Terms of service
BEGO General Terms and Conditions of Delivery and Service
- BEGO Group of Companies -
General
For the purposes of these terms and conditions, the following definitions apply:
"BEGO" or "we" means the relevant company of the BEGO Group of Companies identified in your contract, invoice or order confirmation, with its registered office in Bremen (Wilhelm-Herbst-Str. 1, 28359 Bremen, Germany).
"Customers" or "you" means a person or company that purchases products from BEGO or otherwise has a contractual relationship.
"Product" or "Products" means the goods, services, software, technology or other products or services specified in your contract, invoice and/or order confirmation that BEGO supplies or otherwise makes available to the Customer under the Contractual Relationship.
The General Terms and Conditions of Delivery and Service ("GTC") set out below shall apply to all present and future transactions between us and our customers. We deliver exclusively on the basis of the GTC listed below. These therefore also apply to all future business relationships, even if they are not expressly agreed again. Customers' terms and conditions of business are not recognised unless they agree with our GTC in an individual case. This shall also apply if BEGO carries out a delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from these GTC or if BEGO refers to a letter which contains or refers to the terms and conditions of the customer or a third party. Counter-confirmations of the customers with reference to their terms and conditions are hereby contradicted.
These GTC apply only to persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity and to legal persons under public law or a special fund under public law. They do not apply to natural persons who conclude the contract for a purpose that cannot be attributed to their commercial or self-employed professional activity ("consumers" as defined by § 13 of the German Civil Code).
For third-party software and hardware from manufacturers other than BEGO itself, the respective manufacturer's own licence conditions shall take precedence, if applicable. On request, BEGO shall make the relevant manufacturer's licence conditions available to the customer before the conclusion of the contract.
Any technical application recommendations, regardless of whether they are given orally, in writing or by way of practical instructions, are based on our own experience and tests and can therefore only be regarded as guidelines, but not as guarantees or assurances.
In order to comply with the written form, transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient, provided that a copy of the signed declaration is transmitted.
Conclusion of the contract
Our offers are in principle subject to confirmation until the order is confirmed by BEGO. We shall be bound by the prices stated in the offer for fourteen (14) days from the date of the offer, unless otherwise stated in the offer. The customer's order is a binding offer to conclude a contract. The contract shall only be concluded if BEGO confirms the customer's order in writing within four weeks or begins with its execution.
The legal relationship between BEGO and the customer shall be governed solely by the contract concluded in writing, including these GTC. This contract fully reflects all agreements between the contracting parties regarding the product. Ancillary agreements, verbal declarations as well as changes to confirmed orders (including changes to delivery items) require written confirmation by BEGO to be effective. Oral promises made by BEGO prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding. With the exception of managing directors or authorised signatories, the employees of BEGO are not entitled to make verbal agreements deviating from the written agreement.
The conclusion of the contract shall be subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular in the event of the conclusion of a timely covering transaction with our suppliers. We shall inform the customer immediately of the non-availability of the service. BEGO shall not be in default towards the customer in such a case. BEGO and the customer have the right to cancel the contract. A procurement risk is not assumed.
Offers and contracts which require an export licence (e.g. by embargo) are subject to the condition precedent of the granting of this export licence. The execution of contracts may depend on approvals from the competent export control authorities (Germany, USA, other countries).
Our products are subject to continuous further development. BEGO reserves the right to make customary deviations from the product description in the catalogue and such deviations which are made on the basis of legal regulations or represent design and material changes, provided that the use of the products assumed under the contract is not significantly or adversely affected and the customer can be reasonably expected to accept the change.
Prices
Quotations and prices are quoted in euros. The basis is the latest valid price list. The publication of new prices automatically invalidates previous prices with effect for the future. BEGO reserves the right to change prices without further notice. The price resulting from our written order confirmation is decisive.
Our prices are free carrier BEGO Bremen (FCA according to Incoterms ® 2020) and exclusive of VAT, insurance, shipping charges, packaging, export deliveries, customs as well as fees and other public expenses. Additional or special services will be charged separately. Value added tax shall be charged separately in accordance with the statutory provisions in force on the date of delivery or performance. We reserve the right to change prices - even without prior notice. Section 3.3 shall apply to products already ordered.
If, between the conclusion of the contract and delivery, taxes, customs duties, freight, fees or other charges of any kind which affect the product price are increased or newly introduced or if other costs arise or increase without our having any influence on them, we shall be entitled to pass these on to the agreed purchase price and to increase it accordingly. If the increased price is 20% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be asserted immediately after notification of the increased price.
Payment
Invoices for deliveries and for services are to be paid within fourteen (14) days of the invoice date strictly net without any deductions in the agreed currency. If different payment terms have been expressly agreed, these shall apply accordingly from the date of the invoice. We reserve the right to collect cash on delivery. Discount charges shall be calculated from the due date of the invoice amount.
Payment costs shall be borne by the customer. Payment shall only be deemed to have been made when BEGO can dispose of the amount (receipt of payment). If the customer is in arrears with the payment of an earlier delivery, the invoice amount shall be due immediately (invoice date) without deduction, in deviation from item 4.1.
