General Terms and Conditions of Sale
of BS Systems GmbH & Co. KG
1.1 These General Terms and Conditions of Sale (GTC) apply to all offers and contracts of BS Systems GmbH & Co. KG, including all ancillary services, advice and information which we provide or conclude on behalf of the seller/contractor.
1.2 Our GTC shall apply exclusively. These GTC shall be considered as accepted when an order is placed by the purchaser/client (customer), and they then become an essential part of the contract. Conflicting or deviating conditions of the customer are hereby rejected. They shall only become part of the contract if we expressly agree to them in individual cases.
1.3 These GTC shall also apply if we make the delivery to the customer without reservation or render services for the customer, even if we are aware of the customer’s conditions deviating from these GTC.
1.4 These GTC only apply to entrepreneurs (Section 14 of German Civil Code), legal entities under public law or a special fund under public law according to Section 310 Paragraph 1 Sentence 1 of German Civil Code.
1.5 These GTC shall also apply to all future contracts with the customer which we conclude on the part of the seller/contractor.
1.6 All agreements made between us and the customer, as well as any additions and amendments to these agreements, must be made in writing. This shall also apply to any waiver of the written form requirement.
1.7 Our (field service) employees and sales representatives are not authorised to make agreements or commitments that deviate from our GTC. This requires legally binding individual agreements concluded by authorised employees.
2. Offers, offer documents, information and advice
2.1 Our offers are always without obligation and non-binding. Our offers are only binding in exceptional cases and in individual cases if we submit them in writing and expressly state that they are binding.
2.2 We shall only be bound by binding offers if the contract is concluded up to the date specified in the offer, but no later than two weeks after receipt of the offer by the customer.
2.3 Samples are not binding. Constructions can be modified by us, as far as this is compatible with the customer’s specifications or the deviation is only minor and the usability of the delivery or service for the contractually intended purpose is not impaired. Customary deviations or deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts are also permissible, provided that they do not impair the usability of the delivery or service for the contractually agreed purpose.
2.4 All information about suitability, possible applications and the subject of our goods/services is provided to the best of our knowledge and is only approximately applicable, unless the usability of the delivery or service for the contractually stipulated purpose requires exact conformity. The above information therefore only represents our empirical values and is not a guaranteed characteristic of quality that justifies claims against us. In this respect, the customer shall not be released from the obligation to convince himself/herself of the suitability of the goods/services for the contractually stipulated purpose of use and their contractually agreed condition.
2.5 The customer agrees to the further use and duplication of drawings, plans, models, templates, samples, tools, production means, dimensions, weights and similar performance data, which have been handed over to us by the customer, by us and – insofar as required for the order – by third parties. If the values specified by the customer change, the customer must inform us immediately in writing.
3.1 Our sales price is based on our BS Systems list price/catalogue price valid at the time of conclusion of the contract.
3.2 If, for reasons beyond our control, a delivery is made at BS Systems list price/catalogue price more than four months after conclusion of the contract and the list price/catalogue price has changed up or down by this time, the new list price/catalogue price shall be deemed to be agreed. If the change amounts to more than 5% of the initially agreed net price, both contracting parties are entitled to withdraw from the affected part of the contract.
3.3 If, for reasons beyond our control, a service is performed more than four months after conclusion of the contract and if our wage and/or material costs have changed by more than 5% upwards or downwards, the agreed price shall change accordingly; a wage and material share of 45% each and a fixed price share of 10% shall be taken as the basis for calculating the price. If the price change amounts to more than 15% above or below the price, both contracting parties are entitled to withdraw from the respective part of the contract.
3.4 Unless otherwise agreed, our prices shall apply ex works or ex stock without loading in the factory/warehouse and without packaging. The customer shall bear the costs of packaging, loading, transport, import or export duties, fees, taxes and other public levies and insurance. We are not obliged to take out transport insurance.
3.5 The statutory value added tax is not included in the price. It shall be due in the respective statutory amount and shown separately in the invoice.
4. Shipping, packaging and transfer of risk
4.1 Delivery is made ex works/ex stock where the place of performance also is. If we are also responsible for the installation, the place of performance is the place where the installation has to take place. At the customer’s request, the goods will be shipped to another destination (sales shipment), whereby the mode of shipment and packaging are subject to our dutiful discretion.
4.2 Shipment is at the customer’s risk, even if we bear the transport costs in exceptional cases. With the delivery of the goods/services to the transport company, at the latest when they leave our factory or warehouse, in the case of drop shipment of the factory or warehouse of our pre-supplier, the risk shall pass to the customer, also in the case of pre-paid, FOB or CIF transactions.
