GENERAL SALES TERMS AND DELIVERY CONDITIONS OF THE BAUTEC HWS GMBH
I GENERAL PROVISIONS
1 Deliveries and services of Bautec HWS GmbH (hereinafter referred to as supplier) shall be effected exclusively at the conditions of sale and delivery.
2 By accepting an offer, a confirmation of order, at the latest, however, when the order has been placed or a service has been accepted, the ordering party acknowledges that the conditions of sale and delivery shall apply for the entire business relationship with the supplier. The conditions of sale and delivery once agreed upon shall also apply for future conclusions of a contract.
3 Silence of the supplier to contrary provisions of the ordering party shall not be deemed to be an acceptance of these provisions; their applicability is opposed. Each and every deviation from the conditions of sale and delivery of the supplier shall be considered a rejection of the order. The acceptance of a delivery – even with reservations – shall be considered an acceptance of the conditions of sale and delivery of the supplier.
4 Provisions deviating from the conditions of sale and delivery shall require a written approval.
II PLACING OF AN ORDER
1 All offers of the supplier shall be made without obligation.
2 Orders shall become legally binding after the written confirmation of the supplier or after execution of the order. Collateral agreements, reservations, modifications or supplements to a contract require the written confirmation of the supplier to be valid.
3 Samples shall be considered mere guideline specimen; in case of a purchase after having obtained a sample or specimen, the properties of the specimen shall not be considered guaranteed.
III PASSING OF THE RISK AND DISPATCH
1 The risk shall pass over to the ordering party – even if carriage paid delivery has been agreed upon – as soon as the delivery has been set aside for the ordering party in the warehouse of the supplier; in case of dispatch having been agreed upon, as soon as the set-aside consignment has been dispatched or has been collected.
2 Packaging and dispatch – at the costs of the ordering party – shall be effected with common-practice care. At the request and at the costs of the ordering party, the consignment shall be insured against breakage, transport and fire damage by the supplier.
3 If, at the request of the ordering party, the goods are not handed over or the said is in default of acceptance, the risk shall pass over to the ordering party when the supplier arranges the warehousing. Any costs accruing shall be borne by the ordering party. Moreover, the supplier shall be entitled to withdraw from the contract or to claim damages for non-performance, if the ordering party does not accept the goods in due time or refuses acceptance.
IV PRICES AND TERMS OF PAYMENT
1 The prices shall be applicable ex warehouse of the supplier plus the legally applicable value-added tax, and packaging and postage, if and when applicable.
2 If the supplier increases his prices in general by the date of delivery, he shall be entitled to increase the prices agreed upon in the same way, even if the ordering party is a chartered merchant.
3 The claim of the supplier to payment shall become due as soon as the delivery has been rendered avai lable to the ordering party.
4 The ordering party shall be entitled to offset such claims only, if they are uncontested or have been declared res judicata.
5 If the ordering party is a chartered merchant and if the contract is part of the operation of his business, the said shall not be entitled to the right to refuse performance in compliance with section 320 of the German Civil Code and to the right of retention. This shall apply also to a right of retention based on alleged defects in delivery or service prior to the execution of guarantee, and on the commercial right of retention in compliance with section 369 of the German Commercial Code.
V TIME LIMITS, DEFAULT AND IMPOSSIBILITY
1 With respect to the time limits for delivery or performance of services, the mutual written statements shall be decisive.
2 A mutually agreed time limit shall be considered observed by setting aside the goods for the ordering party. If dispatch has been agreed, a time limit shall be considered observed when the ready-to-operate consignment has been dispatched. The observation of an agreed time limit requires the punctual receipt of all documents to be provided by the ordering party and the observation of the agreed terms of payment and other obligations of the ordering party. If these pre-requisites are not met in due time, the time limit shall be extended by a reasonable period of time.
3 If the non-observation of a time limit for deliveries can be attributed to mobilization, war, riot, strike, lock-out, incorrect and/or unpunctual supply of the supplier despite covering transactions or the occurrence of hindrances unforeseeable for and beyond the responsibility of the supplier, the time limit shall be extended by a reasonable period of time.
4 The supplier shall not be liable for any performance hindrances in keeping with chapter (V), sub-chapter (3) unless by way of exception the said are attributable to the supplier under the aspect of take-over or precaution fault.
