General Terms and Conditions of Bette GmbH & Co KG in 33129 Delbrück/Germany
§ 1 Scope of application
These General Terms and Conditions (hereinafter also referred to as GTC) shall apply to all contracts of sale concluded between us (hereinafter also referred to as Seller) and you as our customer (hereinafter also referred to as Buyer or Last Seller) in accordance with § 1 number 2 of these GTC. The GTC apply exclusively to companies pursuant to § 14 BGB (German Civil Code) or merchants pursuant to § 1 ff HGB (German Commercial Code) as customers. These conditions, which can also be accessed at any time on the Internet at www.my-bette.com or made available on written request, apply to all present and future contracts and business relationships between Seller and Buyer. If the GTC have in accordance with §§ 305 ff BGB been effectively included by us, as the user of these GTC, as part of the first-time conclusion of a contract, they shall also apply to any further contracts within the current business relationship.
Purchase contracts are all contracts that have as their object the sale of movable goods where the focus is on the transfer and procurement of ownership in accordance with §§ 433 paragraph 1, 929 BGB. This also includes deliveries, manufacture and planning by Seller if and to the extent that Buyer installs the goods or has them installed by third parties, even if initial operation is based on final settings and/or adjustment and final acceptance by Seller. Seller's recommendations communicated in this context are exclusively product-related and limited to product properties. Recommendations and statements by Seller that relate to specific construction projects and/or enquiries of Buyer and are to be regarded as a preliminary stage to the delivery of plant components or products to be manufactured as the focus of the contract shall not qualify the services as a contract for work and services. Rather the focus of the contract shall in such cases be on the delivery of movable goods and shall qualify the contract as a contract for work and materials. The fact that system parts or products are intended to be assembled into a system and then permanently installed on land or as an integral part of a building shall not prevent them from being classified as movable property within the meaning of § 650 BGB. The decisive factor is whether the goods are movable at the time of delivery.
All agreements made between Seller and Buyer in connection with the purchase contract shall be based on these GTC, Seller's written order confirmations and Seller's declaration of acceptance.
The version of the GTC valid at the time of conclusion of the contract shall apply.
Deviating, conflicting or supplementary terms and conditions of Buyer or other agreements between the parties shall not form part of the contract unless their validity has been expressly agreed in writing or confirmed in the order confirmation. Silence in respect of a contractual declaration by Buyer stating deviating terms and conditions and/or new conditions and regulations shall not constitute commercial or other confirmation.
Sales representatives, whether salaried or freelance, and service/application technicians of Seller are not authorised to agree to deviating terms and conditions within the meaning of § 1 paragraph 4 of these GTC or to issue or accept declarations of intent as part of legal transactions.
§ 2 Contract formation, acceptance
The presentation and advertising of articles from the programme, website, advertising, brochures and other printed products in digital and offline media of the Seller shall not constitute a binding offer to conclude a sales contract.
A contract is only concluded when Seller accepts an order enquiry by means of a declaration of acceptance or order confirmation or by delivering the ordered items. In the latter case, the order confirmation will be replaced by Seller's invoice.
The properties of samples, models and templates provided by Seller shall become part of the contract only where contractually agreed between Seller and Buyer (sample as subject of a product specification). In this case, if samples are expressly made the subject of a product specification, deviations from the sample due to production or manufacturing conditions or product development processes are expressly reserved.
In the case of call-off orders, Seller is entitled to procure the material or the goods for the entire order and to manufacture and/or purchase the entire order quantity immediately and Buyer shall accept the object of purchase at first offer. Any changes requested by Purchaser can therefore no longer be taken into account after conclusion of contract, unless expressly agreed otherwise between Purchaser and Seller in writing or such changes can be reasonably accommodated by Seller. Price and delivery date adjustments are in such cases expressly reserved.
The concluded contract is binding and cannot be changed unilaterally by Buyer.
Buyer shall accept the goods in accordance with § 433 paragraph 2 BGB within the framework of the agreement reached and, in accordance with § 280, 286 BGB, shall reimburse any loss caused by delay, in particular additional storage and delivery costs. In the absence of timely acceptance after the agreed delivery dates or delivery periods, Buyer shall owe a contractual penalty of 0.3 % of the net delivery price per working day of delay, but not exceeding 5 % of the net delivery price, unless Buyer is not responsible for the delay. Any other claims for damages shall be offset against this contractual penalty. This shall not affect any further reimbursable loss or expenses.
