Terms of Service
I. General Terms of Business of Beheim International Brands GmbH & Co. KG
Version dated 01.06.2018
In the following General Terms of Business Beheim International Brands GmbH & Co. KG of Im Hain 29, 63179 Obertshausen, is referred to as the “Supplier”. The Supplier’s contracting party is the “Customer” and the contractual relationship to be entered into is the “Contract”.
The subject matter of the Supplier’s contractual obligations is a “Service” even where comprising the sale and delivery of goods.
Application of the General Terms of Business; Generalities
The Supplier’s Services and offers are based exclusively on the Supplier’s General Terms of Business in the version applicable for the time being and published at www.beheim.de; even orders placed verbally, on the telephone, by fax or electronically are accepted by the Supplier solely subject to its General Terms of Business applicable for the time being. These therefore also apply to all future orders and commissions between the Supplier and the Customer. The Supplier’s General Terms of Business apply even if the Supplier renders Services to the Customer without reservation in the knowledge of the Customer’s terms and conditions which are to the contrary or which deviate from the General Terms of Business. Any counter-confirmation by the Customer referring to its own terms and conditions of business or purchase is hereby refuted.
The Supplier only sells and supplies traders within the meaning of § 14 BGB [German Civil Code].
When supplying Services abroad the special terms agreed by the Supplier and Customer (especially different terms regarding postage and shipping costs and specific terms of delivery and extras) take priority, with the Supplier’s General Terms of Business applying only in addition thereto.
Orders, acceptance of orders and shipping costs
The Supplier’s offers are made without engagement and are not binding. The Supplier is entitled to sell on Services to a third party between offer and acceptance. Orders placed by Customers are only binding on the Supplier if confirmed by the Supplier in writing or if the Supplier renders the Services.
If the Supplier should provide the Customer with a sample or specimen before or after concluding the Contract they do not have to have the characteristics stated in the Contract. The first sentence applies mutatis mutandis to drawings, illustrations, sizes, weights and other details and data with which the Supplier provides the Customer before or after concluding the Contract (e.g. in the form of sales literature, catalogues and brochures). The Supplier expressly advises the Customer that initial samples are basically never exactly the same as the final Service rendered because of the manufacturing process and materials used. The first sentence also applies mutatis mutandis to samples displayed by the Supplier at trade fairs. The Supplier expressly reserves the right to make changes in this respect provided that the Service and/or quality thereof are not substantially altered as a result thereof and the change is reasonable for the Customer.
The Supplier retains all unlimited rights to all cost estimates, drawings, samples, specimens, illustrations, its own sample items and other documentation (“Documentation”) with which it provides the Customer. The Customer does not have the right to make the Documentation itself or content thereof available to third parties without the prior written consent of the Supplier. If so requested by the Supplier the Customer will be obliged to promptly hand over all Documentation to the Supplier in full if it should no longer be required by the Customer in the ordinary course of business or if no order should ultimately be placed by the Customer. Samples or drawings provided to the Supplier by the Customer will only be returned at the Customer’s request. If no order should be placed the Supplier will be entitled to destroy the samples and drawings provided once three months have elapsed from the making of an offer.
The Supplier’s products must not be resold via third party platforms bearing the name or logo of such platform (e.g. eBay or www.plus.de). Nor may the brand names of the Supplier’s products be used as elements of a homepage address. The first two sentences above apply mutatis mutandis to confusingly similar names and logos – in whole or in part.
The minimum order value stated on the Supplier’s specific order form applies to new Customers (= Customers placing their first orders and Customers whose last order dates back more than one year) and to seasonal commissions (e.g. referring to a Spring/Summer or Autumn/Winter collection). The Supplier charges flat-rate shipping costs for postage and packaging as stated on the Supplier’s specific order form on every order irrespective of the franchise brand. No flat-rate shipping costs are charged on orders with a value of € 1,200 or more. Flat-rate shipping costs are only charged to the Customer once if partial deliveries should be caused to be made by the Supplier. The order value for the purposes of this clause 3.5 means the net order value excluding shipping costs.
The Supplier’s prices are net prices. Transportation/shipping costs and statutory VAT (unless a Service is VAT-exempt under § 4 UStG [German Law on VAT]) are not included and are charged separately. Unless stated to the contrary in the Contract all prices quoted by the Supplier are expressed in euros.