In the case of an agreed SEPA direct debit procedure, the fourteen-day period for information prior to the collection of a due payment may be reduced to a maximum of one day prior to the debit in order to facilitate payment transactions. If chargebacks are made for which the customer is responsible, the customer shall reimburse us for the costs incurred.
In the event of late payment, we shall charge interest on arrears in accordance with § 288 BGB.
BEGO reserves the right to demand an advance payment or a security deposit in the amount of the invoice value of the delivery and to withhold its performance if circumstances occur or become known after conclusion of the contract which give rise to justified doubts about the customer's ability or willingness to pay. In such a case BEGO is entitled to withdraw from the contract - if necessary after setting a deadline. The right to refuse performance shall not apply if payment is made or security is provided for it. In the case of contracts for the manufacture of unjustifiable items (e.g. in the case of individual custom-made products), we may declare withdrawal immediately, without prejudice to the statutory provisions on the dispensability of setting a deadline.
Dispatch; transfer of risk
In the absence of any agreement to the contrary, shipment shall be effected at our discretion and with the due care and diligence of a prudent businessman. All consignments shall be insured by us in the interest of the customer at his expense, unless he gives us other instructions in good time. Shipping terms according to Incoterms ® 2020.
All shipments are for the account and risk of the customer. The risk shall pass to the customer at the time the product is handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made. If the shipment is delayed due to circumstances for which BEGO is not responsible, the risk shall pass to the customer upon notification of readiness for shipment.
Storage costs after transfer of risk shall be borne by the customer. In the event of storage by BEGO, the storage costs shall amount to 0.25% of the invoice amount of the products to be stored per week or part thereof. BEGO reserves the right to claim and prove further or lower storage costs.
If, when the products are delivered to the customer by the transport company on behalf of BEGO, a loss or damage to the delivery item is externally recognisable to the customer, it is the responsibility of the customer to have the loss or damage certified by the transport company (damage report) and to inform BEGO of this immediately by presenting the certificate. The same applies if the customer discovers the loss or damage, which was not originally externally recognisable, at a later date.
Partial deliveries and services are permissible to a reasonable extent. Such permissible partial deliveries and services can be invoiced individually by BEGO.
In the case of provision of software by means of electronic communication media (e.g. via the Internet), the material risk shall pass when the software leaves the sphere of influence of BEGO.
Delivery
Delivery periods shall be agreed on a case-by-case basis and shall only be effective if they are agreed in writing when the contract is concluded. Compliance with them presupposes the timely receipt of all documents, permits, releases, materials, accessories and information to be provided by the customer and necessary for the execution of the order and, moreover, always the timely and proper fulfilment of the obligations and duties of the customer. The delivery period shall not commence until these prerequisites have been fulfilled.
The delivery period shall be deemed to have been met if the circumstances causing the transfer of risk have occurred within the agreed period.
We shall not be in default with our delivery or performance obligation before the expiry of a reasonable grace period granted to us. If we are in default of delivery, in the event of slight negligence our liability shall be limited to foreseeable damage typical of the contract, but not more than 5% of the agreed price for that part of the products whose delivery we are in default of. We reserve the right to prove that the customer has suffered no damage at all or only significantly less damage than the aforementioned lump sum.
If the customer is in default of acceptance, fails to cooperate, is in default of payment or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to withdraw from the contract or to demand compensation for the resulting damage including additional expenses after the fruitless expiry of a reasonable period of grace required by law and set by BEGO. In the event of assertion of the claim for damages instead of performance, BEGO may demand compensation without proof in the amount of:
20 % of the purchase price if the delivery item is a series or standard product and there is no case according to item 6.4.2 below or;
100 % of the purchase price if the delivery item has become unusable due to the customer's default in acceptance or if the delivery item is a custom-made product according to the customer's specific wishes and BEGO has incurred the expenses necessary to make the delivery item ready for delivery;
Further claims for damages remain unaffected. In the event of delayed acceptance, the customer may be charged a higher daily price. Proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; the lump sum shall, however, be offset against further monetary claims. The customer shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the aforementioned lump sum.
Notice of defects; acceptance
In the case of a purchase which is a commercial transaction for BEGO and the customer, the customer is obliged to inspect the type, quantity and quality of the delivered products immediately after receipt of the product.
Defects which become apparent after this inspection must be reported immediately in writing, at the latest within one week after receipt of the products.
If a defect later becomes apparent which could not be detected by the aforementioned inspection on receipt of the products (hidden defect), the customer must notify BEGO in writing of the hidden defect immediately after becoming aware of it, but no later than one year after delivery.
If defects are not notified in good time, the delivery shall be deemed to have been accepted.