Delivery dates and delivery periods shall be binding only if agreed in writing or in text form. Delivery dates that are clearly marked as non-binding, in particular by information or additions from Seller such as "approx.", etc., shall be non-binding. Delivery periods shall commence upon receipt by Buyer of confirmation of order. In the event of valid changes to order, the delivery period shall recommence upon receipt by Buyer of the amended order confirmation only if and to the extent that Seller expressly confirms the delivery periods in the amended order confirmation. In the event that Seller is culpably unable to comply with an expressly agreed contractual period or is in default for other reasons, Buyer shall grant a reasonable grace period, commencing on the date of receipt by Seller of written notice of default or, in the event that the period is specified by the calendar, on that date. After fruitless expiry of this period, Buyer shall be entitled to assert statutory claims. If delivery is delayed due to circumstances for which Seller is not responsible, e.g. strike (including at Seller's supplier) or force majeure, Buyer shall be informed immediately if possible and Seller shall not be obliged to pay damages or reimbursement of expenses at least in this case. Force majeure within the meaning of these contractual conditions shall also apply if circumstances have occurred at suppliers (and their suppliers) of Seller or at Seller itself that are not to be expected in the normal course of business. This includes, for example, the destruction and cessation of the means of production/manufacturing facilities due to e.g. fire, flood, extraordinary storm events (extraordinary in this context is if no comparable storm has occurred in the region concerned in the past five years) or a supply bottleneck for a necessary raw material due to a market-wide shortage of raw materials or if there are officially ordered plant shutdowns that are not attributable to culpable conduct on the part of Seller. If delays are considerable and if waiting is unreasonable for Buyer, Buyer is entitled to withdraw from the contract in writing after setting an ultimate written deadline, unless delivery is impossible or is a fixed transaction, i.e. Buyer's interest in the goods stands and falls with the delivery date. In the event that Seller obtains the goods from a third party or a manufacturer within the framework of a commercial transaction or a buyer who is an entrepreneur or a business person, the contract shall be subject to termination due to the lack of delivery by the contractual partner and Buyer shall not be entitled to compensation for damages or expenses. Should delivery be delayed for the aforementioned reasons – without performance being or becoming impossible – only to an extent reasonable for Buyer (generally 21 days beyond the agreed delivery date), Buyer shall not be entitled to the aforementioned rights, unless with respect to an absolute transaction for delivery by a fixed date. If the new delivery date or the delay is no longer reasonable for Buyer, Buyer may withdraw from the contract in writing after expiry of a reasonable grace period.
If the goods are dispatched by Seller via a logistics company commissioned by Seller, risk shall transfer to Buyer on transfer to a competent and hitherto reliable transport agent. In the event of damage to or destruction of goods after delivery to the carrier for reasons for which Seller is not responsible, Seller shall not be obliged to re-supply the goods and Buyer shall pay the purchase price. In this respect, Seller shall assign to Buyer its claims for damages against the logistics company but shall not to assert any claim against the logistics company on behalf of Buyer subsequent to authorisation. During delay of Buyer in accepting goods, Seller shall be liable only for intent and gross negligence. If a product/item of a specific type is owed, risk shall pass to Buyer at the point at which Buyer is in default for non-acceptance of the product/item offered, § 300 BGB (German Civil Code).
