Terms and Conditions

General Terms and Conditions of Sale of BGS technic KG


1. Applicability of the Terms and Conditions

1.1 The present General Terms and Conditions of Sale (“Terms”) apply to all business relations between BGS technic KG (hereinafter referred to as “BGS”) and its customers (hereinafter referred to as “Customer”). These Terms apply only if the Customer is a businessperson (sec. 14 German Civil Code - BGB), a legal entity under public law or special fund under public law.

1.2 These Terms apply in particular for sales and/or deliveries of movable objects (hereinafter referred to as “Goods”), regardless of whether BGS manufactures the Goods itself or purchases them from other suppliers (sec. 433, 651 BGB). The Terms apply in the version applicable at the time the order for the Goods is placed by the Customer or, in any case, in the last version made available to the Customer in text form as framework agreement also to future contracts of similar kind without BGS having to make express reference to this fact in each individual case;

1.3 These Terms of BGS apply exclusively. Deviating, conflicting or supplementary terms of business of the Customer do not become part of the contract unless and until BGS expressly agrees to their application. These Terms apply in every case, i.e. even if BGS delivers without reservations to the Customer while being aware of the Customer’s terms and conditions of business.

1.4 Individual agreements made with the Customer in the individual case (including collateral agreements, addenda and amendments) always take priority over these Terms. Regarding the contents of such individual agreements a written contract or the written confirmation of BGS shall be authoritative.

1.5 Declarations and notifications of legal relevance to be given by the Customer to BGS after conclusion of the contract (e.g. setting of deadlines, notices of defects, declaration of withdrawal or reduction) must be in writing to be valid.

1.6 References to the application of statutory provisions have clarifying effects only. Accordingly, the statutory regulations apply even without such clarification, unless they are modified or expressly excluded in these Terms.

1.7 The English version of these Terms is for information purposes only. In case of any inconsistencies between the German and English version of these Terms the German version shall prevail.


2. Conclusion of Contract

2.1 Offers from BGS are not binding and without obligation. This shall also apply if BGS provides to the Customer catalogues, technical documentations (e.g. drawings, plans, calculations, accounts, references to DIN-standards), other product descriptions or records – also in electronic form – regarding which BGS reserves all proprietary rights and copyrights. Changes in construction, design and color vis-à-vis the technical documentation and in product descriptions contained in other documents which are based on technical improvement or legal requirements are reserved to the extent such changes are not essential or otherwise unreasonable for the Customer.

2.2 Orders for the Goods made by the Customer are deemed to have binding effect. Unless otherwise stipulated in the order, BGS is entitled to accept this offer within 2 weeks from the date of receipt thereof.

2.3 The acceptance may be declared either in writing (e.g. by an order confirmation) or by means of delivery of the Good to the Customer.


3. Delivery Period and Default

3.1 The delivery period will be agreed upon individually or specified by BGS in the acceptance of the order. If this should not be the case the delivery period will be approx. 2 weeks from the date of conclusion of the contract

3.2 If, for reasons other than those for which BGS is responsible for, BGS is unable to adhere to the agreed delivery dates (unavailability of performance) BGS will notify the Customer accordingly without delay while at the same time informing the Customer of the new estimated delivery period. If performance is also not available within the new delivery period then BGS is entitled to withdraw from the contract partially or completely; any consideration already received from the customer will be refunded to Customer without delay. Unavailability of performance within this meaning shall be deemed to have occurred in particular in the case of late delivery from reliable suppliers of BGS, if BGS concluded a congruent covering transaction and BGS is not at fault or BGS is not obliged to procurement in the individual case.

3.3 Occurrence of default in delivery by BGS is determined according to the statutory provisions. In any case the Customer is obliged to issue a reminder. If BGS gets into default and the Customer suffers damage therefrom, the Customer may demand liquidated damages for its damage caused by default. The liquidated damages amount to 0.5 % of the net price (delivery value) per completed calendar week, however, overall not more than 5% of the delivery value of the Goods delivered with delay. BGS shall be entitled to prove that no or only substantially lower damage than the aforementioned liquidated damages has occurred.