Insofar as acceptance is to take place, the product shall be deemed to have been accepted if:
The delivery and, if BEGO also owes the installation, the installation has been completed, BEGO has notified the customer of this with reference to the fiction of acceptance according to this clause and has requested the customer to accept or;
Fourteen (14) working days have elapsed since delivery or installation or the Client has started using the Product (e.g. has commissioned the delivered equipment) and in this case seven (7) working days have elapsed since delivery or installation and the Client has failed to take acceptance within this period for a reason other than a defect notified to BEGO which makes it impossible to use the Product or significantly impairs its use;
Warranty (defects of the products)
In the event of justified defects, we shall provide subsequent performance at our discretion either by professional elimination of the defect (rectification) or by replacement delivery as quickly as possible. We shall also be entitled to have the subsequent performance carried out by a third party. In addition, reference is made to the special regulations for the modification of products (Clause 14) as well as for the ordering of products on the basis of data records (Clause 19) and via BEGO Services (Clause 20). We shall only be liable for damages under the conditions and to the extent stated in Clause 9.
If BEGO delivers a slightly different item or a slightly different quantity than agreed, the customer shall not be entitled to withdraw from the contract or to claim damages. No claims shall exist in the event of an insignificant reduction in value or suitability. Furthermore, a defect shall not be deemed to exist if the item is suitable for normal use and has a quality which is usual for items of the same type and which could be expected by the customer. In particular, the customer is aware that it is not possible according to the state of the art to create a product that is completely free of defects. The usability of disposable products is limited to the first use. Furthermore, there is no material defect in the case of faulty assembly instructions if the assembly has been carried out without error. BEGO shall not provide any warranty for such material defects which are based on unsuitable or improper use, incorrect storage, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, use of unsuitable operating materials, faulty construction work, chemical, electrochemical or electrical influences for which BEGO is not responsible. The customer is entitled to prove that the defect would also have occurred in the event of proper handling. In the case of software products, additionally not, in the case of non-reproducible software errors as well as in the case of defects which do not occur in the software version last provided by BEGO to the customer, provided that the use of the software version last provided is reasonable for the customer.
The customer shall give BEGO the necessary time and opportunity to carry out all measures to rectify defects which appear necessary to BEGO, in particular, at the request of BEGO and at his own expense, if the product is no longer at the original place of delivery, to send the product to BEGO or a subcontractor to be determined by BEGO on a case-by-case basis, otherwise BEGO shall be released from liability for the consequences arising therefrom. Possible defects in the products must be described in as much detail as possible. Only in urgent cases of endangerment of safety or to avert disproportionately great damage, in which case BEGO must be notified immediately, shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from BEGO.
In the event of a replacement delivery, BEGO may demand the return of the defective item from the customer. If the subsequent performance fails, the customer is entitled to withdraw from the contract in accordance with § 323 BGB or to reduce the purchase price in accordance with § 441 BGB. If we decide to remedy the defect, the remedy shall only be deemed to have failed after the second unsuccessful attempt, unless the nature of the item or the defect indicates otherwise.
The warranty period shall be one (1) year from delivery of the product or, if acceptance is required, from acceptance. Whether there is a claim under our warranty in addition to or beyond this can be found in BEGO's warranty conditions. These can be found at: www.bego.com.
Insofar as materials supplied by us have an expiry date due to their natural properties which ends before the expiry of one (1) year from delivery, all claims due to a defect in these materials shall expire on the expiry date, unless the materials were processed before the expiry date.
BEGO shall not be liable for defects, deficiencies, reduction in quality and/or impairment of the usability of the products if such defects have occurred after the products concerned have been delivered to the customer, insofar as these are attributable to changes made to the product without the consent of BEGO and the rectification of defects is thereby made impossible or unreasonably difficult. The same shall apply insofar as such defects are due to an extension of software made by the customer or a third party beyond the interface provided by BEGO. The customer is in any case entitled to prove that the defect would also have occurred in the event of proper handling.
BEGO is also not liable for defects due to incorrect data transmitted by the customer and materials and accessories supplied. Working documents provided to us that appear defective can therefore be returned before processing after consultation and agreement with the customer. We shall be liable for the storage of materials or accessories supplied by the customer with the care we exercise in our own affairs.
The customer cannot assert claims for liability for defects if he is aware of the defect at the time of conclusion of the contract or is grossly negligent in not being aware of it, unless the defect was fraudulently concealed by BEGO or BEGO has given a guarantee of quality which relates to the defect.
In the case of defects in products or components of other manufacturers which BEGO cannot remedy for licensing or factual reasons, BEGO shall, at BEGO's discretion, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against BEGO shall only exist in the case of such defects under the other conditions and in accordance with these GTC if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. During the duration of the legal dispute, the limitation of the relevant warranty claims of the customer against BEGO shall be suspended.
The customer may be obliged to provide the competent authorities, at their request, with samples of the (defective) product free of charge or, if this is not practicable, to grant access to the product. BEGO will compensate the customer accordingly for any expenses or losses incurred due to the provision of samples. These shall be measured on the basis of the product prices and the storage time.
A delivery of used products agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects, unless BEGO expressly grants a warranty or guarantee.
Liability
Our liability for delay in delivery shall initially be governed by Clause 6.3; claims for defects shall initially be governed by Clause 8; other liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tort, shall be limited in accordance with this Clause 9, insofar as fault is involved in each case.
