General Terms and Conditions (GTC)
of the company bak-tec-Industries GmbH, Mainhausen-Zellhausen
Status 1 March 2016
§ 1 Applicability
(1) These GTP apply solely and exclusively in relation to entrepreneurs in the definition of Sec. 310 (1) BGB [German Civil Code]. We will recognise terms of the buyer, which oppose or differ from the Terms of Sale, only if we expressly agree in writing to their applicability. Our GTC apply to all offers and orders for delivery, assembly and repair, including consulting and the performance of additional services.
(2) These Terms of Sale shall also apply to all future business with the buyer involving legal transactions of similar kind.
§ 2 Offer and conclusion of the contract
(1) If an order can be deemed an offer in accordance with Sec. 145 BGB, we can accept it within two weeks.
(2) Offers of bak-tec-Industries GmbH, Mainhausen-Zellhausen, are generally subject to change. Prior sale remains reserved up until the acceptance of the offer. A contract will be effectively concluded only by our written order confirmation. If an agreed prepayment is not made within the period specified in the order confirmation, the contractor may withdraw from the contract and invoice the client/buyer for a flat sum as processing fee and damage compensation in the amount of 20% of the net order value. The client expressly acknowledges this agreement.
(3) All contractual agreements require the written form or a written confirmation from us. This also applies to side agreements and assurances, as well as to subsequent changes to the contract, deviations and amendments to the General Terms and Conditions. They shall be valid only if they are confirmed by us in writing.
(4) If we request credit insurance for orders and if the insurer should reject the application, we shall have the right, in spite of a prior order confirmation, to withdraw from the contract without this giving rise to any rights and claims of damages for the customer. We shall also have this right, if it is discovered after the signing of the contract that the customer is not creditworthy. Our right to withdraw shall expire when the customer makes a prepayment.
§ 3 Provided documents
We reserve property and copyrights on all documents provided to the buyer in connection with the offer and order, such as calculations, drawings, etc. These documents must not be made accessible to third parties, unless we grant the buyer our explicit written agreement to this. If we do not accept the buyer’s offer within the period named under § 2, these documents shall be given back or returned to us by mail at the cost of the offer recipient, without delay and without additional request.
§ 4 Prices and terms of payment
(1) Unless agreed otherwise in writing, our prices apply ex-store of the company bak-tec-Industries GmbH, without costs for packing and loading, plus the value added tax in the respectively valid amount.
(2) Load boards, tension belts, pallets, transport anchors and other loading materials will be charged separately. They will be credited to the customer again, if the customer returns them to us undamaged and with freight paid within 4 weeks. In case of a delivery by carrier, a pallet to be swapped shall be kept ready. If the buyer should not have a pallet ready for swapping, we will charge a fee of 25.00 euro per pallet.
(3) The payment of the purchase price shall be made in cash on the handover or, if this has been agreed in writing beforehand, exclusively by transfer to the account of the company bak-tec-Industries GmbH indicated on the invoice. No deductions for discounts are permissible.
(4) If the purchase is not paid on time, default interest of 8% above the base interest rate p.a. shall be paid by the buyer. Claims of higher damage due to default remain reserved.
(5) Appropriate changes in the actual price compared to the offers due to changed costs for wages, materials and sales remain reserved for deliveries made 3 months or more after the conclusion of the contract.
§ 5 Set-off and rights of withholding
The buyer shall have a right to set-off only if its counterclaims have been established as final and absolute or if they are uncontested. The buyer may exercise the right of withholding only to the extent that its counterclaim is based on the same contractual relationship.
§ 6 Delivery dates, deadlines and delay
(1) The start of the delivery period or the date of collection specified by us requires that all technical questions have been clarified and the buyer’s obligations have been fulfilled correctly and on time. The defence of the unfulfilled contract remains reserved.
(2) Cases of force majeure or other circumstances, which occur at our company or at a business working for us and cannot be prevented or anticipated by us, or in case of strike or lockout causing that dates or deadlines are missed shall not constitute a delay of delivery. If these cases of causation occur, the delivery periods shall be extended by the length of the time during which these reasons persist. If an extension of the delivery period is unacceptable for the buyer and if, in this context, part deliveries are not in the buyer’s interest, it shall have a right to withdraw from the contract to the extent that the contract is not performed yet. If the delivery is made impossible due to the circumstances named in clause 1, we may withdraw from the contract to the extent that it is not performed yet. Notice of withdrawal requires the written form in any case.
