§ 1 General, scope of application
Unless otherwise agreed in writing, all supplies, services and offers
of Betz Tools shall be subject to the following terms and conditions.
Counter-confirmations by customers with reference to their own terms
and conditions are hereby expressly rejected. These terms and conditions
still apply if Betz-Tools GmbH, in awareness of conditions of the customer
which deviate from or contradict these terms and conditions, provides
services for the customer without reserve.
§ 2 Offers / Order confirmations
2.1. Offers of Betz-Tools GmbH are subject to change without notice unless
expressly designated as binding by Betz-Tools GmbH. Betz-Tools GmbH
reserves the right to make reasonable technical alterations in shape,
colour and/or weight.
2.2. Unless otherwise agreed, prices are ex domicile Betz-Tools GmbH
not including taxes, packing, insurance, freight, customs or any other
outlays and expenses. Supplies and services for which no particular remuneration
has been agreed shall be charged on the basis of the Betz-Tools GmbH
price list valid at the time the order is received.
2.3. In the case of improvements and model upgrades by our suppliers,
Betz-Tools GmbH reserves the right to deviate from our sales information,
offers and order confirmation insofar as these deviations are reasonable
and acceptable for the customer.
2.4. Orders and verbal agreements shall only be effective
subject to written confirmation by Betz-Tools GmbH. On ordering the goods,
the customer makes a binding declaration that he wants to acquire the
ordered goods. Betz-Tools GmbH reserves the right to a period of two
weeks to confirm the order. Acceptance of the order can be declared either
in writing or by delivery of the goods to the customer. Insofar as the
scope of the order deviates from the offer of Betz-Tools GmbH, Betz-Tools
GmbH reserves the right to alter the terms and conditions accordingly.
Betz-Tools GmbH is only obliged to deliver after confirmation of the
new terms and conditions by the customer. If a consumer orders the goods
by electronic means Betz-Tools GmbH will immediately confirm the receipt
of the order.Confirmation of the receipt of the order does not constitute
a binding acceptance of the order. The receipt of confirmation can be
given in conjunction with the declaration of acceptance. The customer
shall be informed immediately in the case of unavailability. Any payments
already made shall be reimbursed. If a consumer orders the goods by electronic
means the contract text will be stored by Betz-Tools GmbH and sent to
the customer on request along with these General Terms and Conditions
by e-mail.Objections to order confirmations must be made in writing immediately,
but at the latest within 8 days of the date of issue and always before
Betz-Tools GmbH starts providing services or goods. Later objections
shall only be considered subject to written confirmation by Betz-Tools
GmbH.
.
§ 3 Payment conditions
3.1. Payments shall be made in accordance with the agreement on a cashless
basis and without charges or deductions to the account number given by
Betz-Tools GmbH. Payment may only be made by cheque subject to a separate
agreement.
3.2. Unless stated otherwise in the offer or the order confirmation,
all payments are due for payment without deductions within
10 days of the invoice issue date. Payment deadlines are fulfilled if
Betz-Tools GmbH has free access to the amount within the aforementioned
deadline period. When this period expires, the customer is in default
of payment. If the customer is a company, the money owed shall be subject
to an interest rate of eight percentage points over the key rate pursuant
to § 247, section 1
of the German Civil Code (BGB) for the duration of the default. Betz-Tools
GmbH reserves the right to verify and assert higher damagesdue to default
in payment.
3.3. The customer may only set off claims if his counterclaims, regardless
of the legal basis, are legally effective or acknowledged by Betz-Tools
GmbH. The customer can only exercise a right of retention if his counter-claim
is based on the same contractual relationship.
3.4. The customer can pay the purchase price by COD or on account. In
the case of new customers, deliveries shall only be made COD or for payment
in advance.
§ 4 Deliveries
4.1. Delivery deadlines are only binding for Betz-Tools GmbH if they
have been confirmed in writing. This only applies if the customer also
remains true to the contract, in particular with regard to the terms
and conditions of delivery agreed between the parties.