BEGO shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of essential contractual obligations. Material contractual obligations are the obligation to deliver and install the product in good time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as advisory, protection and care obligations that are intended to enable the customer to use the product in accordance with the contract or are intended to protect the life or limb of the customer's personnel or to protect the customer's property from significant damage.
Insofar as BEGO is liable on the merits for damages in accordance with Clause 9.2, this liability shall be limited to damages which BEGO foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the products shall also only be compensable insofar as such damage is typically to be expected when the product is used as intended. The claim for compensation for pure financial losses such as loss of production, reduction in production or loss of profit is furthermore limited by the general principles of good faith, for example in cases of disproportionality between the amount of the delivery price and the amount of the damage. The extended liability according to § 287 BGB is excluded.
In the event of liability for simple negligence, BEGO's liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to the maximum value of our sum insured (currently00 EUR per claim, in the event of several loss events a total of00 EUR per year), even if this involves a breach of material contractual obligations.
The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of BEGO.
The burden of proof for the facts justifying the exclusion of liability shall be on us.
Insofar as BEGO provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
The above limitations of liability shall not apply to BEGO's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health, for liability under the Product Liability Act or to the extent that liability is mandatory for other reasons.
The customer's liability is governed by clauses 4.4, 5.3, 6.4, 6.5, 12.9, 15.7, 17.3, 20.8 and this clause. The customer shall otherwise be liable in accordance with the statutory provisions.
Should the client breach an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which BEGO regularly relies and may rely, including in particular clauses 13 and 14), the client shall indemnify and hold BEGO harmless with regard to any claim by third parties against BEGO in relation to the breach. The client shall bear the resulting costs for a defence against the claims of third parties, including the necessary and reasonable legal costs of BEGO. Clause 9.3 shall apply accordingly.
Contractual penalty regulations of the client which go beyond the regulation made here shall only be effective if they have been agreed separately and in writing with us.
BEGO and the customer shall take all appropriate measures to avoid damage and to minimise damage.
Returns
Return shipments of defect-free products delivered to us may only be made with our prior consent. We reserve the right to make a corresponding deduction from the value of the product to be refunded for the processing required as a result. Products must be in undamaged and unaltered original packaging. To protect the goods against transport damage and loss in transit, we recommend stable, transport-safe packaging and traceable, insured return of the goods.
Packaging
Insofar as we are obliged to take back transport and outer packaging in accordance with the Packaging Ordinance, the customer shall bear the costs for the return transport of the packaging used, unless a special agreement has been made with the customer.
Retention of title
We retain title to the products delivered until the price has been paid in full and until all other claims, including interest and costs, arising from the business relationship between us and our group of companies and the customer and his companies have been settled.
In the case of a current account, the reserved property ("reserved goods") shall be deemed security for our balance claim.
Any treatment or processing of the delivered products within the meaning of §§ 947 - 950 of the German Civil Code (BGB) shall be deemed to have been carried out on our behalf, but at no cost to us, with the result that we shall become the owner of the semi-finished and finished products produced in this way. Insofar as a combination or mixing with third-party goods takes place, we shall become co-owners in proportion to the products supplied by us. The customer shall hold in safe custody for us the semi-finished and finished products manufactured in whole or in part from the products supplied by us. The new item resulting from the treatment or processing shall be deemed to be reserved goods within the meaning of this provision to the extent specified. The customer may only sell the reserved goods in the ordinary course of business. He may therefore not pledge them, assign them as security or dispose of them in any other way. The customer shall notify us immediately of any impending or executed seizure or any other impairment of our rights (e.g. as a result of the opening of insolvency proceedings). In the event of default in payment or cessation of payments by the customer, we shall be entitled to demand the surrender of the goods subject to retention of title. Any costs incurred by us due to interventions against access by third parties shall be borne by the customer.
In the event of the sale of the reserved goods, the proceeds shall take their place. Furthermore, the customer shall assign to us the purchase price claim arising on the occasion of a sale of the reserved goods, namely in the case of a combination or mixing with third-party goods in proportion to our product share contained in the sold products; BEGO shall accept this assignment. At our request, the names of the debtors of the purchase price shall be disclosed to us and the claims assigned in accordance with this provision shall be described precisely in terms of numbers and the assignments shall be notified to the debtors concerned.
In the event of default in payment or if the customer violates other essential contractual obligations, BEGO shall be entitled to take back the goods subject to retention of title. Exercising the right to take back the goods does not constitute a withdrawal from the contract. The right to take back does not extend to the part of the product that has already been paid for (e.g. through a down payment).
The customer is obliged to keep the goods subject to retention of title fully insured against the usual risks at all times and to prove this to us upon request. The customer hereby assigns his possible insurance claims against us; BEGO accepts this assignment.
If the value of the securities given to us exceeds the customer's debt to us by more than 20% in terms of the book value, we shall be obliged to release the securities made available to us at the customer's request. The choice of the securities to be released shall be made by BEGO.
If, in the case of deliveries to foreign customers, the effectiveness of the retention of title provided for in this Clause 12 is dependent on the implementation of additional measures (e.g. registration or similar), the customer shall arrange for this measure at his own expense. If the retention of title is not recognised in any case in the customer's country, the customer shall be obliged to provide us with a corresponding security interest in the delivered products.
