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of the companies OBO Bettermann Vertrieb Deutschland GmbH & Co. KG, OBO Bettermann Projekt und Systemtechnik GmbH, OBO Bettermann Export GmbH & Co. KG, the OBO Befestigungselemente GmbH, Flugplatzgesellschaft Arnsberg – Menden mbH, FAM Holding GmbH, Grundstücksverwaltung Bettermann GmbH & Co. KG, Produktionsgesellschaft Deutschland GmbH & Co. KG as well as OBO Bettermann GmbH & Co. KG
§ 1 General
(1.1) The general terms and conditions of business given below (hereinafter referred to as "AGB" or “VLB”) are applicable in the respectively latest version for all contracts signed and to be signed in future between the OBO Bettermann Vertrieb Deutschland GmbH & Co. KG, OBO Bettermann Projekt und Systemtechnik GmbH, OBO Bettermann Export GmbH & Co. KG, OBO Befestigungselemente GmbH, Flugplatzgesellschaft Arnsberg – Menden mbH, FAM Holding GmbH, Grundstücksverwaltung Bettermann GmbH & Co. KG, Produktionsgesellschaft Deutschland GmbH & Co. KG, as well as the OBO Bettermann GmbH & Co.KG (hereinafter referred to as "sellers") and the respective (possibly. future) contractual partners (hereinafter referred to as "Customer") regarding the sale and / or delivery of goods, as far as these are used against entrepreneurs, legal entities under public law and special assets governed by public law as defined in § 310 I BGB.
(1.2) It is pointed out explicitly that the local AGB also contain the additional conditions for plant engineering, if the contract is / should be signed with the OBO Bettermann Projekt und Systemtechnik GmbH. The additional conditions for plant engineering in this case are attached with the offer or with the acceptance of the offer and can also be viewed and stored in the Internet at http://cdn.obo.de/mailings/downloads/AGB_PuS_Anlagenbau.pdf.
(1.3) It is pointed out explicitly that AGB of the customer become an integral part of the contract only when these have been acknowledged in writing by the sellers. In particular, an inclusion through a conclusive behaviour is not effected to the extent that the customer discernibly refers to his AGB and the sellers do not contradict their validity.
(1.4) Insofar as the AGB of the customer have also become a part of the contract and contradict the AGB, the AGB of both parts become a part of the contract only when they match (principle of congruency). Disagreement arising from the contradicting AGB is to be interpreted primarily under consideration of the interests of both parties and a solution satisfying the interests of both the parties is to be found. If this is not possible, the legal regulations are applicable. Disagreements do not impact the effectiveness of the contract and of the AGB.
(1.5) Contracts or amendments of the contracts are effective only when they have been agreed upon in writing; to this extent, the written form not only serves the purpose of a proof, but is also a right-constitutive pre-requisite for effectiveness of the declaration of intent (constitutive written form). This also applies to an amendment of this written form clause. Informally signed contracts and contractual amendments are effective only when they have been signed by means of individually negotiated terms as defined in§ 305b BGB. It is clarified explicitly that the written form requirement is maintained by transmission through telecommunication (e-mail, fax) (see § 127 II, S.1 BGB).
(1.6) These VLB can be amended at any time for adaptation to changes in law, changes in judicature or in the event of essential changes to the economic situation. The amendments shall become effective to the extent that seller has notified customer of the new version of the VLB in a textual form with clear emphasis of the changes, seller makes reference as early as the notification of the new version that the changes also become effective without customer’s consent if customer does not contradict the changes in good time and a contradiction from customer is not made in good time within 2 weeks of receipt of the notification.
(1.7) The seller reserves the right to make technical changes in design, shape and material even during the delivery period, if the changes are reasonable for the customer and nothing on the contrary has been agreed upon.
§ 2 Offers
(2.1) Offers from the seller always are not binding and represent only a request for submitting a binding offer from the interested parties.