4.2. Force majeure and other events for which Betz-Tools GmbH is not
responsible and which could endanger the troublefree processing of the
order, in particular delivery delays or non-delivery by Betz-Tools GmbH
suppliers within the framework of a congruent covering transaction, traffic
and operational problems, industrial disputes, scarcity of materials
or energy shall entitle Betz-Tools GmbH to postpone the delivery or to
withdraw fully or partially from the contract without the customer being
able to derive any claims from this. Betz-Tools GmbH is only entitled
to withdraw from the contract if later delivery is not possible. In such
cases Betz-Tools GmbH shall inform the customer immediately of the non-availability
of the goods and, in the event of withdrawal from the contract, immediately
return any payments already made by the customer.
4.3. Betz Tools is entitled to make part deliveries and to issue part-invoices.
4.4. The customer is obliged to treat the goods with care. Insofar as
maintenance or inspection work is necessary, the customer shall carry
this out at regular intervals at his own expense. The customer shall
bear the burden of proof that the goods have been handled with the proper
care.
§ 5 Dispatch and transfer of risk
5.1. Insofar as the order confirmation does not state otherwise, the
delivery is made “ex location”, i.e. the domicile of Betz-Tools
GmbH.
5.2. The dispatch of the goods shall be at the expense of the customer
and – insofar as no other instructions are given – to the
address of the customer as stated in the order form. Betz-Tools GmbH
does not assume any guarantee for the cheapest and/or fastest dispatch
method.
5.3. If the customer is a company, the risk of accidental destruction
and accidental deterioration of the goods passes to the purchaser on
handover of the goods, in the case of subcontracted dispatch, when the
goods are handed over to the forwarding agent, carrier or other person
or institution commissioned with the dispatch. The handover is deemed
to have taken place even if the customer is in default with acceptance.
5.4. If the customer is a consumer, the following rules shall apply:
The consumer has the right to revoke his declaration of intent with regard
to the conclusion of the contract within 2 weeks of receipt of the goods.
It is not necessary to give reasons for the revocation and this can be
made in written form or by return of the goods to Betz-Tools GmbH. The
2-week deadline is deemed to be complied with if the goods are sent in
time. If the customer exercises his right to revoke the contract he is
obliged to return the goods if they were sent by parcel post. If the
right of revocation is exercised, the costs for the return of goods up
to an order value of Euro 40.00 shall be borne by the consumer unless
the goods delivered do not correspond to the goods ordered. In the case
of an order value over Euro 40.00 the consumer is not obliged to assume
the costs for return. The customer shall reimburse Betz-Tools GmbH for
the reduction in value caused by the use of the goods for their intended
purpose. The consumer may examine the goods carefully and thoroughly.
The loss of value due to usage beyond mere examination of the goods means
that the goods can no longer be sold as “new” and must be
borne by the customer.
§ 6 Guarantee
6.1. Companies must notify Betz-Tools GmbH in writing of any obvious
defects within two weeks of receipt of the goods.
Otherwise any guarantee claims shall lapse. Timely dispatch of the notification
is sufficient for compliance with the deadline.
The company bears the full onus of proof for all claims, in particular
for the defect itself, for the time of the detection of the defect and
for the timely notification of complaint. Consumers must notify Betz-Tools
GmbH of obvious defects in writing within two months after the time at
which the non-contractual condition of the goods is established. Timely
dispatch of the notification is sufficient for compliance with the deadline.
If the consumer fails to make this notification, the guarantee rights
shall lapse two months after establishment of the defect. This does not
apply in the case of intention to deceive on the part of the vendor.
The consumer shall bear the onus of proof for the time of the establishment
of the defect. If the consumer was moved to buy the goods by incorrect
claims of the manufacturer the consumer shall bear the onus of proof
for his decision to purchase. In the case of used goods, the consumer
shall bear the onus of proof for the defectiveness of the goods.
6.2. If the customer is a company, Betz-Tools GmbH shall honour the guarantee
for defects in the goods at its own discretion by repair or replacement.
Replacement shall only be made if the defective article has been returned
to Betz-Tools GmbH. Betz-Tools GmbH shall bear the costs of the return
transport. Betz-Tools GmbH is, however, entitled, to refuse the type
of postfulfilment selected if it is only possible at unreasonable costs
and the other type of post-fulfilment does not involve any major disadvantages.
