General Business Terms
of BEYERDYNAMIC GmbH & Co. KG, Heilbronn
- hereinafter “beyerdynamic” -
Article 1 – Scope of application, offers, confirmation of orders
1. The following terms and conditions of sale, delivery and payment apply exclusively
to all deliveries made by beyerdynamic to any person (“Trader”) who, at the time the contract is concluded, exercises a commercial activity or who is self-employed, or to any public-law corporation, estate, association or registered cooperative.
2. No other terms and conditions will be accepted as part of the contract unless specifically agreed in writing. Any reference to the customer’s terms and conditions is excluded. These terms and conditions shall also apply even if beyerdynamic unconditionally executes the delivery while being aware that the customer’s terms conflict with or vary the provisions of these terms and conditions.
3. These terms and conditions also apply to all future transactions with the customer.
4. Unless specified otherwise by beyerdynamic in the order confirmation, all offers are non-binding and can be revoked at any time.
Article 2 - Delivery
1. The stated delivery dates are non-binding.
2. Unforeseen impediment to delivery such as events of force majeure, raw materials shortages, strikes, disruptions to operations at beyerdynamic’s own premises or those of the suppliers shall entitle beyerdynamic to defer delivery for the duration of the event in question. In such cases, beyerdynamic is also entitled to withdraw from the contract if it has not yet been fulfilled. No claims for compensation may be made in this regard.
Article 3 – Dispatch and packaging
1. Unless agreed with the customer in writing or stated otherwise in these terms and conditions, deliveries shall be made ex works. All risks (such as breakage, leakage etc.) shall pass to the customer at the time of dispatch, even if carriage-paid delivery has been agreed.
2. Unless expressly agreed otherwise, the route and vehicle used for transport will be the most cost-effective methods available.
Article 4 – Prices and terms of payment
1. The prices shall be stated in EURO, EXW (ex works), exclusive of VAT, freight, packaging and insurance.
2. General condition for delivery is advance payment. Payment shall only be deemed as final when the amount has been credited unconditionally to beyerdynamic. Different payment terms are at the discretion of beyerdynamic and have to be confirmed in written form by beyerdynamic.
3. In the case of delayed payment with amended payment terms, late payment interest will be charged at the rate of 9 percentage points over the base rate (article 288(2) German Civil Code), without prejudice to claims for further damages, unless beyerdynamic is entitled to an even higher interest rate. The right to claim for further damages is reserved. In the event of a default on payment, all of the existing claims of beyerdynamic at the time of default shall become due and payable.
4. The customer shall only have a right of set-off if his counterclaims have been determined by a court of law, are undisputed or have been acknowledged by beyerdynamic. The customer is only entitled to exercise a right of retention if his counterclaim relates to the same contract.
5. beyerdynamic may adjust its prices to reflect any price increases, in particular in the cost of materials and labor, which may occur after conclusion of the contract.
Article 5 – Retention of title
1. beyerdynamic shall retain title to the purchased goods until receipt of all payments relating to the business transaction with the customer (retained goods). Claims arising from the business relationship also include interest, ancillary charges, the costs of any legal proceedings, and the costs of intervention caused by seizure of the purchased goods by a third party. Cheques and bills of exchange will only be valid as payment if they are irrevocable.
2. The customer must treat any goods subject to retention of title with care, and must immediately inform beyerdynamic of any access to the goods by a third party, even in the case of their seizure, also in the event of any damage or destruction of the goods. The customer must immediately inform beyerdynamic of any change in the person with possession of the goods subject to retention of title. The customer may not pledge or grant as security any goods which are subject to a retention of title.
3. The customer may dispose of the purchased goods as part of a regular business transaction. If the purchased goods are sold on, the customer hereby assigns all the receivables arising from the disposal of the goods in question until such time as all the claims of beyerdynamic have been settled. beyerdynamic hereby accepts said assignment. The assignment also includes any claim for payment of the balance from an agreed current account. Until revoked by beyerdynamic, the customer may collect the assigned account receivable in his own name.
4. At the request of beyerdynamic, the customer must inform beyerdynamic of the names of any customers against whom he has a claim in connection with the disposal of the purchased goods, and the amounts owed by said customers, and must allow beyerdynamic to inspect the relevant accounting books and invoices. The customer must inform beyerdynamic immediately of any seizure of the purchased goods, or any other access to the goods by a third party.
5. Any processing or transformation of the purchased goods by the customer shall always be undertaken for beyerdynamic. If the purchased goods are processed using other items not belonging to beyerdynamic, beyerdynamic shall acquire joint ownership to the new items in proportion to the value of the purchased goods (final invoice amount inclusive of VAT) compared to the value of the other processed goods at the time the processing took place. The same shall apply in the event that the purchased goods are combined with other items not owned by beyerdynamic.