3.4 The rights of the Customer according to clause 8 of these Terms and BGS´s statutory rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) remain unaffected.


4. Delivery, Passing of Risk

4.1 Delivery is made ex stock which also is the place of performance for the delivery and possible subsequent performance. At the request and expense of the Customer the Goods may be delivered to a place other than the place of performance (“Sale by Dispatch”). Unless otherwise agreed, BGS is entitled to determine the type of delivery (transport company, dispatch route, packaging).

4.2 The risk of accidental loss or deterioration of the Goods passes to the Customer at the latest at the time of handing over of the Goods to the Customer. In case of Sale by Dispatch the risk of accidental loss or deterioration of the Goods as well as the risk of delay passes at the time of dispatch of the Goods to the freight forwarder, carrier or to another person or institution appointed to carry out the dispatch. If an acceptance is agreed, it shall be decisive for the passing of risk. Statutory provisions on contracts for work and labor apply accordingly for an agreed acceptance. Handing over or acceptance shall be deemed to have occurred if the Customer gets into default with acceptance.

4.3 If the Customer gets in default with acceptance or if he fails to perform an act of cooperation or if delivery is delayed for other reasons the Customer is responsible for, BGS is entitled to demand compensation of damages resulting therefrom including additional expenses (e.g. expenses for storage). In any case BGS will charge a lump sum compensation in the amount of the costs of storage customary at the respective place, commencing with the delivery time respectively – in the absence of a delivery time – with the notice of the readiness for dispatch of the Goods. If the Customer cancels the contract without cause BGS is entitled to demand 20 % of the gross order value as liquidated damages (damages in lieu of performance). The proof of a higher damage and statutory claims of BGS (in particular additional expenses, reasonable compensation, termination) remain unaffected; however, liquidated damages are to be credited against further monetary claims. The Customer is entitled to prove that no or only substantially lower damage than the aforementioned liquidated damages have occurred.


5. Price, Terms of Payment

5.1 Unless agreed otherwise the purchase prices of BGS effective at the time the contract is concluded shall apply, namely ex stock plus VAT.

5.2 In the case of Sale by Dispatch (Clause 4.1) the Customer shall bear the costs of transport and storage and the costs of an insurance of the transport if an insurance is required by the Customer. The Customer shall bear any customs duties, fees, taxes and other public levies. BGS will not take back transport packaging and all other packaging according to packaging regulations, they become property of the Customer; this shall not apply to pallets.

5.3 Unless otherwise agreed, the purchase price is due for payment within 30 calendar days from the invoice date and delivery, respectively acceptance, of the Goods. In case of new Customers and small purchases up to a value of the Goods to be delivered of 500.00 EUR BGS is entitled to require advance payment.

5.4 In the event of the aforementioned payment days being exceeded, the Customer is in default. From the due date default interest pursuant to the applicable legal provisions shall accrue. BGS reserves all rights to claim further damages for delay. The claim of BGS for commercial maturity interest (§ 353 German Commercial Code - HGB) against merchants remains unaffected

5.5 Customer may offset payment only against uncontested or legally established receivables. The same shall apply to the exercise of rights of retention. In case of defects of the delivered Goods counterclaims of the Customer, in particular those according to clause 7.6 par. 2 of these Terms remain unaffected.

5.6 Insofar as circumstances arise after conclusion of the contract which appear to put the creditworthiness of the Customer in doubt (e.g. filing for initiation of insolvency proceedings), BGS is according to the statutory provisions entitled to refuse performance and – as the case may be after setting a deadline – to withdraw from the contract (sec. 321 BGB). In case of contracts of the production of custom-made products, BGS may withdraw from the contract immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.


6. Reservation of Title

6.1 BGS retains title in the Goods delivered (reserved-title Goods) until the payment of all current and future accounts receivable arising from the purchase contract and a current business relation with the Customer.

6.2 The Customer has no rights to pledge or assign the Goods as security. The Customer shall inform BGS without delay in writing if a petition in bankruptcy has been filed and insofar as third parties have access to Goods which belong to BGS.

