General Terms and Conditions of Business of
b+b Automations- und Steuerungstechnik GmbH
Provided no other agreements have been made in the individual agreement, the following applies:
1. Field of application, differing agreements
1.1 The following General Terms and Conditions of Sale and Delivery (“T&Cs”) apply to all sale and delivery agreements concluded with our customers (hereinafter referred as the “Customer”) including any subsidiary agreements provided the Customer is an entrepreneur and concludes the agreement in order to exercise their commercial or self-employed professional activities as defined by § 14 of the BGB (German Civil Code).
1.2 Any differing terms and conditions on the part of the Customer which are not expressly acknowledged do not apply. This also applies if we unconditionally perform our services in the knowledge of contradictory Terms and Conditions of the Customer or in the knowledge of differing Terms and Conditions.
2. Conclusion of the contract
2.1 Our offers, including the sales prices quoted in our price lists, are non-binding unless they are expressly indicated as binding. Verbal or written orders represent a binding offer which is binding for the Customer for 14 days.
2.2 The Agreement comes into effect upon the sending of our Confirmation of Order (including by e-mail).
3. Product documentation, rights to operating and control software, engineer to order
3.1 Documents, illustrations, drawings, information regarding services, weights and measurements in our catalogues, product sheets and on our website are as precise as possible: however, they only reflect approximate values and do not represent any information regarding the quality unless otherwise identified as binding. Subject to improvements and changes to measurements to an extent standard in the industry and which are reasonable for the Customer
3.2 We retain the property rights and copyrights to illustrations, drawings and other documentation. Without our express written consent, these may not be copied, made accessible to third parties or be used for in-house production purposes.
3.3 If operating and control software is installed on the goods to be delivered, this software is subject to the protection of the copyright law and other laws. We retain all rights to the pertinent operating and control software. The Customer is only granted a non-exclusive right to the operating and control software to use the software permanently as part of the accompanying hardware. A separation of the hardware and operating and control software and/or a separate use / use of the operating and control software for an application not in accordance with this purpose is not permitted. Our licensing conditions for software also apply: we will gladly send a copy upon request.
3.4 Should we develop other software for the Customer (engineer to order) and/or adapt operating and control software and other software in line with the requirements of the Customer (Customising), our licensing conditions for software apply in addition to these Terms and Conditions: we will gladly send a copy upon request.
4. Prices / terms of payment / prohibition of set-off
4.1 The delivery is made based on the price lists valid at the time of the conclusion of the agreement. Unless a different agreement has been made, prices are net prices, expressed in euro, exclude transportation and packaging and are subject to VAT at the legally applicable rate and any other taxes and charges associated with the performance of the order.
4.2 If, following conclusion of the agreement, rates essential for the determination of the payment, in particular costs for materials, salaries, transportation and tax and social security contributions payable by us change in such a manner that is neither foreseeable by us nor caused by us, we reserve the right to adapt our prices at the same rate. If the aforementioned rates result in a reduction of the costs, we are obliged to reduce our prices for our Customer at the same rate. Any increased costs / reduction in costs will be submitted to the Customer at their request.
4.3 Unless the parties to the agreement conclude a differing written agreement, all invoices for deliveries (or other services) are payable within 30 days of the date of the invoice without any discount. Receipt of the money by us is decisive for the punctual payment of the invoice. Once this date has passed without receipt of payment, the Customer is in arrears.
4.4 In the event of arrears by the Customer, we charge interest at the rate of 8% above the current basic interest rate charged by the European Central Bank per annum. We reserve the right to assert a higher claim for damages caused by delaying payments.
4.5 We only accept cheques and bills of exchange following express agreement of such and only on account of performance, calculating any fees and discounts.
4.6 Our accounts receivable are immediately payable irrespective of the term of cheques and bills of exchange accepted on account of performance if contractual agreements have been tacitly violated by the Customer and the Customer bears the responsibility for this. In this case, we are entitled to only supply outstanding deliveries or perform outstanding services against payment in advance or the provision of a security.
4.7 Complaints about our invoices are to be lodged by the Customer within two weeks of the receipt of the invoice at the latest. If the Customer does not notify us of such complaints, the invoice in question is considered approved. We are obliged to indicate this separately in our invoices.
4.8 The set-off with counterclaims of the Customer or the withholding of payments due to such claims is only permissible if the counterclaims are undisputed, are ripe for adjudication or are legally valid.