(3) In the event of a delay in delivery, the buyer shall set an appropriate grace period to us in writing with the note that it refuses the acceptance of the object of delivery after expiration of the period. After the unsuccessful expiration of the grace period, the customer shall have the right to withdraw from the contract by giving written notice.
Default damage shall be refunded only in cases of intent and gross negligence, unless an essential contractual duty is affected or compulsory liability applies in cases of injury to life, body or health. In relation to merchants, compensation of default damage is furthermore limited to 0.5% for each completed working week of the delay and in total to a maximum of 5% of the value of the affected (part) deliveries. In case of delivery delays by up to one week, damage compensation claims shall be precluded also in the case of gross negligence.
We shall furthermore not be liable if the delivery delays are due to circumstances, which cannot be influenced or anticipated by us or our vicarious agents (e.g. traffic congestions, technical defects, customs problems, traffic accidents, improper securing of the load, etc.) In the case that claims can be brought against third parties for having caused the delay of the delivery period, we hereby assign any claims against such third parties to the customer on the present day already. The customer hereby accepts the assignment.
(4) If the customer does not accept the objects of delivery shipped or offered to it or if it does not release the plan documents having been sent to it for execution or if it does not give us the opportunity to perform our work, we can withdraw from the contract after setting an appropriate grace period.
(5) If the buyer is in delay of acceptance, or if facilities and connections to be provided on site are not completed at the time of delivery, or if it culpably breaches other duties to cooperate, we shall be entitled to request compensation for any damage arising for us in result, including any additional costs. Further claims remain reserved. If the above conditions are given, the risk of accidental loss or accidental deterioration of the object of purchase shall transfer to the buyer at the point in time when the latter is in delay with acceptance or in default of payment.
(6) We shall expressly not be liable for consequential damages in case of a delayed or incomplete delivery or commissioning. Further legal claims and rights of the buyer for a delay of delivery remain unaffected.
(7) If machines are overhauled, it can happen that various spare parts are received by us at a delay. This can cause delays in the schedule of the planned delivery date.
§ 7 Delivery and unloading
(1) Unless agreed otherwise, the delivery will be made ex-factory. If it has been agreed that the delivery be made by bak-tec-Industries GmbH, Mainhausen-Zellhausen, it will be made free to kerbside and in case of deliveries on islands, free to port/shoreline.
(2) The customer shall perform the unloading professionally and without delay. The delivery time shall be agreed.
(3) If it is not possible to unload a delivery in accordance with the contract for reasons outside of our influence, the customer shall determine immediately what should happen with the delivery.
(4) If no particular shipment method is agreed, we shall determine the shipment method. In particular, we shall also determine the type of delivery vehicle. We have a right to make part deliveries.
(5) In case of collection in person, the customer shall be responsible for the selection of the means of transport and the fastening of the load safe for transport. If a freight carrier or forwarder is contracted, it shall be up to the customer to impose accordant obligations on the freight carrier or forwarder.
(6) The customer shall be entitled to claims against us for obvious damages on delivery (including transport damages) only if the damages are listed on the receipt, indicating the exact nature and position, number of items and dimensions, and if pictures of the damage are presented to us.
§ 8 Transfer of risk on shipment
If the products are shipped to the buyer on its request, the risk of accidental loss or accidental deterioration of the goods shall transfer to the buyer upon the outbound shipment, whereas at the latest when the products leave our warehouse. This applies regardless of whether the goods are shipped from the place of fulfilment or of who bears the freight costs. If the shipment of the object of delivery is delayed for reasons falling within the customer’s responsibility, the risk shall transfer upon the notice of the readiness for shipment being given.
§ 9 Reservation of title
(1) We reserve the title to the delivered item up until the complete payment of all claims arising from the supply contract. This shall also apply to all future deliveries, even if we do not always and expressly refer to this. We have the right to take back the object of purchase if the buyer acts in violation of the contract.
