General Terms and Conditions of Bayerische Elektrische Maschinen GmbH
* The original German text shall be the governing version.
I. General Provisions
- Legal relations between Supplier and Purchaser in connection with suppliesand/or services of the Supplier (hereinafter referred to as „Supplies“) shall be solely governed by following conditions.
- ThePurchaser‘s general terms and conditions shall apply only if expressly accepted by the Supplier in writing. The scope of delivery shall be determined by the congruent mutual written declarations.
- In accordance with § 33 of the German Federal Data Protection Law we must point out that data provided by our customers are stored and processed in our IT systems insofar as this is necessary for the proper handling of business transactions.
- The Supplier herewith reserves any industrial property rights and/orcopyrightspertaining to its cost estimates, drawings and other documents (hereinafter referredto as „Documents“). The Documents shall not be made accessible to thirdparties without the Supplier‘s prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser‘s Documents; these may, however, be made accessible to those third parties to whom the Supplier has rightfully subcontracted Supplies.
- Partial deliveries are allowed, unless they are unreasonable to accept for the Purchaser.
- The term „claim for damages” used in the present delivery conditions also includes claims for indemnification for useless expenditure.
II. Offers and Contract Conclusion
- Our offers are non‐binding insofar as they do not explicitly state that they are binding.
- The order signed by the customer is a binding offer. We can accept this offer within two weeks by sending a confirmation of order, by sending the goods ordered or by beginning to provide the service within the same period.
- All information concerning our goods and services and especially the images, drawings, weights dimensions and performance data contained in our offers and printed material are average values to be considered as approximations. They are not guaranteed quality characteristics but rather descriptions or designations of the goods. Insofar as no limitations on permissible deviations are explicitly defined and described as such in the order confirmation, such deviations as are usual in the market sector shall be permissible in all cases.
III. Prices, Terms of Payment, and Set‐Off
- Only the prices specified in our order confirmation are definitive. Additional services shall be invoiced separately.
- Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate, unless something else is explicitly agreed with the customer.
- If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidentalcosts required, e. g. for traveling and transport as well as allowances.
- The Purchaser may set off only those claims which are undisputed or nonappealable.
IV. Retention of Title
- The items pertaining to the Supplies („RetainedGoods“) shall remain the Supplier‘sproperty until each and every claim the Supplier has against the Purchaseron account of the business relationship has been fulfilled. If the combinedvalue of the Supplier‘s security interests exceeds the value of all secured claimsby more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser; the Supplier shall be entitled to choose which security interest it wishes to release.
- For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that thereseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
- Should Purchaser resell Retained Goods, it assigns to the Supplier, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balance claims, as security, without any subsequent declarationsto this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect tothe Retained Goods, Purchaser shall assign to the Supplier such fraction of the total price claim as is attributable to the price of the Retained Goods invoiced by Supplier.
- a) Purchaser may process, amalgamate or combine Retained Goods with other items.
- b) Already today, Supplier and Purchaser agree that if Retained Goods are combined or amalgamated with other items that are not the property of Supplier, Supplier shall acquire co‐ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.
- c) The provisions on the assignment of claims according to No. 3 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by Supplier for the Retained‐Goods that have been processed, combined or amalgamated.
- d) Where Purchaser combines Retained Goods with real estate or movable goods, it shall, without any further declaration being necessary to this effect, also assign to Supplier as security its claim to consideration for the combination, including all collateral rights for the prorata amount of the value the combined Retained Goods have on the other combined items at the time of the combination.
- Until further notice, Purchaser may collect assigned claims relating to the resale. Supplier is entitled to with draw Purchaser‘s permission to collect funds for good reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest or justified indications for over‐indebtedness pending insolvency of Purchaser. In addition, Supplier may, upon expiryof an adequate period of notice disclose the assignment, realize the claims assignedand demand that Purchaser informs its customer of the assignment.
- The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, Purchaser shall, without undue delay, provide Supplier with the information and/or Documents necessary to assert the claims it has against its customers.
- Where the Purchaser fails to fulfill its duties, fails to make payment due, orotherwise violates its obligations the Supplier shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by the Supplier; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods. The fact that the Supplier takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless the Supplier so expressly declares.
V. Periods for Deliveries ; Delay
- Times set for Supplies shall only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if the Supplier is responsible for the delay.
- If non‐observance of the times set is due to: Seite 2 von 3
2. a) force majeure, such as mobilization, war, terror attacks, rebellion orsimilarevents (e. g. strike or lockout);
2. b) virus attacks or other attacks on theSupplier‘s IT systems occurringdespiteprotective measures were in place that complied with the principles of propercare;
2. c) hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances forwhich Supplier is not responsible; or
2. d) the fact that Supplier does not receive its own supplies in due time or in due form such times shall be extended accordingly.
- Purchaser‘s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance are excluded in all cases of delayed Supplies, even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of liability based onintent, gross negligence, or due to loss of life, bodily injury or damage to health. Rescission of the contract by the Purchaser based on statute is limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
- At the Supplier‘s request, the Purchaser shall declare within a reasonable periodof time whether it, due to the delayed Supplies, rescinds the contract or insistson the delivery of the Supplies.
- If dispatch or delivery, due toPurchaser‘s request, is delayed by more than one month alter notification of the readiness for dispatch was given, the Purchaser may be charged, for every additional month commenced, storage costs of 0.5 % of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.
VI. Passing of Risk
- Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
- a) if the delivery does not include assembly or erection, at the time when it isshipped or picked up by the carrier. Upon the Purchaser‘s request, the Supplier shall insure the delivery against the usual risks of transport at the Purchaser‘s expense;
- b) if the delivery includes assembly or erection, at the day of taking over in the Purchaser‘s own works or, if so agreed, alter a successful trial run.
- The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, the taking over in the Purchaser‘s own works, or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.
VII. Assembly Services
Unless otherwise agreed in written form, assembly and erection shall be subject to the following provisions:
- Purchaser shall provide at its own expense and in due time:
- a) ancillary work outside theSupplier‘s scope, including the necessary skilled and unskilled labor, construction materials and tools;
2. b) the equipment and materials necessary for assembly and commissioning such as scaffolds, lifting equipment and other devices
2. c) suitable dry and lockable rooms ofsufficientsize adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working, furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel at the site;
2. d) protective clothing and protective devices needed due toparticular conditions prevailing on the specific site
3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption.
4. If assembly, erection or commissioning is delayed due to circumstancesforwhich the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional traveling expenditure of the Supplier or the erection personnel.
5. The Purchaser shall attest to the hours worked by the erection personnel towards the Supplier at weekly intervals and the Purchaser shall immediately confirm in written form if assembly, erection or commissioning has been completed.
6. If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply there with within a period of two weeks. The same consequences as upon acceptance arise if and when the Purchaser lets the two‐week
period expire or the Supplies are put to use after completion of agreed test phases, if any.