(2.2) Offers of the seller are, in case they do not contain any deviating data - subject to an adequate assurance of the order sum (e.g. through credit insurance or bank guarantee) - valid four weeks starting from the day of the proposal submittal.
(2.3) The documents belonging to the Offers such as diagrams, leaflets, drawings, dimensions, load capacity values and weight data are subject to deviations, which are usual in the industry and / or lie in the framework of the normal production tolerances.
(2.4) Samples are non-binding approval samples. Deviations, which are customary to trade and/or lie in the framework of the normal production tolerances, are reserved in case of purchase after sample. After receipt, samples are to be returned to the seller in a flawless state within four weeks, unless agreed upon otherwise. If the return is not done within this period or not in a proper way, the seller has the right to invoice the purchase price of the sample according to the latest price list.
§ 3 Protection rights
(3.1) The seller reserves the copyright for drawings and other design documents and data. These may not be made accessible to third parties, unless agreed upon otherwise, such as for the case that the data / drawings / images are also to be used for a web-shop.
(3.2) The customer guarantees vis-à-vis the seller that the manufacture and delivery of the goods made according to his instructions do not violate any third party protection rights. In case third party protection rights are asserted vis-à-vis the seller, the seller has the right without a legal check to withdraw from the corresponding contracts after hearing the customer; unless the third party declares the non-assertion of protection rights vis-à-vis the seller within eight days in writing.
(3.3) The customer must exempt the seller from the claims in the context of the assertion of protection rights of third parties. Services and expenses of the seller already made are to be compensated or reimbursed in case of assertion of third-party protection rights regardless of their maturity.
§ 4 Prices and payment modalities, notification duties
(4.1) The prices mentioned in the offers and documents of the seller are the ex-factory or the ex-warehouse prices of the seller. The prices do not include the respectively applicable value-added tax, the cost of packing, loading and unloading, freight, customs, insurance, dismantling, return and proper disposal of electrical and electronic old devices for commercial purposes as defined in the ordinance for waster electrical and electronic equipment, unless agreed upon otherwise. Fees, taxes or other expenses in the context of the delivery will be borne by the customer. Unless agreed upon otherwise, the delivery taken over from the seller does not include the unloading and bringing the goods.
(4.2) The unit prices mentioned by the seller in an offer are valid only upon placing a purchase order for the complete delivery scope given in the respective offer or for the actual service offer. In case of a purchase order deviating in quantity or in scope from the offer of the seller, the prices listed in the offer are not applicable to the seller.
(4.3) Payments, which are made within 10 (ten) days after receiving the invoice, with the exception of payments made by means of exchange are to be made with 2 (two) percent net cash discount; later incoming payments within 30 (thirty) days from the date of the invoice are to be made net without cash discount. Mounting services as well as all wage work are to be paid without cash discount within 10 (ten) days. Incoming payments are credited at first against costs, then against interest and then against the longest due liability.
(4.4) All invoices - subject to different written agreements in the individual case - are payable by within 30 (thirty) days of the invoice without deduction; a default of payment occurs after this. Payments are to be made only to the accounts of the seller mentioned in the invoice in the agreed upon currency by mentioning the account number. For payments of all kinds, fulfilment is said to occur on the day, on which the payment becomes available to the seller without restriction. The seller is not committed to accept bills of exchange or cheques. However, if these are acknowledged, they are then accepted only subject to the possibility of discounting against the payment of all expenses on account of performance (see § 364 II BGB). Similarly, the seller is also not obliged to provide timely notification of changes and checks as well as to raise protests.
(4.5) The customer ensures the correctness of his sales tax identification number, which is to be informed immediately and without being asked. The customer is committed to inform immediately about each change in his company name, his address, the delivery address and his sales tax identification number to the seller as well as to the responsible financial authority of the country.
(4.6) The seller has the right to adjust his prices, if needed, to the normal level in the market, if wages, material prices or taxes increase in the period between signing the contract and executing the order. In case of an increase in stock exchange listing for NE metals, the seller has the right to charge the difference applicable on the day of receipt of the order in the form of a surcharge for products containing copper, silver or brass. In case of further changes in stock exchange listings, the seller has the right to correct the calculated basis for the list prices.