The Customer has to reimburse the Supplier for extra costs resulting from express shipments, delivery by forwarding agents and deliveries of bulky and lengthy goods, extra services (See Part III, e.g. palletisation, foliation, labelling and special securing of goods), deliveries abroad and costs incurred on items despatched to the Supplier carriage forward, unless they are costs of subsequent performance due to a defect.
The price is the price stated by the Supplier in the Contract or, if this should not be specified, the price currently shown in the Supplier’s price lists at the date of the order.
Deliveries, delay in Services, components
Delivery dates given in a Customer’s orders are not binding on the Supplier. The Supplier will endeavour to meet delivery dates requested by the Customer where products are available. An express written agreement is required in order for delivery dates to be binding.
The Supplier is not responsible for delays in Services due to force majeure or resulting from events which not just temporarily make it much more difficult or impossible for the Supplier to perform a Service – including, in particular, strikes, shipping or customs clearance delays, lockouts and official requirements, even if they should occur at one of the Supplier’s own sub-contractors or their sub-suppliers – even if binding dates or deadlines should have been agreed. They entitle the Supplier to postpone the Service by the length of the obstacle concerned plus a reasonable start-up time or else to cancel the Contract in whole or in part on account of the element not performed. The first and second sentences apply mutatis mutandis to delays in Services caused by the Customer’s failure to provide the Supplier in sufficient time prior to performance of a Service with such labels, security materials and components as are deemed by the Supplier to be necessary to perform the Service. Where the Customer provides the Supplier with components they are to be delivered to the Supplier carriage paid. The Customer must promptly provide the Supplier with extra components of the agreed quality – that is to say 5% to 10% extra, as specifically agreed, but a minimum of 5% – to cover any wastage so that it is possible for the Supplier to process goods without interruption. If a delay in Services due to force majeure should last for longer than three months the Customer will be entitled to cancel the Contract with regard to the element not already performed on giving reasonable notice. Notice need not be given if it is impossible for the Supplier to perform the Service.
The Supplier is entitled to make partial deliveries at any time unless partial delivery is of no interest to the Customer.
Deliveries are made in principle ex works (EXW, Incoterms 2010) to the Supplier’s head office. In such a case the risk of loss passes to the Customer on the date on which the Supplier informs the Customer that the delivery is ready for collection.
If the Supplier ships goods at the Customer’s request then, irrespective of who bears the transportation/shipping costs, the risk of transportation is borne by the Customer. If shipment should be delayed due to circumstances for which the Customer is responsible the risk of loss passes to the Customer on the date on which the consignment is ready for dispatch. In that case the Supplier arranges storage at the Customer’s expense.
Where the Supplier bears all or some of the transportation/shipping costs the Supplier is entitled to stipulate both the shipping route and mode of dispatch. If the Customer requires a different shipping route and/or mode of dispatch and the Supplier complies with that requirement the Customer has to bear the difference in cost between the shipping route or mode of dispatch required by it and the shipping route or mode of dispatch stipulated by the Supplier.
Retention of title
All of the Customer’s deliveries are made subject to retention of title until such time as all debts due to the Supplier as a result of business dealings with the Customer have been paid in full. Products supplied must be handled carefully and may only be used as directed. They may not, in particular, be either pledged or given as collateral to a third party without title being disclosed. Sales in the ordinary course of the Customer’s business are excluded. Whenever resale is permitted the Customer hereby assigns to the Supplier the debts due to it from its own customer along with all ancillary rights, the amount covered by such assignment being equal to the value of the retention goods (extended retention of title). The Customer only remains authorised to collect debts due to it as long as it is not in default. In the event of default or in the event of insolvency proceedings being commenced apropos the Customer the Supplier hereby prohibits the resale of its retention goods and revokes the authority to collect debts with regard to those debts assigned to the Supplier as collateral.
The Supplier cannot entirely exclude the possibility of an immediate marketing adjustment becoming necessary even for its customers (legal ban, official requirement, court judgment etc.) on account of goods supplied by it (trade). In such an eventuality the Supplier will endeavour to protect its Customers as far as possible from prejudicial consequences and in such a case the Supplier will inform the Customer of the need for a marketing adjustment as quickly as possible. It will also inform it of which items are affected although it will be for the Supplier to ascertain whether there is such a need. The Customer will then be obliged to immediately take such items off the market and to no longer advertise them or offer them for sale once notification has been received. The Supplier agrees to take back the goods affected and refund the purchase price by way of a credit note plus the actual cost of returning the goods; it may also direct the goods to be destroyed at its own expense unless prior to their return or destruction being arranged the Supplier should state that the need for a marketing adjustment has since been resolved.
