General delivery and payment conditions behr Labor-Technik GmbH (status: 8/2017)
1. The following terms of delivery and payment of behr Labor-Technik GmbH from Düsseldorf, (hereinafter referred to in short as behr Labor-Technik ) shall apply for all contracts, deliveries and other services, incl. consulting services, provided that they have not been altered or excluded with our explicit consent. In placing the order, the buyer shall accept the following conditions. Any terms and conditions of the buyer conflicting with or deviating from the following terms of delivery and payment shall not not be a subject matter of the contract, even if behr Labor-Technik, in knowledge of deviating terms, does not explicitly contradict them and executes delivery to the buyer without reservation.
2. These general payment and delivery conditions shall only apply to commercial customers and for commercial business transactions.
3. These general payment and delivery conditions shall apply for all (also future) business transactions between behr Labor-Technik and the buyer in the corresponding valid version at the time of the conclusion of the contract, even if its validity has not been explicitly agreed upon again.
4. behr Labor-Technik is entitled to make changes to the valid general payment and delivery conditions, which behr Labor-Technik shall announce to the buyer in advance in writing (including the opposition period) and which shall be enforced, if the buyer does not respond within a period of two weeks following receipt of the announcement).
II. Conclusion of contract
1. The depiction of the products on our website http://behr-labor.com/ and in the online shop at http://behr-labor.de/ do not comprise a binding offer, rather they represent a non-binding online catalog of the product range.
2. Included documents, catalog specifications or other product information, such as illustrations, drawings, weight and size indications are only approximate indications and of a non-binding nature,and we reserve the right to make model and design-related changes. behr Labor-Technik is entitled to deliver products that deviate from an order and have been changed or adapted to the extent that this has not significantly affected the functionality and the intended use of the goods.
3. Prior to submitting your order, you have the opportunity to check and correct the data you have entered. By submitting your order, you are concluding a binding contractual agreement. The confirmation of the receipt of your order shall be performed directly upon the technically proper receipt of your order. A binding agreement shall be concluded once behr Labor-Technik has accepted the order of the buyer. The confirmation of the receipt of the order is performed directly following submission of the order. The purchase agreement shall be concluded with our separate order confirmation or the delivery of the goods. The confirmation of receipt does not yet represent an acceptance of your order (unless we initially request direct payment, e.g. advance payment); rather, it serves to inform you that your order has been submitted to us. Please note that delivery in the case of advance payment only takes place once the full amount has been credited to our account.
4. behr Labor-Technik reserves the right to refrain from providing the promised service, if following the conclusion of the contract, it turns out that the goods are not available, despite the fact that a respective contractual transaction has been concluded. In such a case, the buyer shall be notified immediately. Any compensation that has been made shall be reimbursed immediately. Any further claims against behr Labor-Technik are excluded.
5. We advise our buyers in terms of application technology according to the best of our knowledge, and within the framework of given possibilities, our advice however is non-binding. This applies in particular also in regard to any protective rights of third parties. Our advice does not release the buyer from the requirement to inspect our goods at their own responsibility for their suitability with regard to the intended purpose.
III. Payment conditions
1. Payment obligations for goods deliveries must be met within 30 days of the invoice date without deduction. Invoices for services rendered by us are due immediately and without deduction. In the case of payments transmitted by means of bank transfer or checks, the payment obligation shall be deemed to be fulfilled once the invoice amount has been credited to our bank account. For new customers we request advance payment.
2. The minimum order value is currently EUR 30.00. For orders below this amount, behr Labor-Technik shall impose a handling charge amounting to EUR 15.00. These payment conditions do not apply for orders for chemicals, water deionizer regenerators or exports. For further information on the amounts that apply to these products, please contact our sales department.
3. Unless otherwise specified by behr Labor-Technik in its order confirmation, the buyer is obligated to transfer the purchase price within 30 days of the invoice date without any deduction to the bank account specified by behr Labor-Technik.
4. Unless otherwise agreed, all offers are non-binding. For orders in our online shop at http://behr-labor.de/ the prices listed in the order at the time of the order shall apply. Unless otherwise specified by behr Labor-Technik in its order confirmation and/order order, the prices shall be in EUR. The prices indicated are net, excl. the corresponding applicable legal VAT and any packaging and transport costs. For details concerning any additional shipping costs, please refer to the specifications in the online shop. For shipping costs concerning other countries please send inquire at email@example.com. Deliveries to third countries are subject to additional customs fees, charges and import taxed for the buyer. These additional costs shall be borne by the customer.