(4.7) The prices of the products containing brass and copper are subject to certain fluctuations, which are based on the respective DEL quotations. The prices of brass articles are based on a DEL quotation of Euro 150.00 for Ms 58, those of copper products are based on a DEL value of Euro 200.00 for electrolyte copper. In case of an upward or downward change of these rates by more than Euro 15.00, a five percent surcharge or deduction is credited for each 15 (fifteen) points. For calculating the surcharge or the deduction the respective DEL note of the date is taken as the basis, on which the seller received the offer.
(4.8) In case of payment default by the customer, the seller has the right to charge default interest amounting to 9 (nine) percentpoints p.a. over and above the respective base interest rate as per § 247 BGB. The asserting of a further damage caused by delay remains reserved.
(4.9) The customer is entitled to the rights of set-off or rights of retention only when counter-claims have been recognised by declaratory judgement or are undisputed.
(4.10) If an application has been filed for initiating insolvency proceedings over the assets of the customer, the customer has initiated an out-of-court process for debt settlement, has stopped his payments or else the seller is aware of other circumstances, which essentially reduce the credit-worthiness of the customer and which jeopardise the rendering of the services by the customer, the seller has the right to demand security through advance payment or bank (choice of the customer) guarantee for the deliveries still pending by setting a notice period of one week and to refuse the rendering of his services till the security is paid. After a suitable notice period has elapsed in vain, the seller further has the right to withdraw from the contract as well as to demand indemnity. Moreover, in this case, the seller can also demand the resale authorisation along with direct debit authorisation as per § 8.8 as well as the revoke the right of processing, bonding and mixing the already delivered goods according to §§ 8.4-8.5 as well as demand the return of the delivered goods according to §§ 8.8-8.9.
(4.11) If the legal situation at the time of the conclusion of the contract decisively changes or if control of customer or of a considerable part of its holdings passes to other natural or legal entities, customer shall be obliged to notify seller without delay.
(4.12) In order to have a tax-free delivery and, alternatively, not having to include sales tax in all invoices and thereafter to pay the sales tax after receiving the papers, the customer must bring forth the proof of delivery. To do this, he has to demonstrate the delivery of goods by sending the corresponding original document within 4 (four) weeks to the seller after pick-up / dispatch of the goods. In case the seller does not receive this document within the mentioned period, he has the right to charge the customer the sales tax on the net goods value valid for this period.
(4.13) Invoice reductions, differences, debit advices or other disagreements do not change the original term of payment of the invoice. All indisputable receivables, not affected by disagreements, become due for payment according to the original invoicing. All credit advices created by the seller for settling the differences do not change in any way the original term of payment of the invoice.
§ 5 Delivery
(5.1) Packaging, dispatch route and means of transportation are generally based on the graded lump-sum prices; the regulations of § 4.1 are applicable in addition. The seller charges the costs for packaging, dispatch route and means of transportation.
(5.2) A carriage-paid delivery i.e. a delivery without freight and packaging costs within Germany, is done for free starting with a net order value of Euro 2,500.00. It is made clear that a delivery is "free to the door" when the carrier opens his vehicle at the agreed upon unloading point and makes it available for unloading. The unloading as well as the on-site delivery of the goods is to be done by the customer.
(5.3) Undamaged returnable load carriers are taken back by the seller in case of freight-free provision. The pool pallets used for transportation are to be exchanged with the freight carrier or are to be returned. Details of the processing are given in the respectively applicable loading equipment handling of the seller, which can be stored permanently in the Internet at http://cdn.obo.de/mailings/downloads/Packschema_Ladehilfsmittel.pdf and are a part of this contract.
(5.4) The smallest selling units defined in the article master data are binding. Goods ordered below the smallest selling unit are rounded off automatically i.e. without consulting the buyer, to the next higher smallest selling unit.