6.3 In case of breaches of contractual duties by the Customer, in particular the non-payment of the due purchase price, BGS is entitled, according to statutory provisions, to withdraw from the contract and/or demand restitution of the Goods by reason of the retention of title. The claim for restitution does not include the declaration to withdraw from the contract; BGS is in fact entitled to only demand restitution and reserve its rights to withdraw from the contract. If the Customer does not pay the purchase price, BGS may only claim these rights if it has set a reasonable deadline for payment before or if setting a deadline is dispensable.

6.4 The Customer is until a withdrawal according to clause 6.4 (c) below entitled to re-sell the reserved-title Goods only in the normal course of business and/or process them. In this case, the following additional provisions apply.
(a) The reservation of title extends to the goods which are manufactured by processing, mixing, combining the Goods from BGS, whereas BGS is deemed to be the manufacturer of the goods. In case the Goods are processed, mixed or combined with goods of third parties and their title persists, BGS shall become the co-owner of the goods pro rata based on the invoice value of the processed, mixed or combined Goods. Incidentally, for the manufactured Goods the provisions for delivered reservedtitled Goods are applicable.
(b) The Customer already now assigns to BGS all its receivables arising from the resale of the Goods or the manufactured good in a whole or in the amount of a possible coownership share as security. BGS accepts the assignment. The obligations of the customer stipulated in clause 6.2 apply accordingly with regards to the assigned receivables.
(c) The Customer is authorized to collect the receivables in addition to BGS. BGS shall not collect the receivables as long as the Customer is not in default with its payments, a petition in bankruptcy is filed, no other circumstances become known that are capable of considerably diminishing the credit-worthiness and BGS does not invoke its retention of title by asserting its rights according to clause 6.3. In any of the aforementioned cases the Customer is at the request of BGS obliged to inform BGS of the assigned claims and the debtors, to provide BGS with all information necessary for the collection, to hand-over all corresponding documents and to inform all debtors (third parties) of the assignment. Furthermore, in this case BGS is entitled to withdraw the Customer´s authorization to sell or process the Goods.
(d) If the realizable value of the securities exceeds the receivables of BGS by more than 10 %, BGS will at the request of the Customer release securities at its choice.


7. Defects

7.1 Unless otherwise determined below, the statutory provisions govern the rights of the Customer in the event of material defects or legal defects in the Goods (including wrong delivery or short delivery, improper assembly, defective assembly instructions or operating instructions). Sec. 478, 479 BGB shall not be affected under any circumstances.

7.2 Basis for the liability for defects of BGS is the agreement on the properties of the Goods. Deemed to be an agreement on the properties are product descriptions designated as such which were provided to the Costumer before it placed its order or which were incorporated into the contract in the same manner as these Terms. Declarations made by BGS on the properties of Goods only constitute a guarantee if BGS expressly designates them as such.

7.3 Insofar as the parties did not agree on the properties, the existence of a defect is determined by the statutory provisions (sec. 434 (1) 2 and 3 BGB). BGS shall not be held liable for public statements made by the manufacturer or other third parties (e.g. commercial comments). The Customer cannot derive any further rights from material defects that do not affect the value or suitability of the Goods for the purpose recognizable for BGS or which do so merely to a negligible extent.

7.4 The Customer initially has the statutory duties of examination for defects and submission of any necessary complaints under secs. 377, 381 HGB. If during the examination or later defects becomes obvious the Customer is obliged to notify BGS in writing without delay. A notice is deemed to be without delay if it is made within one week, whereby the timely dispatch of the notice is sufficient in order to safeguard the deadline. Independent of this duty of examination and notice the Customer must notify BGS of all evident defects (including wrong and short delivery) within two weeks from the date of delivery, whereby the timely dispatch of the notice is sufficient in order to safeguard the deadline here as well. If the Customer does not comply with its duty of examination and/or notice the liability of BGS is excluded for the defect the Customer did not inform of.

7.5 If the Goods exhibit defects, at the discretion of BGS, subsequent performance can take place by subsequent improvement or replacement delivery provided that this is reasonable for the Customer. The statutory rights of BGS to refuse subsequent performance will not be affected.

7.6 BGS is entitled to make the subsequent performance owed conditional upon the Customer paying the due selling price. However, the Customer is entitled to withhold a part of the selling price that is reasonable in relation to the defect.