5. In the case of on-call orders, the goods that can be delivered prior to the call date, shall be charged the agreed prices on the day of delivery readiness or on the call day at the prices valid on that day. Payment for this, unless otherwise explicitly agreed, shall be effected within 30 days of the receipt of the invoice, so that the agreed amount of compensation becomes available to us no later than the maturity date.
6. In the case of delay of payment by the buyer, behr Labor-Technik shall, notwithstanding further statutory rights, reserve the following rights:
· behr Labor-Technik is entitled to charge interest for all amounts due that have not been settled by the buyer at the date of maturity in the amount of the legally permitted maximum interest rate, however no less than 9% p.a. above the corresponding basic interest rate of the European Central Bank, for the period up to the full settlement of the outstanding amount,
· behr Labor-Technik is entitled to cancel the order and to suspend any further outstanding deliveries to the buyer.
IV. Delivery / packaging
1. Under normal circumstances, behr Labor-Technik shall not render transport services. Collection shall take place ex works, prices apply ex ramp.
2. Shipping of the goods shall be at the buyer's own risk. behr Labor-Technik is entitled to choose the corresponding carrier, haulage company as well as the means of transport. behr Labor-Technik shall also reserve the right to choose the packaging type. Partial deliveries are permitted and can be directly billed by behr Labor-Technik. The risk of accidental loss of the delivery goods shall pass to the buyer with the shipment of goods by behr Labor-Technik; this shall also apply for cases in which the goods are shipped free of charge. We shall conclude transport insurance coverage only upon the written instruction and at the expense of the buyer.
3. Should the shipment of the goods be delayed due to circumstances the can be attributed to the buyer (incl. delay in acceptances or refusal of the acceptance), the risk of the accidental loss of the goods (also is the goods are still in storage at behr Labor-Technik) shall pass to the buyer at the time of the delay. Any costs arising for behr Labor-Technik as a result of such delay (in particular warehouse and storage costs) shall be exclusively borne by the buyer. Should the ordered goods be accidentally lost during default of acceptance of the buyer, behr Labor-Technik shall be released from any liability. The payment obligation of the buyer however shall remain for the full amount.
4. Delivery times are only binding if they have been separately agreed. The following terms apply for binding delivery periods that have been explicitly agreed: The delivery period commence with the receipt of our order confirmation. If timely or contractually agreed delivery is rendered impossible by force majeure or cannot be fulfilled in accordance with the contract, we are released from the observance of this obligation; furthermore any claims for damages by the customer shall be excluded. Claims for damages that the buyer incurs as a result of delay, for which we are accountable, can be asserted by the buyer to the extent that evidence is provided that our legal representatives or managing employees have caused the delay through intent or gross negligence. In the case of minor negligence, the compensation of the damage shall be limited to the value of the goods. If shipping is delayed at the wish / through the fault of the customers, the goods shall be stored at the risk of the buyer. In this case, the notification of shipping readiness shall be equivalent to the actual shipment of the goods.
5. All price indications are based on unpacked goods. Further packaging shall be chosen by us in line with respective needs. Additional costs arising from additional packaging shall be billed separately. Return of packaging is only possible within the framework of legal provisions and prior consultation with us.
6. The goods must be examined for damages immediately following receipt by the buyer or his representative. The buyer must have any detected transport and packaging damages confirmed by the transport company at receipt and must be reported in writing.
7. Unless other explicitly agreed, the delivery times indicated in the offers and order confirmations by behr Labor-Technik shall remain non-binding. Whenever delivery dates have been agreed, observance is binding for behr Labor-Technik only to the extent that the buyer has immediately met his contractual obligations, in particular those pertaining to agreed payments and, if applicable, the provision of securities. If the buyer does not meet his contractual obligations, behr Labor-Technik is entitled to extend the delivery time correspondingly. The right of objection to nonperformance of contract shall be reserved.
8. Notwithstanding any other contractual or statutory rights to cancellation, the buyer is not entitled to cancel binding orders or to return previously accepted goods without the written consent of behr Labor-Technik, whereby such returns are subject to a return fee. Products that are subjected to official requirements or certain processing regulations are by matter of principle excluded from the possibility of cancellation or return.