The goods intended for installation must be installed by Buyer or by a specialist company commissioned by it (specialist engineer for sanitary equipment) independently of this contract. If Buyer is the final seller and its customer (end customer) is obliged to install the goods or products of Seller in fulfilment of a contract concluded with a third party, Buyer or the final seller shall impose on its customer (end customer) the provisions of section 9 of these GTC as below. If the goods are not installed professionally or in accordance with the installation conditions and installation descriptions, or if modifications are made to the goods supplied or to the installation materials by Buyer, a third party commissioned by Buyer or the end customer, warranty claims against Seller and claims under §§ 439 Para. 3, 445 a Para. 1 BGB shall be excluded, as in such cases the item is no longer the same as the purchased item. Buyers and end customers must inspect the goods or products immediately in accordance with § 377 HGB (see also below). Buyer understands this and shall inform its customers (end customers) that, in the course of the manufacturing process of Seller's high-quality products, it cannot be guaranteed that the areas behind the flanged edge (rear side of the surrounding vertical edge section of the bathtubs, shower trays, shower areas and washstands) that are not exposed to direct water contact during professional installation and assembly will have a complete glazing of the titanium steel. In order to ensure that no moisture/water can get behind the flanging edge, which due to manufacturing conditions does not have a complete glaze, it is the responsibility of Buyer or the end customer to fully comply with the installation instructions and product descriptions and to make no changes to the sealing interfaces. This is the only way to prevent any subsequent corrosion damage. In this respect, a production-related and unavoidable glaze of the titanium steel in the area behind the flanging edge that does not cover the entire surface or the entire circumference shall not be deemed a defect in the delivered goods/product.
§ 3 Further terms of delivery and reservation of prepayment
The Seller shall be entitled to make partial deliveries, insofar as is reasonable for Buyer and nothing else has been confirmed in the order confirmation as agreed.
In the case of orders from Buyers with their place of residence and business abroad or if there are well-founded indications of a possible risk of non-payment by Buyer, Seller expressly reserves the right to deliver only after receipt of the purchase price plus shipping costs (prepayment reservation). If Seller exercises its right to prepayment, Buyer will be informed immediately. In this case, the delivery period shall commence only on payment of the purchase price and shipping costs.
§ 4 Prices and despatch costs
The prices quoted by Seller are in euros ex works and do not include transport or packaging costs or VAT or, in the event of export deliveries, customs duties or fees or other public charges.
If under § 4 paragraph 1 of these GTC Seller fulfils orders of Buyer by means of partial deliveries, Buyer shall incur shipping costs only for the first partial delivery. If partial deliveries are made at Buyer's request, Seller shall charge the shipping costs for each partial delivery.
§ 5 Terms of payment, acknowledgement, set-off and right of retention
The purchase price does not include statutory sales tax.
Invoices of Seller shall be payable in accordance with the terms and conditions agreed separately with Buyer or in the absence of such terms and conditions immediately. The date of payment shall be the date on which the money is received by Seller or credited to Seller's account. Buyer shall be in default of payment ten days after delivery even without a reminder from Seller. Seller is entitled to payment concurrently with delivery of goods. If a cash discount has been agreed it shall be based on the net amount and permissible only if all other obligations over 30 days old arising from Buyer's commercial relationship with Seller have been met in full.
Payments that are not sufficient to settle all liabilities arising from the continuing business relationship or in respect of an individual order shall initially be set off against the older liability. Seller shall inform Buyer of the set-off. If costs and interest have already been incurred, the payment shall first be set off against the costs, then against the interest and finally against the principal performance.
In the event of default by Buyer, Seller shall be entitled to retain deliveries or services under the ongoing business relationship with the Buyer until payment is made in full. Buyer may forestall this right of retention by providing a directly enforceable and unlimited guarantee from a German bank or cooperative bank or from a municipal credit institution (affiliated to a bonded security fund) covering all claims due to Buyer. If payments are deferred and made later than originally agreed, Buyer shall owe default interest for the deferment period in accordance with the provisions below.
The invoice sent to Buyer shall be deemed accepted if Buyer does not object to it within 30 calendar days of receipt of the invoice and if this legal consequence has been pointed out separately and prominently in the invoice.
Buyer shall for the period of the delay pay interest on the monetary debt at a rate of nine percentage points above the respective base interest rate plus a processing fee of €25.00, §§ 247, 288 BGB.
Buyer shall have the right of offset only where its counterclaims are legally established or are due and uncontested.