(5.5) The seller reserves the over and under-deliveries, in particular in case of order-related production in the market-based scope or the as per the national or international standard. In case of a demand for adhering to precise quantity, an explicit instruction is necessary, which must be confirmed.
(5.6) The seller has the right to partial deliveries, but is not committed, if the partial deliveries are reasonable for the customer. Partial deliveries can be invoiced separately.
(5.7) The customer cannot reject excess or reduced services in a reasonable scope. The complaint of an excess or reduced service does not justify the rejection of further deliveries from the same or from another contract. In case of custom-made products the seller reserves an excess or under-delivery of 10% of the ordered quantity. In each case, only the actually delivered quantity is invoiced.
(5.8) Blanket and call orders commit the customer for accepting the total quantity underlying the blanket and call orders. In case no specific call orders result from the contract or from any other agreement, the total quantity of the blanket or call order is to be called within 3 (three) months. If the customer does not adhere to the call dates, the seller has the right to completely deliver the total quantity to his house address and to invoice it 4 (four) weeks after written declaration by indicating the consequences of the omitted call. The rights of the seller from default of the customer remain unaffected.
(5.9) The delivery commitment of the seller is subject to the provision of defect-free and on-time self-delivery, if the seller procures the goods as a whole or parts of product from a sub-contractor. This does not apply, if the seller is responsible for the non-delivery or for the delay.
(5.10) Events, such as those below, for which the seller is not responsible in the scope of the normal operating risk and which make the (partial) delivery essentially difficult or even impossible, entitle the seller to postpone the (partial) delivery by the duration of the hindrance together with suitable start-up time or alternatively to withdraw from the contract. In each case, the customer can demand a declaration from the seller, whether he will deliver within a suitable time period according to the circumstances or whether he will withdraw. The delivery periods gets extended in case of events such as industrial conflicts, strikes and lockouts, regulatory actions, material procurement difficulties, scrap or rework, business disruptions and lack of staff, lack of means of transportation as well as upon occurrence of other unforeseen events, on which the seller has no influence, by the duration of these events.
(5.11) Even in case of dispatch readiness , the customer comes in default of acceptance, if in case of delivery ex-factory/warehouse or agreed upon pick-up obligation the delivery is offered to him by the seller only in writing or else the customer has declared that he will final not accept the delivery.
(5.12) Products reported as ready for dispatch as per the contract must be accepted immediately by the customer. Otherwise, the customer comes in default of acceptance so that the seller - his other rights notwithstanding - has the right either to dispatch the goods at the cost and risk of the customer or to store them and invoice them upon the expiry of a notice period of one week. The same applies, if the goods are not called or not called completely within the decisive call period (see § 5.8).
(5.13) For the case that the customer comes in default of acceptance or violates other service or participation duties, the seller has the right to demand the damages caused to him including possible extra expenses.
(5.14) If the customer defaults with the fulfilment of the obligations arising from the aforesaid regulations by more than one month, the seller can - further rights notwithstanding - demand from the customer a contractual penalty of 5 (five) percent of the invoice value instead of contract fulfilment and dispose of the stored goods in any other way under consideration of the interests of the customer or scrap the goods. The contractual penalty is charged at a reimbursement of damages or expenses to be paid by the customer. A bulk discount granted on earlier deliveries based on this contract is then to be paid back later by the customer.
§ 6 Delivery periods and dates
(6.1) Delivery periods and dates apply only approximately unless something to the contrary has been agreed upon.
(6.2) The adherence to delivery periods and dates requires the on time fulfilment of the contractual obligations of the customer. Delivery periods start with the date of order confirmation by the seller, but not before clarifying all details of the execution of the order and receipt of all documents necessary for the order execution and other information to be made by the customer as well as the receipt of an advance payment agreed upon. If these requirements are not fulfilled on time, the delivery periods and the dates get extended accordingly. This is not applicable if the delay is caused by the seller. The delivery period shall be deemed to have been met, if the goods leave the plant or the warehouse at the appointed time or the dispatch readiness of the customer is reported, but the goods cannot be dispatched on time without a fault of the seller. The aforesaid regulations apply accordingly to delivery dates.