9. Each return shipment of goods, irrespective of the reason for the return, must be coordinated in advance with behr Labor-Technik. behr Labor-Technik reserves the right to demand the disposal of the goods instead of a return shipment. The ownership of the returned goods previously purchased by the buyer shall be returned to behr Labor-Technik once the goods have arrived on the premises of behr Labor-Technik. The products must bear the original product label of behr Labor Labor-Technik and be unchanged in terms of form and content.
10. behr Labor-Technik reserves the right to declare certain products as custom-made products. Prior to the start of manufacture of a custom-made product, the buyer shall specify product features to behr Labor-Technik, and behr Labor-Technik and the buyer shall jointly define corresponding test and manufacturing procedures. The respective order of the buyer contains exact specifications of the corresponding custom-made product as well as a delivery plan for retained products. The buyer is obligated to purchase the entire contingent of the respective custom-made product, irrespective of its scope. Order for custom-made products cannot be canceled.
V. Intellectual property
1. behr Labor-Technik is the owner and holder of protected trade marks, brand names, brands, designs, logos and other intellectual property. Every form of use of trade marks, brand names, brands, designs, logos and other intellectual property owned by behr Labor-Technik as well as the appropriation, use or registration of words, wording or symbols that are similar to the trade marks, brand names, brands, designs, logos and other intellectual property owned by behr Labor-Technik that they are suitable to cause confusion and mix-up, is prohibited to the buyer without the explicit consent of behr Labor-Technik.
2. Likewise, the buyer must refrain from any impairment or violation of the aforementioned property rights of behr Labor-Technik, as well as any allegation of the illegal use or appropriation of the products or services of a third party by behr Labor-Technik.
VI. Complaints / warranty
1. With regard to any products delivered by behr Labor-Technik, the parties shall agree on the nature and condition as well as the scope of warranties/liabilities for defects assumed by behr Labor-Technik in the following:
· The products delivered by behr Labor-Technik correspond to the respective specifications as published in the (electronic or otherwise published) catalog of behr Labor-Technik, the certificates enclosed with the products or the information printed on the labels. In the case of any deviations between the specification printed in the catalog and on the label, the specifications on the label or decisive. Standard commercial deviations and other minor deviations which do not impair the usability of the product as specified by behr Labor-Technik remain reserved.
· Data and information based on testing procedures conducted by behr Labor-Technik may only be compared with the same testing procedures acquired by the same testing procedures. For instance, the general technical data of the products contained in the catalog or product descriptions merely serve to provide information and do not represent any binding product specifications. behr Labor-Technik does not assume any liability for the accuracy of the specified product data.
· behr Labor-Technik does not assume any liability in terms of the use of the delivered products in pharmaceutical, cosmetic or food preparations, unless the corresponding use of a product has been specifically and explicitly confirmed by behr Labor-Technik. behr Labor-Technik shall not assume any liability with regard to the marketability of the products and/or the products' suitability for a certain purpose.
2. Warranty on the part of behr Labor-Technik is excluded:
· if products, which according to their specifications are exclusively intended for research purposes, are subjected to other usage purposes; this includes in particular use for non-authorized commercial purposes, usage in connection with in-vitro diagnostics, ex-vivo or in-vivo usage for therapeutic purposes as well as any administration or other application on humans or animals;
· in the case of installation, repair, modification, upgrade, maintenance or other services by a third parts that has not been authorized by behr Labor-Technik;
· in the case of regular wear if the products are not properly serviced or stored;
· if the products are used beyond the expiration and shelf-life durations published in the specification or label requirements.
3. The parties shall agree to the following control and test obligations to the performed by the buyer:
· The buyer shall examine the delivered products immediately upon receipt and shall inform behr Labor-Technik immediately in writing or in text form of any apparent defects or missing goods. In the event of product defects that, despite immediate examination, are detected by the buyer at a later time, the buyer shall inform behr Labor-Technik immediately upon their detection in writing or in text form.
· Messages sent to carriers or other third parties do not represent proper notification to behr Labor-Technik and shall therefore be deemed at non-performed.