5. Risk of loss, delivery and the consequences of a delay in delivery
5.1 Deliveries are made ex works (Incoterms 2010) in Beerfelden.
5.2 The delivery periods and dates are only approximate unless they have been explicitly agreed as binding. In the case of a binding delivery period, this commences on the date of the confirmation of order as defined by figure 2.2, and requires the clarification of all technical questions and the punctual performance of all services to be provided by the Customer – in particular the documents to be supplied, necessary approvals and authorisations – and all other obligations of the Customer.
5.3 We are entitled to make partial deliveries and provide partial services standard in the industry, unless the acceptance of partial deliveries and partial services is unreasonable or excluded by the agreement.
5.4 In cases of force majeure or other incidents which are unforeseeable upon conclusion of the agreement which we, despite applying the reasonable diligence demanded by the conditions of the individual case, cannot prevent, irrespective of whether they occur at our company or at our contractors or subcontractors (self supply reservation) such as war, natural disasters, interruptions to operations, legal strikes, lock-outs or regulatory action, these delivery periods / dates are extended by the period of time of the hindrance and an appropriate response period. If such a disruption results in a delay in performance in excess of four months, both parties can withdraw from the agreement. If, as a consequence of the aforementioned situations, the delivery becomes impossible or unreasonable without any blame on our part, we are entitled to withdraw from the non-performed part of the agreement either fully or in part. In this case, the Customer is not entitled to assert any claims for damages against us. Any legal rights to withdraw from the agreement remain unaffected by this.
5.5 If the Customer is to set an appropriate subsequent deadline in order to assert claims against us, this subsequent deadline must have a term of at least two weeks.
5.6 In the case of a default of delivery or the impossibility of performance, we are only responsible for claims for damages in accordance with figure 7. Differing from figure 7.2, the damages for delay to be compensated by us are limited to the damages foreseeable upon the conclusion of the contract and typical of the agreement.
6. Defects / warranty
6.1 We warrant the manufacture of the goods supplied by us free of defects in accordance with the agreed technical delivery conditions. We do not assume any guarantees unless they have been expressly agreed.
6.2 Even if samples or models have been sent at an earlier date, the Customer is obliged to carefully inspect the goods immediately upon delivery to the destination. We are to be notified immediately about any obvious defects – within one week of the delivery at the latest. We are to be notified immediately about any concealed defects – within seven working days of their discovery at the latest. If the defect was detected by the Customer during normal use at an earlier point, this earlier point is decisive for the start of the period for the examination and notification of the defect.
6.3 At our request, the defective goods are to be returned to us free of freight charges or, if the dispatch of the defective goods is associated with disproportional costs or expenditure, we are to be allowed the opportunity to inspect the goods subject to the notice of a defect. In the case of justified notices of a defect, we will reimburse the costs of the least expensive method of dispatch: this does not apply if the costs increase because the goods are located at a different place to that of their use in accordance with the purpose. If the complaint is unjustified, the Customer is to reimburse us with any expenditure incurred, unless the Customer is not responsible for the unjustified notice of a defect.
6.4 In the case of the punctual notice of a defect, the Customer is entitled, at our discretion, to a remedy of the defect or to the delivery of goods free of defects (“supplementary performance”). The supplementary performance is carried out at the location of the original delivery: it is only considered a failure after three unsuccessful attempts at the earliest. Any replaced parts become our property.
6.5 The expenditure necessary for the purposes of supplementary performance, in particular costs associated with transportation, travel, labour and materials, are to be borne by us if a defect is ascertained. The supplementary performance contains neither the removal of the defective good nor its re-installation if we were not obliged to install it in the first place.
6.6 No guarantee claims are taken into account for defects caused by unsuitable or improper use, defective assembly or putting into service by the Customer or third parties, general wear and tear, defective or negligent use. If the quality of the delivered goods deviates only negligibly from the agreed quality, the Customer is only entitled to the right to reduce the price. The warranty is invalid if the Customer changes the object of the delivery without our consent or has it changed by third parties and this makes the remedy of the defect impossible or complicates it such that its remedy is unreasonable. In any case, the Customer is to bear the additional costs of the remedy of the defect caused by the change.
6.7 In the case of defects to components of other manufacturers which, for reasons pertaining to licensing rights or due to actual reasons, we cannot remedy, at our discretion we will assert our guarantee claims against the manufacturer and suppliers on behalf of the Customer or assign them to the Customer. In the event of this type of defect, warranty claims made against us only apply under special conditions and in accordance with these General Terms and Conditions if the legal implementation of the aforementioned claims against the manufacturer or supplier was unsuccessful or, such as due to insolvency, is futile.