§ 6 Reservation of title
The delivered goods (reserved goods) shall remain the property of Seller until all claims to which Seller is entitled from Buyer, including future claims, have been met, including all balance claims from Buyer's account. Insofar as Buyer is in breach of contract – in particular insofar as Buyer is in default of remuneration – Seller shall be entitled to take back the reserved goods after setting a reasonable deadline for payment. Transport costs incurred for the return shall be borne by Buyer. Seller's revocation of reserved goods shall constitute withdrawal from contract. Withdrawal from contract shall likewise be constituted by Seller's seizure of reserved goods. Reserved goods taken back by Seller may be used again by Seller. The proceeds of the realisation shall be set off against payments owed by Buyer to Seller and after Seller has deducted an appropriate amount for administration costs.
Buyer shall treat reserved goods with care and store them in a suitable manner. Buyer shall at its own expense insure them against fire, water and theft at replacement value. If maintenance and inspection work becomes necessary, Buyer must carry this out in good time at its own expense.
Buyer may use the reserved goods and resell them in the ordinary course of business as long as Buyer is not in default of payment. Buyer shall not however pledge the reserved goods or assign them by way of security. Buyer's claims for payment against its customers from a resale of the reserved goods as well as Buyer's claims against its customers or third parties in respect of the reserved goods and arising from any other legal reason (in particular claims from tortious acts and claims to insurance benefits), including all balance claims from its current account, are hereby assigned by Buyer to Seller in full by way of security. Seller accepts this assignment. Buyer may on its own account and in its own name and on Seller's behalf collect these claims assigned to Seller as long Seller does not revoke this authorisation. Seller's right to collect these claims itself shall remain unaffected, although Seller shall not assert the claims itself, and shall not revoke authorisation to collect, as long as Buyer meets its payment obligations properly and completely. If however Buyer is in breach of contract – in particular if it is in default of payment –Seller may require Buyer to notify Seller of the assigned claims and the respective debtors, to notify the respective debtors of the assignment and to provide Seller with all documents and information required by Seller to assert the claim. In this respect, the parties agree that an independent right of Seller to information and inspection hereby arises.
Any processing or transformation of the reserved goods by Buyer shall be carried out on behalf of Seller. If the reserved goods are processed with other items not belonging to Seller, Seller shall acquire co-ownership of the new item in the same ratio as the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the provisions applicable to the reserved goods shall likewise apply to the new object resulting from the processing. If the reserved goods are combined inseparably or mixed with other items not belonging to Seller, Seller shall acquire co-ownership of the new item in proportion to the value of the reserved goods (final invoice amount including VAT). If the reserved goods are combined or mixed in such a way that Buyer's item is to be regarded as the main item, Buyer and Seller shall agree that Buyer transfers co-ownership of the item to Seller on a pro rata basis. Seller accepts this transfer. Buyer shall properly keep and insure for Seller the sole ownership or co-ownership of any object thus created.
In the event of seizure of the reserved goods by third parties or other interventions by third parties, Buyer must refer to Seller's ownership and notify Seller immediately in writing so that Seller can assert its ownership rights. If the third party is unable to reimburse Seller for any court or out-of-court costs incurred in this connection, Buyer shall be liable for them.
At Buyer's request, Seller shall release the securities to it is entitled insofar as their realisable value exceeds the value of outstanding claims against Buyer by more than 10%. Seller may however select the securities to be released.
§ 7 Guarantee
Seller shall be liable for material defects and defects of title of delivered goods in accordance with statutory provisions, in particular §§ 434 ff, 280 ff BGB, although, or in the event of a commercial transaction, Buyer shall comply with § 377 HGB in accordance with the following provisions. The limitation period for statutory warranty claims is one year and begins with the delivery or handover of the goods to Buyer, unless Seller has fraudulently concealed a defect or assumed a guarantee for the quality of the goods or individual properties of the goods or the goods have within a year of delivery or transfer and in the sense intended by § 438 paragraph 1 No. 2 b) BGB been properly installed in accordance with Seller's specifications in an immovable structure firmly fixed to the ground, in which case the statutory limitation period applies.
Recognisable defects, including to usable partial delivery, must be reported to Seller in writing by Buyer within six days of performance. Any complaint not made in due time or form excludes any claim of Buyer arising from breach of duty due to poor performance.
