GENERAL TERMS AND CONDITIONS of BAUER Elektromotoren GmbH
I. VALIDITY OF THE TERMS AND CONDITIONS
The deliveries, services and offers of the supplier are made exclusively on the basis of these terms and conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon acceptance of the goods or services. Counter-confirmations by the customer with reference to his terms and conditions of business or purchase are hereby rejected.
II. OFFER, CONCLUSION OF CONTRACT AND TECHNICAL CONDITION
1. Offers of the supplier are subject to confirmation, unless otherwise stated in the order confirmation. Declarations of acceptance and all orders require written or equivalent confirmation by the supplier to be legally valid.
2. Brochure information, drawings, illustrations, dimensions, in particular installation dimensions, and weights are only binding if this is expressly agreed in writing.
3. The technical characteristics of the delivery items shall be determined in accordance with the product information issued by the supplier and the technical standards referred to therein. The Supplier shall make the product information available to the Purchaser free of charge upon request. Properties of the delivery items that go beyond the aforementioned product properties shall only be deemed agreed if this is confirmed separately in writing by the Supplier.
III. DEADLINES FOR DELIVERY, DELAY
1. Compliance with agreed deadlines for deliveries presupposes compliance with the agreed terms of payment by the customer and the timely receipt of all documents, plans, necessary authorisations and releases to be supplied by the customer. If these conditions are not fulfilled in good time, the deadlines shall be extended accordingly; this shall not apply if the Supplier is responsible for the delay.
2. The delivery period shall be extended appropriately if the failure to meet the deadline is due to force majeure, e.g. mobilisation, war, riot or similar events, e.g. strike or lockout. The supplier shall also not be responsible for the aforementioned circumstances if they occur during an already existing delay.
3. Partial deliveries are permissible within the agreed delivery periods.
4. The supplier shall only be in default if the service is due and an express written reminder has been sent, unless a calendar date has been agreed for the service. Claims for compensation by the Purchaser are excluded in all cases of late delivery, even after expiry of a period of grace granted to the Purchaser. This shall not apply if liability is mandatory in cases of intent or gross negligence or due to injury to life, limb or health. This does not imply a change in the burden of proof to the detriment of the customer. The customer's statutory right of cancellation shall remain unaffected.
5. The purchaser may only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay.
6. The purchaser is obliged, at the supplier's request, to declare within a reasonable period of time whether he is cancelling the contract, demanding compensation instead of performance or adhering to the contract.
IV. SCOPE OF DELIVERY
1. The scope of delivery shall be determined by the supplier's written order confirmation.
2. We reserve the right to make technical changes which are due to improvements in technology or to legal requirements during the delivery period, provided that the delivery item is not significantly changed and the changes are reasonable for the customer.
V. Cancellation costs
If the customer cancels a placed order without justification, we may demand 10% of the sales price for the costs incurred in processing the order and for loss of profit, without prejudice to the possibility of claiming higher actual damages. The customer reserves the right to prove that no damage or less damage has been incurred.
VI Packaging and dispatch
Unless otherwise stated in the order confirmation, delivery ex supplier's warehouse is agreed. If the Supplier ships at the request of the Purchaser, the shipment shall always be at the risk of the Purchaser. In this case, freight and packaging costs shall be invoiced in accordance with the Supplier's price list in the version valid at the time of despatch. The mode of despatch shall be chosen at our discretion. Transport insurance shall be taken out at the request and expense of the Purchaser.
VII Acceptance and transfer of risk
1. the purchaser is obliged to accept the delivery item. If the Purchaser intentionally or grossly negligently fails to accept the object of purchase more than ten days after receipt of the notification of readiness, the Supplier shall be entitled, after setting a grace period of a further seven days, to withdraw from the contract and claim damages in lieu of performance. The setting of a grace period is not required if the purchaser seriously or finally refuses acceptance or is obviously unable to pay the purchase price within this period.
2. the risk shall pass to the customer upon notification of readiness for dispatch.If the customer declares that he will not accept the delivery item, the risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer at the time of refusal.
VIII. Warranty
The Supplier shall be liable for material defects as follows:
1. all parts or services which exhibit a material defect within the limitation period shall, at the Supplier's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the material defect already existed at the time of the transfer of risk.
2. the supplier must always be given the opportunity for subsequent fulfilment within a reasonable period of time.If he is denied this opportunity, he shall be released from liability for material defects in this respect. If the subsequent fulfilment fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
3. claims for material defects shall become time-barred after twelve months. The period begins with the transfer of risk. The above provisions shall not apply if the law prescribes longer periods in accordance with §§ 438 para. 1 no. 2 (items for buildings), 479 para. 1 (right of recourse) and 634a (building defects) BGB.
4. the purchaser must notify the supplier of material defects in writing without delay.Externally recognisable damage to the packaging must be reported directly to the delivering carrier; shortages must be reported within four working days.
