Terms and Conditions

I. General Provisions – Scope of Application

1. These terms and conditions apply to all current and future business relationships. However, they apply only to businesses, legal entities governed by public law, or special funds governed by public law. For the purposes of these terms and conditions, ‘businesses’ are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into and who act in the course of their commercial or self-employed professional activities. Such persons are hereinafter referred to as ‘customers’ for the purposes of these terms and conditions.

2. These General Terms and Conditions of Sale shall apply exclusively to the legal relationship between the customer and us. We do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall apply even if we carry out the delivery to the customer without reservation, whilst being aware of terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale. In the event that the customer’s terms and conditions contain provisions which are not included in our terms and conditions or which are not identical to our terms and conditions, we hereby expressly object to such provisions. In such cases, too, the customer’s terms and conditions shall not apply; instead, the principles developed by case law to supplement the terms and conditions shall apply, in accordance with the principle of favourability.

3. We retain sole ownership and copyright of quotations, drawings, brochures, worksheets, etc., and these must not be made available to third parties, even in part, without our consent. Should public authorities have a legitimate need for these documents, we will grant our consent for them to be forwarded. We reserve the right to correct any errors in workbooks, brochures, worksheets, information sheets and price lists prior to the conclusion of the contract. In the event of pricing or calculation errors, or if the scope of the order deviates from the scope of the enquiry without consultation with us, we shall be entitled to adjust the price to the agreed amount if either the individual calculation bases were the subject of the contractual pricing or if the customer has positively acknowledged the pricing error. In the event of obvious typographical errors, we are entitled to make a correction at any time.

4. We reserve the right to make changes to the subject matter of the contract within the limits permitted by law. In particular, we reserve the right to make changes to the design and form during the delivery period in the interests of technical progress.

5. If contractual services are promised whose performance is dependent on official approvals, changes may be made in order to obtain such approvals. Furthermore, any changes to the order after conclusion of the contract can only be taken into account if the resulting additional costs are borne by the customer and a sufficient extension of the delivery period is expressly agreed to by the customer.

6. In addition to these terms and conditions, the technical conditions and specifications set out in the quotation or contract, to which we hereby expressly refer, shall apply.

II. Conclusion of the Contract

1. Where offers are expressly stated to be subject to change, a contract is only concluded upon our written confirmation of the order.

2. By placing an order, the customer makes a binding declaration of their intention to purchase the items and goods ordered. We are entitled to accept the contractual offer contained in the order within two weeks of its receipt by us. Acceptance may be declared either in writing or by delivery to the customer.

3. If the customer places an order electronically, we will confirm receipt of the order without delay. The confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt may be combined with the declaration of acceptance. If the customer orders the goods electronically, we shall store the text of the contract and, upon request, send it to the customer by email together with these General Terms and Conditions of Sale.

III. Subject Matter of the Contract

1. The agreed quality is the primary factor determining the subject matter of the contract. With regard to the agreed quality of the item, we refer to our technical specifications and the detailed product description.

2. The subject matter of the contract is exclusively the product sold, with the properties, characteristics and intended use as set out in the product description. Any other or additional properties and/or characteristics, or any intended use beyond those specified, shall only be deemed to have been agreed if we have expressly confirmed them in writing.

IV. Retention of Title

1. We retain title to the goods covered by the contract until all claims arising from the ongoing business relationship have been settled in full. The goods covered by the contract (goods subject to retention of title) therefore remain our property until all claims to which we are entitled against the customer arising from the business relationship have been satisfied.

2. We are entitled to insure the goods subject to retention of title against theft, breakage, fire, water damage and other damage at the customer’s expense, unless the customer can provide evidence that they have taken out insurance themselves.

3. The customer is entitled to resell the goods subject to retention of title in the ordinary course of business. The customer hereby assigns to us all claims in the amount of the invoice sum arising for them against a third party as a result of the resale. We accept this assignment. Following the assignment, the customer is authorised to collect the claim. We reserve the right to collect the claim ourselves if the customer fails to meet their payment obligations properly and falls into arrears.

4. Any processing or treatment of the goods subject to retention of title by the customer shall always be carried out in our name and on our behalf. If the goods subject to retention of title are processed or treated together with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title supplied by us in relation to the other items processed. The same shall apply if the goods subject to retention of title are mixed with other items not belonging to us.

5. Whilst the retention of title remains in force, the customer is prohibited from pledging the goods or transferring them by way of security.

6. In the event of attachment, seizure or other dispositions by third parties, the customer must notify us immediately. The customer is obliged to treat the goods subject to retention of title with due care. Where maintenance and inspection work is required, the customer must carry this out regularly at their own expense. The customer is obliged to notify us immediately of any access by third parties to the goods subject to retention of title, for example in the event of attachment, as well as of any damage to or destruction of the goods subject to retention of title. The customer must notify us immediately of any change in ownership of the goods subject to retention of title and of any change in their own place of residence.

