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General terms and conditions of business
General terms and conditions of business:
Valid from May 9, 2018
Terms and conditions of business and purchase:
1. Conclusion of contract
1.1. The following conditions apply to all contracts with BHG, even if BHG does not rely on them in every case in the future.
1.2. Differing general terms and conditions of the buyer that are not expressly recognized by BHG in writing are not valid, even if BHG has not expressly objected to them.
1.3. The BHG offers are valid for maximum one month from the offer date. If no order is placed by this point, BHG is no longer bound to the offer.
1.4. Oral agreements only become binding if confirmed in writing by BHG. Subsidiary agreements and changes to the contract also require written confirmation.
1.5. The contracts concluded with BHG are subject to German law in all cases, including deliveries abroad.
2. Delivery
2.1. Unless otherwise agreed, we will provide the goods ex the manufacturer's factory. The risk is transferred to the buyer with the loading process. The buyer transports the goods at his own expense. Delivery conditions that deviate from these can be agreed.
2.2. If pallets from the manufacturer are used during transport, the buyer is obliged to exchange them for pallets of the same quality and number from his inventory. Otherwise, compensation must be paid. Separate agreements can be made regarding the form of exchange and collective collection.
2.3. If BHG does not adhere to a fixed delivery date for reasons for which it is responsible, the buyer has the right to withdraw from the contract after a reasonable grace period has expired. Compensation for damage caused by delay and damages due to non-fulfillment can only be claimed if the non-compliance was based on intent or gross negligence.
2.4. Cases of force majeure, operational and traffic disruptions. Shortages or rationing of raw materials or other operating resources essential for the production of the goods, labor disputes or official orders that directly or indirectly disrupt or prevent the production or delivery of the goods and cannot be remedied by reasonable measures release BHG from the delivery obligation, as long as the disruption lasts. This does not apply if the disruption is due to gross negligence or intent on the part of BHG.
3. Obligation to inspect and complain Obvious defects in the goods must be reported to BHG in writing immediately, but no later than 3 days after handover or after delivery. In contrast, hidden defects must be reported in writing immediately after they are discovered. Defects or damage reported later cannot be accepted.
4. Claims for defects
4.1. BHG will repair defective goods at its discretion or provide a replacement. If BHG has not delivered a replacement or improved the goods within a reasonable period of time, or if the goods that have been repaired or delivered as a replacement are again defective, the buyer has the right to demand a reduction in the purchase price or cancellation of the contract. Other claims are excluded.
4.2. A return of defect-free goods sold is only permitted with the express, prior consent of BHG. Unless otherwise agreed, BHG only accepts returns freight prepaid and issues a credit in the amount of BHG's net prices valid at the time of return, but no more than the purchase price paid by the buyer.
5. Damages
5.1. BHG is only liable for damage caused by it or one of its vicarious agents through gross negligence or intent.
5.2. Unforeseeable damage is excluded from liability.
5.3. BHG is not liable for indirect and/or consequential damages unless these were caused by BHG through gross negligence or intent.
5.4. In order to take the principle of minimizing damage into account, satisfaction may need to be obtained through makeshift goods sold freely.
5.5. The above liability regulations concern contractual as well as non-contractual claims. The liability of BHG under the Product Liability Act remains unaffected.
6. Retention of title
6.1. The goods remain the property of BHG until all claims arising from the business relationship, including additional claims, claims for damages and cashing of checks or bills of exchange, have been paid in full. The retention of title remains in effect even if individual claims of the seller are included in a current invoice and the balance is drawn and recognized.
6.2. The buyer is only entitled to resell, further process or install the reserved goods taking into account the following provisions and only on the condition that the claims in accordance with Section 6.4. actually transferred to BHG:
6.3. The reserved goods are processed for BHG. The buyer does not acquire ownership of the new item in accordance with Section 950 of the German Civil Code (BGB). If the reserved goods are processed with other items that do not belong to BHG, BHG acquires co-ownership of the new item in the ratio of the value of the reserved goods (invoice value) to the other processed items. The buyer's authority to sell reserved goods in the ordinary course of business ends with the revocation by BHG as a result of a sustained deterioration in the buyer's financial situation, but at the latest with his cessation of payments or with the application for or opening of insolvency proceedings over his assets.
6.4. The buyer hereby assigns the claims with all ancillary rights from the resale of the reserved goods, including any balance claims, to BHG. BHG accepts this assignment.
6.5. The buyer is authorized to collect the assigned claims as long as he meets his payment obligations. The collection authorization expires if it is revoked, but at the latest if the buyer defaults on payment or if the buyer's financial circumstances deteriorate significantly. In this case, BHG can set the buyer a deadline for payment. If the deadline expires without result, the BHG is authorized to inform the debtors of the assignment and to collect the claim itself or through authorized third parties.