6.3. If the post-fulfilment fails, the customer can choose between reduction
of the price or withdrawal from the contract. In the case of only minor
infringements of the contract, in particular minor defects, the customer
is not entitled to withdraw from the contract. If the customer chooses
to withdraw from the contract due to a legal or material defect after
the failure of postfulfilment, he shall not be entitled to any compensation
due to the defect. If the customer chooses compensation after failure
of post-fulfilment, the goods shall remain with the customer provided
that this is acceptable to the customer. The compensation is limited
to the difference between the purchase price and the value of the defective
article. This does not apply if Betz-Tools GmbH was guilty of intent
to deceive. The post-fulfilment is regarded as failed after the second
vain attempt unless further attempts at repair are reasonable and acceptable
for the customer on the basis of the subject of the contract. The legal
stipulations with regard to dispensability of the period of notice shall
remain unprejudiced.
6.4. For companies the guarantee period is one year as of delivery of
the goods. The period of statutory limitation in the event of a delivery
default pursuant to §§ 478, 479 of the German Civil Code (BGB)
remains unprejudiced.
6.5. If the customer receives defective assembly /operating instructions
Betz-Tools GmbH is only obliged to supply non-defective assembly / operating
instructions. This also applies when the defect in the assembly instructions
prevents the orderly assembly or the intended operation of the article
concerned. If the purchaser is a company, only the quality of the goods
pursuant to the production description of the manufacturer shall be regarded
as agreed. Public statements, recommendations or advertising of the manufacturer
do not constitute a statement regarding the contractual quality of the
goods.
6.6. Guarantees in the legal sense are not given by Betz-Tools GmbH.
This does not prejudice manufacturer guarantees.
6.7. In the case of rental or lending, the customer is obliged to insure
the products concerned at his own expense against accidental destruction
and similar (e.g. theft, etc). On request he shall provide Betz-Tools
GmbH with written verification of this.
§ 7 Liability limitation
7.1. In the case of lightly negligent infringements of obligations, the
liability of Band Pro is restricted to the predictable, typical, direct
average damages for the type of goods concerned. This also applies
to lightly negligent infringements of obligations by the legal representatives
or vicarious agents of Betz-Tools GmbH. With regard to companies, Betz-Tools
GmbH shall not be liable for lightly negligent infringement of minor
contractual obligations.
7.2. The aforementioned liability restrictions do not apply to claims
of the customer arising from product liability. Nor do the liability
restrictions apply to personal injury, damage to health or loss of life
of a customer attributableto Betz-Tools GmbH.
7.3. Claims for compensation by a customer due to a defect shall be subject
to statutory limitation in one year after delivery of the goods.
7.4. Betz-Tools GmbH is not liable for material transferred for further
processing or for damages and costs arising from processing.
The same applies to material and appliances handed over to Betz-Tools
GmbH for storage.
7.5. In the case of sales transactions Betz-Tools GmbH is not liable
for technical alterations made by the manufacturer in production. The
devices conform to the relevant regulations in the manufacturer country.
If, in the case of certain applications, conformance with German protective
regulations has to be verified, it is the obligation of the customer
to ensure conformance with such regulations and to have the devices or
their installation inspected by an authorised institution at their own
expense before starting up.
§ 8 Reservation of ownership
8.1. Until all claims of Betz-Tools GmbH against the
customer now or in the future, for whatever legal reason, are fulfilled
(including all balance claims from a current account), Betz-Tools GmbH
shall be granted the following securities which Betz-Tools GmbH can release
at their own discretion on request insofar as their value continuously
exceeds the value of the claims by more than 20 %.
8.2. Until full payment of all claims the goods shall remain the property
of Betz-Tools GmbH. Mixing, processing or conversion shall always be
carried out for Betz-Tools GmbH as manufacturer but without any obligations
on the part of Betz Tools. If the (co-)ownership of Betz-Tools GmbH lapses
due to connection of articles it is hereby agreed that the (co-) ownership
of the customer in the composite article shall be transferred to Betz-Tools
GmbH on a pro rata basis (invoice value). The customer shall store the
(co-)owned property of Betz-Tools GmbH free of charge. Goods for which
Betz-Tools GmbH has (co-)ownership shall be referred to in the following
as conditional goods.