In the event of any attachment or seizure of products by third parties, the customer must inform these third parties of BEGO's retention of title and notify BEGO immediately in writing. If the third party is not in a position to reimburse BEGO for the judicial or extrajudicial costs incurred as a result of legal action against such attachment or seizure, the customer shall be liable for the loss incurred by BEGO as a result.
Intellectual property rights of third parties
BEGO is obliged to provide the delivery free of industrial property rights and copyrights of third parties ("Intellectual Property Rights of third parties") only at the agreed place of destination. BEGO is not aware of any Intellectual Property Rights of third parties which could be infringed by the distribution of its products. Should a claim be made by a third party regarding the infringement of its Intellectual Property Rights through the intended use or distribution, import, promotion/advertising or sale of the Products authorised by BEGO ("Third Party Intellectual Property Rights Infringement Claims"), the Client shall immediately notify BEGO of such claims in writing.
In the event that the product infringes intellectual property rights of a third party, BEGO shall, at its option and expense, modify or replace the product in such a way that no third party rights are infringed any more, but the product continues to fulfil the contractually agreed functions, or procure the right of use for the customer by concluding a licence agreement with the third party. If BEGO does not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the customer shall be subject to the restrictions of Clause 9.
In the event of infringements of rights by products of other manufacturers supplied by BEGO, BEGO shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. Claims against BEGO shall only exist in these cases in accordance with this clause if the legal enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g. due to insolvency.
Claims of the customer are excluded insofar as the customer is responsible for the infringement of intellectual property rights of third parties or if the infringement is caused by specifications of the customer, by an application not foreseeable by BEGO, by a modification by the customer or by use of the product together with goods not supplied by BEGO.
Clause 13.4 shall apply mutatis mutandis to the extent that a third party claim for infringement of intellectual property rights against BEGO results from distribution, import, promotion/advertising or sale of the products not authorised by BEGO.
Compliance; Export Control Clause; Modifications of the Products
Compliance
It is the customer's responsibility to ascertain compliance with all relevant local, state, federal and international laws (including minimum age requirements) in connection with the possession, use and distribution of products purchased by the customer from BEGO and/or information obtained or transmitted through our website. A product purchased from BEGO may not be shipped, transferred or exported to any country or otherwise dealt with in a manner that would violate applicable laws, restrictions and regulations.
Export transactions require the prior written consent of BEGO.
The Client shall cooperate fully with BEGO in the event of any regulatory or other audits or inspections required by law in connection with the Contract.
Export Control Clause
Products provided by BEGO under the Contract (including specific technical information necessary for the development, manufacture or use of a Product) may be subject to international, U.S., Chinese and other applicable export control laws and regulations (hereinafter "Laws") that restrict exports, re-exports, transfers or disclosures, regardless of the method of transmission (hereinafter "Transactions").
BEGO draws the attention of the Client to the obligation to comply with the Laws. In the case of any resale, the customer shall be responsible for compliance with any export regulations and shall indemnify BEGO against all obligations in this respect.
The Client shall not, without first obtaining the permission of the relevant authorities, be entitled to enter into any further transactions in the Products provided by BEGO under this Agreement if (i) the Product is controlled under the Laws; (ii) the transaction is made to a country, person or other party not entitled by law to receive such Product, i.e., from a sanctions list (i.e., from a sanctions list (i.e., from a sanctions list (ii.e., from a sanctions list); or (iii.e., from a sanctions list (i.e., from a sanctions list). (iii) the transaction is made to a person or other party and the Customer knows or has reason to believe that such person or other party intends to use, or to enable others to use, the Product for military activities or other prohibited use.
BEGO will only conduct transactions of goods if the transaction is in accordance with the law. BEGO is not obliged to carry out transactions of goods if the required permits or other documents are not available.
BEGO does not sell to Sanctioned Parties as defined by the Laws or to customers that are at least fifty (50) percent controlled by a Sanctioned Party.
The Client shall immediately notify BEGO of its status as defined in Clause 14.2.5 and any changes in information relevant under the Contract.
Modification of the Products: In the event of resale or distribution of the Products, the Customer shall not modify, alter, change, add to, tamper with, falsify, open, disassemble, remove or disassemble the (i) Products, (ii) their packaging, (iii) the accompanying instructions for use, (iv) their labelling, (v) the information printed on the Products and (vi) the promotional materials, including but not limited to BEGO's trademarks or (vii) any part thereof. In addition, he shall not modify the product name or permit it to be used under his own product name and shall not make it available on the market under his own brand or trade name.
BEGO's liability under Clauses 8 and 9 shall not apply to Products which have been handled in breach of Clause 14, unless the Client can prove that the breach is not connected with the claims of third parties in respect of defects.
Documents provided; Confidentiality; Reverse Engineering
BEGO retains ownership and copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. At the request of BEGO, the client shall return these items to BEGO in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of usual data backup is excluded from this.