7. In the event of the Customer acting in breach of contract or failing to fulfil their obligations, in particular in the event of late payment, we shall be entitled to withdraw from the contract and to reclaim all goods subject to retention of title; the Customer shall be obliged to surrender such goods. Furthermore, in such cases, we shall be entitled to immediately enforce any further rights arising from the retention of title. The repossession or assertion of the retention of title does not require us to withdraw from the contract. These actions, or the seizure of the goods subject to retention of title by us, do not constitute a withdrawal from the contract, unless we have expressly stated this. Imminent insolvency, insolvency or over-indebtedness on the part of the customer entitles us to withdraw from the contract and to demand the immediate return of all goods subject to retention of title.

8. If the realisable value of the security exceeds our claims against the customer arising from the ongoing business relationship by more than 20% in total, we shall be obliged, at the customer’s request, to release securities to which the customer is entitled, at the customer’s discretion.

V. Prices, Price Adjustments and Terms of Payment

1. Unless otherwise specified in agreements or the order confirmation, our prices are ‘ex works’, excluding packaging, freight and postage; these will be invoiced separately.

2. The purchase price quoted is binding; the purchase price does not include statutory VAT; it shall be shown separately on the invoice at the statutory rate applicable on the date of invoicing.

3. The customer is entitled to resell the goods subject to retention of title in the ordinary course of business. The customer hereby assigns to us all claims in the amount of the invoice sum arising from the resale to a third party. We accept this assignment. Following the assignment, the customer is authorised to collect the claim. We reserve the right to collect the claim ourselves if the customer fails to meet their payment obligations properly and falls into arrears.

5. Whilst the retention of title remains in force, the customer is prohibited from pledging the goods or transferring them by way of security.

VI. Delivery, delivery times, delays in delivery, packaging costs, export controls

1. Compliance with agreed delivery deadlines is conditional upon the timely receipt of all documents to be provided by the customer, the necessary approvals and clearances – in particular drawings – as well as the customer’s compliance with the agreed terms of payment and other obligations. If these conditions are not met in good time, the deadlines shall be extended accordingly; this shall not apply if we are responsible for the delay.

2. If failure to meet the deadlines is due to force majeure, e.g. mobilisation, war, civil unrest or similar events, e.g. strikes, lockouts, etc., the deadlines shall be extended accordingly.

3. Should we be in default, the customer may, provided they can demonstrate that they have suffered loss as a result, claim compensation of 0.5% for each full week of delay, up to a maximum of 5% of the price for that part of the delivery which could not be put into proper operation due to the delay. Claims for compensation by the customer exceeding the above limits are excluded in all cases of late delivery, even after the expiry of any grace period set for us. This shall not apply in cases of intent, gross negligence, breach of material contractual obligations, or injury to life, limb or health, or where liability is mandatory under the Product Liability Act or other regulations. This does not entail a shift in the burden of proof to the detriment of the customer. The customer’s statutory right of withdrawal remains unaffected.

4. If we are unable to deliver the subject matter of the contract, the customer shall be entitled to claim damages, unless we are not responsible for the impossibility of delivery. However, the customer’s claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put into proper operation due to the impossibility. This shall not apply in cases of intent, gross negligence, breach of material contractual obligations, or injury to life, limb or health, or where liability is mandatory under the Product Liability Act or other regulations. This does not entail any change in the burden of proof to the detriment of the customer. The customer’s right to withdraw from the contract remains unaffected.

5. Should unforeseeable events (force majeure, e.g. mobilisation, war, civil unrest or similar events such as strikes, lockouts, etc.) significantly alter the economic significance or the nature of the delivery and have a material impact on our operations, the contract shall be adjusted appropriately in accordance with the principles of good faith. Insofar as the adjustment of the contract is not possible or is unreasonable in part, we shall be entitled to withdraw from the contract. Should we then wish to exercise this right of withdrawal, we must notify the customer of this without delay once we have ascertained the extent of the event, even if an extension of the delivery period has initially been agreed with the customer.

6. Transport packaging and all other packaging in accordance with the Packaging Ordinance will not be taken back; this does not apply to pallets. The customer is obliged to arrange for the disposal of the packaging at their own expense.

7. Our obligation to deliver is subject to complete and correct supply from our own suppliers, unless we are responsible for the non-delivery or delay. We shall inform the customer of any unavailability. Any payment already received shall be refunded without delay.