7.7 The Customer must give BGS the opportunity and time necessary for the subsequent performance, in particular to hand over the rejected Good for the purpose of examination. In case of replacement delivery the Customer must return the defective Good according to the statutory provisions. Subsequent performance does not include the removal of the defective Good or the new installation, if BGS was initially not obliged to install the Goods.

7.8 BGS shall bear the necessary costs of examination and subsequent performance, in particular transport, labor and material costs (not the cost of installation and removal) in case of existing defects. If the demand for elimination of defects of the Customer is unjustified, BGS is entitled to claim the reimbursement of the costs incurred therefrom.

7.9 In urgent cases, e.g. threat to the operational safety or for the defense of disproportional damages, the Customer has the right, to eliminate the defect itself and demand compensation of the objectively necessary costs incurred therefrom from BGS. If the Customer eliminates the defect itself it shall inform BGS without delay and if possible in advance. The Customer does not have the right to eliminate the defect itself if BGS is entitled to refusal of a subsequent performance according to statutory provisions.

7.10 If subsequent performance is unsuccessful, does not take place within a reasonable deadline set by the Customer or if setting a deadline is dispensable according to statutory provisions the Customer may, at its own discretion, withdraw from the contract or require a reduction in the purchase price. The Customer has no right to withdraw from the contract in case of an insignificant defect.

7.11 In the event and to the extent that the defects are caused by the Customer’s failure to comply with the operating and maintenance instructions of BGS, the use of replacement parts or materials that do not conform to the original specifications or interference by unqualified personnel BGS has no liability insofar as a defect is caused thereby. If a defect is present and if one of the aforementioned situations occurred, the Customer must prove that the defect was not caused by one of the above situations.

7.12 Claims for damages of the Customer or reimbursement of frustrated expenses are limited to the provisions in sec. 8. Further claims are excluded.


8. Liability

8.1 Unless otherwise agreed in these Terms, including the following provisions, the liability of BGS for a breach of contractual and non-contractual duties is determined by the pertinent statutory provisions.

8.2 Regardless of the basis in law, BGS is within the scope of fault-based liability. liable to compensate for damages only for intent and gross negligence. BGS is liable in the event of simple negligence, subject to the applicability of a lower of standard of liability pursuant to statutory provisions (e.g. standard care in one´s own affairs), only a) for damages arising from death or personal injury, b) for damages arising from the breach of a fundamental contractual duty; in this event, however, the liability of BGS to compensate for damages is limited to the foreseeable damages that would typically have occurred. Deemed to be a fundamental contractual duty for this purpose is an obligation without which proper performance of the contract would be impossible and on the performance of which the other party relies and is entitled to rely.

8.3 All other claims of the Customer based on contract or tort are excluded. For this reason, BGS is in particular not liable for damage that did not occur to the Goods delivered; BGS is similarly not liable for lost profits or other economic loss of the Customer.

8.4 The limitations of liability arising from the above clauses 8.2 and 8.3 do not apply if BGS has fraudulently concealed defects or given a guarantee for the condition and quality of the Goods. The same applies to claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz).

8.5 In case of breaches others than those constituting a defect the Customer may only withdraw from the contract or terminate the contract in case of culpable breaches. An independent right to terminate the contract of the Customer (in particular according to §§ 651, 649 BGB) is excluded. Incidentally, statutory prerequisites and statutory consequences apply.

8.6 To the extent to which the liability of BGS is excluded or limited according to the aforementioned provisions, this also applies in respect of the personal liability of its employees, representatives and agents.


9. Statute of Limitations

9.1 Claims from defects shall be time-barred after 12 month of passing of risk. Insofar as an acceptance has been agreed the limitation period shall commence with the acceptance.

9.2 If the Good is a building or a product customarily used in a building and has caused a defect in the latter, claims shall be time-barred after 5 years of the passing of risk according to the statutory provisions (sec. 438 subsec. 1 No. 2 BGB). Further special statutory provisions regarding the statute of limitations (in particular sec. 438 subsec. 1 No. 1 and subsec. 3 BGB,secs. 444, 479 BGB), remain unaffected.