(2) The buyer is obligated to treat the object of purchase with care during the time in which it has not transferred into its ownership yet. It is obligated in particular to protect it appropriately and purchase insurance at its own cost for theft, fire and water damage with cover of the value as new. If maintenance and inspection work must be conducted, the buyer shall perform such work at its own cost within due time. For as long as ownership has not transferred yet, the buyer shall inform us immediately in writing when the delivered item is attached or otherwise comes under the control of third parties. Insofar as the third party is unable to refund us for the legal and out-of-court costs of an action according to Sec. 771 ZPO [German Code of Civil Procedure], the buyer shall be liable for the loss incurred by us.
(3) The buyer has no right to resell the products subject to the reservation of title in the ordinary course of business. If a resale with our written agreement takes place nonetheless, the following shall apply as agreed: On the present day already, the buyer hereby assigns its claims, arising from the resale of the products subject to the reservation of title, to us in the amount of the final invoice total agreed with us (including value added tax). This assignment shall apply regardless of whether the object of purchase has been resold with or without further processing. The buyer shall remain authorised to collect the receivables also after the assignment. Our right to collect these receivables ourselves remains unaffected thereof. However, we will not collect the receivables for as long and insofar as the buyer fulfils its payment obligations from the received proceeds and does not default on payment, and particularly, for as long as it has not filed for insolvency or a similar discontinuation of payments has occurred.
(4) Processing or machining or alteration of the object of purchase by the buyer shall take place in all cases in our name and on our account to the extent agreed in writing. In this case, the buyer’s expectant right to the item of purchase shall continue to apply to the altered item. If the object of purchase is processed together with other items that are not our property, we shall acquire joint ownership of the new object in proportion of the objective value of our object of purchase relative to the other processed items at the time of the processing. The same applies in case of a mixing of items. If the mixing takes place in a manner so that the buyer’s object must be regarded as the primary object, it shall apply as agreed that the buyer transfers to us a proportionate co-ownership right and retains the sole ownership or co-ownership created this way on our behalf. As security for our claims against the buyer, the buyer shall also transfer to us such claims, which arise for it against a third party from the combination of the products subject to the reservation of title with real property. We accept this assignment of the present day already.
(5) We undertake to release the securities in our entitlement on the buyer’s request, if their value exceeds the claims to be secured by more than 20%.
§ 10 Warranty and notification of defects
(1) The buyer’s warranty rights require that it has duly fulfilled its obligations for inspection and notification of defects pursuant to Sec. 377 HGB [German Commercial Code]. If complaints should arise notwithstanding the greatest amount of care having been taken, obvious defects according to Sec. 377 HGB shall be reported immediately, whereas at the latest within 7 days after receipt of the goods; hidden defects shall be reported immediately upon their discovery or the goods will be deemed approved otherwise.
(2) Claims of defect will lapse by limitation 12 months after the handover of the goods delivered by us in the case the goods are new. If used goods are sold, any warranty period is precluded. Our consent shall be obtained before any return of the goods.
(3) If the delivered goods, notwithstanding the greatest amount of care having been taken, should have a defect, which was already present on the date of the transfer of risk, we shall rework the goods or deliver replacement goods, at our discretion and subject to a timely notification of defects. We shall be given the opportunity to perform subsequent fulfilment within an appropriate period.
(4) If the subsequent fulfilment fails several times, the buyer – notwithstanding any damage compensation claims – may withdraw from the contract or reduce the remuneration appropriately. The buyer cannot demand refunds for useless expenses.
(5) Claims of defect are not given in case of merely minor deviations from the agreed properties and condition, or in case of merely minor restrictions of the usability, or in case of natural wear or tear, or damages occurring after the transfer of risk in consequence of improper or careless treatment, excessive use, unsuitable operating equipment, defective construction works, unsuitable building ground, or due to special external effects that are not conditions according to the contract. If improper repairs or modifications are made by the buyer or third parties, also no warranty rights apply to these or the consequences resulting thereof.
(6) Claims of the buyer arising from expenses becoming necessary for the purpose of subsequent fulfilment, in particular transport costs, expenses for travel, labour and material shall be precluded if the expenses increase because the goods delivered by us have been taken to a place other than the buyer’s business site in retrospect, unless the transport corresponds to the goods’ use as intended.
(7) Further claims of the buyer or claims other than the ones defined hereunder in § 9 against us and our assistants on grounds of a defect are excluded.