5. in the event of notices of defects, payments by the customer may only be withheld if a notice of defects is asserted, the justification of which is beyond doubt, or if the notice of defects is undisputed or its justification has been legally established. If the notice of defects is unjustified, the Supplier shall be entitled to demand compensation from the Purchaser for the expenses incurred.
6. claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant reduction in usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling or improper assembly, excessive strain, unsuitable operating materials, defective construction work or which arise due to special external influences which are not assumed under the contract, or in the event of non-reproducible software errors. If improper modifications or repairs are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.
7. claims of the purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the object of the delivery has been taken to a place other than the place of delivery, unless the transfer corresponds to a contractual agreement between the parties.
8. recourse claims of the purchaser against the supplier shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects.9. furthermore, section XII (Other claims for damages) shall apply to claims for damages.Further claims or claims other than those regulated above by the Purchaser against the Supplier and its vicarious agents due to a material defect are excluded.
IX.Retention of title
1. the objects of the deliveries (goods subject to retention of title) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser.
2. during the existence of the retention of title, the purchaser is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that ownership is only transferred to the customer when the customer has fulfilled his payment obligation.In the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must inform the supplier immediately.
3. in the event of breaches of duty by the customer, in particular in the event of default in payment, the supplier shall be entitled to withdraw from the contract and take back the goods, and the customer shall be obliged to surrender them. The repossession or assertion of the retention of title does not require the Purchaser to withdraw from the contract. These actions or the seizure of the reserved goods by the supplier do not constitute a cancellation of the contract unless the supplier has expressly declared this.
4. if the purchaser resells the goods subject to retention of title, he hereby assigns to the supplier all claims in the amount of the purchase price agreed between the supplier and the purchaser (including VAT) which accrue to the purchaser from the resale, irrespective of whether the delivery items are resold without or after processing. The supplier is authorised to collect these claims after their assignment.The authorisation of the purchaser to collect the claims himself remains unaffected by this; however, the supplier undertakes not to collect the claims as long as the purchaser duly fulfils his payment obligations and is not in default of payment. If this is the case, however, the Supplier may demand that the Purchaser discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
X.Impossibility, contract adjustment
1. if delivery is impossible, the customer shall be entitled to claim damages, unless the supplier is not responsible for the impossibility.
However, the Purchaser's claim for damages shall be limited to 10 % of the value of that part of the Supplies which, owing to the impossibility, cannot be put to the intended use.This limitation shall not apply in cases of liability for wilful intent or gross negligence or personal injury.This provision does not imply a change in the burden of proof to the detriment of the customer. The purchaser's right to withdraw from the contract remains unaffected, even if an extension of the delivery time was initially agreed with the purchaser.In the event of only temporary impossibility, No. III (Deadlines for delivery, delay) shall apply.
2. if unforeseeable events within the meaning of No. III No. 2 significantly change the economic significance or the content of the delivery or have a significant impact on the supplier's operations, the contract shall be adapted appropriately in good faith. If this is not economically justifiable, the supplier has the right to withdraw from the contract. If he wishes to exercise this right, he must inform the purchaser immediately after realising the consequences of the event.
XI Other claims for damages
1. claims for damages by the customer, irrespective of the legal grounds, in particular due to breach of duties arising from the contractual obligation and from unauthorised action, are excluded.
2. This shall not apply where liability is mandatory, e.g. under the Product Liability Act, in cases of wilful intent or gross negligence or wilful impairment of life, limb or health or breach of material contractual obligations.
3. however, compensation for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for bodily injury or due to the assumption of a guarantee for the existence of properties.
4. a change in the burden of proof to the detriment of the customer is not associated with the above provisions.
XII. Terms of payment, offsetting
1. the purchase price and the ancillary services are due for payment immediately without deduction.A discount deduction is only permissible if this has been agreed separately. A discount on new invoices shall not be granted if older invoices due for payment are still outstanding.
2. the customer shall be in default of payment of the purchase price and the fees for ancillary services 30 days after delivery of the goods. Cheques and bills of exchange shall not be deemed to be payment until they have been honoured.
3. the acceptance of bills of exchange always requires a prior written agreement. If bills of exchange are accepted, bank interest and charges will be charged. They are to be paid immediately in cash.
4. the customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by the supplier.The Purchaser shall also have no right of retention in respect of disputed counterclaims.
XIII Place of fulfilment, place of jurisdiction
1. place of fulfilment is Bonn.
2. for all disputes arising from the contractual relationship, if the customer is an entrepreneur, a legal entity under public law or a special fund under public law, the action shall be brought before the court having jurisdiction for the supplier's registered office. The supplier is entitled to bring an action at the customer's registered office.
3. German law shall apply exclusively, to the exclusion of the laws on the international sale of goods, even if the Purchaser has its registered office abroad.
XIV Miscellaneous
1. transfers of rights and obligations of the customer arising from the contract concluded with the supplier require the written consent of the supplier to be effective.
2. should a provision be or become invalid, the validity of the other provisions shall remain unaffected.
3. in addition to these general terms and conditions, the general terms and conditions of the electrical engineering trade and the electrical wholesale trade shall also apply.