Any information that (i) is marked as confidential at the time of disclosure to the other party, (ii) is expressly designated as confidential at the time of disclosure and the confidentiality of which is confirmed by the disclosing party within thirty (30) days of disclosure, or (iii) the confidentiality of which arises from the nature of the matter or the overall circumstances, shall be considered "Confidential Information" under the Agreement.
Information shall not qualify as Confidential Information if such information (i) is or becomes publicly available (including through disclosure by BEGO to a third party without a duty of confidentiality) without breach of the Agreement or other provisions designed to protect Confidential Information, (ii) was already in the Client's possession before the Client received it from BEGO, (iii) was lawfully received by the Client from a third party without a duty of confidentiality, or (iv) was independently developed or identified by the Client.
The Client must keep such Confidential Information strictly confidential and:
Must not disclose, distribute or publish it;
Must limit access to the Confidential Information to those officers and employees who have a compelling need to know such information for the purposes of this Agreement;
Must not make the Confidential Information available to any third party, including, but not limited to, consultants and independent contractors, even pursuant to a contract or confidentiality agreement;
Must limit the electronic and physical copies of the Confidential Information in its possession to no more than five (5) copies at any one time;
Must not disclose the Confidential Information on its intranet or on the Internet (except for e-mails addressed to no more than one recipient), unless such Confidential Information has been previously encrypted using a state-of-the-art encryption program to maintain confidentiality;
The customer is not permitted to directly or indirectly reverse engineer or attempt to reverse engineer materials for its own business purposes, unless otherwise agreed in writing. In particular, the customer may not decompile, analyse, disassemble or otherwise attempt to reverse engineer or infer the (elements, materials, ingredients, components, formulas, processes, source code) contained in the materials.
The Customer shall be released from the confidentiality obligations only to the extent that and only if BEGO has agreed to disclose the Confidential Information in writing or a competent governmental authority, court or arbitral tribunal requests the Customer to disclose certain Confidential Information. In such case, the Customer shall take all reasonable steps to ensure that such information is kept as confidential as possible by the authority, court and/or arbitral tribunal.
The confidentiality obligations shall expire ten (10) years after the expiry of the Contract.
If the Client breaches the confidentiality obligations resulting from this Clause 15 or the Contract, the Client shall be obliged to pay a contractual penalty to BEGO in an appropriate amount regardless of fault, the amount being determined by BEGO at its reasonable discretion and the appropriateness of the contractual penalty being subject to review by the competent court in the event of a dispute. BEGO reserves the right to claim further damages.
Data Protection
BEGO undertakes to exercise discretion and to handle personal data confidentially. The employees are obliged to maintain secrecy and to observe the applicable data protection regulations.
The data protection regulations are based on the European Data Protection Regulation (DS-GVO), the Federal Data Protection Act (BDSG) and special legal data protection regulations.
Personal data is only collected and processed insofar as this is necessary for the fulfilment of the contract or we are entitled and obliged to collect and process your data due to legal provisions.
If we process data for purposes other than those for which the data was collected or if there is no legal authorisation, we process personal data on the basis of your declaration of consent, which we may obtain from you before processing. In the case of the processing of special categories of data within the meaning of Art. 9 DSGVO, the consent must be given in writing and can be revoked at any time for the future.
Only information about the contractual partner that is required for the fulfilment of a contract or a legal obligation is stored. This will only be made accessible to those employees who are responsible for the corresponding tasks.
You agree not to transfer patient data as part of the contractual relationship. Patient data is information or material that relates to the illnesses or treatment of individuals and by which an individual can be identified. This includes, but is not limited to, a patient's personal identification number.
It is your responsibility to comply with all applicable data protection legislation. Notwithstanding the foregoing, patient data that you may be required to transmit to us and that cannot be masked prior to transmission will be processed by us only in accordance with applicable data protection laws and only to fulfil the purpose of the contract. Furthermore, you affirm that you have obtained consent from your patient for the transfer of his or her data.
The complete information in accordance with the obligation under Art. 13, Art. 14 DS-GVO will be provided separately as an annex to the contract.
Special regulations regarding electrical and electronic equipment
If the customer has ordered electrical and electronic equipment from BEGO, the following regulations shall also apply:
The customer assumes the obligation to properly dispose of the delivered product at his own expense after termination of use in accordance with the statutory provisions.
The customer shall indemnify us against the obligations pursuant to § 10 para. 2 ElektroG (manufacturers' obligation to take back electrical and electronic equipment) and any related claims of third parties.
The customer shall contractually obligate commercial third parties to whom he passes on the delivered products to properly dispose of them at their expense in accordance with the statutory provisions after termination of use and to impose a corresponding obligation on them in the event that they pass them on again.
If the customer fails to contractually oblige third parties to whom he passes on the delivered products to assume the disposal obligation and to impose a further obligation, the customer shall be obliged to take back the delivered products at his expense after termination of use and to properly dispose of them in accordance with the statutory provisions.
Our claim for takeover/release by the customer shall not become time-barred before the expiry of two (2) years after the final termination of use of the equipment. The two-year period of suspension of expiry shall commence at the earliest upon receipt by us of written notification from the customer of the termination of use.
