Terms and Conditions
General Terms and Conditions (GTC) of BERASIT, a brand of Elried Markierungssysteme GmbH for sales to entrepreneurs
1. Scope, form
(1) These General Terms and Conditions (hereinafter: GTC) apply to all our business relationships with our customers (hereinafter: Buyer). These GTC only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law, or a special fund under public law.
(2) These General Terms and Conditions apply in particular to offers and contracts for the sale and/or delivery of movable goods (hereinafter also referred to as "goods") or for services related to the purchase and/or delivery, regardless of whether they are submitted or concluded via our online shop, by email, fax, telephone, or in any other way. They also apply regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions in the version valid at the time the buyer places their order or, in any case, in the version last communicated to them in text form shall also apply as a framework agreement to similar future contracts, without us having to refer to them again in each individual case.
(3) Our General Terms and Conditions apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly consented to their validity. This requirement of consent applies in all cases, for example, even if we carry out the delivery to the buyer without reservation despite being aware of the buyer's General Terms and Conditions.
(4) Individual agreements concluded with the buyer in individual cases (including ancillary agreements, additions, and amendments) always take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notifications by the buyer with regard to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be in writing or text form (e.g. letter, e-mail, fax) to be effective.
(6) The buyer will treat the information and documents received from us (e.g. offers, price lists, technical documents) confidentially and will only pass them on or disclose them to third parties with our written consent.
(7) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these Terms and Conditions.
2. Offers and conclusion of contracts via our webshop
(1) Orders in our online shop are only possible online. Our offers for the goods we offer there are subject to change and non-binding. This also applies if we have provided the buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, dimensions, weights), other product descriptions, or documents – including in electronic form – to which we also reserve ownership and copyright.
(2) The buyer can select products from our range and collect them in a so-called shopping cart by clicking the "Add to cart" button. By clicking the "Order with payment" button, the buyer submits a binding order to purchase the goods in the shopping cart. However, the order can only be submitted and transmitted if the buyer accepts these terms and conditions by clicking the "Accept Terms and Conditions" button, thereby incorporating them into their order.
(3) We will then send the buyer an automatic confirmation of receipt by email, which will list the customer's order again. The automatic confirmation of receipt merely documents that we have received the buyer's order and does not constitute acceptance of the application. Regardless of the type and time of payment, the contract is only concluded upon written confirmation of the order electronically (order confirmation) or upon delivery of the goods. In this case, the contract text (consisting of the order, General Terms and Conditions, and order confirmation) will be sent to the customer by us on a permanent data medium (email or paper printout) (contract confirmation). The contract text will be stored in compliance with data protection regulations.
(4) If and to the extent that the order also includes work services (assembly/installation, repair, maintenance), our General Terms and Conditions for Work Services shall apply in addition, which can be viewed on our website at www.berasit.de with the appropriate markings.
3. Offers and conclusion of contracts outside our webshop
(1) Our offers are subject to change and non-binding; clause 2. (1) applies accordingly.
(2) The buyer's order for the goods (e.g., by telephone, fax, email, etc.) is considered a binding contractual offer, which requires acceptance for the conclusion of the contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods.
(4) For work services also commissioned, No. 2. (4) applies accordingly.
4. Delivery period and delay in delivery
(1) Deliveries are ex works.
(2) Delivery periods and dates stated by us in our online shop or upon acceptance of the order are only binding if they are expressly marked as binding. Otherwise, they only represent an indication of the expected delivery period or delivery time. If shipping has been agreed, delivery periods and dates refer to the time of handover to the freight forwarder, carrier, or other third party commissioned with the transport.
(3) Without prejudice to our rights arising from the Buyer's default, we may demand an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Buyer fails to fulfil its contractual obligations towards us.
(4) We are not liable for impossibility of delivery or delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, or the non-delivery, incorrect delivery or late delivery by suppliers) for which we are not responsible. If such events make delivery or service significantly more difficult or impossible for us and the hindrance is not merely temporary, we are entitled to withdraw from the contract. In the case of hindrances of a temporary nature, the delivery or service periods or dates shall be extended or postponed by the duration of the hindrance plus a reasonable start-up period. If the buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately notifying us in writing.
(5) Our delay in delivery is determined by statutory provisions. However, a reminder from the buyer is required in all cases.
(6) The rights of the buyer according to No. 9 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.
5. Delivery, transfer of risk, default of acceptance
(1) The place of performance for all obligations arising from the contractual relationship, as well as the place of any subsequent performance, is our registered office (Oberhaching). At the buyer's request, the goods will be shipped to another destination at the buyer's expense (sale by dispatch).
(2) Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(3) The buyer is responsible for ensuring that adequate access is available for proper delivery of the goods (e.g., by truck). Late or non-deliveries due to a lack of access are entirely at the buyer's expense.
(4) We are entitled to make partial deliveries and services, which will be invoiced separately. This does not apply if this is unreasonable for the buyer.