· If the buyer reports to behr Labor-Technik any property deviations in terms of potentially hazardous products, behr Labor-Technik has the right to opt for the return of the products in question from the buyer for examination or to have them assessed on the premises of the buyer. A further potential option is the commissioning of a third-party with the assessment of the product in question. The chosen third party must find the approval of both parties and be able to perform the assessment in a timely manner. If the property deviations of the product are confirmed by the analysis, behr Labor-Technik shall assume the costs for this; if the deviating properties of the product are not confirmed by the assessment, the buyer shall bear the costs.
· In the case of a defect of quality or title, behr Labor-Technik shall provide rectification by remedying the defect or by delivery of defect-free item. The buyer is not entitled to demand a certain form of rectification.
· If no (full or partial) payment of the purchase price has been made by the buyer, behr Labor-Technik can make rectification dependent on the buyer paying a part of the purchase price – appropriate under consideration of the claimed defect.
· Rectification shall be regarded as having failed after the second unsuccessful attempt by behr labor-Technik, unless a different situation arises due to the type of object or defect or the other circumstances.
4. Only in the event that
· behr Labor-Technik seriously refused rectification,
· the rectification has failed,
· the rectification does not appear sensible from the perspective of the buyer, or
· a suitable fulfillment period granted by the buyer has not be met,
the buyer is entitled to withdraw from the contract or to reduce the purchase price accordingly.
5. Subject to these provisions, the buyer is also entitled to demand compensation instead of rectification.
6. If the defect is not willfully caused by behr Labor-Technik, the period of limitation is 12 months, beginning with the transfer of risk.
7. Defects or other damages owing to faulty or inappropriate handling, unsuitable packaging or shipment, the use of inappropriate accessories or alterations of the original components by the buyer or by a third party not authorized by behr Labor-Technik, are not protected by warranty.
8. We explicitly point out that a part of our product range is not intended for export to the USA or for use there. Deviations from the applicable requirements and regulations in the USA therefore do not represent a defect in the sense of the legal warranty.
VII. Cancellation of orders / return of goods
If an order is canceled by the buyer prior to the delivery of the goods, behr Labor-Technik is entitled to charge all costs that have arisen as a result of the cancellation to the buyer. This applies in particular to cancellation and termination costs that are charged to behr Labor-Technik from its suppliers. The return of goods that is free from defects may only take place with explicit consent and delivered free. To offset the costs incurred, behr Labor-Technik GmbH is entitled to charge 15% of the value of the goods as a processing fee, with a minimum of EUR 15.00 or to deduce the amount from the credit note for the return shipment shipment.
VIII. Repairs /cost estimates
If a cost estimate is desired prior to the execution of repairs, this must be explicitly stated. The costs for the cost estimate must be reimbursed if the repair is not commissioned. Costs for shipping and packaging shall be at the expense of the buyer. Repair invoices are due immediately and without deduction of any discounts.
IX. Electronic waste
1. If the buyer, who is a consumer in the sense of § 13 BGB [German Civil Code], to purchase an electronic device from behr Labor-Technik, the following shall apply: behr Labor-Technik shall be responsible for the proper and orderly disposal of old devices that have been marketed or resold by behr Labor-Technik after August 13, 2005. For this purpose, behr Labor-Technik or a third-parties on behalf of and commissioned by behr Labor-Technik shall collect the old devices and, depending on their condition, shall recycle, refurbish or dispose of them.
2. Apart from this, the buyer shall bear all costs and perform all actions required in terms of the environmentally-friendly treatment and disposal of old devices/waste as well as the in terms of the legal provisions of the corresponding country, incl. any special provisions on the treatment and disposal of electronic waste.
X. Special delivery conditions for laboratory chemicals
1. The following applies for all chemicals: No sale to private persons. We require a signed end-use statement from all first-time customers. With your order, you confirm that the ordered chemicals shall not be given to unauthorized persons for inappropriate use.
2. Chemicals may only be returned in the case of a justified complaint in the original packaging with intact temper-evident closure and only in consultation with us. If the returned goods do not have their original closure, we are entitled to charge any analysis costs.
XI. REACH Regulation
1. If the buyer intends to purchase chemical products from behr Labor-Technik, the following shall apply: The buyer is aware of the REACH Regulation (EC) No. 1907/2006, and is obligated to observe these to the fullest extent.