(8) In the event of malicious concealment of a defect or in case a warranty is given for the properties and condition of the goods at the time of the transfer of risk in the definition of Sec. 444 BGB (declaration by the seller that the object of purchase has certain properties and condition on the transfer of risk and a warranty given by the seller for all consequences of their absence regardless of fault), the buyer’s rights shall be determined exclusively by the legal provisions.
§ 11 Assembly, repairs
(1) The provisions of this section apply in addition to the assembly and repair works. If the installation and commissioning of the delivered goods are agreed, our terms of assembly shall apply.
(2) All assembly and repair works shall be performed in proper workmanship, whereas necessary and appropriate deviations from the order remain reserved. We are permitted to contract specialised workshops. Machines and assemblies will be provided with the required and agreed protection equipment at the time of delivery and electrotechnical material will conform to the regulations issued by the VDE (German Electrical Engineering Association) as applicable on the delivery date.
(3) Disassembled and replaced parts shall transfer into our ownership free of charge.
(4) The buyer shall fulfil the necessary conditions and requirements for the installation and commissioning, and ensure secure and sufficient access to the assembly site also during the assembly and commissioning without interruptions. If these conditions are not fulfilled, we shall be entitled to claims of compensation for our extra expenses. The customer shall secure the work site at its own cost for the benefit of our personnel and third parties. Secondary works such as creating access openings, bricklaying, installation and electrical works (e.g. electricity, water, gas, wastewater, exhaust air) shall be performed by the customer at the construction site, at its cost, before the commencement of our work. Extra expenses will be invoiced separately by us. The customer shall ensure that machines and devices are set up on even ground.
(5) For our receivables from repair jobs, we shall be granted a contractual lien on the items that have come into our possession for reason of the work order. The contractual lien can also be claimed for receivables in result of work, spare parts deliveries and other services performed at an earlier time, insofar as they relate to the object of the order. The contractual lien shall apply to other claims under the business relationship only insofar as these are uncontested or an enforceable title has been received for them and the object of the order is the customer’s property.
§ 12 Guarantee and warranty
(1) A guarantee or warranty given by the seller for an object of purchase is defined in the specific case and shall be declared exclusively in writing.
(2) Within this period, we will rectify all defects free of charge, to the extent that they are due to a material defect or production fault.
(3) The guarantee or warranty shall begin on the day of the sale (invoice date) and apply only in conjunction with the invoice or item routing slip.
(4) The guarantee or warranty shall expire upon intervention by the buyer or non-professional third parties and in case of improper treatment (e.g. impact, drop, water, fire, force majeure, etc.), improper operation of the delivered machine or system. In these cases, the repair will be invoiced.
§ 13 Entry certificate
In case of intra-Community deliveries to another EU Member State, both the entry as well as the date of the object’s entry must be confirmed in writing and electronically. The entry certificate can also be drafted in English or French. Other languages require an official translation. The value added tax will be charged and shown as a separate item, “deposit”, on the invoice. As soon as the entry certificate is received by us filled out correctly and completely, the refund of this deposit will be made.
§ 14 Place of fulfilment and place of jurisdiction
(1) This contract and the entire legal relations between the Parties are governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The German versions of all documents shall be the binding versions.
(2) The place of fulfilment is 63533 Mainhausen-Zellhausen/Germany. The exclusive place of jurisdiction for all disputes arising from this contract is Dieburg or the District Court of Darmstadt.
(3) Dieburg is agreed as the place of jurisdiction for all present and future claims arising from the business relationship, including claims from bills of exchange and cheques, as well as claims from tortious acts. However, we also have the right to sue the customer at its place of jurisdiction.
(4) Dieburg shall also be the place of jurisdiction if the buyer does not have a general place of jurisdiction in the domestic territory, or if it moves it or its main residence out of the domestic territory, after the signing of the contract or if its domicile is unknown at the date on which the lawsuit is filed.
(5) All agreements concluded between the Parties for the purpose of the performance of this contract are documented in writing in this contract and, respectively, they require a written contract amendment. Changes, deviations, and amendments to this contract require the written form. Verbal side agreements have not been concluded.
(6) If individual provisions of this contract should be or become invalid, or in case of an omission in provisions, the remaining provisions shall remain unaffected by this. The Parties undertake to define such legally permissible provisions instead of the invalid provisions, which come closest to the economic purpose of the invalid provisions or which amend the omission.