6.6. Upon request, the buyer is obliged to provide BHG with a precise list of the claims to which the buyer is entitled, including the names and addresses of the customers, the amount of the individual claims, invoice date, etc. and to provide BHG with all the information necessary to assert the assigned claims and to verify them to allow this information.
6.7. If the value of the securities exceeds BHG's claims by more than 20%, BHG will release securities at its discretion at the buyer's request.
6.8. Pledging or transfer of title as security for the reserved goods or the assigned claims is not permitted. BHG must be notified immediately of any seizures, stating the name of the pledgee.
6.9. If BHG takes back the delivery item due to retention of title, this will only constitute withdrawal from the contract if BHG expressly declares this. BHG can satisfy itself from the reserved goods taken back by private sale.
6.10. The buyer stores the reserved goods for BHG free of charge. He must insure them against the usual dangers such as fire, theft and water in common use. The buyer hereby assigns to BHG his claims for compensation, which he is entitled to for damages of the type mentioned above against insurance companies or other parties liable for compensation, in the amount of the invoice value of the goods. BHG accepts the assignment.
6.11. All claims as well as the rights arising from the retention of title to all special forms specified in these conditions remain in effect until full release from contingent liabilities that BHG has entered into in the interests of the buyer.
7. PricesThe calculation is based on the prices according to our price list generally valid on the day of delivery, unless a different price was individually agreed upon conclusion of the contract.
8. Terms of payment
8.1. The invoice amount must be paid net within 30 days of the invoice date.
8.2. Incoming payments can be offset against outstanding claims at BHG's discretion.
8.3. BHG reserves the right to demand advance payment, cash on delivery or cash payment for its goods if it subsequently becomes aware of a significant deterioration in the customer's assets.
8.4. The buyer may not withhold payments or set off payments due to any counterclaims unless the counterclaim is undisputed or has been legally established.
8.5. The payment obligation is only fulfilled when the payment is received on the respective BHG account.
8.6. If payment is made after the due date, BHG is entitled to charge default interest of 5 percentage points above the base interest rate of the Civil Code. For legal transactions in which a consumer is not involved, the interest rate for payment claims is 8 percentage points above the base interest rate of the Civil Code. Otherwise, the legal regulations of § 288II, IV BGB are not waived.
9. Place of jurisdiction The place of jurisdiction, including for check and bill of exchange lawsuits, is Nuremberg.
10. General
10.1. BHG is entitled to store, process and transmit data relating to goods and payment transactions within BHG.
10.2. If individual provisions of these sales and delivery conditions are invalid, this will not affect the effectiveness of the remaining conditions or the contract as a whole. The parties are obliged to replace invalid provisions with effective provisions whose economic purpose comes as close as possible to the ineffective provisions.
Purchasing conditions:
1. General / Scope
1.1. The following purchasing conditions apply exclusively to all legal relationships between the supplier and BHG. Different conditions only apply if they have been acknowledged in writing by BHG.
1.2. The delivery contract as well as all orders, changes, additional agreements, terminations and other declarations relating to the contract must be in writing. Delivery calls for framework contracts can also be made by fax, email or, in exceptional cases, by telephone.
2. Offer / Order
2.1. Orders must be confirmed immediately in writing by the supplier, stating the order number. If no confirmation is received within three weeks, BHG is entitled to revoke.
2.2. BHG can, within the scope of what is reasonable for the supplier, cancel or change the order in whole or in part at any time with regard to the type of packaging, presentation, delivery point and quantities. An amicable settlement must be reached regarding the resulting additional or reduced costs.
2.3. If the supplier is responsible for the cancellation/partial cancellation, the proven services properly provided up to that point must be reimbursed, provided that they are used in the interests of BHG. BHG’s claims for damages remain unaffected. This also applies if the contract is terminated by BHG due to the supplier's insolvency.
2.4. Changes to the quantity, delivery date, place of delivery or method of dispatch of the goods are not permitted without the prior written consent of BHG.
3. Prices
3.1. After conclusion of the contract, the supplier is not entitled to increase the price.
3.2. The supplier is not entitled to assign claims against BHG or have them collected by third parties.
4. Deliveries / delivery dates
4.1. All deliveries are made freight prepaid, insured, unloaded and, if necessary, customs cleared, unless otherwise specified. BHG is exempt from filing.
4.2. All delivery items must be packaged in a customary manner and properly and professionally. In individual cases, BHG is entitled to dictate the type of packaging to the supplier. Special packaging will be disposed of at the supplier's expense.
4.3. Agreed delivery dates and deadlines are binding. The receipt of the goods at BHG is decisive for compliance. As soon as delays become apparent, the supplier must immediately report these in writing, stating the reasons and expected duration of the delay.
4.4. In the event of default, BHG is entitled to demand a contractual penalty from the supplier in the amount of 1% of the value of the goods per week or part thereof, up to a maximum of 10% of the total value of the order. The assertion of further claims due to delay is not affected by the contractual penalty. In particular, all downtime costs incurred as a result of the delay must be reimbursed, as well as lost profits.