6. If the realisable value of beyerdynamic's existing securities exceeds beyerdynamic's claims by more than 20%, beyerdynamic must, at the customer's request, release the securities, at the discretion of beyerdynamic, with regard to the 20% excess.
7. If retentions of title exist in a foreign country whose law applies, is ineffective or requires additional registration in addition to the contract, the customer must, at his own expense, assist in taking any measures and in particular in giving any explanations he may be asked to provide, in order to ensure the retention of title is effective or in order to provide beyerdynamic with assurance having the same effect as a retention of title.
Article 6 - Liability
1. beyerdynamic is liable in the event of fraud or gross negligence, for damages arising out of death, injury to body or health, or in connection with an accepted warranty of duration or quality given in accordance with the law.
2. In the case of culpable breach of a material contractual obligation, beyerdynamic shall be liable, if none of the cases referred to in (1) exists, for an amount limited to the foreseeable, typical damages.
3. beyerdynamic shall be liable, if none of the cases referred to in (1) and (2) above exists, limited to the contractual liability and up to a maximum of EURO 50,000.00.
4. Liability under the product liability act is unlimited.
5. If the liability for damages is excluded or restricted, this shall also apply with regard to the personal liability of our staff, employees, associates, representatives and agents.
Article 7 - Warranty
1. In the event of a defect in the purchased goods, beyerdynamic is entitled to choose the method of supplementary rectification. Any expenses necessary to remedy the defect resulting from the goods being taken to a place other than the place of performance shall be borne by the customer. Article 6 of our terms and conditions of sale shall apply in the case of claims for compensation on account of defects.
2. Claims for defects are limited to 1year. Exceptions include cases of fraudulent misrepresentation and deceit and the cases referred to in articles 478 and 479 of the German Civil Code. The limitation period in the case of recourse action under articles 478 and 479 of the German Civil Code remains unaffected. The start of the limitation period will follow the provisions of the law.
3. The warranty shall not be valid if the customer has processed or disposed of the purchased goods after having discovered the defect or should have discovered it, unless he can prove that the processing or disposal was necessary in order to prevent more serious damages.
4. The obligation to replace the goods does not cover natural wear and tear and damage caused by unprofessional handling or storage.
5. The customer is only entitled to return new goods after receipt of an RMA number from beyerdynamic.
Article 8 – Industrial property rights, forms, tools and non-disclosure
1. If beyerdynamic provides technical documents, diagrams, forms, tools, models and offer documentation, it shall retain the property, copyright and other industrial property rights even if the customer has borne all or part of the related costs. The above documents etc. must not be disclosed to third parties and must be returned immediately if the contract is not awarded. The customer may not produce the purchased goods with the assistance of the technical documents, diagrams, forms, models and/or offer documentation, either himself or using a third party.
2. If the purchased goods are manufactured according to documents released by the customer, the latter will be liable for ensuring that the manufacture or delivery does not infringe any commercial or industrial property right of any third party.
Article 9 – Withdrawal and disposal of old equipment under the EEE Act (for goods subject to its provisions)
1. The customer agrees to dispose of the purchased goods at the end of their useful life at his own expense, in accordance with the provisions of the law.
2. The customer hereby releases beyerdynamic from the obligations under article 10(2) of the EEE Act (manufacturer’s obligation of withdrawal) and from all related claims.
3. The customer must include in any contract with a third party to whom the purchased goods are sold an obligation to dispose of the goods at the end of their useful life, at the expense of said third party, and must also make provision for a corresponding obligation if the goods are then sold on to another party.
4. If the customer fails to include the above provisions in the contract for sale to a third party, he must receive the purchased goods at the end of their useful life at his own expense, in accordance with the provisions of the law.
5. beyerdynamic’s claim to acceptance and indemnity from the customer shall only expire two years after the equipment has ceased to be used. The two-year period of suspension of the expiry of the limitation period shall begin upon receipt of written notification from the customer confirming the cessation of use.
Article 10 – Place of performance, forum, and final provisions
1. The place of performance and forum is Heilbronn/Neckar. beyerdynamic may, however, bring proceedings against the customer in his general place of jurisdiction.
2. This Agreement is governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods shall not apply.
3. Should a provision of the General Business Terms be or become invalid or infeasible this will not affect the overall validity of the rest. The parties agree to replace the invalid or infeasible provision with a valid or feasible provision that corresponds to the economic purpose of the invalid or infeasible provision as far as possible.
As of October 2014