In order for BEGO to be able to fulfil its delivery obligations from data recording orders, the customer must fulfil his obligations to cooperate properly and in good time. In particular, the customer must ensure that the data records are correct, contain all the necessary information and that the data are transmitted to us in full. Employees who operate a scanner and make orders must therefore be trained accordingly.
In the case of data recording orders, BEGO shall manufacture the products in accordance with the data transmitted to BEGO and, if applicable, from the material selected by the customer. Therefore, there shall be no claims for defects based on incorrect operation of the terminal device, incorrect transmission of the data due to faults in the line used by the customer, the fitting of the product to the patient or, if applicable, the ordering of unsuitable materials. Finally, there are no claims for defects if the defect is due to the reworking or modification of the product by the customer.
If the customer complains about a material defect in a product, the customer must immediately send this to BEGO together with the previously scanned model or data set together with the associated documents in order to give BEGO the opportunity to examine the complaint. The procedure according to Clause 10 shall apply accordingly. If BEGO comes to the conclusion that the customer has scanned the model or created the data set improperly and has therefore transmitted incorrect data, BEGO shall inform the customer of this immediately and send him both data sets as proof. In such cases, BEGO will only produce and deliver another product on the basis of the correct data set at the customer's expense if instructed to do so by the customer.
Special provisions for BEGO Services
If the customer uses the BEGO Scan and Design Service, the BEGO Guide Order Portal or comparable services of BEGO ("BEGO Service"), BEGO shall manufacture the customised abutment, prosthetic element or other corresponding component ("Component") in accordance with the specifications provided by the customer, such as the design and dimensions. The model provided to BEGO must be new, unsocketled and undamaged and must not have been used before. The model must be disinfected upon delivery to BEGO. The customer must confirm the disinfection in a written declaration. Furthermore, the packaging of the model must comply with the applicable transport and safety laws.
Alternatively, a scanned model data set or an intraoral scan in STL format can be sent instead of the model.
In the case of sending a model or intraoral scan data set instead of a physical model, the customer accepts that no fit check can be carried out by BEGO. Any problems with the fit of the drilling template therefore do not constitute a material defect.
This also applies if the customer sends a printable STL file of an already designed drilling template instead of a planning proposal prepared by BEGO. In this case, the customer is also responsible for requesting the necessary correct offset values and, if necessary, changing them in his software. If the customer orders a template design without producing a drilling template, he is responsible for informing BEGO of the correct offset values for the printer to be used. BEGO is not responsible for fitting problems that are causally attributable to printing errors or incorrect offset values.
If the customer uses the BEGO scan and design service, BEGO will develop and produce the component exclusively in accordance with the design parameters and dimensions specified by the customer in the order (whether in the order form or online). BEGO will not change the design parameters, dimensions and shape specified and approved by the customer. By sending the model via the BEGO scanning and design service, the customer approves the design and production (design pre-approval).
If the customer uses the BEGO Guide Order Portal, BEGO will produce a planning proposal based on the information provided by the customer.
BEGO does not provide medical advice. A treatment plan or other file created and provided by BEGO based on their input is the result of image processing operations such as reformatting and cropping of original CT images and is to be considered only as part of the technical assistance and support provided to you and in no way as medical advice from BEGO in any form. For a complete radiological analysis, for example to assess whether tumours or infections are present outside the region for implant placement, you must always refer to the original CT images and you must carefully review and check the treatment plan or other file or associated data recording product before use.
By using the Treatment Plan or any other file or data recording product, you automatically release BEGO from any liability in connection with such use. You hereby declare that you are sufficiently medically qualified under applicable laws and regulations, that you comply with all applicable laws, and that you assume full legal and medical responsibility for the use of the Treatment Plan or any other file or associated Data Recording Product.
BEGO is not responsible for defects in the design or fit of the component when using BEGO Services. There are also no claims for defects if the defect is due to the reworking or modification of the product by the customer.
Special regulations for orders of software
If software is included in the scope of delivery, BEGO grants the customer a non-exclusive and, subject to Clause 21.8, non-transferable right to use it in accordance with the following provisions:
All rights to know-how and results capable of being protected (e.g. inventions, copyrights) shall remain with BEGO. BEGO is entitled to use the know-how acquired in connection with the execution of the contract without restriction for its own business purposes.
If software is supplied as part of a device or for a specific device ("firmware"), the customer may only use this firmware with the designated device. The use of the firmware with another device requires the express written consent of BEGO, unless the customer temporarily uses the software with a replacement device of identical construction due to a defect in hardware sold by BEGO.
The required documentation for the intended use of software shall be supplied in a suitable form. The provision of further documentation, in particular maintenance documentation or documentation for firmware, shall in any case require a separate written agreement.
Unless BEGO expressly grants the customer a multiple licence, the customer shall receive a single licence to the software, i.e. the software may only be used on one end device at a time. However, the customer is entitled to make one copy exclusively for backup purposes. In the case of a multiple licence, the customer must observe the instructions on duplication provided by BEGO and record the whereabouts of all duplications. These records shall be presented to BEGO on request.