5. Transfer of risk The risk of accidental loss or accidental deterioration of the goods is borne by the supplier until the goods are handed over (unloaded) to BHG.
6. Incoming goods inspection
6.1. Upon receipt of the goods, BHG or the BHG customer will carry out an incoming goods inspection with regard to externally visible damage and recognizable deviations in identity, quality and quantity. Noticeable defects will be reported immediately.
6.2. BHG or BHG customer reserves the right to carry out further incoming goods inspections. Any defects identified as well as other defects that arise from the normal course of business will be reported to the supplier immediately in writing. In this respect, the supplier waives the objection of late notification of defects.
6.3. If defects are discovered upon receipt of goods, BHG / BHG customer is entitled to refuse acceptance. If it is discovered later, BHG is entitled to return the entire delivery at the supplier's expense or to make it available for collection.
7. Liability for defects
7.1. The statutory regulations apply with regard to liability for defects. In urgent cases, BHG can, in coordination with the supplier, remedy the defect itself or have it carried out by a third party. If there is a risk of unusually high damage or in order to maintain our own ability to deliver, informing the supplier is sufficient. The supplier bears any costs incurred as a result.
7.2. The supplier is liable for all damages and expenses caused directly or indirectly by BHG or third parties due to defects in his delivery.
7.3. Unless otherwise required by law, the supplier is liable in particular with regard to the agreed quantities within the agreed delivery period. BHG can demand subsequent performance.
7.4. The supplier also reimburses all expenses incurred by BHG or BHG customers that arise from or in connection with defect liability events for early prevention, defense or mitigation of damage (in particular recall campaigns).
7.5. The supplier is obliged to maintain appropriate insurance cover for all risks mentioned in paragraph 7 for the duration of the delivery relationship. Proof of insurance cover must be provided to BHG upon request.
8. Transfer of ownership8.1. BHG acquires unrestricted ownership of the delivered goods upon their handover at the agreed delivery location. By handing over, the supplier declares that he is fully entitled to dispose of the goods and that there are no third-party rights to the goods.
9. Compliance with regulations
9.1. The supplier is obliged to comply with the relevant legal and official regulations and requirements when fulfilling the contract.
9.2. The supplier guarantees that third-party property rights are not violated during the execution of the contract as well as during the delivery and use of the delivery item or service. He is liable for all claims that arise from the violation of patents, copyrights, design rights, trademarks and name rights when the goods delivered are used in accordance with the contract. The supplier releases BHG and BHG customers from all claims arising from the use of such property rights.
10. Force majeure
10.1. In the event of force majeure, the affected party will be released from its above-mentioned obligations for the period of the force majeure event. The force majeure event must be explained and proven to the other party. It releases the affected party from its contractual obligations only to the extent that the force majeure prevents it from providing its service. The obligation is only suspended for the period in which the force majeure event prevents it from fulfilling its obligation to perform. The contracting party that invokes force majeure will immediately notify the other partner in writing of the beginning and end of the force majeure. Otherwise, it forfeits the right to invoke this obstacle.
10.2. If the supplier is prevented from providing its contractual services for a longer period of time, has stopped payments or has insolvency proceedings opened against its assets or the opening of such proceedings has been rejected due to lack of assets, BHG is entitled to withdraw from the contract with regard to the part that has not yet been fulfilled and to demand compensation.
11. ConfidentialityThe supplier is obliged to treat all agreements as business secrets. This applies in particular to information that must be treated confidentially, such as drawings, documents, layout samples, financing arrangements, etc. The supplier will do everything reasonable to prevent the unauthorized distribution of such information by employees or sub-suppliers.
12. Property rights
12.1. BHG reserves ownership and all other rights (e.g. patent and copyright) to the information provided. This applies in particular to layouts, brand names, presentations, etc. that are protected under competition law. The supplier is not entitled to a right of retention on items provided, regardless of the reason.
12.2. If the obligations under paragraph 11 are violated, a contractual penalty of EUR 10,000.00 will be due for each case of violation. We reserve the right to assert further claims for damages.
13. Other
13.1. In principle, the supplier's terms and conditions are not accepted. If the supplier nevertheless refers to his general terms and conditions in his order confirmation, the contract is generally concluded and the general legal provisions apply instead of the conflicting general terms and conditions.
13.2. The place of fulfillment for deliveries and services is the destination specified by BHG, and for payments exclusively Nuremberg. German law applies to all disputes arising from the contractual relationship, with the exception of conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of jurisdiction is Nuremberg, unless there is a different exclusive place of jurisdiction. BHG is also entitled to sue the supplier at another competent court. Before taking legal action, the parties will attempt to settle disputes arising from or in connection with the delivery contract amicably and out of court.
13.3. Should a provision of these terms and conditions be or become invalid, this will not affect the validity of the other provisions. The contractual partners are obliged to replace the ineffective provisions with a regulation that comes as close as possible to their economic success.