(6.3) In case of a later amendment of the order desired by the customer, the seller can demand an appropriate extension of the delivery periods and dates. If the delivery is delayed upon request or by fault of the customer, the goods are then stored at the cost and risk of the customer, unless agreed upon otherwise.
(6.4) Regulatory and other third party approvals, necessary for executing the assets or deliveries e.g. for the purpose of import are to be obtained by the customer. If such approvals are not present at the right time (i.e. at the start of the fulfilment negotiations / acts by the seller), then the delivery period gets extended accordingly.
(6.5) The seller has the right to carry out partial deliveries as well as deliveries before due date and to settle them separately. If the delivery is agreed upon call, the goods are then considered as called latest by three months after placing the order, unless agreed upon otherwise. The customer then has an obligation to accept the delivery, upon whose violation the seller in particular has the right to store the goods with a third party at the cost and on behalf of the customer or to deliver them at the address of the customer.
(6.6) In case of articles manufactured by the seller on order, the customer is obliged to accept the same. It is agreed upon explicitly that in case of a withdrawal of the customer from the contract, the customer must bear the costs accruing till the time of the withdrawal.
(6.7) Unforeseen events not under the control of the seller, such as war, risk of war, unrest, use of violence by third party against persons or objects, sovereign interventions including currency and trade-related measures, industrial actions at the place of the seller or his suppliers or transportation companies, disruptions of the intended traffic connections, fire, scarcity of raw material, shortage of power and other disruptions of the seller through no fault of one's own extend the agreed upon delivery periods and dates by the duration of the hindrance. This also applies, if the seller is already in default of delivery or of the performance hindrances mentioned above were already present before signing the contract, but were not known to the seller. The seller will inform the customer immediately about the hindrances of the aforesaid type.
(6.8) If the delivery delays cause by these factors last for more than two months, both sides have the right to withdraw from the contract. However, the customer can withdraw only when the seller does not declare upon his request within a notice period of one week, whether he will withdraw or delivery within a suitable period. The same right of withdrawal arises independent of the aforesaid period, if the execution of the contract has become unreasonable for one of the parties under consideration of the delay that has occurred.
§ 7 Return delivery of goods
(7.1) A claim of the customer for return of the goods not needed arises - except for warranty cases or other return obligations resulting from the law - only after a prior written approval of the seller. Return requests, whose net goods value - before sales tax - is less than Euro 15.00 for each item, cannot be accepted and processed. Credit notes or charges resulting from returns can be maximum up to 70 (seventy) percent of the net goods value.
(7.2) In addition, the conditions and conditions set out below shall be complied with pursuant to §§ 7.3-7.6 and no case of § 7.7 shall exist.
(7.3) A return is permitted till maximum 12 (twelve) months after the date of delivery and only by specifying the delivery note or invoice number of the seller.
(7.4) A product currently in the catalogue is to be returned in a flawless state so that it can be resold. A product is to be returned unused, undamaged, in original packing as well as in complete packaging units. The minimum value for accepting each item in the warehouse is Euro 15.00.
(7.5) The return must be reported and confirmed by the seller in writing with a return number. If needed, an inspection of the product is done by the seller at site, which the customer has to allow. The return confirmation of the seller is to be attached with the dispatch. The return is done free of charge. A remuneration is paid via credit note. Only approved articles in a flawless condition are credited. Debit notes of the customer are not permitted.
(7.6) For handling and checking in the scope of the quality management system ISO:9001, the seller charges a lump-sum processing fee of 30 (thirty) percent of the affected goods value. The seller bears the necessary costs for the new packing and cleaning of the goods.
(7.7) Custom-made products, not listed / inactive articles and discontinued types, packaging units with a shortfall and old executions are not taken back.
(7.8) If one of the points mentioned under § 7.7 is relevant, the returned product is scrapped after consulting with the customer and expiry of a suitable period set for the customer.