Terms of payment
Unless agreed to the contrary between the Customer and the Supplier the Customer is obliged to pay for the Supplier’s Services after they have been performed within 30 days of the invoice date unless the invoice has not already been issued by that date, is incorrect, not due and payable or unenforceable. The date on which the money is received or unreservedly credited to the Supplier’s account will determine whether payment has been made on time.
Payment is to be made by transfer to the Supplier. The Supplier is under no obligation to accept payment by cheque; cheques are always presented only on account of performance. Their presentation does not lead to deferment of the debt.
If the Customer should fail to meet its payment obligations by the deadline stated in clause 8.1 (“payment default”) the Supplier may charge default interest as from that deadline in the sum of 9% above European Central Bank base rate applicable for the time being.
The Supplier may terminate a commission in whole or in part with immediate effect if (a) despite a warning the Customer as an online trader breaches one or more of the minimum requirements for online shops stated below in Part II, (b) despite a warning the Customer falls more than two weeks into arrears with its payments, or (c) if insolvency proceedings are filed in respect of the Customer’s assets, insolvency proceedings are instigated or their commencement refused for lack of assets.
The Customer may only offset debts due to the Supplier against counterclaims which are not denied, which are established by way of a final court order or which have reached the judgment stage. The same applies to exercise of the right of retention, including rights under § 369 HGB [German Commercial Code].
By way of derogation from sub-clause 8.1 the Supplier may also demand payment before effecting performance (payment on account) if it gives notice thereof before conclusion of the Contract. Sub-clauses 8.1 and 8.3 will not then apply.
Liability for material defects and defects in title
Unless provided to the contrary below, liability for material defects and defects in title in the Supplier’s Services is governed by statute.
In the event of products delivered by the Supplier being defective the Supplier will initially only have the right to effect subsequent performance or – as the Supplier may choose, as a gesture of goodwill – to refund the purchase price by issuing a corresponding credit note. If the Supplier should decide in favour of subsequent performance it will generally, as it may choose, provide a replacement and only carry out a repair in an exceptional instance.
Where the Supplier provides services to the Customer (especially extra services as per Part III below) there will be no question of a warranty under statute.
The Supplier will only be liable, irrespective of grounds, for loss or damage caused by a defect in the Services themselves or by an act or omission within the following limits:
for intent or gross negligence on the part of legal representatives, members of staff or other agents of the Supplier: no limit
for culpable fundamental breach of contract (cardinal obligations) on the part of the Supplier, its legal representatives or other agents in the absence of intent or gross negligence: limited to the amount of foreseeable loss or damage typical of the Contract. Cardinal obligations are obligations without the fulfilment of which due performance of the Contract would not be possible and upon the fulfilment of which the contracting party is generally entitled to rely.
Notwithstanding the rule in sub-clause 10.1(a) the Supplier will only be liable for loss or damage caused by the conduct of members of staff or other agents if such persons were acting within the scope of their employment. The Supplier is also released from liability if loss or damage is based on circumstances that it could not have avoided even by taking the greatest care and the consequences of which it was unable to avoid (e.g. strikes, force majeure).
All other liability on the Supplier’s part is excluded.
The limit on liability in sub-clauses 10.1 to 10.3 does not apply to loss of life, personal injury or damage to health, in the event of fraudulent concealment of a defect or of mandatory liability under the [German] Product Liability Act.
Industrial property and copyright
Where a third party asserts justified claims against the Customer for breach of an industrial property right or copyright (hereinafter called “intellectual property rights”) as a result of a Service developed and/or rendered by the Supplier the Supplier will be liable as follows:
The Supplier may choose at its own expense to either obtain a right to use the Service developed and/or rendered, modify the Service in such a way that the intellectual property rights are no longer infringed or swap the Service, provided that use of the Service required under the Contract is not prejudiced thereby, or to withdraw the Service and refund the Customer the price paid for same less any loss of value sustained by the Service. If the Supplier should ultimately be unable to grant the Customer the right of use required by the Contract by taking one of the measures stated in the first sentence the Customer will be entitled to cancel the Contract.