2. The buyer shall reimburse behr Labor-Technik for all costs that have arisen for behr Labor-Technik as a result of the buyer specifying a usage in accordance with Art. 37.2 of the REACH Regulation (EC) No. 1907/2006, that requires an update or registration or chemical safety report or which results in another obligation in accordance with the REACH Regulation.
3. behr Labor-Technik shall not assume any liability for any delivery delays caused as a result of this. If behr Labor-Technik is unable to include the usage indicated by the buyer as an identified use for reasons of protection of human health or the environment, behr Labor-Technik may withdraw from the contract unless the buyer informs behr Labor-Technik that he no longer intends the announced usage.
XII. Further obligations of the buyer
1. The buyer accepts and understands the associated hazards and risks associated with the application of use of certain products; he also accepts the responsibility to warn and protect any persons coming into contact with the products in question.
2. In addition, the buyer is obligated to immediately inform behr Labor-Technik of all additional hazards occurring in connection with the product.
3. The buyer is at all times responsible for:
· obtaining the required permits in connection with intellectual property rights for the use of a product,
· to ensure the observance and fulfillment of all legal provisions and generally recognized trade practices,
· to perform all necessary tests and examinations prior to the use of the products procured from behr Labor-Technik, including a suitability test in terms of the intended use,
· to ensure the observance and fulfillment of all legal requirements in the case of the resale of the products by the buyer.
XIII. Limitation of liability
1. behr Labor-Technik shall not be liable for any damages, that do not result from an intentional or negligent act or violation of obligations of its legal representatives, employees or vicarious agents; the same applies to defects of an object of purchase that is only defined by its genus.
2. Damage claims against behr Labor-Technik are, irrespective of legal ground, the breach of duties resulting from the relationship under the law of obligations or resulting from unlawful acts, excluded subject to the following provisions:
· According to the legal provisions of the Civil Code (BGB), behr Labor-Technik is liable for claims resulting from death, personal injury or illness which are based on a deliberate or negligent breach of duty by one or more of its legal representatives, employees or vicarious agents, and for other claims based on a deliberate or grossly negligent breach of duty by one or more of its legal representatives, employees or vicarious agents.
· According to the legal provisions of the BGB, behr Labor-Technik is liable for compensating or refunding costs incurred by the customer if a claim is based on the breach of a guarantee provided by behr Labor-Technik regarding the quality of the purchase item or one or more of the legal representatives, employees or vicarious agents of behr Labor-Technik have negligently breached a duty (however not with gross negligence), whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may normally trust (cardinal duties).
· In the case of gross negligence, the damage claim amount of the buyer is restricted to the damages foreseeable and predicable that are typical for the contract.
· The limitation of liability shall not apply to claims under the product liability law.
XIV. Force majeure
1. No party to the contract shall be liable for failure to perform its contractual obligations if the failure to perform is due to an obstacle beyond its control (force majeure). The same shall apply to non-performance on the part of the suppliers due to force majeure.
Force majeure within the meaning of this contract includes, in particular, war or civil war, fire, natural disasters, general scarcity of raw materials or unproducible equipment or materials, restrictions on energy consumption, decisions by legislators or governments, embargoes, export and import restrictions on delivery or dispatch, strike, lockout, accidents, seizure, production disruptions beyond the control of the contracting party.
2. If one of the contracting parties is affected by one (or more) of the above-mentioned events, it shall immediately inform the other contracting party thereof, indicating the relevant event, the expected duration and the measures taken in this respect.
3. In the event of a hindrance to performance due to force majeure over a period of more than six months, each of the contracting parties shall be entitled to terminate the contract in writing by giving notice of termination or termination in text form.
XV. Retention of title
1. All goods delivered by us remain our property until the buyer has paid all his liabilities from the mutual business relationship including all existing ancillary claims.
2. Until such time as ownership of the goods passes to the buyer, behr Labor-Technik shall be entitled to demand the return of the goods at any time in the event of a breach of duty on the part of the buyer, in particular his obligation to pay on time. If the buyer does not comply with a request for return delivery, behr Labor-Technik is entitled to enter the premises of the purchaser or that of a third party in which the goods are stored and to retrieve the goods.