§ 8 Reservation and structure of ownership / Reservation of proprietary rights and property relations
(8.1) The seller retains the ownership of the delivered objects till the receipt of all payments from the business relationship with the customer. The reservation of ownership also extends to the recognised balance, if the seller posts receivables vis-à-vis the customer in the current invoice (current account retention).
(8.2) The dies, tools, design documents and other similar objects delivered by the seller for executing the order also remain the property of the seller. In particular, no ownership rights follow from the fact that the customer has contributed towards the costs of manufacturing the dies, tools, design documents and other similar objects.
(8.3) The customer is committed, as long as the ownership has not been transferred to him, to handle the purchased object properly and to identify it clearly and permanently as property of the seller. He is especially committed in case of high quality products to insure these at the new value adequately against theft, fire and water damages at his own cost. In case of doubt, the customer must obtain information from the seller. If maintenance and inspection work is to be done, the customer must carry these out on time at his cost.
(8.4) The processing or restructuring of the delivered objects by the customer is done always for the seller as manufacturer as defined in § 950 BGB (manufacturer's clause), but without committing him. If the delivered objects are processed with other objects not belonging to the seller, the seller then acquires the co-ownership of the new object in the ratio of the value of the delivered object to the other connected or joined objects at the time of processing. The object arising from processing must be handled as the goods subject to retention of title.
(8.5) If the delivered objects are processed with other objects not belonging to the seller, are connected or joined inseparably, the seller then acquires the co-ownership of the new object in the ratio of the value of the delivered object to the other connected or mixed objects at the time of connecting or joining. If the connection or joining is done in a way that the product of the customer is to be considered as the main product, the customer then transfers the co-ownership to the seller proportionately. The offer directed towards this is accepted explicitly.
(8.6) The customer is committed to take charge of the (co-) ownership of the seller free of cost and with proper business care; it is to be treated like goods subject to retention of title. In doing so, the customer is committed to show the care over and above the one he shows in his own matters.
(8.7) Before the transfer of ownership, the product of the seller may neither be mortgaged nor pledged as security without a written permission. The assertion of third party rights on the product is to be informed immediately to the seller. In addition, all information necessary in this case for a possible intervention of the seller is to be given and the documents and other correspondence necessary for this must be handed over. If the customer does not fulfil the requirements, the damages arising from this are charged to the customer. In this case, all claims against the customer become due immediately.
(8.8) As long as the customer goes according to the contract i.e. fulfils his contractual payment obligations, the customer has the right to sell further or use the delivered objects in the scope of proper business transaction and to collect the corresponding receivables after assignment of claim. Otherwise, the authorisation can be revoked. If the goods are sold before paying the receivables of the seller, the customer is then committed to preserve and secure the ownership rights of the seller till the complete repayment of the receivables. To do this, he surrenders all receivables to the seller (the receivables arising from the resale as well as the ancillary rights and security interests of the customer from the resale, and possible indemnity claims owing to damage and destruction of the goods subject to retention of title, which also includes an insurance sum in place of the retention of title) amounting to the final invoice amount (including VAT), which accrue for the customer from the resale to his customers or to third parties, regardless of the fact whether the delivery objects have been resold without or according to the agreement. The assignment of claim is accepted here explicitly. In case co-ownership of the customer is sold, the assignment of claim of the receivable extends to the amount, which matches the share value of the seller. The customer is authorised to collect the receivables even after surrendering them. The authority of the seller to collect the receivable himself remains unaffected by this; however, the seller is committed not to collect the receivable as long as the customer fulfils his payment obligations in a proper way and does not come in default of payment. In each case the seller can demand that the customer discloses the collected receivables and their debtors as well as provides all information necessary for the collection, hands over all the documents necessary for this and notifies the surrender to the debtors (third parties). In this case the seller - other rights notwithstanding - is especially entitled to take the delivered objects (or their substitutes) provisionally at the cost of the customer and to utilise the delivered objects (or their substitutes) after giving reminders according to dutiful discretion, whereby a corresponding credit (minus the costs of utilisation) is granted to the customer.