6.8 The warranty period is one year from the date of the delivery or, if acceptance is necessary, from the acceptance date. The five-year period of limitations for structures and articles used in their usual form for a structure remains unaffected. Unaffected by this are the legal periods of limitation in the cases of fraudulent concealment and claims of a delivery recourse in accordance with §§ 478, 479 of the BGB.
6.9 The Customer is only entitled to claims for damages for defects if our liability is not excluded or limited according to figure 7. Further claims or claims other than those regulated in figure 6 asserted due to a defect are excluded.
7. Liability, period of limitation
7.1 We are only liable for gross negligence and intent and in the case of the violation of obligations essential to the contract, the performance of which enables the correct implementation of the agreement in the first place and the compliance of which the Customer may regularly rely on (“cardinal duty”).
7.2 In the event of the minor negligent violation of a cardinal duty, our liability is limited to damages foreseeable upon conclusion of the agreement typical of the agreement. We are not liable in the case of a minor negligent violation of contractual obligations which are not cardinal duties.
7.3 If our liability is limited or excepted, this also applies to the liability of our employees, representatives and vicarious agents.
7.4 The aforementioned liability limitations / exceptions do not apply in the case of the fraudulent concealment of defects, the acceptance of a guarantee or of a procurement risk, for liability as stipulated by the Product Liability Act and for physical harm (life, bodily harm or health). A change to the burden of proof to the disadvantage of the Customer is not connected with this.
7.5 With the exception of claims in tort, claims for damages by the Customer with limited liability in accordance with this stipulation are subject to the statute of limitations one year after the legally prescribed date of the statute of limitations.
8. Retention of ownership
8.1 The following retention of ownership serves the purpose of ensuring all our existing, current and future claims against the Customer from the existing, current business relationship between the contractual partners, including all current account balance claims from the open account (hereinafter referred to as “secured receivables”).
8.2 All goods delivered by us remain our property until full payment of all secured receivables has been received. The goods and the goods substituting them considered part of the reservation of ownership in accordance with the following stipulations are hereinafter referred to as “goods subject to the right of retention”.
8.3 Any processing of the goods subject to the right of retention is always carried out on our behalf and for us as a manufacturer as defined by § 950 of the BGB, and without any obligation on our part. Processed goods are considered goods subject to the right of retention in accordance with figure 8.2. We already offer to grant the Customer an expectancy right to the new articles arising from the processing, bonding or mixing / our co-ownership shares to these new articles. The Customer accepts this offer.
8.4 In the case of the processing, bonding and mixing of goods subject to the right of retention with goods by other manufacturers by the Customer into new articles / a mixed inventory, we are entitled to the co-ownership of such at the ratio of the value of the goods subject to the right of retention (final invoice amount including VAT) at the time of the delivery to the value of the other processed, mixed or bonded articles (final invoice amount including VAT) at the time of the editing, processing, bonding or mixing. The co-ownership share applies as goods subject to the right of retention in accordance with figure 9.2. In the event that no such ownership procurement occurs on our part, the Customer already assigns to us their future property or, at the aforementioned ratio, their co-ownership in the newly created article / in the mixed inventory as security. We accept this assignment.
8.5 If the goods subject to the right of retention are bound into a unified article or inseparably mixed and if one of the other articles is considered the main article as defined by § of the BGB, provided the main article belongs to them, the Customer already assigns to us the proportional co-ownership right to the unified article at the ratio of the value of the goods subject to the retention of ownership (final invoice amount including VAT) at the point in time of the delivery to the value of the main article (final invoice amount including VAT). We accept this assignment. The co-ownership share applies as goods subject to the right of retention in accordance with figure 9.2.
8.6 The Customer is to store the goods subject to the right of retention free of charge. Before full payment of the secured receivables has been received, the goods subject to the right of retention may not be pawned to third parties or made over as security.
8.7 The Customer is obliged to treat the goods subject to the right of retention with care. In particular, the Customer is obliged to sufficiently insure the goods subject to the right of retention against fire, water and theft to the value of their reinstatement value. If maintenance and service works are necessary for the correct care of the goods subject to the right of retention, the Customer must carry these out at their own expense in good time. However, this only applies if the costs incurred are within the bounds of what is standard in the industry.
8.8 In the event of attachments or seizures or other dispositions or other access by third parties to the goods subject to the right of retention, the Customer is obliged to immediately indicate our property and to notify us of such in writing in order to enable us to assert our ownership rights, in particular by bringing an action in accordance with § 771 of the ZPO (Code of Civil Procedure). The Customer is responsible for all legal or out-of-court expenses incurred by rescinding the access and associated with the re-procurement of the goods subject to the right of retention if they cannot be collected from a third party.