5 Claims of the ordering party for compensation for default and claims for damages due to non-observation by default or impossibility of the performance of the supplier shall be limited to 10 percent of the value of such share of the delivery or performance which cannot be put to appropriate use or not in due time due to the impossibility and/or default. Claims for damages which exceed the limit mentioned above shall be excluded in all cases of delay or impossibility, even after the additional time set for the supplier has run down. This shall not apply in cases of intent or gross negligence where liability is prescribed by law.
6 The objects supplied, even if they have unessential defects, shall have to be accepted by the ordering party. Partial deliveries shall be permissible.
VI ERECTION AND INSTALLATION
1 If the erection, installation or initial operation is delayed due to circumstances, for which the supplier is not responsible, the ordering party shall have to bear the costs in a reasonable scope and after determination by the supplier for waiting time and other journeys of the fitters or the mounting staff required.
2 If the supplier has accepted the erection or installation against separate invoicing, the ordering party shall have to pay the rate for the working time agreed upon on placing the order – otherwise those usual with the supplier.
VII RESERVATION OF THE RIGHT TO RESCIND THE CONTRACT
The supplier shall be permitted to rescind the contract if unfavourable circumstances with respect to the financial conditions of the ordering party get known afterwards, such as delay in payment with respect to claims of the supplier, cessation of payments, predominantly futile debt enforcement, protest of a cheque or bill of exchange to be honoured by the ordering party, petition for instituting composition proceedings and petition in bankruptcy. If the supplier wants to avail himself of this right to rescind, he undertakes to inform the ordering party immediately after obtaining the knowledge of the severity of the circumstances.
VIII GUARANTEE AND LIABILITY
1 For defects, which shall include the absence of guaranteed properties as well, the supplier shall be lia ble in keeping with the following regulations:
a) The ordering party shall be obligated to immediately examine the deliveries. The determination of the defects shall have to be reported to the supplier in writing within a preclusive period of one week stating the concrete objections. In case of apparent defects, the period shall start with the handover, in case of hidden defects with their detection. After the period has run down without a complaint having been filed, warranty claims shall be excluded. For non-merchants, the complaints' period shall apply for apparent defects only and shall last for two weeks.
b) In case of justified notification of defects, the supplier shall be entitled to supply replacement. If the replacement is not provided within a reasonable period of time, if it is rejected or fails for any other reason, the ordering party shall be entitled to claim a rescission of the contract (conversion) or a reduction of the remuneration.
c) The right of the ordering party to file claims on the grounds of defects shall become statute-barred after six months after transfer of risk, at the latest, however, after handover of the delivery or service. The warranty period for the rectification of defects shall be three months; for replacement deliveries or replacement service the said shall be six months. The said shall last at least to the lapse of the original warranty period for objects or services provided. The provisions mentioned above on warranty periods shall not apply, if the law prescribed longer periods.
d) Any other claims of the ordering party shall be excluded, in particular a claim for the replacement of damage which has not been caused to the object delivered directly. The said shall not apply in case of personal injury or damage to privately used objects in keeping with the German Product Liability Act or in case liability is prescribed by law for intent, gross negligence, absence of guaranteed properties and culpable infringement of significant contractual provisions.
2 Other claims for damage by the ordering party, in particular for positive violation of a contractual duty, for violation of duties during the contract negotiations or for impermissible actions shall be excluded, if the supplier, his representatives or his vicarious agents cannot be blamed with gross negligence or intent. The supplier shall be liable for the legal instruments mentioned above, but not for consequential damage; chapter (VIII), sub-chapter (1)(d), sentence 2 shall not be affected.
3 All claims for damages shall be statute-barred after six months after handover of the deliveries or the service. If a handover has not taken place yet or if the damage causing event occurred after the handover, the limitation of time shall start with the occurrence of the damage.
IX INSTRUCTIONS AND PRODUCT OBSERVATIONS
1 The ordering party shall be obligated to carefully observe the product instructions provided by the supplier, and to forward the said to the potential user and his customer with a special note.
2 If the ordering party does not meet his obligations in compliance with chapter (IX), sub-chapter (1), and if this causes product or producer liability claims against the supplier, the ordering party shall indemnify the supplier against these claims in the internal relationship; if circumstances for which the supplier is responsible have been contributory, the indemnification shall be proportionate to the cause.