4.3 We shall only take back the packaging we supplied in accordance with our legal obligations; packaging will not be taken back in case of deliveries abroad. The taking back does not include the return delivery and the costs incurred for it. If the customer is not a private final consumer in accordance with the packaging ordinance, the disposal of the packaging will be charged to the customer at our cost price. Insofar as the packaging is not returned to us, participation in and the assumption of disposal costs by us is excluded.
4.4 The customer is obliged to inspect our goods/services immediately after delivery for obvious transport losses, transport defects or transport damage, to make complaints in the presence of the driver in accordance with the transporter’s conditions, to document them and to notify us on the day of receipt of the goods/services. Hidden transport losses, transport defects or transport damage must be reported to us within seven calendar days of delivery of our goods/services at the latest. If the customer fails to notify us in good time, the goods/service shall be deemed to have been approved with regard to any transport losses, transport defects or transport damage. The customer must always take care of the necessary formalities towards the transport company. Otherwise, Section 438 of German Commercial Code applies.
4.5 The obligations under Section 4.4 shall also apply to the customer if the delivery/service is made to or by a third party at the request of the customer.
5. Deadlines, delivery/service
5.1 Unless otherwise agreed, our delivery or service deadlines are non-binding and do not begin until all details of execution have been clarified, in particular by the customer, but at the earliest on the date of our order confirmation and payment on account and advance payments due.
5.2 Insofar as delivery or service deadlines are exceptionally agreed as binding, the following shall apply: In the event of customer delay in fulfilling its contractual obligation, all deadlines shall be extended by the period of delay plus a reasonable start-up period.
5.3 Furthermore, deadlines shall be extended by a reasonable period of time plus a reasonable start-up period, but by no more than a total of three months, in the event of circumstances for which we are not responsible and in the event of force majeure or other unforeseeable events at the time of conclusion of the contract (e.g. in the event of unforeseeable operational, traffic or shipping disruptions, fire damage, flooding, unforeseeable shortage of workers, energy, raw materials or auxiliary materials, subsequent shortage of materials, import and export restrictions, strikes, lockouts, official orders and similar unforeseeable events which subsequently complicate or render impossible performance for us or our supplier (self-delivery), insofar as we are not responsible for these events). We will inform the customer immediately about the beginning and end of such hindrances. If the hindrance to delivery lasts longer than three months, both contracting parties are entitled to withdraw from the contract.
5.4 In the event of non-compliance with the delivery dates which we have designated as binding, the customer shall be entitled to grant us a reasonable period of grace of at least one month in writing. If delivery is not made by the end of the period of grace, the customer has the right to withdraw from the contract. Delivery shall be deemed to have been made in good time as soon as the goods/services have left our factory or warehouse or those of our sub-suppliers/subcontractors before the deadline has expired. Damage caused by delay shall only be compensated in accordance with the provisions of Section 9.
5.5 We are entitled to partial services and partial deliveries,
• partial delivery can be used by the customer within the scope of the contractual purpose of the contract
• the rest of the delivery is guaranteed and the customer shall not incur any significant additional expenditure or additional costs.
5.6 If the customer does not collect the goods within one week after receipt of our notice of availability/invoice or if it refuses to accept our goods/services, the customer is in default of acceptance. If the customer is in default of acceptance, we shall be entitled to set the customer a period of grace for collection or acceptance of the goods/services. A period of grace of one week is considered appropriate. After the fruitless expiry of the period of grace, we shall be entitled – irrespective of any further claims – to withdraw from the contract and/or demand compensation for damages. In the latter case, we are entitled to claim 10% of the agreed net purchase price as lump-sum compensation for damages without proof of concrete damage, unless the customer proves no or lesser damage to us. We shall always be entitled to demand compensation for the actual damage incurred plus any additional expenses (e.g. storage costs) instead of the lump-sum compensation. In the event of a delay in acceptance, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer.
6.1 All our claims are due for payment immediately upon receipt of the invoice. The punctuality of the payment depends on the receipt of the amount to our unconditional disposal.
6.2 We shall be entitled to demand appropriate advance payments.
6.3 If the customer is in default of payment or if there are justified doubts about its ability to pay, we are entitled to demand immediate payment of the claims arising from the respective contractual relationship (including from other individual orders for which the same framework agreement applies) against the customer and/or to demand the provision of security even before delivery/service, to withhold all or part of outstanding deliveries/services from the respective contractual relationship with the customer or to hold back all or part of the existing contractual relationship in question.
