Language:
Valid from 01.11.2023
(compared to the previous version, section 7.5 and the name have been changed)
This is only a translation of the "Allgemeine Verkaufs- und Lieferbedingungen (AVLB) der bmTEC GmbH" (General Terms and Conditions of Sale and Delivery (GTSD) of bmTEC GmbH) into the English language. Legally binding remains only the original in German.
1. General
1.1 These GTC shall apply to all our business relations insofar as the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB) or a legal entity under public law or a special fund under public law. They shall also apply to all future transactions with the customer, even if they are not expressly included again. Clause 1.3 shall also apply to pre-contractual negotiations (contract initiation).
1.2 These GTC shall apply exclusively. The tacit inclusion of deviating, conflicting or supplementary terms and conditions of business or purchase of the customer shall be objected to and only with the express consent of our management or a person authorized in writing for this purpose shall these be recognized as an integral part of the contract. The requirement for consent shall also apply if we execute the contractual performance without reservation in the knowledge of the customer's terms and conditions of business or purchase.
1.3 We reserve the right of ownership and, to the extent existing, the copyright to cost estimates and documents provided by us, in particular technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or other documents - also in electronic form - even if we do not request the return of the documents.
1.4 The contracting parties are mutually obliged to make the documents designated as confidential available to third parties only with the consent of the other contracting party. This shall also apply to the initiation of the contract if a contract is subsequently not concluded.
2 Conclusion of contract and scope of services
2.1 Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with documents in accordance with section 1.3. during the contract initiation phase
2.2 The signed order of the subject of contract by the customer shall be deemed a binding offer of contract.
2.3 The contract shall be concluded at the earliest upon dispatch of our order confirmation.
2.4 Our order confirmation transmitted at least in text form together with the documents handed over with the order confirmation or referred to in the order confirmation shall be decisive for the scope of the delivery obligation. Further ancillary agreements to the scope of performance not documented in the order confirmation shall only apply if they are confirmed at least in electronic form by the management or by a person authorized in writing by the management.
2.5 The quality specified in the order confirmation and in the documents attached or referred to in accordance with the above clause comprehensively and conclusively defines the properties of the delivery item. A description of the delivery item supplementing or modifying this service specification may only be declared by the management or a person authorized in writing for this purpose.
2.6 Partial deliveries are permissible insofar as they do not conflict with the achievement of the purpose of the contract.
3. Prices and payment
3.1 The prices stated by us in offers and order confirmations for the delivery item shall apply net ex works excluding any costs for packaging/transport/insurance/taxes, levy and customs duties. Value added tax at the statutory rate applicable from time to time shall be added to the prices and costs, where required.
3.2 The agreed price plus costs and value added tax shall be due immediately upon receipt of the delivery and receipt of the invoice without deductions. The specification of a term of payment on the invoice do not postpone the maturity. The customer shall not be in default of payment before expiry of the payment term. Discounts or rebates are only deductible with prior individual agreement. Any discounts or rebates granted shall lapse upon expiry of the agreed payment period.
3.3 If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim for payment of the agreed price is at risk by the customer's lack of financial capacity, we shall be entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract in accordance with the statutory provisions. (§ 321 BGB). In the case of contracts for the manufacture of (custom-made products), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. We may retain the delivery item until payment has been made, as well as discontinue further work on orders still in progress, if the customer fails to make due payments despite a default justifying reminder.
3.4 The retention of due payments due to the allegation of defective or non-contractual deliveries shall be excluded if the allegation concerns insignificant defects in the delivery item or insignificant breaches of contractual obligations and these do not essentially conflict with the fulfillment of our contractual obligation. This shall not apply in the case of undisputed or legally established defects or violations. The right of retention in the case of undisputed defects shall be limited to twice the anticipated costs of rectification.
3.5 Offsetting is only permitted with undisputed or legally established claims.
3.6 We are entitled to assign our claims for payment against the customer to third parties.
4. Delivery time
4.1 Delivery times stated by us are always non-binding. If binding delivery times are agreed, the delivery period shall commence at the earliest with the dispatch of the order confirmation, but not before the provision of the documents, approvals, releases, etc. to be procured by the customer.
4.2 The delivery deadline is met if the delivery item has left the factory or notification of readiness for dispatch has been communicated by the time the delivery deadline expires.
4.3 The delivery period shall be extended appropriately in the event of measures within the scope of labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles that lie outside our responsibility, insofar as such obstacles demonstrably have a significant influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur at sub-suppliers. In important cases, we will inform the customer immediately of the beginning and end of such obstacles.
4.4 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder with a reasonable grace period for delivery by the customer is required. If we are in default in delivery, the customer may demand liquidated damages for the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but in total not more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the customer has incurred no damage at all or only significantly less damage than the aforementioned lump sum.
4.5 The rights of the Customer pursuant to Section 9 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
5. Transfer of risk
Unless special agreements (e.g. INCOTERMS) have been made, the risk of accidental predition or incidental deterioration, as well as the risk of delay, shall pass to the customer as soon as the delivery parts are handed over to the forwarding agent, carrier or other person or institution designated to carry out the shipment, even if partial deliveries are made. If acceptance has been agreed, this shall be decisive for the transfer of risk. At the customer's request, the shipment will be insured by us or the carrier against theft, breakage, transport, fire and water damage as well as other insurable risks at the customer's expense.
