General Terms and Conditions Behälter Vertrieb Vertrieb GmbH & Co KG and Behälter KG Bremen GmbH & Co
General Terms and Conditions of Sale and Delivery of Behälter KG Bremen GmbH & Co.
1. Basis of Contract
1.1 The contracts between Behälter KG Bremen GmbH & Co. (hereinafter referred to as the „Seller“) and its client are exclusively for the sale of brand new and used containers and agitators.
1.2 The Seller’s offer is geared towards commercial operators only.
1.3 These General Terms and Conditions shall apply exclusively for all contracts closed between the client and the Seller. By submitting an order, the customer explicitly recognizes these terms. Any deviating and conflicting or supplementary General Terms and Conditions of the customer shall, even with knowledge thereof, not become part of the contract, even if they are not explicitly contradicted by the Seller.
1.4 A consumer is defined as any natural person who concludes a legal transaction for purposes which are outside his commercial- or self employed occupational activity.
1.5 A commercial operator means a natural person or legal entity or a legal partnership that in concluding a legal transaction is acting in the execution of its commercial- or self employed professional activity.
2. Condition of the Goods and Technical Modifications
2.1 The qualities and characteristics specified in the Seller‘s offer, order confirmation as well as in its brochures and catalogues shall constitute the agreed quality of the goods. Different or additional conditions and characteristic features shall not constitute a contractually agreed condition unless they have been explicitly agreed upon. Such agreement has to be made in writing.
2.2 Any declarations made by the Seller regarding the condition of the goods shall not constitute a guarantee of condition and durability, unless the Seller has explicitly identified such declarations as a guarantee of condition and durability.
3. Conclusion of Contract and Obligations to Provide Information
3.1 The presentation of goods, particularly on the internet, does not constitute a binding offer by the Seller.
3.2 The customer has the option to place an order by phone, email or by using the contact form on the website of the Seller.
3.2.1 If orders are placed by phone, the customer submits a binding order by means of telephone. The Seller may accept the offer of the customer by a written order confirmation. The contract shall be deemed concluded by the Seller’s written order confirmation. In the event that the order confirmation contains extensions, restrictions or other modifications, the contract shall be deemed concluded if the customer does not contradict the contract in written form within 2 days. Payment of the purchase price shall constitute acceptance.
3.2.2 If orders are placed using the contact form on the Seller’s website or via email, the customer submits a binding order by sending the message. The Seller may also accept the offer of the customer by a written order confirmation. The contract shall be deemed concluded by the Seller’s written order confirmation. In the event that the order confirmation contains extensions, restrictions or other modifications, the contract shall be deemed concluded if the customer does not contradict the contract in written form within 2 days. Payment of the purchase price shall constitute acceptance.
3.3 After placing its order, the customer shall not have the option to change the order unless the Seller expressly acknowledges such change or in the event that the customer contradicts an order confirmation that does not correspond with the order. In the case of orders via contact form or email, prior to placing its order by means of electronic transmission the customer may change it by clicking the „back“-button on the browser or by deleting the unsent mail.
3.4 The Seller will save the text of the respective contracts concluded between the Seller and the customer. The text of the contract will be saved on the Seller’s internal IT systems. The customer may view, at any time, the General Terms and Conditions on this website. Together with the order confirmation, the customer will be sent the details of the order as well as the General Terms and Conditions. After completion of the order, for security reasons the text of the contract will no longer be accessible via the internet.
3.5 The contract language shall be German and English.
4.1 Unless otherwise stipulated in writing, deliveries shall be affected ex warehouse or ex works.
4.2 In the event that due to a wrong address of delivery or wrong recipient the Seller incurs additional forwarding costs, the customer shall reimburse the Seller for such costs unless provision of these wrong details are not attributable to the customer.
4.3 Deliveries shall be made to destinations within the Federal Republic of Germany and to countries of the European Union only. Deliveries outside the EU shall take place only upon consultation.
4.4 The Supplier shall be entitled to make partial deliveries, insofar as these are deemed reasonable by the customer.
4.5 Subject to the delivery instructions given by the customer in its order, deliveries from own or external stock shall be made at the expense of the customer. Any insurance of the goods against transport damage shall be provided only upon express request and at the expense of the customer.
4.6 The risk of loss or damage of the goods shall in all cases pass to the customer as soon as Seller has passed on the goods to a forwarding agent or carrier, at the latest however upon leaving the warehouse/factory.
4.7 The start of the delivery period as defined by the Seller shall start only after all technical questions have been settled. The delivery period shall not be binding, unless the parties have expressly agreed upon a transaction for delivery by a fixed date. The delivery date refers to dispatch ex works or ex warehouse. Deliveries shall be subject to supplies being made to us, covering for events where despite congruent transactions and without any fault on the part of the Seller, deliveries are not received or arrive late.
5. Terms of Payment
5.1 The purchase price shall be due immediately upon conclusion of the contract. Payments by the customer shall be made “net cash“ within 8 days from the date of invoice. Payment shall be deemed as completed at that time when the amount is unconditionally at the disposal of the Seller. Unless otherwise agreed upon, for new customers advance payment obligation shall apply.
By accepting payments by cheque, the Seller shall not assume any responsibility regarding protest or due presentation. All fees and all other costs arising from processing of cheques shall be at the expense of the customer.
5.2 Unless otherwise agreed upon, all shipping costs, in particular packaging, transport and delivery costs shall be borne by the customer.
5.3 In case of late payment, the customer shall be obliged to pay to the Seller default interest at a rate of 8 per cent above the base interest rate.