9.3 The aforementioned limitation periods also apply for contractual and non-contractual claims for damages of the Customer, unless the applicability of regular statutory period of limitation (sec. 195, 199 BGB) would, in the individual case, lead to a shorter limitation period. Claims for damages of the Customer according to clause 8.2 para. 1 and 2 a) as well as according to the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.


10. Intellectual Property

10.1 The Customer shall examine the possibility of infringements of intellectual property rights resulting from specifications provided by the Customer together with a placed order and inform BGS that the ordered items are protected by intellectual property rights. The Customer shall assume liability for claims made by third parties due to the use of specifications provided by the Customer.

10.2 The Customer shall inform BGS at the earliest time possible in writing if a third party alleges the infringement of intellectual property rights or other rights with regards to the delivered Goods or claims the infringement judicially or extra-judicially. The Customer shall give BGS the possibility to give its opinion before admitting the claim. If required by BGS, BGS may proceed with the litigation with the third party on its own account and own responsibility.

10.3 If at the time of passing of the risk an infringement of intellectual property rights is given for which BGS is responsible and liable, BGS shall warrant supplementary performance by way of - altering the Goods concerned in a manner that intellectual property rights of third parties are not infringed anymore and the function respectively the fitness of the Good is not unreasonably impaired;
- replacing the infringing Goods by products which do not infringe intellectual property rights if they are used as agreed in the contract and if it is acceptable for the Customer and its clients;
- licensing the appropriate or sufficient rights for the purpose of the contract. Further rights or claims for reduction, withdrawal and/or damages exist only by reason of this contract.

10.4 The Customer shall indemnify BGS for the damage resulting from a culpable breach of its obligations in clause 10.2. Claims of the Customer according to clause 10.3 are excluded in this case.


11. Confidentiality

All business and trade secrets and all confidential information of BGS shall be kept strictly confidential and must not be made available to third parties without BGS´s express authorization unless the Customer demonstrates that it may use the confidential information legitimately.


12. Choice of Law and Jurisdiction

12.1 The law of the Federal Republic of Germany shall govern these Terms and the contractual relations between BGS and the Customer to the exclusion of all international (contractual) law systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). Prerequisites and consequences of the retention of title according to clause 6 are subject to the law applicable at the relevant location of the Good insofar as it renders the choice of law in favor of German law invalid or ineffective.

12.2 If the Customer is a registered merchant for the purposes of the commercial register, a legal entity under public law or a public-law special fund then the exclusive – also international – place of jurisdiction for all disputes arising from or in connection with the present Contract is the registered office of BGS. The same applies mutatis mutandis if the Customer is a business person in the meaning of sec. 14 BGB. BGS is entitled to file a lawsuit at the place of performance of the duty to deliver the Goods according to these Terms or a prevailing individual agreement, respectively, or at the general place of jurisdiction of the Customer. Prevailing statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.


13. „No Russia“ Clause

13.1 The Importer/Buyer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this Agreement that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014.

13.2 The Importer/Buyer shall undertake its best efforts to ensure that the purpose of paragraph 13.1 is not frustrated by any third parties further down the commercial chain, including by possible resellers.

13.3 The Importer/Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph 13.1

13.4 Any violation of paragraphs 13.1 – 13.3. shall constitute a material breach of an essential element of this Agreement, and BGS shall be entitled to seek appropriate remedies, including, but not limited to:

(i) termination of this Agreement; and

(ii) a penalty of 100% of the total value of this Agreement or price of the goods exported, whichever is higher.

13.5 The Importer/Buyer shall immediately inform BGS about any problems in applying paragraphs 13.1 - 13.3, including any relevant activities by third parties that could frustrate the purpose of paragraph 13.1. The Importer/Buyer shall make available to the BGS information concerning compliance with the obligations under paragraph 13.1 - 13.3 within two weeks of the simple request of such information.”

13.6 This clause does not apply if the Importer/Buyer is based in one of the following countries: USA, Japan, United Kingdom/Great Britain, South Korea, Australia, Canada, New Zealand, Norway, Switzerland

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