(8.9) The customer has no right to the other dispositions over the goods subject to retention of title, in particular to a hypothecation or a security pledging. The authorisation of the customer can further be revoked by the seller in case of violation of duties from §§ 3, 8 as well as non-payment of the invoice. In these cases, the processing of the goods subject to retention of title and their connecting or joining with other products is also prohibited to the customer as well as the seller has the right to take back the delivered objects; the customer is committed to surrender / take the goods back. The taking back of the delivered objects by the seller implies a withdrawal from the contract. A withdrawal from the contract also lies in the garnishment of the delivered objects. In case of garnishments or other third party interventions, the customer must inform the seller immediately in writing.
(8.10) Apart from this, the seller can, if the customer defaults with his payment obligations vis-à-vis the seller for longer than three months, demand the goods subject to retention of time at the cost of the customer and collect the receivables and other claims surrendered to the seller. Moreover, the seller can - if there is still a security interest of the seller - utilise the goods subject to retention of title for satisfying his claims according to discretion as per the duty at the cost of the customer. The profit gained with the deduction of the utilisation costs is offset against the open receivables of the seller vis-à-vis the customer –starting with the latest receivable that is due.
(8.11) The seller is committed to release the securities, to which he is entitled upon request by the customer to the extent that their value exceeds the receivables to be secured, in case these are not compensated, by more than ten (10) percent.
(8.12) With the repayment of all claims of the seller by the customer, all surrendered claims along with ancillary rights and security interests are transferred again to the customer.
§ 9 Warranty and warranty exclusion
(9.1) The customer must check the delivered product immediately with a thoroughness reasonable for him and - if necessary, through a sample processing - check the texture of the delivered product and complain about the ascertained defects immediately in writing (as far as possible and reasonable, by submitting reference samples) and by specifying the invoice, manufacture and dispatch number. Hidden defects are to be complained in the same way. Else, the product is considered as approved unconditionally. Possibly further obligations of the customer according to § 377 HGB remain unaffected.
(9.2) Obvious defects, caused through transportation by the carrier, must be noted by the customer in the bill of lading of the carrier so that a later recourse of the seller against the carrier becomes possible.
(9.3) Minor deviations in dimensions and execution, present in the scope of technically specified tolerances, do not justify a complaint.
(9.4) The warranty does not include those defects that are caused by arrangement and mounting not done by the seller, improper installation, non-adherence to installation requirements and usage conditions, overload on the parts over and above the performance specified by the seller, negligent or incorrect handling and use of inappropriate operating materials; this also applies to defects caused by the material provided by the customer. The seller is also not responsible for damages, which are caused by third party handling, by atmospheric discharges, overstress and improper chemical influences. The warranty does not include the use of parts, which are subject to a natural wear. This does not apply, if the defect is caused by a condition not mentioned above.
(9.5) The seller also has the right to refuse a supplementary performance in the case and as long as the customer does not allow any proper checking of the complained defects by the supplier.
(9.6) In case of a justified and on-time complaint of defects, the seller rectifies the defect upon request and choice of the customer during a supplementary service either by removing the defect or by delivering a defect-free product.
(9.7) The time limitation of defect complaints is - regardless of §§ 307 No. 7 a) and b) BGB, the liability in case of intention, the malicious concealment of a defect and existence of a quality guarantee (§ 444 BGB) - one year starting from the handover; in the cases as per § 438 I, No. 2 b) BGB (possibly together with § 651, S.1 BGB) or § 634a I, No. 2 BGB five years after handover / acceptance (in the case of structures and in the case of a product which has been used for a building according to its normal use and which has caused its defect).
(9.8) Further, the indemnity claims are restricted according to specification of § 10.