The software shall be provided exclusively in machine-readable form as object code.
Except in the case of § 69e UrhG, the customer shall not be entitled to modify, reverse engineer, translate, extract parts of or combine the software with other programs. The customer may not remove alphanumeric and other identifiers as well as manufacturer's information - in particular copyright notices - from data carriers and must transfer them unchanged to each backup copy.
The customer is not entitled to rent or lend software to third parties or to grant sub-licences. Software purchased together with a device may only be resold together with the associated device. The customer may only resell other software to third parties insofar as the third party is not granted any further rights of use to the software than those granted to the customer by BEGO. The customer may not retain a copy of the software in the event of resale. Multiple licences may only be resold in total.
Insofar as BEGO provides the customer with open source software or other third-party software, i.e. software for which BEGO only has a derived right of use, the terms of use agreed between BEGO and its licensor, which BEGO shall make available to the customer on request, shall apply additionally and with priority. In the event of a breach of these terms of use by the customer, BEGO as well as its licensor shall be entitled to assert the resulting claims and rights in its own name.
The customer undertakes to keep the software, including any documentation, carefully in order to exclude misuse.
The purchase of software does not include any obligation on the part of BEGO to provide software services. These require a separate agreement.
Statute of limitations
The customer's claims under guarantee and warranty shall become statute-barred after one (1) year. The customer's claims based on defects pursuant to § 438 para. 1 no. 2 BGB and § 634a para. 1 no. 2 BGB shall remain unaffected.
Other claims of the customer due to breaches of duty by us, in particular claims for damages (e.g. in the event of a breach of a duty of supplementary performance for which we are responsible) shall become statute-barred after one (1) year. The right of the customer to withdraw from the contract due to a breach of duty for which we are responsible and which is not due to a defect remains unaffected. Clause 9.8 shall apply accordingly.
The statutory provisions on the commencement of the limitation period, the suspension of the expiry of the limitation period, the suspension and the recommencement of limitation periods shall remain unaffected.
Our claims against the customer shall become statute-barred in accordance with the statutory provisions.
Assignment; transfer; set-off
The customer may not assign or transfer his rights and/or obligations arising from the contractual relationship with BEGO to third parties without the prior written consent of BEGO. § Section 354a HGB remains unaffected.
The customer shall only be entitled to set-off and to exercise rights of lien or retention if the claims asserted by him have been recognised by BEGO or have been legally established by a court of law. Rights of retention due to defects may only be asserted under the above conditions in reasonable proportion to the defects that have occurred.
Force majeure
Serious events, such as in particular force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. (e.g. fire, water and storm damage, traffic disruptions, epidemics or pandemics, industrial disputes, other unforeseen shortages of labour, energy or production materials, riots, armed conflicts or terrorist acts, difficulties in obtaining the necessary official permits, official measures or the failure to deliver correctly or on time), or incorrect or untimely delivery by suppliers), which entail unforeseeable consequences for the performance of the service and for which the contracting party is not responsible, shall release BEGO and the customer from their obligations to perform for the duration of the disruption and to the extent of its effect, even if they should be in default. An automatic termination of the contract is not associated with this. BEGO and the client are obliged to notify each other of such an impediment and to adjust their obligations to the changed circumstances in good faith.
If, as a result of this, it proves impossible to comply with the agreed delivery period, a reasonable extension of the delivery period shall apply, but no longer than four (4) weeks after the expiry of the original delivery period. If the hindrance continues, BEGO and the customer shall be entitled to withdraw from the contract. In this case, neither of the contracting parties shall be entitled to any further claim against the other contracting party.
Applicable law; place of jurisdiction; place of performance; final provisions
The law of the Federal Republic of Germany shall apply exclusively to all business relations between BEGO and the customer. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is excluded.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Bremen, Germany. However, BEGO is also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with the contract or a prior individual agreement or at the general place of jurisdiction of the customer. The same shall apply if the customer does not have a general place of jurisdiction in Germany or relocates his place of residence or habitual abode abroad after conclusion of the contract or if his place of residence or habitual abode is unknown at the time the action is brought. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected by this clause.
The place of performance, also for payments and deliveries by the customer, is Bremen, Germany, unless we have expressly agreed otherwise with the customer.
The invalidity of individual provisions above shall not affect the legal validity of the remaining provisions.
Insofar as the contract or these GTC contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these GTC if they had known about the loophole.
In the case of continuing obligations, BEGO reserves the right to amend these GTC at any time, insofar as this is necessary for valid reasons, in particular due to a changed legal situation or supreme court rulings, technical changes or further developments, new organisational requirements of mass traffic, regulatory gaps in the GTC, changes in market conditions or other equivalent reasons and does not unreasonably disadvantage the customer. Amendments to the GTC shall be notified to the customer in writing or by e-mail at least six weeks before they come into force. The amendments shall become effective if the customer does not object in writing or by e-mail within this period of six weeks (commencing after receipt of the written notification of amendment) and BEGO has drawn the customer's attention to this legal consequence in the notification of amendment.
Bremen, January 2021