3. In the event of a seizure at the buyer's premises, behr Labor-Technik shall be informed immediately and by sending a copy of the enforcement protocol as well as an affidavit in lieu of an oath that the seized goods are the goods delivered by behr Labor-Technik and subject to retention of title.
4. Any disposal of the goods subject to retention of title by the buyer is only permitted in the regular course of business of the buyer and is subject to the following stipulations:
· Under no circumstances may the goods be transferred to third parties as security in the course of regular business transactions.
· In the case of regular business transactions, the purchase price paid shall replace the product. The buyer already now assigns all claims arising from a possible sale to behr Labor-Technik. The buyer is entitled to collect these claims if he fulfills his own payment obligations towards behr Labor-Technik. With regard to the extended retention of title (advance assignment of the respective purchase price claim) an assignment to third parties, in particular a bank, is inadmissible. behr Labor-Technik is entitled at any time to demand and check the buyer's sales documents and to inform its customers about the assignment.
XVI. Copyright laws
1. The buyer shall assume full responsibility that no third party rights are violated as a result of the use of the original models or products manufactured on the basis of his drawings, documents, etc. The samples, sketches, aids, drafts, etc. shall remain our property, unless otherwise separately agreed with the buyer.
2. In order to keep abreast of the latest technical developments, we reserve the right to make changes to our products in terms of construction, appearance and design.
3. Some of the illustrations, accessories or special equipment shown are not included in the scope of delivery. Please refer to the description of the respective product for the scope of delivery.
4. All graphics and image rights are owned by behr Labor-Technik or its partners. Usage without express permission is not permitted.
5. All rights reserved. Duplication, distribution, electronic transmission and other use for private or commercial purposes is prohibited. All elements of our websites, including the general design and content, are protected by copyright. No element of this website or its content may be copied or transmitted in any way.
1. The buyer undertakes to make available to the buyer's staff only any documents, drawings, circuit diagrams, diagrams, plans, designs, specifications, confidential information, know-how, discoveries, production methods and the like provided to him by behr Labor-Technik or its vicarious agents for the fulfillment of this agreement, which are marked as confidential, company property or similar (hereinafter referred to as "Technical Information"), without the written consent of behr Labor-Technik and shall ensure that no unauthorized persons shall obtain access to this Technical Information.
2. The buyer himself will limit the use of the Technical Information exclusively to the fulfillment of this agreement and will not use it in any way for his own purposes; in particular, he will not file any patent applications which are in any way related to the Technical Information of behr Labor-Technik and will refrain from any publication of the Technical Information in any form whatsoever. All Technical Information provided by behr Labor-Technik is the property of behr Labor-Technik.
Upon termination of this agreement, and at the request of behr Labor-Technik also earlier, the purchaser shall return all Technical Information in material form to behr Labor-Technik. Technical Information as defined in this paragraph does not include any publicly and lawfully accessible information to the purchaser from other sources or such information that was already known to the purchaser before it was made available by behr Labor-Technik.
XVIII. Data protection
1. For the purpose of processing orders, inquiries, complaints and repairs transmitted by the buyer as well as for further maintenance of business relations with the buyer, behr Labor-Technik will collect, process and use personal data from the buyer (mainly name and business address, e-mail address of contact persons on the buyer's side).
XIX. Place of fulfillment / place of jurisdiction
1. Place of performance and exclusive place of jurisdiction for deliveries and payments as well as any disputes arising between the parties shall be Düsseldorf.
2. The law of the Federal Republic of Germany shall apply to all legal transactions or other legal relationships with us.
3. The UN Convention on Contracts for the International Sale of Goods (CISG) as well as any other intergovernmental agreements, even after their incorporation into German law, shall not apply.
This choice of law includes that the buyer who is habitually resident in one of the EU member states or Switzerland is not deprived of the protection granted by mandatory provisions of the law of this state.
XX. Final provisions / severability clause
1. Should one or more of the provisions of these general delivery and payment conditions be or become invalid, this shall not affect the validity of the remaining provisions of the general delivery and payment conditions. The invalid provision is to be replaced by the parties by a valid provision which corresponds to the economic sense and purpose of the contract. The same shall apply if the general delivery and payment conditions show an unforeseen gap.
2. Verbal ancillary agreements shall be regarded as non-performed. Changes and modifications require the written form. This shall also apply for a waiver of the requirement of written form.