§ 10 Exclusion of liability and Statute of Limitation
(10.1) Explicitly ruled out from the liability exclusions and restrictions given below are the injuries to life, body and health, caused by an intentional (§ 276 III BGB) or negligent (§ 276 II BGB) breach of duty of the seller or an intentional or negligent breach of duty of the legal representative or agents (§ 278 BGB) of the seller, as well as for other damages, which are caused by a grossly negligent breach of duty of the seller or an intentional and grossly negligent breach of duty of a legal representative or agents of the seller as defined in §§ 309 No. 7 a) and b) BGB. Moreover, the liability exclusions and restrictions given below do no apply in case of take over of a guarantee for the texture or durability of the product as defined in § 444 BGB and in case of a malicious concealment, as well as in case of a mandatory liability according to product liability law and insofar as an obligation, the fulfillment of which allows the proper performance of the contract, and on whose compliance the contractual partner may regularly trust and trust (cardinal obligation) is violated.
(10.2) The seller, his representatives and his agents are liable in case of a violation of non-essential contractual obligations only for intent and gross negligence.
(10.3) A claim of the customer or third part for the payment of contractual penalty is ruled out.
(10.4) For damages caused by delay, the seller is liable in case of simple negligence only up to an amount of 5% of the agreed upon purchase price.
(10.5) If a product is manufactured by the seller based on design specifications, drawings, models or other specifications of the customer, the liability of the seller then extends only to the execution as per the conditions. There is no obligation of the seller to warn in case of lack of suitability of the design specifications, drawings, models or other specifications made available by the customer.
(10.6) In case of non-adherence to conditions for mounting, commissioning and usage (such as the ones given in instructions for use) or the regulatory permit conditions all indemnity claims are ruled out.
(10.7) If the seller makes available samples or specimens to the customer or receives these from him, specifies analyses, DIN provisions, other domestic or foreign quality standards or provides other information about the texture of the product, these are meant only for a detailed description of the services to be provided by the seller. This is not connected with a guarantee of quality. The seller is especially not committed to check, whether the product serves the intended purpose specified by the customer or is suitable for it.
(10.8) All indemnity claims, no matter for what reason, expire latest by one year after the handover of the product to the customer. In case of a criminal liability, the time limitation starts from the knowledge or grossly negligent ignorance of the conditions and identity of the liable person justifying the claim. Shorter time limitation periods take precedence.
§ 11 Unauthorised withdrawal
If the customer withdraws from the contract in an unauthorised way or else refuses to accept the delivery or service in an unauthorised way, the seller has the right to demand 30 (thirty) percent of the agreed upon price as lump-sum indemnity without special proof, if the lump-sum amount typically does not exceed the damages to be expected. The proof remains open to the customer that no or a lower damage than the lump-sum damage accrued for the seller.
§ 12 Prohibition of assignment
The customer may concede his claims from this contract made against the seller to a third party only with his prior written consent.
§ 13 Jurisdiction and place of fulfilment
(13.1) Jurisdiction for all disputes, also for bills of exchange and cheques, is the District Court Menden or the District Court (Land Court Arnsberg. However, the seller also has the right to sue the customer at his head-office.
(13.2) Place of fulfilment of the delivery, all services and payments of the companies OBO Bettermann Vertrieb Deutschland GmbH & Co. KG, OBO Bettermann Projekt und Systemtechnik GmbH as well as OBO Bettermann Export GmbH & Co. KG is Iserlohn (Sauerland), and of the companies OBO Befestigungselemente GmbH and OBO Bettermann GmbH & Co. KG is Menden (Sauerland).
§ 14 Other provisions
(14.1) The seller has the right to process and save the data about the customer received in course of the business relation according to the Federal Data Privacy Act, no matter whether these data originate from the customer or from third parties.
(14.2) German law is applicable exclusively. In particular, the application of the UN Convention on Contracts for the International Sale of Goods is ruled out.
(14.3) All agreements made between the parties for the purpose of executing this contract are documented in writing in this contract.
(14.4) In the case of differences between the English and the German version, the German version of the AEB shall prevail.