5.4 Notwithstanding the provisions of 5.3, the Seller shall have the right to prove higher damages caused by delay as well as other damages.
5.5 In case of contracts with an agreed delivery period of more than four months, the Seller reserves the right to increase the prices in accordance with cost increases incurred, in particular due to changes in collective labour agreements or material costs. If such an increase exceeds 5 % of the agreed price, the customer shall have the right to rescind the contract.
6. Retention of Title
6.1 The Seller shall reserve the right to the supplied items until all outstanding receivables arising from the delivery contract have been paid (including all – even not yet accepted ones – current account surplus claims). The Seller shall have the right to take back the sold goods in cases if the customer acts in violation of the contract.
6.2 Until ownership has transferred to the customer, the customer shall be obliged to handle the goods with care. In particular the customer shall be obliged to insure the goods at his own expense against theft, fire and water, with the insured sum being adequate to cover the replacement value (Note: shall be permitted only for the sale of high value goods). In cases where maintenance and inspection work are required, the customer shall be obliged to carry this out in good time and at its own expense. As long as the ownership has not yet been officially transferred, the customer shall be obliged to inform the Seller immediately in writing if the delivered item is subject to distraint or any other invention by a third party. In cases where such third party is not in a position the reimburse the Seller the court- and extrajudicial costs of a litigation action pursuant to § 771 Code of Civil Proceedings (ZPO), the customer shall be liable to the Seller for the deficient amount.
6.3 The customer shall be entitled to resell the reserved goods in the course of normal business. The customer herewith assigns all claims resulting from the resale of the reserved goods to the Seller, in the amount of the final invoice amount agreed with the Seller (including VAT). This transfer applies irrespective of whether the goods are sold without or after being processed. The Seller shall remain entitled to collect the receivables even after assignment. The Seller’s entitlement to collect the receivables itself shall remain unaffected thereby. The Seller may, however, not collect the receivables as long as the customer meets its payment obligations arising from the proceeds collected, and if he is not in default of payment and in particular if no petition has been filed for the opening of insolvency proceedings or payments have not been suspended.
6.4 The processing, reworking or remodeling of the purchase item by the customer shall always be conducted on behalf and by order of the Seller. In this case, any expectancy right of the customer to the purchase item shall continue to exist for the altered item. In cases where the purchase item is processed with objects that are not the Seller’s property, the Seller shall acquire joint title to the new item in the ratio of the objective value of its purchase item to the other processed items at the time of processing. The same shall apply in cases where items are mixed. If the items are combined or mixed in a way that the item of the Seller is to be regarded as the principle item, it shall be understood as agreed that the customer shall assign to the Seller co-ownership proportionally and that the resulting sole- or co-ownership shall be kept for the Seller. In order to secure the entitlements of the Seller towards the customer, the customer shall also assign to the Seller any receivables from third parties that arise for the customer as a result of incorporation of the retained goods in real property; the Seller accepts such assignment effective immediately.
6.5 On the customer’s request, the Seller undertakes to release the securities to which it is entitled, insofar as their value exceeds the receivables secured by more than 20 %.
7.1 For warranties, the legal provisions shall apply, unless other provisions have been made pursuant to 7.2 - 7.3.
7.2 For brand new products the expiry period for claims arising from liability for defects in quality shall be 12 months from the time of delivery of the item. For used products no warranty applies. This reduced warranty period shall not apply to any culpably caused damages attributable to the Seller, such as damages to life, body and health, or in cases of damages caused deliberately or due to gross negligence, or in cases of malice on the part of the Seller, and neither to any claims pursuant to §§ 478, 479 German Civil Code (BGB).
7.3 To commercial operators, the legal provisions, examination and reprimand obligations of the German Commercial Code (HGB) shall apply. Any complaints for obvious defects have to be made immediately in writing, at the latest within 10 business days after delivery (dispatch of the notice suffices).
The notice of defects must be sent to the seller by fax or email on the same date it is sent by post.
8. Limitation of liability
8.1 With the exception of injury to life, body and health and the breach of essential contractual duties (cardinal duties), the Seller is liable only for damages that can be attributed to intentional or grossly negligent conduct.
This also applies for indirect consequential damages particularly such as loss of profits.
An essential contractual duty is one of which the fulfilment facilitates the performance of the agreement at all and on the fulfilment of which the contracting partner regularly depends and can be expected to depend.
8.2 Liability is limited to the damages typically foreseeable on formation of the agreement and otherwise to the sum of the average damage typical for the agreement other than in the case of intentional or grossly negligent conduct or in the case of damages as a result of injury to life, body and health and the breach of essential contractual duties (cardinal duties). This also applies for indirect consequential damages particularly such as loss of profits.
8.3 The liability from paragraphs 1 and 2 also applies accordingly in favour of the employees and vicarious agents of the Seller.
8.4 Claims for liability on the basis of German product liability law are not affected.
9. Final provisions
9.1 The law of the Federal Republic of Germany applies to the exclusion of UN sale of goods law. Mandatory provisions of the state in which the customer is habitually resident are not affected.
9.2 The place of fulfilment is the head office of the seller.
9.3 If the customer is a trader, legal entity under public law or special fund under public law or if the customer has no general place of jurisdiction within Germany or if the residence of the customer moves abroad or is unknown at the time when the legal proceedings commence then the place of jurisdiction is the head office of the Seller.
9.4 Should individual terms and conditions of this agreement be invalid or contravene statutory regulations then this shall not affect the remainder of the agreement.
- End of the General Terms & Conditions - (Date: May 2019)