6. Reservation of ownership
6.1 The delivery item shall remain our property until full payment of all claims arising from the delivery contract. If the customer acts in breach of contract - in particular if he is in default with the payment of the owed remuneration - we shall have the right to withdraw from the contract after we have set a reasonable deadline for performance. If we take back the delivery item after expiry of the deadline, this shall already constitute our withdrawal from the contract. The customer shall bear the transport costs incurred for taking back the goods. It shall also constitute a withdrawal from the contract if we seize the delivery item. We may utilize the delivery item taken back by us. The proceeds of the realization shall be offset against the amounts owed to us by the customer after we have deducted a reasonable amount for the costs of the realization.
6.2 The customer must treat the delivery item with care. He must sufficiently insure it at his own expense against fire, water and theft damage at replacement value.
6.3 In the event of seizure of the delivery item by third parties or other interventions by third parties, the customer must refer to our ownership and must notify us immediately in writing so that we can enforce our ownership rights. If the third party is not able to reimburse the judicial or extrajudicial costs incurred by us in this connection, the customer shall be liable for them.
6.4 If the customer is a reseller (cf. Section 8.), he shall be entitled to resell our delivery item in the ordinary course of business, disclosing the reservation of title. He hereby assigns to us all claims accruing to him against a third party as a result of the resale in the amount of our balance claim. We accept the assignment. We reserve the right to collect the claim ourselves if the customer is in default of payment. The customer shall provide all necessary information for this purpose. We shall also be entitled to withdraw from the contract in the event of default in payment and to demand return of the delivery.
7. Warranty
7.1 The basis of our liability for defects is exclusively the agreement reached on the quality of the delivery item. The specifications stated by us, the product description and our manufacturer's specifications which are the subject of the individual contract or which have been publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be the agreement on the quality of the delivery item.
7.2. The customer's claims for defects presuppose that he has fulfilled his statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects shall be notified to us in writing within 5 working days of delivery and defects not apparent upon inspection shall be notified to us within the same period of time after discovery. If the customer fails to make the proper inspection and/or notification of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
7.3 We shall be entitled to make the owed supplementary performance dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect.
7.4 All parts of the delivery or services which become unusable or whose usability is significantly impaired within 12 months from the date of delivery or acceptance as a result of a circumstance existing at the time of transfer of risk, in particular due to defective design, poor materials or defective workmanship, shall, at our discretion, be repaired, replaced or provided again (subsequent performance). This does not imply a change in the legal burden of proof. We must be notified immediately of the discovery of such defects.
7.5 The customer shall grant us the time and opportunity reasonably required for subsequent performance. If he refuses to do so without good cause, we shall be released from liability for defects. The customer's right of cancellation shall be governed by the statutory provisions. Claims of the customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with clause 9. and shall otherwise be excluded.
7.6 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the customer.
7.7 In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-execution, if possible in advance. The right of self-execution shall not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
7.8 The liability for defects shall not apply to natural wear and tear or soiling, nor to damage occurring after the transfer of risk as a result of incorrect or negligent handling, improper use, unsuitable operating materials, and such chemical, electrochemical or electrical influences as are not assumed under the contract. Any improper modifications and repair work carried out by the customer or third parties shall void the liability for the resulting consequences.
8. Exclusion manufacturer recourse
Resellers are only those customers who do not acquire the delivery item for their own purposes, but resell it to an entrepreneur (§ 14 BGB) before putting it into operation and inform us of the intention to resell before conclusion of contract. The liability according to § 445a BGB and the extended statute of limitations according to § 445 b BGB is excluded. The liability according to clauses 7. and 9. remains unaffected.
If the resale results in increased expenses pursuant to clause 7.6, e.g. due to the resale to a distant foreign country, we shall be entitled to demand from the reseller the anticipated inspection and transport costs as an advance payment and to refuse the inspection of the notice of defects and any necessary subsequent performance until such payment has been made. The reseller shall bear the increased costs of remedying the defect as a result of the sale abroad less the usual costs of remedying the defect, unless we can be accused of intent or gross negligence with regard to the cause of the defect.
9. Limitations of liability
9.1 Unless otherwise provided in these GTC including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
9.2 We shall be liable for damages - irrespective of the legal basis - within the scope of fault-based liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
9.3 The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory provisions. They shall not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the customer under the Product Liability Act.
10. Withdrawal or termination
Due to a breach of duty that does not consist of a defect, the customer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination for the customer is excluded in the case of orders that are manufactured for the customer in a specified manner. In all other respects, the statutory requirements and legal consequences shall apply.
11. Applicable law, place of performance and jurisdiction
11.1 The law of the Federal Republic of Germany shall apply to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
11.2 If the customer is a merchant according to the German Commercial Code (HGB), a legal entity under public law or a special fund under public law,
The same shall apply if the customer is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled in all cases to file suit at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.