The Supplier is only obliged to take the measures stated in the first sentence of sub-clause a) if the Customer promptly gives the Supplier written notice of claims asserted by the third party describing the infringement, does not acknowledge a breach and grants the Supplier unlimited powers to take decisions on the defence process and conduct of settlement negotiations. If the Customer should cease to use the Service for loss mitigation purposes or for other good cause it is obliged to inform the third party that no acknowledgement of a breach of intellectual property rights is to be associated with its cessation of use.
The Customer has no rights or claims other than those stated in sub-clause a). The Customer’s right to claim damages from the Supplier for breach of intellectual property rights or copyright as a result of intentional or grossly negligent breach of duty by legal representatives, members of staff or other agents of the Supplier is not prejudiced hereby.
Claims by the Customer under sub-clause 11.1 are excluded if the Customer is responsible for the breach of intellectual property rights. Claims by the Customer are also excluded if the breach of intellectual property rights is caused by special requirements by the Customer, by an application not foreseeable by the Supplier or by the fact that the Service has been modified by the Customer or used in conjunction with services not rendered by the Supplier.
The Customer is obliged to use its best endeavours in support of the Supplier’s defence against breach of intellectual property rights.
Conversely, the Customer must indemnify the Supplier in respect of all claims by third parties brought against the Supplier for breach of intellectual property rights or copyright if such breach results from an express instruction given to the Supplier by the Customer or if the Customer modifies the Service or integrates it into a third-party product.
Assignment, forum, law applicable
The Customer may not assign the rights and obligations under the Contract with the Supplier to a third party without the prior written consent of the Supplier. The Supplier is entitled to assign its trade receivables for financing purposes.
The forum for all disputes between the Supplier and Customer is the Supplier’s head office provided that the Customer is a registered trader, a legal person governed by public law or a special fund governed by public law. However, the Supplier may also sue the Customer at the latter’s head office. Unless otherwise agreed between the Supplier and Customer the place of performance is the Supplier’s head office in Obertshausen.
The law of the Federal Republic of Germany has exclusive application over all legal relationships between the Customer and Supplier, to the exclusion of the UN Convention on the International Sale of Goods (CISG).
II. Minimum requirements for online shops
Version dated 01.06.2018
Subject to the requirements for online shops resulting from the Supplier’s licensing agreements the Customer is entitled to offer products for sale online in accordance with the legislation and rules applicable:
- If the Customer is an online trader the following minimum requirements for the Customer’s online shop will apply in addition to the General Terms of Business.
- An online trader is any Customer that has a POS on the Internet.
- An online trader must not offer for sale any tobacco products or goods or services in breach of any legislation or rules for the protection of children and young people.
- Online traders must, in particular, apropos of sales restrictions under national law, operate their websites – including the handling of orders and payments and terms of business – in accordance with legislation and rules applicable at European or appropriate national level.
- Online traders are obliged to guarantee a brand-appropriate high-value presentation at the POS. This includes not only visual presentation of products but also details of the product range as defined by a broad and in-depth diversity of goods on offer. The POS must provide a simple organisational structure and search function.
- Brand-appropriate presentation also includes the use of image motifs and text. This advertising material is provided by the Supplier on a seasonal basis as and when available and must be released after implementation but before “Go Live” in text form per screenshot. Once updated advertising material is available the old material must no longer be used.
- All licensed brand items offered for sale online must be displayed showing at least two product photos. Product photos must be high-quality (300 dpi) and there must be a zoom function for every item.
- Descriptions of items offered for sale online must depict products in a clear, understandable and detailed fashion and include at least the dimensions (LxWxH), interior, material composition and colours available. Descriptions of items should include the EIA (environmental impact assessment).
- Online traders’ online advertising must reflect the quality features and brand image of contract products in the same way as offline advertising. Online traders must especially avoid any form of online advertising liable to prejudice the brand image. This includes, in particular, unsolicited advertising (e.g. banners or pop-up windows) and display advertising on disreputable or second-rate websites. This refers to both the content and design of websites. Online traders agree to give the Supplier proper prior notice of display advertising campaigns directly or indirectly proposed by them. The Supplier is entitled to ban display advertising proposed by traders if it is liable to prejudice the reputation, brand image or quality features of contract products.
- The incorporation of legal SEO measures is permitted if they just optimise a trader’s website ranking by the use of search terms corresponding to the brand image defined in these minimum requirements. Optimisation using terms such as “cheap”, “unbeatable prices”, “bargain” etc. is banned, in particular. Unlawful or dubious SEO measures are always prohibited. Online traders must ensure that their contracted service providers always observe these rules.