Buyer must notify the transport company of any defects that are recognisable upon delivery and the transport company must arrange for the defects to be recorded. Complaints must contain a detailed description of the defect to the best of Buyer's ability. A complaint not made in due time or form excludes any claim of Buyer arising from breach of duty due to poor performance. Insofar as defects in quantity, weight or volume are recognisable on delivery in accordance with the aforementioned inspection obligations, Buyer shall notify the carrier of these defects on receipt of the goods and have the complaint documented. Failure to give notice of defects in due time shall also exclude any claim by Buyer for breach of duty due to defective performance. Concealed defects must be communicated in writing immediately after they have become apparent and at the latest in accordance with the limitation period applicable in these GTC. Complaints must also contain a detailed description of the defect. Any complaint not made in due time or form excludes any claim by Buyer for breach of duty due to defective performance.
Upon commencement of processing, treatment, combination or mixing with other items or resale to end customers, the delivered goods shall be deemed to have been approved by Buyer in accordance with the contract.
Other breaches of duty must prior to assertion of further rights by Buyer be reported by Buyer in writing and a reasonable period allowed for subsequent performance. Seller shall be granted three opportunities to remedy any defect. Seller assumes no liability for the usability of delivered goods or products within the overall system of Buyer or the end customer, unless such usability has been expressly assured in writing by Seller. Buyer must take this into account and as the final seller notify the end customer accordingly. In the course of work or construction owed by the final seller and/or end customer, the final seller and/or end customer must independently check with third parties whether the delivered goods and products that as far as necessary and legally prescribed have building authority approvals can achieve the results expected of them and whether national regulations (e.g. on construction, hygiene, sound, heat and environmental and current protection (e.g. equipotential bonding)) are complied with.
If, in the course of rectification or any replacement delivery by Seller, it should transpire that it is not the performance of Seller or a product supplied by Seller that is responsible for the defect but rather another product or the equipment of the end customer or incorrect usage or handling or incorrect installation (e.g. by the end customer), Buyer shall on request reimburse the expenses provably incurred by Seller (e.g. travel expenses, customer service, hours, etc.). Liability for guarantee and damages is excluded if modifications have been made to Seller's goods either by Buyer or the end buyer or end customer or if the goods have been installed contrary to instructions. The same shall apply if material defects in the goods of Seller have arisen due to the fact that the delivered goods have been maintained or cleaned and used contrary to care instructions. The guarantee shall be void if Buyer or end buyer or end customer does not ensure through the professional installation and further use of the delivered goods that no moisture or water reaches incompletely glazed surfaces (flared edge) so that potential corrosion is avoided. Seller shall not be liable for dismantling or installation costs or for costs for interruption and re-commissioning of systems in which a product or product has been installed by Seller, unless Seller is responsible for the resulting defect, especially in the event of recall by the manufacturer or any other known defectiveness of the delivered goods.
Should subsequent performance fail, whereby a subsequent improvement is to be regarded as failed only on the third unsuccessful attempt, or if Seller has rejected subsequent performance in writing expressly and finally, Buyer may assert its statutory claims. In the event of only a minor breach of contract, in particular only minor defects, Buyer shall not be entitled to withdraw from the contract. This is in particular the case if the functionality of the delivered goods is not significantly restricted and the assertion of the right to rescind the contract would therefore be disproportionate.
Defects – with the exception of recourse against supplier as per §§ 445a, 475 BGB – shall be remedied free of charge by means of rectification or replacement delivery, the choice to be at Seller's discretion. Defects caused by Buyer or the end buyer or end customer and unjustified complaints shall be remedied on behalf of and at the expense of Buyer.
Buyer shall provide all information necessary for the examination and handling of guarantee claims. Buyer shall provide Seller with the information required, including at least the Bette order confirmation number, article number and reason for complaint and where possible pictures of the damage. A form for complaints is available for download at www.my-bette.com
If installation has taken place at the end buyer or end customer, a copy of the installation protocols etc. must be made available.
Claims by Buyer, the end buyer or end customer for expenses incurred for the purpose of subsequent performance, in particular transport and travel costs and labour and material costs, shall be excluded insofar as such expenses increase because the delivery item has subsequently been taken to a location other than the place of delivery or the branch office of Buyer. This shall not apply in cases of supplier recourse under §§ 445a, 475 BGB or in the case of claims due to breaches of duty resulting from malice or intent or in connection with death or injury.