(5) The risk passes to the buyer at the latest upon handover of the goods (the start of the loading process is decisive) to the freight forwarder, carrier, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if we have undertaken other services (e.g., shipping or installation). If shipping or handover is delayed due to circumstances attributable to the buyer, the risk passes to the buyer from the day on which the goods are ready for shipment and we have notified the buyer of this.
(6) We will only insure the delivery against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the buyer and at the buyer's expense.
(7) If and to the extent that we are also obliged to provide work services (e.g. assembly/installation, maintenance, repair, etc.), our General Terms and Conditions for Work Services shall apply in addition (see No. 2. (4)).
(8) If the buyer defaults on acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs), in accordance with the statutory provisions.
6. Prices and payment terms, rights of set-off and retention
(1) Unless otherwise agreed in individual cases, the prices stated in the order confirmation apply; otherwise, our current prices at the time of contract conclusion apply, plus statutory sales tax. Our prices are ex works; packaging costs are not included.
(2) If it is agreed upon when ordering or concluding the purchase contract that we will bear the transport/shipping costs for delivery to the buyer, this does not change the fact that this is the buyer's responsibility. Such an agreement merely results in a different regulation of transport costs, but does not change the risk transfer rule under No. 5, Paragraph 5, unless otherwise agreed in writing for the specific transfer relationship. The buyer shall in all cases bear the costs of any desired insurance. Any customs duties, fees, taxes, and other public charges are also borne by the buyer.
(3) If more than four months elapse between the date of contract conclusion and the date of delivery without this being due to a delivery delay for which we are responsible, and if our current price list has changed during this time, we may demand the list price valid on the date of delivery instead of the agreed purchase price. We will send the buyer an amended order confirmation prior to delivery. In this case, the buyer may withdraw from their order with regard to the goods for which the price has been increased. They must declare their withdrawal in writing no later than the fifth working day after receipt of the amended order confirmation; transmission by fax or email is sufficient.
(4) Our prices are due and payable without deduction within 10 days of order confirmation/invoice and delivery or acceptance of the goods, unless otherwise agreed – in particular through the payment method chosen by the buyer. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery, in whole or in part, only against advance payment, provided and to the extent that there is an objectively justified reason for doing so. We will declare a corresponding reservation no later than with the order confirmation. If and to the extent that we are also obliged to provide work services (e.g. assembly/installation, maintenance, repair, etc.), our General Terms and Conditions for Work Services (see No. 2. (4)) apply in addition.
(5) Upon expiration of the above payment deadline, the buyer shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to claim further damages for default. With regard to merchants, our claim to commercial default interest (Section 353 of the German Commercial Code) remains unaffected.
(6) The buyer is only entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer's counterclaims, in particular those pursuant to Section 8, Paragraph 10, Sentence 2 of these General Terms and Conditions, remain unaffected.
(7) If it becomes apparent after conclusion of the contract (e.g., through a petition for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the buyer's inability to perform, we are entitled, in accordance with the statutory provisions, to refuse performance and—if necessary, after setting a deadline—to withdraw from the contract (Section 321 of the German Civil Code). For contracts for the manufacture of non-fungible items (custom-made items), we may declare withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.
7. Retention of title
(1) We reserve title to the goods sold (reserved goods) until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The buyer must immediately notify us in writing of any impairment of our property, in particular through access by third parties (e.g., through seizures), and inform the third parties of our ownership rights. The buyer is liable for damages and costs resulting from a breach of this obligation and for any necessary measures to protect against access by third parties.
(3) In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or demand the return of the goods based on our retention of title. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, we are entitled to merely demand the return of the goods and reserve the right to withdraw. If the buyer fails to pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or if such a deadline is dispensable under the statutory provisions.
8. Buyer's claims for defects
(1) The statutory provisions apply to the buyer's rights in the event of material and legal defects (including incorrect and incomplete deliveries, as well as improper assembly or inadequate assembly instructions), unless otherwise provided below. In all cases, the special statutory provisions for final delivery of goods to a consumer (supplier recourse pursuant to Sections 478 and 479 of the German Civil Code) remain unaffected. Regarding the buyer's rights in the event of work services owed outside the purchase contract (assembly, installation, repair, maintenance, etc.), our General Terms and Conditions for Work Services apply.
(2) The basis of our liability for defects is primarily the agreement regarding the quality of the goods. Subject to Section 7, Paragraph (3), all product and service descriptions that are the subject of the individual contract are deemed to be an agreement regarding the quality of the goods. If the quality has not been agreed upon, the existence of a defect must be assessed according to the statutory provisions (Section 434, Paragraph 1, Sentences 2 and 3 of the German Civil Code). However, we assume no liability for public statements made by a manufacturer or other third parties (e.g., advertising statements).
(3) We strive to provide accurate and comprehensive information about the goods. However, information about the subject matter of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations of the same (e.g., drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but rather descriptions or markings of the delivery or service. Customary deviations from these do not constitute a defect.
(4) In the case of defects in components from other manufacturers that we are unable to remedy due to licensing or practical reasons, we will, at our discretion, assert our warranty claims against the manufacturers and suppliers for the buyer's account or assign them to the buyer. Warranty claims against us for such defects shall exist under the other conditions and in accordance with these General Terms and Conditions only if legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or, for example, due to insolvency, is futile. During the duration of the legal dispute, the limitation period for the buyer's relevant warranty claims against us is suspended.
