurs and contractors pursuant to §24 AGBG (General Terms and Conditions Act).
  4. Our terms of purchase shall apply in the case of all future business transactions with the supplier.

§ 2 Offer – offer documentation

  1. The supplier is obliged to accept our order within a period of 2 weeks.
  2. We reserve our proprietary rights and copyright on illustrations, drawings, calculations and any other documents; they may not be made accessible to third parties without our prior express written consent. They are only to be used for production purposes on the basis of our order; they are to be returned to us, unrequested, after completion of the order. They are to be kept secret from third parties; in this respect the provision under § 9 Para. (4) shall also apply.

§ 3 Prices – payment conditions

  1. The price quoted in the order is binding. Unless otherwise agreed upon in writing, the price includes delivery ‘franco domicile’, packaging included. The return of packaging materials is subject to special agreement.
  2. Statutory value-added tax (VAT) is included in the price.
  3. We can only process invoices if the order number is indicated on this invoice, as specified in our order; the supplier shall be responsible for all consequences arising from non-compliance with this obligation unless he proves that he is not responsible for these consequences.
  4. Unless otherwise agreed upon in writing, we will effect payment of the purchase price within 2 weeks, calculated from the date of delivery and receipt of invoice, with 2% cash discount or within 30 days from receipt of invoice.
  5. We are entitled to rights of set-off and rights of retention to the extent permitted by law.

§ 4 Supplier lead times

  1. The delivery time stated in the order is binding.
  2. The supplier is obliged to notify us in writing without delay if circumstances arise or if such circumstances become recognisable to him, which result in his being unable to observe the stipulated delivery time.
  3. We are entitled to assert statutory claims in the event of a delay in delivery. In particular, we are entitled to demand compensation in place of performance after the fruitless expiration of a reasonable period.

§ 5 Passing of risk – documents

  1. Unless otherwise agreed upon in writing, delivery is to be effected ‘franco domicile’.
  2. The supplier is obliged to indicate our exact order number on all shipping documents and delivery notes; should he fail to do this, we will not be responsible for any delays in processing.

§ 6 Inspection for defects – warranty

  1. We are obliged to inspect the goods for any discrepancies in quality or quantity within a reasonable period; the notification of defects shall be deemed in good time if it is received by the supplier within a period of 5 working days, calculated from the receipt of the goods or, in the case of latent defects, upon discovery thereof.
  2. We are entitled to statutory warranty claims to the full extent; in either case we are entitled to opt to demand the elimination of defects or replacement delivery of a new object from the supplier. In this case, the supplier is obliged to bear all expenditures required for the elimination of the defects or for the replacement delivery. We explicitly reserve the right to compensation, particularly to the right of compensation in place of performance due to non-compliance.
  3. The warranty period is 36 months, calculated from the passing of risk.

§ 7 Product liability – exemption – public liability insurance cover

  1. Should the supplier be responsible for damage to products, he is obliged to indemnify us against claims for damages by third parties upon initial request insofar as the cause is in his field of authority and organisation and he is himself liable with regard to third parties.
  2. As part of his liability for damages in terms of Para. (1) the supplier is also required to reimburse any expenses in accordance with §§ 683, 670 as well as §§ 830, 840, 426 of BGB (German Civil Code), arising out of or in connection with any of our recall actions. We will inform the supplier about the content and scope of the recall measures to be performed – as far as possible and reasonable – and give him the opportunity to comment. Other statutory claims shall not be affected.
  3. The supplier undertakes to maintain product liability insurance with coverage of flat rate €5 million per personal injury/material damage; if we are entitled to any further claims for damages, these shall remain unaffected.

§ 8 Trademark rights

  1. The supplier warrants that in connection with the product he supplies no third-party rights are violated within the Federal Republic of Germany.
  2. If a claim is lodged against us by a third party, the supplier is obliged to indemnify us upon first written demand against these claims; we are not authorised to enter into any agreements, in particular to reach a settlement, with the third party without the permission of the supplier.
  3. The indemnification obligation of the supplier refers to all expenses necessarily incurred by us from or in connection with the claim asserted by a third party.

§ 9 Reservation of title – provision – tools – non-disclosure

  1. Insofar as we provide parts to the supplier, we reserve the right of ownership. Processing or alteration by the customer is carried out for us. If the goods subject to retention of title is mixed with other objects which do not belong to us, we shall acquire co-ownership of the new object in the ratio of the value of the reserved object to the other processed objects at the time of processing.
  2. If the provided object is inseparably mixed or combined with other goods not belonging to us, we shall acquire partial title to the new object in the ratio that the value of the goods belonging to us (final invoice amount including value-added tax) bears to the value of all of the mixed or combined goods at the time. If the mixing is carried out to the extent that the object of the supplier is to be seen as the main object then it is deemed as agreed that the supplier assigns us pro rata co-ownership. The supplier shall keep the sole ownership or the co-ownership in safekeeping on our behalf.
  3. We reserve our right of property to tools: the supplier is obliged to use the tools exclusively for the production of the goods we ordered. The supplier is obliged to insure the tools belonging to us at the replacement value at his own expense against fire, water and theft. At the same time, the supplier now already assigns all compensation claims from this insurance to us, which we accept. The supplier is obliged to maintain and inspect our tools and to service and repair the tools at his own expense. The supplier must notify us immediately of any faults; should he culpably omit to do so, it shall not affect compensation claims for damages.
  4. The supplier is obliged to keep all illustrations, drawings, calculations and other documents and information strictly confidential. They may only be disclosed to third parties with our express permission. The obligation of confidentiality shall also apply after termination of this contract, it shall expire if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents has become common knowledge.
  5. Insofar as the security rights to which we are entitled pursuant to Para. (1) and/or Para. (2) exceeds the cost price of all of our reserved goods, which have not yet been paid for, by more than 20%, we shall be obliged to release the security rights at our option upon the supplier’s demand.

§ 10 Place of jurisdiction and place of performance

  1. Insofar as the customer is a businessman, our corporate domicile, Meppen, is our place of jurisdiction; we are, however, entitled to file action against the customer at the court at his place of residence.
  2. Unless otherwise stated in the order, the place of performance shall be our corporate domicile, Meppen.

Warranty conditions

For any damages to the unit caused by faulty materials or improper workmanship, our warranty is 24 months after delivery when used within the EU countries.
Outside the EU the warranty period is 12 months.
If used outside of the countries D, DK, NL, B, CH, A, L and F performance is limited to delivery of replacement parts ex-factory.
For purchased parts that are installed in our units, the statutory warranty applies.
Warranty claims shall expire in case of incorrect handling, neglected or negligent maintenance and in case of unprofessional onsite setup.

Design/Text: Markus Janzen