6.4 The customer shall only be entitled to rights of set-off, retention and refusal of performance if its counterclaims are legally established, undisputed or acknowledged. Furthermore, the customer is entitled to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the customer’s counterclaims, in particular pursuant to No. 8.7, shall remain unaffected.
6.5 We reserve the right to use payments to settle the oldest due claim plus the accrued interest on arrears and costs in the order of costs, interest and claim.
7. Retention of title, copyright reservation, secrecy
7.1 We reserve ownership of all our goods/services (goods subject to retention of title) until all claims arising from the business relationship with the customer have been settled. This also applies to items that we install or hand over as part of work services. The reservation of title to the customer shall also remain in force even if the claims are included in a current account by us and the balance is drawn and accepted (current account reservation). The transfer of risk according to Section 4 remains unaffected by this.
7.2 The customer must treat our conditional goods with care. The customer is obliged to sufficiently insure our conditional goods at its own expense against fire, water and theft at the gross invoice value and shall assign its claims for compensation from these insurance contracts to us at the amount of the gross invoice value. The assignment is hereby accepted.
7.3 The customer is entitled to resell the goods delivered by us exclusively in the ordinary course of business as long as it fulfils its contractual obligations towards us and a claim for payment at least in the amount of the acquisition costs arises from the resale. In the event of the resale of the reserved goods by the customer, the customer, for its part, must deliver the goods to its customers only under validly agreed retention of title until full payment has been made (further transferred retention of title), whereby the current account reservation agreed in Section 7.1 does not apply to the transferred retention of title. In advance, the customer shall assign to us in accordance with the gross invoice value of our deliveries or our co-ownership share all its claims against its customers or third parties arising from the resale of our reserved goods, including any future claims to which it is entitled, in accordance with the gross invoice value of our deliveries or our co-ownership share. We hereby accept the assignment. In the case of processing, combination, mixing and/or blending of our own goods with other goods, the assignment of claims shall only apply in the ratio of the gross invoice value of our reserved goods to the value of the other goods sold. The customer remains entitled to collect the claims even after the assignment. Our authority to collect the claims ourselves remains unaffected by this. However, we are obliged to not collect the claim as long as the customer duly complies with its payments and other obligations to us. However, if the customer is in default of payment, we shall be entitled to notify the customer’s purchasers of the assignment of claims or retention of title and to collect the claims ourselves. The customer shall transfer the proceeds from the resale of our reserved goods to us immediately in each case, insofar as our claims are or shall be payable. In the event of cessation of payment, application for insolvency of the customer’s assets or non-fulfilment of its obligations towards us, the authorisations to resell the goods subject to retention of title and to collect the claims against the customer’s customers shall lapse automatically and shall be transferred to us. The customer is obliged to inform us of the assigned claims and their debtors upon request, to provide us with all information necessary for collection and to hand over the corresponding documents, in particular business books.
7.4 Processing, combining and mixing of the reserved goods by the customer shall always be carried out on our behalf, without us being obliged to do so. In the event of processing, combining and mixing together with objects not belonging to us, we shall become co-owners of the new object in the ratio of the value of the reserved goods to the other objects at the time of processing, combining and mixing. If the customer acquires sole ownership of the new item, it is deemed agreed that the customer will transfer co-ownership to us in accordance with the proportionate gross invoice value. The customer shall keep the resulting sole or co-ownership for us. Otherwise, the same shall apply to the goods resulting from processing, combining and mixing as to the reserved goods delivered under retention of title.
7.5 In the event of breach of contract by the customer, in particular in the event of default of payment, we shall be entitled to withdraw from the contract (utilisation case) and to take back our reserved goods which have not yet been paid for. The customer has no right of possession in this respect. After the goods have been taken back, we are authorised to use them. The liquidation proceeds shall be offset against the liabilities of the customer less the liquidation costs. The customer shall be entitled to prove that the utilisation has caused unreasonably high costs; the corresponding difference shall not be borne by the customer.
7.6 The customer is not permitted to pledge or transfer our reserved goods. The goods delivered by us must be exclusively excluded from transfer of ownership of the entire warehouse. In the case of enforcement or seizures, the customer shall point out the existing retention of title and notify us immediately in writing, so that the required countermeasures can be taken. The customer is liable for the legal and out-of-court costs that we incur as a result of this, should no other compensation be obtained.