8.9 The Customer is authorised to sell the delivered goods subject to the right of retention if there is a guarantee that their accounts receivable from the re-sale are assigned to us in accordance with figures 8.10 to 8.12.
8.10 In the event of the resale of the goods subject to the right of retention, the Customer already, as a security, assigns to us the resulting claim against the purchaser as well as those claims which substitute the goods subject to the right of retention or otherwise occur in conjunction with the goods subject to the right of retention, such as insurance claims or claims in tort in the case of loss or destruction, including all current account balance claims from the open account. We accept this assignment.
8.11 If the Customer sells the goods subject to the right of retention along with other goods not supplied by us, the assignment of the claims from the resale only applies to the extent of the value of our goods subject to the right of retention (final invoice amount including VAT) at the point in time of the delivery. In the case of the sale of goods to which we have a co-ownership right in accordance with figure 8.4 / 8.5, the assignment of the claim amounts to the value of the co-ownership share.
8.12 If there is a current account relationship between the Customer and their client in accordance with § 355 of the HGB (German Commercial Code), the claim assigned to us by the Customer prior to this also applies to the acknowledged balance as well as in the case of insolvency of the client to the existing “causal” balance.
8.13 The Customer is authorised to collect the claims from the resales in accordance with figures 8.10 to 8.11 – this authorisation can be revoked at any time. We are only entitled to revoke the authorisation to collect the claims in accordance with figure 8.14.
8.14 If the Customer does not fulfil their obligations from this agreement with us, they are in arrears of payment, hence:
- We can forbid the resale, the editing and processing of the goods subject to the right of retention and their mixing or bonding with other goods;
- In accordance with the general regulations pertaining to withdrawal from an agreement in accordance with § 323 of the BGB, we can withdraw from this agreement: in the case of a withdrawal, the right of the Customer to own the goods subject to the right of retention expires and we can demand that the Customer return the goods subject to the right of retention: following consultation with the Customer, we are entitled to enter the company premises of the Customer and to take ownership of the goods subject to the right of retention at the expense of the Customer and, irrespective of the payment obligations or any other obligations of the Customer, to sell them for the best possible price by means of selling them on the open market or by auctioning them: the proceeds from the sale will be offset against the Customer’s debts. We will pay them any excess;
- At our request, the Customer is to provide us with the names of the debtors of the claims assigned to us, so that we can disclose the assignment and can collect the claims: all proceeds to which we are entitled from assignments are to be forwarded to us immediately following receipt if and as soon as claims by us against the Customer are due;
- We are entitled to revoke the granted collection authorisation.
8.15 If the realisable value of our current securities exceeds our claims by more than 10% in total, at the request of the purchaser we will release securities at our discretion.
9. Place of performance, applicable law and place of jurisdiction
9.1 The place of performance for all delivery and payment obligations is Beerfelden unless otherwise specified in the order confirmation.
9.2 The law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
9.3 The place of jurisdiction for all disputes from or in conjunction with the delivery transaction – including for bills of exchange and actions associated with cheques – is Frankfurt am Main provided the Customer is a businessman or does not have any court of their habitual residence in Germany. However, we reserve the right to bring charges against the Customer at the court of their habitual residence. Any legal stipulations pertaining to exclusive competences remain unaffected.
10. Final clause
10.1 The agreement concluded in writing is exclusively applicable to the legal relationship between us and the Customer: this includes these General Terms and Conditions. This reflects all agreements made between the parties to the contract at the point in time of the conclusion of the agreement. Any verbal or written agreements or conditions made before the conclusion of this agreement or any other pre-contractual correspondence and recommendations are superseded by this agreement unless it is expressed in each case that they continue to be binding.
10.2 Orders, declarations of acceptance, addenda and other subsidiary agreements and agreements made before or upon conclusion of the contract must be made in writing to be legally effective. Any verbal agreements made by our representatives or other vicarious persons require our written confirmation. The same applies to the granting of quality guarantees.
10.3 Transactions with companies are treated the same as transactions with legal persons under public law and public special assets.
10.4 If a provision of this agreement is or becomes either partially or fully invalid, the invalidity of this provision does not affect the validity of all the other provisions of this agreement. The invalid provision is to be replaced by a legally valid provision which comes as close to the economic intent of the invalid provision as is legally permissible.
Version: July 2014