Any claims for cancellation on the part of Buyer against Seller in the event of resale of goods shall be valid only insofar as Buyer has not reached an agreement with its buyer (end buyer) or end customer that goes beyond statutory warranty claims.
Recognition of breaches of obligation must be made in writing to be valid.
Any guarantees given by Seller for certain goods shall apply in addition to claims for material defects or defects of title within the meaning of paragraph 1. Details of the scope of such guarantees shall be derived from guarantee conditions that accompany the article or the goods.
Information, advice, advertising. Information and advice regarding Seller's products/goods shall be provided exclusively on the basis of previous experience. As far as goods that require building supervisory approval are concerned, this approval is available. Only the product qualities specified by Seller (manufacturer) in relation to the respective product shall be decisive. Buyer or the end buyer and end customer must check at their own risk whether the goods can be installed and used as planned (see above). It is imperative that Buyer or end buyer and end customer carefully implement and observe product descriptions, assembly instructions and care instructions.
§ 8 Liability
Seller shall be liable for damages and reimbursement of expenses for defects already existing at the time of conclusion of contract only in the event of intent or gross negligence or if it fraudulently deceives Buyer.
If substantial defects occur that in accordance with the preceding provisions Buyer is not obliged to remedy or has not itself caused, Buyer shall initially only be entitled to remedy of defect by way of subsequent improvement within a reasonable period commencing on notification of defect. If remedy of defect is unsuccessful, unreasonable or impossible, Buyer shall have only statutory rights to reduction and withdrawal (see above).
In all other respects, liability of Seller, including for the conduct of its representatives and vicarious agents, for breach of other duties, tort and pursuant to §§ 280, 281 BGB shall be limited to gross negligence and intent. Seller shall therefore be liable only if it has caused the loss intentionally or through gross negligence. Seller is therefore not liable for loss or damage caused to Buyer's, end buyer's or end customer's goods, furnishings, data and the like, regardless of the type, origin, duration and extent of the damage or loss, unless Seller has caused the damage or loss intentionally or through gross negligence. This also applies to damage caused by the effects of moisture.
In the event of slight negligence, Seller shall be liable only if essential or typical contractual obligations (known as cardinal obligations) are breached. Cardinal obligations are those which enable contractual performance. Compensation for indirect loss such as loss of profit is excluded. With regard to electronic data and technical systems, it is recommended that Buyer, end purchaser and end customer take precautions against voltage drops and changes and take out appropriate electronic insurance (costs of data alteration, etc.).
The aforementioned exclusions and limitations of liability shall not apply in the event of death, injury or impairment of health, freedom or sexual self-determination resulting from a negligent breach of duty by Seller or a corresponding breach of duty by a legal representative or vicarious agent.
The aforementioned exclusions and limitations of liability shall not apply to damage or loss for the insurance of which Seller is responsible. In terms of amount, the Seller shall be liable, in particular in the event of recourse within the supply chain (§ 445 a BGB), up to the amount for which it is covered under its liability insurance. Buyer has the right at any time to ask Seller in writing about the amount of cover and the insurance conditions. Seller is obliged to inform Buyer, at least in text form, of the amount of cover and to make the insurance conditions available to Buyer upon request. Buyer is at liberty, in agreement with Seller and its insurer, to increase the sum insured on assumption of the policy costs involved.
If other factors have contributed to loss for which Seller is responsible, Seller shall be liable only to the extent of its fault in relation to the other causes.
§ 9 Copyright
Seller has copyright to all images, films and texts published or to be published by it. The images, films and texts may not be used without the express permission of Seller.
§ 10 Applicable law and jurisdiction
The law of Germany shall apply to the exclusion of UN sales law.
If Buyer is a merchant and has its head office in Germany at the time of the order, the exclusive place of jurisdiction shall be the head office of Seller, Bette GmbH & Co. KG, Heinrich-Bette-Strasse 1, 33129 Delbrück, Germany. Otherwise, for local and international jurisdiction, the applicable statutory provisions shall apply.