(5) The warranty is void if the buyer modifies the goods or has them modified by third parties without our consent, thereby making the rectification of defects impossible or unreasonably difficult. In any case, the buyer shall bear the additional costs of rectifying the defects resulting from the modification.
(6) The buyer’s warranty claims are excluded:
a) with regard to deterioration of parts subject to natural wear and tear, unless the deterioration has another cause; or
b) if operating, repair or maintenance instructions or mandatory legal regulations concerning operation, repair or maintenance are not followed, unless the defect or deterioration has a cause other than non-compliance with these instructions or regulations.
(7) The buyer's warranty claims are subject to compliance with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection, or later, he must notify us immediately in writing.
(8) Obvious defects that are apparent or discovered without inspection must be reported within two days of delivery. Furthermore, obvious defects must be reported in writing within five working days of delivery, and defects not apparent upon inspection must be reported within the same period of time from discovery. If the buyer fails to properly inspect and/or report defects, our liability for the defect not reported, not reported in a timely manner, or not reported properly is excluded in accordance with statutory provisions.
(9) If the delivered goods are defective, we may initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(10) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.
(11) The buyer must grant us the time and opportunity necessary to provide the required subsequent performance, in particular by handing over the defective goods for inspection. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with statutory provisions. Subsequent performance does not include the removal of the defective goods or their reinstallation if we were not originally obligated to install them.
(12) We will bear or reimburse the expenses required for inspection and subsequent performance, in particular transport, travel, labor, and material costs, as well as any dismantling and installation costs, if a defect actually exists. Otherwise, we may demand reimbursement from the buyer for the costs incurred as a result of the unjustified request for defect rectification (in particular inspection and transport costs), unless the lack of a defect was not recognizable to the buyer.
(13) In urgent cases, e.g., if operational safety is at risk or to prevent disproportionate damage, the buyer has the right to remedy the defect themselves and to demand reimbursement from us for the objectively necessary expenses. We must be notified immediately, if possible in advance, of such self-repair. The right to self-repair does not apply if we would be entitled to refuse subsequent performance under statutory provisions.
(13) If subsequent performance fails, or if a reasonable period set by the buyer for subsequent performance has expired without success or is dispensable under statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
(14) The buyer's claims for damages or reimbursement of wasted expenses, even in the case of defects, shall only exist in accordance with No. 9 and are otherwise excluded.
(15) The purchase of used items agreed upon with the buyer in individual cases is subject to the exclusion of any warranty for material defects.
9. Other liability
(1) Unless otherwise stated in these Terms and Conditions, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We are liable for damages – regardless of the legal basis – within the scope of liability for intent and gross negligence. In the case of simple negligence, we are liable, subject to a more lenient standard of liability under statutory provisions (e.g., for due diligence in our own affairs), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the not insignificant breach of an essential contractual obligation (obligation the fulfilment of which is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 also apply to breaches of duty by or on behalf of persons whose fault we are legally responsible for. They do not apply to the extent that we have fraudulently concealed a defect or provided a guarantee for the quality of the goods, nor to claims by the buyer under the Product Liability Act.
(4) Due to a breach of duty that does not constitute a defect, the buyer may only withdraw from or terminate the contract if we are responsible for the breach. The buyer's right of free termination (in particular according to Sections 650 and 649 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply.
10. Limitation period
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins upon acceptance. Special statutory provisions regarding limitation periods remain unaffected (in particular Section 438 (1) No. 1, (3), Sections 444, 479 of the German Civil Code).
(2) The above limitation periods under the law of purchase also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in the individual case. However, claims for damages by the buyer pursuant to No. 8, Paragraph 2, Sentence 1 and Sentence 2 (a) above, as well as under the Product Liability Act, expire exclusively according to the statutory limitation periods.
11. Data protection
We take the protection of personal data very seriously, particularly in accordance with the provisions of the GDPR and the BDSG (German Federal Data Protection Act). Specific details and information on this can be found on our website under the 'Data Protection' menu within the privacy policy available there.
12. Choice of law and jurisdiction, final provisions
(1) These Terms and Conditions and all legal relationships between us and the buyer are governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title shall be subject to the law of the respective location of the item, to the extent that the choice of law in favor of German law is inadmissible or ineffective under that law.
(2) If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Munich. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to bring legal action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement, or at the buyer's general place of jurisdiction. Priority statutory provisions, in particular those regarding exclusive jurisdiction, remain unaffected.
(3) To the extent that the contract or these General Terms and Conditions contain any gaps in the provisions, the legally effective provisions that the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the gap in the provisions shall be deemed to have been agreed upon to fill these gaps.
(4) These Terms and Conditions are written in German and English. In the event of any discrepancies or difficulties in interpretation, the German text version of these Terms and Conditions shall prevail. Translations are not legally binding.
Status of the General Terms and Conditions: 01.01.2019