- The use of keyword advertisements in online advertising (Google AdWords, for example) is permitted provided that the only keywords selected are those that correspond to assertion of the brand image defined in these minimum requirements. Use of keywords such as “cheap”, “unbeatable prices”, “bargain” and the like in conjunction with contract product brands is prohibited, in particular. Use of competing brand names as keywords is prohibited. Online traders must ensure that their contracted service providers always observe these rules.
- The content requirements regarding design and corporate identity of traders’ websites apply in similar fashion to advertising on social media platforms (Facebook, Twitter, Google+, etc).
- Online traders may only send advertising emails to the extent permitted by law. The same requirements as to content and design of display advertising will apply.
- Online traders must ensure that their websites (a) are compatible with all commonly used web browsers and (b) are optimised for normal screen resolution.
- Where an order is accepted by an online trader it must be confirmed by email and promptly processed by the online trader.
- Online traders must promptly inform customers by email if a product ordered by a customer is unavailable.
- Online traders must set up an inventory management system to avoid becoming sold out.
- Online traders must remove products that are no longer available from their websites.
- Online traders must notify customers once products have been despatched.
- Products and packaging must not be modified, altered or changed in any way. Online traders must always use reasonable suitable packaging when despatching products. Every package must contain an invoice and delivery note. It must be possible for online traders to track packages once despatched.
- Online traders must despatch products within a period in line with normal commercial practice.
- Online traders may only despatch products that have been checked for defects on receipt.
- Online traders must offer customers terms of payment and payment deadlines in line with normal commercial practice.
- Advice given to end consumers by the Customer prior to conclusion of a sale must be facilitated at normal times through at least one of the following channels of communication (09:00-18:00 on weekdays and 09:00 to 14:00 on Saturdays): telephone, email, chat or retail stores.
- Online traders must provide a clear “help” function on their websites giving information on terms and conditions governing payment, shipment, revocation, return and purchase price refunds, in particular.
- Online traders must make provision for the normal processing of orders and implement the relevant functions (login, shopping basket, checkout procedure, general facilities for dual control/changing orders) in accordance with the legislation and rules applicable.
- Following the conclusion of a sale any queries raised by the end consumer during normal business hours (09:00-18:00 on weekdays and 09:00 to 14:00 on Saturdays) must be answered within 24 hours irrespective of the channel of communication.
- In the event of revocation or of products being returned by the end consumer the online trader must observe the legislation and rules applicable.
- Online traders must inform end consumers of the relevant rules on guarantees and of their rights of revocation and return.
- Online traders must indicate that products may only be returned to the online trader concerned.
- Before a website goes live the Supplier must give the online trader its approval of the website and product presentation in accordance with measures in these minimum requirements.
- The Supplier must also give the online trader its approval to changes to the website which might affect the high quality and reputation of brands and therefore the perception of products by end consumers.
- Online traders must nominate a contact person responsible for providing information on any problems connected with online marketing and sales.
- Online traders must treat all documents and information relating to products as confidential unless they are intended for publication (such as, advertising and publicity material).
- Online traders acknowledge that they do not have any rights to brand names or to advertising material provided by the Supplier.
- Online traders must not engage in any activity that might prejudice the reputation of brand names.
- Online traders must immediately notify the Supplier of potential violations of brand names by third parties.
III. Price list for special services (shipment, logistics and services)
Version dated 01.04.2018
- Pallet costs (non-returnable):
- Per euro-pallet: € 10,00
- Per disposable pallet: € 5,00
- Palletisation & foliation:
- Per pallet: € 4,00
- Palletisation & foliation in different colour:
- Per pallet: € 5,00
- Special cardboard packaging in sizes to customer specification:
- Per cardboard box: € 1,00
- Shipping costs:
- Per cardboard box (max. 31.5kg) € 4,00
- Packaging units (items/boxes) to customer specification
- Per cardboard box € 0,30
- Labels & protection provided by customer
- hang tag per article: € 0,40
- stickers per article: € 0,40
- safety devices:
- protection per article: € 0,40
- Labels & protection not provided by customer
- labels charged to customer at cost or as invoiced by label supplier
- hang tag per article: € 0,40
- stickers per article: € 0,40
- safety devices:
- protection per article: € 0,40
- labels charged to customer at cost or as invoiced by label supplier
- Removal of labels
- Per article € 0,40
- Removal of protective materials ex production
- Per article € 0,50
- Sealing/adhering article packaging
- Per article € 0,50