8.3. The customer is entitled to process and sell the conditional goods
in the course of orderly business as long as he is not in default. Pledging
of such goods or their transfer by way of security are not permitted.
The claims arising from the resale of the conditional goods or for any
other legal reason (insurance, unlawful action) are hereby fully assigned
by the customer to
Betz-Tools GmbH by way of precaution. Betz-Tools GmbH hereby accepts
this assignment. To secure its payment claims Betz-Tools GmbH is entitled
to disclose this assignment at any time. Betz-Tools GmbH revocably authorises
the customer to collect the claims assigned to Betz-Tools GmbH in its
own name for Betz-Tools GmbH account. This collection authorisation can
only be revoked if the customer fails to fulfil his payment obligations.
8.4. In the case of claims by third parties to the conditional goods,
the customer shall draw attention to the ownership of Betz-Tools GmbH
and immediately inform Betz-Tools GmbH accordingly. Costs and damages
shall be borne by the customer. The customer shall keep conditional goods
separate from his own property and mark it as such.
8.5. In the case of infringements of the contract by the customer – in
particular default in payment – Betz-Tools GmbH is entitled to
withdraw from the contract and to demand the return of the conditional
goods.
§ 9 Confidentiality
9.1. The customer is obliged to treat all confidential business and technical
information (in particular price agreements) received from Betz-Tools
GmbH with strict secrecy and in particular not to use such information
for purposes of competition but solely for the purpose of this contract.
Confidential information within the meaning of this agreement is all
business, financial, technical, legal or other information or documentation
provided verbally, in writing or in any other manner (particularly
in electronic form) unless such information is generally accessible
without infringing upon this agreement or was already known to the
customer without infringing on this agreement, which the customer must
prove.
9.2. The customer shall ensure that the provisions of this confidentiality
agreement are also observed by his employees, vicarious agents and consultants
even after termination of the respective contractual relationship between
the customer and the persons cited.
9.3. The customer shall inform Betz-Tools GmbH immediately if confidential
information provided by Betz-Tools GmbH was already known, or if information
which Betz-Tools GmbH regards as confidential has become known or if
he is required to disclose such confidential information by the courts
or other official bodies or is requested to do so by any other third
party.
9.4. This confidentiality agreement shall remain valid even after termination
of the respective contractual relationship.
§ 10 Data protection
Betz-Tools GmbH may record personal data from customers for its own purposes,
namely to provide the services required by the customer. Betz-Tools
GmbH is expressly obliged to process and use any such data exclusively
in compliance with German and European data protection laws. Betz-Tools
GmbH will observe data secrecy in every case. Betz-Tools GmbH may also
pass on such personal data to third parties who are involved in the
provision of Betz-Tools GmbH services. In this case Betz-Tools GmbH
shall oblige such third parties to observe the aforementioned restrictions.
If the customer passes on personal data of third parties to Betz-Tools
GmbH, he shall assure Betz-Tools GmbH that the parties concerned have
consented to the transfer and contractual processing or use by the
recipient.
§ 11 Concluding provisions
11.1. The law of the Federal Republic of Germany shall apply exclusively,
excluding the Viennese UN convention on the international sale of goods
(CISG) or any other bilateral or multilateral conventions on sale transactions.
11.2. If the customer is a merchant, legal entity under public law or
a special public fund the exclusive place of jurisdiction for all disputes
arising from this contract is the domicile of Betz-Tools GmbH. The same
applies if the customer has no general place of jurisdiction in Germany
or if his address or habitual residence are not known at the time of
bringing legal action. Betz-Tools GmbH is also entitled to bring legal
action before a court with jurisdiction for the domicile or offices of
thecustomer.
11.3. In the event that individual provisions of a contract concluded
on the basis of these General Terms and Conditions or these General Terms
and Conditions themselves should be or become invalid, this shall not
prejudice the validity of the other provisions. In such a case the parties
are obliged to replace the invalid provision by a valid provision which
comes as close as possible to the economic intention of the original
provision. If the parties cannot agree on the formulation for the substitute
provision within a reasonable period of time, the legal stipulations
shall apply. The aforementioned principles shall also apply analogously
if
a provision should prove to be unfeasible or incomplete.
Munich, März 2008
download: terms and conditions