7.7 Upon request of the customer, we are obligated to release the collaterals, insofar as the implemented value of the collaterals exceeds the claims to be secured by more than 20%; we shall be responsible for selecting the collaterals to be released.
7.8 If the reserved goods are delivered to a location outside of the Federal Republic of Germany, or taken to such a location by a customer, in addition to Sections 7.1 to 7.7, the following shall apply as a matter of urgency: The customer shall make sure that our retention of title is effectively protected in the country in which the goods are located or in which they shall be taken to. If certain actions (e.g. a special designation or local register entry) are necessary for this purpose, the customer will take these on in our favour at its own cost. If our participation is necessary, the customer shall notify us immediately. In addition, the customer will inform us about all essential circumstances, that are important within the scope of the greatest possible protection of our property. The customer shall provide us with all documents and information that are essential for enforcing our property rights. The conditions of this section 7.8 shall correspondingly apply, if in accordance with the legal system of the location of the goods, a reservation of title cannot effectively be agreed upon for the creation of a legal position for us, which protects our interests and claims in an equally effective or in another suitable manner, as far as legally possible.
7.9 We reserve our ownership of drawings, plans, models, templates, samples, tools, manufacturing equipment and similar objects as well as confidential information/ideas which are available to the customer or paid for by us and all rights of use and exploitation under copyright law. These objects and information/ideas shall not be passed on or made available to a third party without our prior consent. Duplication of such objects and information/ideas is only permitted in the scope of the requirements of the contractual relationship and in compliance with the copyright conditions. Third parties who come into contact with the objects and information/ideas as intended, shall be subject to a corresponding obligation by the customer.
7.10 The customer is obligated to deal with all technical, economic and personal processes and relationships that become known to it in connection with contractual relationships with us or our products, ancillary services, advice and information in connection with us or our products and services, always – even in case of doubt – as business or company secrets, to maintain secrecy and to ensure that third parties (including family members and employees not involved in the subject matter) are not informed about them without authorisation. The obligation of secrecy persists after the end of the contractual relationship.
7.11 If the customer is guilty of violating the obligation of secrecy, it is obligated to pay us a contractual penalty of 5% of the net order value for each individual case of violation – excluding the continuation context – in the case of negligent offence, 2.5% of the net order value must be paid. We reserve the right to assert additional claims for damages beyond this.
8. Defects, warranty
8.1 The customer is obligated to accept our work and installation services without delay, at the latest within two days after notification of completion or delivery – at our request, together with us. The delivery is considered as a request for acceptance. A test certificate must be created upon our request.
8.2 In any case, the goods/service shall be deemed as accepted, if
• the delivery and, insofar as we are responsible for the installation, the installation has been completed and 14 working days have elapsed since the delivery or installation
• the customer refuses acceptance of the goods/service despite prior request by us, unless the customer can refer to an indicated defect which excludes or significantly impairs the use of the goods/service.
8.3 Obvious defects, incorrect deliveries quantity deviations must be reported to us in writing immediately – regardless of the regulation in section 4 or Section 640 Paragraph 2 of German Civil Code – and at the latest within seven calendar days after delivery of the goods/service or acceptance of the work services. After further processing by the customer, there is no right to complain. Hidden defects must be reported immediately, at the latest within seven calendar days after their discovery. If the customer fails to notify us in time, the goods/service is deemed to be approved and accepted as defect free. For customers who are merchants within the meaning of the German Commercial Code, Section 377 of German Commercial Code shall also apply. For resource claims originating from a purchase of a consumer good, Sections 478 and 479 of German Civil Code apply.
8.4 Defects must be reported in writing. In individual cases, if we accept verbal notification at our discretion, we will issue a written confirmation of this as receipt.
8.5 Upon receipt of the notification of defects, the goods/services shall be forwarded to us for inspection at our request, insofar as this is possible without unreasonable expense or unless we agree to a different procedure in writing. In the event of unfounded notification of defects, the customer shall bear the costs for the expenses incurred by us as a result of the investigation.
8.6 In the event of justified complaints, the customer is entitled to claim two subsequent repairs or replacement delivery free of charge at our discretion. In case of replacement delivery, the customer shall return the defective goods in accordance with the legal requirements. The limitation period will not commence again if the replacement delivery is carried out within the scope of defect liability. Subsequent fulfilment shall not include either the removal of the defective item or the re-installation if we were not obliged to install the original item. An incorrect quantity was delivered. If the two repairs or replacements are not successful within a reasonable period of time, the customer shall be entitled to its legal rights.