8. We are entitled to make partial deliveries that are reasonable for the customer.

9. The supplies and services are subject to the proviso that there are no obstacles to performance arising from national or international regulations, in particular export control regulations, embargoes or other sanctions. The contracting parties undertake to provide all information and documents required for export, transfer or import (e.g. end-use declarations). For the customer, this also applies in the event of any transfer of the goods associated with an export, transfer or import. Delays resulting from export checks or authorisation procedures shall suspend deadlines and delivery times. If the necessary authorisations are not granted or if the Customer fails to provide us with the necessary documents or information within a reasonable period of time, we shall be entitled to withdraw from the contract in respect of the parts concerned. Claims for damages by the customer are excluded in this respect and on account of the aforementioned delays. In the event of the export or transfer of the goods by the customer, the customer undertakes to comply with all German and European regulations as well as all other applicable national or international export control regulations, embargoes and other sanctions.

VII. Transfer of Risk

1. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer once the goods have left our premises, even if partial deliveries are made or we have undertaken to provide other services, such as covering the shipping costs or handling delivery and installation.

2. Where acceptance is required, this shall determine the transfer of risk. It must be carried out without delay on the date of acceptance or, alternatively, following our notification that the goods are ready for acceptance. The customer may not refuse acceptance in the event of a non-material defect.

3. If dispatch or acceptance is delayed or fails to take place due to circumstances for which we are not responsible, the risk shall pass to the customer from the date of notification that the goods are ready for dispatch or acceptance.

4. We undertake to take out, at the customer’s expense, any insurance that the customer requires.

5. The handover shall be deemed to have taken place if the customer is in default of acceptance.

VIII. Refusal to Accept Delivery

1. If the customer refuses to accept delivery of the goods, we may set a reasonable deadline for acceptance. If the customer has not accepted the goods within the deadline set, we are entitled to withdraw from the contract and/or claim damages.

2. If, prior to delivery of the subject matter of the contract, the customer declares that they do not intend to perform the contract or accept the subject matter of the contract, we shall be entitled to claim damages in lieu of performance of the contract.

3. In the cases set out in clauses 1 and 2, we may claim 20 per cent of the agreed total purchase price as damages even without proof of the actual loss incurred, whereby the customer is expressly permitted to prove that we have incurred no loss or a loss significantly lower than the lump sum.

IX. Liability for Defects

1. The Customer’s claims in the event of defects are limited, at our discretion, to the rectification of the defect or the delivery of goods free from defects (subsequent performance). Should subsequent performance fail, the Customer shall be entitled, at their discretion, to claim a reduction in price or to withdraw from the contract.

2. If the purchase constitutes a commercial transaction for both parties, the customer must inspect the goods immediately upon receipt, insofar as this is practicable in the ordinary course of business, and, if a defect is found, notify us in writing without delay. If the customer fails to give such notice, the goods shall be deemed to have been approved, unless the defect was not apparent upon inspection. In all other respects, Sections 377 et seq. of the German Commercial Code (HGB) shall apply.

3. The customer must grant us the necessary time and opportunity, to be determined at our reasonable discretion, to remedy the defect. If the customer refuses to do so, we shall be released from the obligation to remedy the defect.

4. If the defect is not remedied within a reasonable period, the customer shall have the right, at their discretion, to claim a reduction in price or to withdraw from the contract.

5. Any further claims by the customer, in particular for consequential damages arising from defects, are excluded. This does not apply in cases of intent, gross negligence or breach of material contractual obligations on our part, or in the event of injury to life, limb or health. The customer’s right to withdraw from the contract remains unaffected.

6. The limitation period for claims for defects is one year, calculated from the date on which the risk passes to the customer. This shall not apply in cases covered by Section 438(1)(2) of the German Civil Code (BGB), Section 634a(1)(2) of the German Civil Code (BGB) and Section 479(1) of the German Civil Code (BGB), nor in cases of intent, gross negligence, breach of material contractual obligations or injury to life, limb or health, or where liability is mandatory under the Product Liability Act or other regulations.

7. The place of performance for subsequent performance is the registered office of our company.

8. An unjustified request by the customer for the rectification of a defect pursuant to Section 439(1) of the German Civil Code (BGB) constitutes a culpable breach of contract giving rise to liability for damages if the customer knew, or through negligence failed to realise, that no defect existed, but that the cause of the symptom which they suspected to be a defect lay within their own sphere of responsibility.

X. Return of Goods Outside the Warranty Period

1. Returns are only possible if they have been expressly agreed with us on a case-by-case basis. The goods must be returned in their original packaging and carriage paid. Custom-made items as well as defective or damaged goods are excluded from return.

2. For all returns for which we are not responsible, we charge a flat-rate processing fee amounting to 25% of the sales price of the returned goods. The customer reserves the right to prove that the cost of the return was lower.