3 The ordering party shall be obligated to observe the products of the supplier and their practical application. This shall also apply after having resold the product. The duty to observe the product shall refer in particular to unknown damaging properties of the product or to uses and consequences which create a hazardous situation. The supplier shall have to be informed immediately after the knowledge is obtained.
X SECURITY INTERESTS OF THE SUPPLIER
1 The goods supplied shall remain the property of the supplier until all present and future claims have been met, which are due to the supplier by the ordering party irrespective for whatever legal reason.
2 The ordering party shall be entitled to process the goods supplied within the framework of his normal business transactions. The processing of the goods shall be effected for the supplier without binding him; the new products shall become the property of the supplier. In case processing has taken place with other goods not belonging to the supplier, the supplier shall obtain co-ownership in the newly produced objects relative to the invoiced value of the reserved goods compared to the other objects processed. In case of a joinder or mixture, the supplier shall become co-owner in compliance with the legal regulations. If the property of the supplier should perish nonetheless and the ordering party should become co-owner, he shall now already transfer to the supplier the property according to the proportion of the invoiced value of the reserved goods relative to the other processed objects as a security. In all cases mentioned the ordering party shall have to warehouse without charge all objects owned or co-owned by the supplier.
3 The ordering party shall be permitted to sell the goods in a processed or unprocessed condition within the framework of his usual business transactions. The authorisation to sell shall cease automatically with an unsuccessful execution with the ordering party, with the protest of a cheque or bill of exchange to be honoured by the ordering party as well as with the filing of a petition for composition or bankruptcy. Otherwise, all other directions with respect to the reserved goods, in particular pledging and chattel mortgage, shall be impermissible.
4 Now already the ordering party assigns to the supplier all claims with all ancillary rights derived from the resale of the reserved goods in processed and unprocessed conditions. In case of the resale of processed, combined and mixed reserved goods, the supplier shall obtain a preferential partial amount which corresponds to the percent share of the invoiced value of the goods supplied plus a safety surcharge of 5 per cent. Subject to revocation at any time, the ordering party shall be entitled to include the claims transferred to the supplier in the normal business transactions. The supplier will not avail himself of his right of seizure as long as the ordering party meets his payment obligations –
towards third parties as well – as agreed upon. This right of seizure shall not permit the ordering party to transfer his consequential claims to a factoring institute within the framework of a so-called real factoring by accepting the del credere risk. As a precaution, the ordering party transfers his claims against the factoring institute for payment of the factoring yield to the supplier, and undertakes to inform the factoring institute immediately after invoicing by the supplier.
5 Without explicit approval of the supplier in writing, the ordering party shall not be authorised to place the claims of the supplier in a current account. Moreover, the ordering party shall not be authorised to place the claims from a resale of the goods supplied in a processed or unprocessed condition in a current account held along with the customer. As a precaution, the ordering party transfers his claims from the periodic balances and a final balance up to the amount of the secured claim to the supplier; the transfer shall comprise causal and abstract balance.
6 The security interest of the supplier shall cease with the complete performance. In case of payment by cheque or bill of exchange, the security rights shall cease when the ordering party has honoured the paper and a recourse against the supplier is no longer possible. The supplier undertakes to release securities at his discretion as soon as the value of the existing security exceeds the claim of the supplier by more than 20 per cent.
7 The ordering party shall inform the supplier immediately of any execution measures of third parties involving the reserved goods and other securities by handing over the documents required for protest. The intervention costs accruing to the supplier shall have to be borne by the ordering party, provided the intervention was successful and the execution was attempted in vain against the defendant as debtor or the failure was caused by the ordering party. Upon the request of the supplier the ordering shall render available immediately a list of buyers of unprocessed or processed reserved goods, and shall have to inform these buyers of the transfer of the claims. In case of ordering companies which have no natural person as a partner with unlimited liability, this obligation shall also apply to the managing directors.
XI CONCLUDING PROVISIONS
1 The contract shall remain binding even if individual points are legally ineffective. This shall not apply, if abiding by the contract would result in an intolerable hardship for a party.
2 German law shall be applicable to the contractual relationship under exclusion of the Vienna Sales Convention of 1980.
3 If the ordering party is a chartered merchant, a legal entity under public law or special federal funding, the sole venue shall be Cologne in the Federal Republic of Germany for all disputes resulting directly or indirectly from the contractual relationship. The supplier shall be entitled to take legal action against the ordering party at the general venue of the said.