8.7 We reserve the right to refuse repairs of defects or replacement, as long as the customer does not fulfil its obligations to us. The assertion of the deficiency plea and the customer’s corresponding rights to refuse performance/retention of payment due to defects shall remain unaffected by this.
8.8 Warranty shall be excluded if our goods/services are not used properly by the customer or if they are combined with unsuitable (e.g. parts that do not originate from us or do not correspond to the operating instructions) or if they are installed in such parts without our consent and the remedy of defects is thereby made impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of rectifying the defect caused by the alteration. Furthermore, the warranty is excluded in case of normal wear and tear and defects caused by improper action, incorrect operation and negligent handling, in particular if the customer does not follow our operating and maintenance instructions.
8.9 The existing limitations of the warranty do not apply in the absence of a guaranteed quality or in the case of fraudulent non-disclosure of a defect. Otherwise, the customer claims damages or reimbursement of the wasted expenses within the scope of the warranty according to section 9.
9.1 Any claims for damages on the part of the customer, no matter for what legal reason, which arise directly or indirectly in connection with the order, delivery or use of our goods/services or the use of our work services, are excluded. This disclaimer does not apply in the event of an infringement of a contractual obligation (cardinal obligation). Cardinal obligations are obligations whose fulfilment makes the proper execution of the contract possible in the first place and whose compliance the contractual partner regularly trusts and may trust, thus rights and obligations which the contract has to grant in accordance with its content and purpose.
9.2 Our liability shall in any case be restricted to the replacement of the foreseeable damage typical for this type of contract. The customer’s (damage) compensation claims against us, which are based on contractual criminal claims of the customer’s customer, are in no case foreseeable and typical for the contract in the above sense. We shall always be entitled to prove lower damages.
9.3 Insofar as the damage is covered by an insurance policy taken out by the customer for the damage in question, we shall only be liable for any associated disadvantages of the customer, e.g. higher insurance premiums or interest rate disadvantages up to the settlement of the damage by the insurance company.
9.4 The above exclusions and limitations of liability shall not apply to damages resulting from injury to life, limb or health caused by a wilful or negligent breach of duty by us or one of our legal representatives or agents. Similarly, the above-mentioned exclusions and limitations of liability shall not apply to other damages which are based on an intentional or grossly negligent breach of duty by us or one of our legal representatives or one of our agents or if the other damages were caused by the absence of a guaranteed condition or due to fraudulent non-disclosure of a defect.
10. Liability without fault/product liability
If claims are asserted against us by a third party due to liability without fault, in particular product liability, the customers enters into liability insofar that the customer would be directly liable. As far as legally possible, our liability for measures taken by the customer to prevent damage, e.g. recall campaigns, is excluded.
11. Limitation period
11.1 Deviating from Section 438 Paragraph 1 No. 3 of German Civil Code, the general limitation period for claims by the customer arising from material defects and defects of title is one year from delivery. As far as acceptance has been agreed, the limitation period commences upon acceptance.
11.2 The foregoing limitation periods of the purchase rights shall also apply to contractual and non-contractual claims for damages by the purchaser which are based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195 and 199 of German Civil Code) would lead to a shorter limitation period in individual cases.
11.3 The limitation periods of the product liability act shall remain unaffected. Similarly, the statutory special provisions for material claims for restitution by third parties (Section 438 Paragraph 1 No. 1 of German Civil Code) in the case of fraudulent intent on the part of the seller (Section 438 Paragraph 3 of German Civil Code) and for claims in case of supplier recourse for final delivery to a consumer (Section 479 of German Civil Code) shall remain unaffected. In the event of damage claims in accordance with section 9, the statutory limitation period shall apply.
12. Applicable law, place of fulfilment, place of jurisdiction
12.1 The business relations between us and the customer from and in connection with the concluded contract are subject exclusively to the law of the Federal Republic of Germany under exclusion of international standard law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
12.2 The place of fulfilment for all obligations arising from the contractual relationship is Zusmarshausen or the place of business with which the customer has concluded the contract.
12.3 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Augsburg, if the customer is a merchant in the sense of German Commercial Code. This shall apply irrespective of the qualification of a merchant even if the customer changes its place of residence or habitual residence to abroad, its (habitual) residence is not known at the time of filing a lawsuit or our claims are asserted by way of a default action. We are also entitled to sue at the customer’s place of general jurisdiction.
Version: April 2014