XI. Intellectual Property Rights

1. Unless otherwise agreed, we are obliged to ensure that the delivery is free from third-party industrial property rights and copyrights (hereinafter referred to as ‘intellectual property rights’) solely within the country of the place of delivery. If a third party asserts justified claims against the customer on the grounds of an infringement of intellectual property rights arising from deliveries used by the customer in accordance with the contract, we shall be liable to the customer as follows:

a) Firstly, at our discretion and at our expense, we shall either obtain a right of use for the delivery in question, or modify the deliveries or services so that the intellectual property right is no longer infringed, or replace them. We shall therefore, at our own expense, in principle secure the right for the customer to continue using the goods or modify the subject matter of the contract in a manner reasonable for the customer so that the infringement of the intellectual property right no longer exists.

b) If this is not possible on commercially reasonable terms or within a reasonable period, the customer shall be entitled to withdraw from the contract. Under the aforementioned conditions, we shall also be entitled to withdraw from the contract.

c) We shall furthermore indemnify the customer against any uncontested or legally established claims made by the relevant intellectual property rights holder.

2. The above provisions and our obligations are exhaustive in the event of an infringement of property rights or copyright. However, they shall only apply if the customer notifies us in writing without delay of the claims asserted by the third party, does not acknowledge any infringement, and we reserve the right to take all defensive measures and conduct settlement negotiations. If the customer ceases use of the delivery and our services for the purpose of minimising damage or for other important reasons, they shall be obliged to inform the third party that the cessation of use does not constitute an acknowledgement of an infringement of intellectual property rights.

3. Claims by our customer are excluded to the extent that the customer is responsible for the infringement of intellectual property rights.

4. Claims by the customer are also excluded if the infringement of intellectual property rights is caused by specific instructions from the customer, by an objection that we could not have foreseen, or by the fact that the delivery, services or the subject matter of the contract has been modified by the customer or used in conjunction with products not supplied by us. Claims shall therefore also be excluded if the infringement was caused by the customer having modified the subject matter of the contract without authorisation or having used it in a manner not in accordance with the contract. Claims by the customer shall also be excluded if the legal defect is based on an instruction from the customer. No claims shall arise if we are not reserved the right to take all defensive measures, including out-of-court settlements. The customer shall have no claims if they do not provide us with reasonable assistance in defending against the asserted claims, or do not enable us to carry out the modification measures in accordance with Clause X.1.

5. Any claims by the customer against us and our vicarious agents arising from a legal defect, other than those set out in this section, are and shall be expressly excluded.

XII. Limitations of Liability

Unless otherwise specified above, we and our vicarious agents shall be liable for the Customer’s claims for damages arising from a positive breach of contract, from a breach of duties during contract negotiations, and from tort as follows:

1.) Liability for damages resulting from injury to life, limb or health shall be governed by the statutory provisions.

2.) Liability for other damages is excluded.

The exclusion of liability under 2.) shall not apply insofar as liability is mandatory under the Product Liability Act or other regulations, or in cases of intent or gross negligence, or the breach of material contractual obligations, or the absence of warranted characteristics, for damages that are typically foreseeable under the contract. Claims against vicarious agents for defects in title are and are expressly excluded.

XIII. Set-off and Right of Retention

1. The customer may only set off claims against our claims to the extent that their counterclaims are undisputed or have been established by a final and binding court decision. The preceding sentence shall not apply if a claim arising from a defective service provided by the company is set off against this claim for payment.

2. The customer may only exercise a right of retention if their counterclaims arise from the same contractual relationship.

XIV. Assignment of Claims

1. The customer is not entitled to assign their claims against us without our prior written consent, which we shall not unreasonably withhold.

2. In the case of assignments made on the basis of an extended retention of title, consent shall be deemed to have been granted from the outset.

XV. Use of Software

1. Where software is included in the scope of delivery, the Customer is granted a non-exclusive right to use the software supplied, including its documentation, in accordance with our current licence and terms of use. It is provided for use on the contractual object for which it is intended. Use of the software on more than one system is prohibited.

2. The Customer may only reproduce, adapt, translate or convert the software from object code to source code to the extent permitted by law (Sections 69a et seq. of the Copyright Act). The customer undertakes not to remove the manufacturer’s details – in particular copyright notices – or to alter them without our prior express consent.

3. All other rights to the software and the documentation, including copies, remain with us or with the software supplier. The granting of sub-licences is not permitted.

XVI. Governing Law/Jurisdiction/Place of Performance/Final Provisions

1. The law of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

2. The place of jurisdiction for all disputes arising from this contract shall be our registered office, provided that the customer is a trader, a legal entity under public law or a special fund under public law. The same shall apply if the customer does not have a general place of jurisdiction in the Federal Republic of Germany. However, we shall be entitled to bring an action at the customer’s registered office.

3. Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.

4. Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.

BASI GmbH + BASI Schließsysteme GmbH, Mönchengladbach