General Terms and Conditions (T&C) of Batex Trading e.K.
A. General provisions
I. Scope of the terms and conditions
- We, Batex Trading e.K., shall solely conclude contracts in accordance with
our
following General Terms of Business. They shall apply to all – also to
future –
deliveries, assemblies and other services, even if they are not expressly
agreed
again. Any provisions that deviate from the content of these terms and
conditions
shall require our written confirmation. Terms of business of the Purchaser
that
we
do not acknowledge in writing, shall be non-binding for us. No express
contradiction
shall be required.
- Individual agreements with the Purchaser – if made in writing – shall take
precedence over the terms and conditions. The legally relevant declarations
and
notifications which the Purchaser must submit to us after the conclusion of
the
contract (e.g. deadlines, defect notifications) must also be made in
writing.
The
written form shall be preserved by the text form.
II. Quotations, scope of the delivery / service
- Our quotations shall be non-binding.
- The documentation related to our quotations such as illustrations,
drawings,
weight and measurement details shall only apply as approximations unless
we
expressly designate them as binding. We shall also reserve title and
copyright
rights to cost estimates, drawings and other documentation as well as to
data,
regardless of their form of expression. These documents may not be
disclosed
to
third-parties without our consent.
- Our order confirmation shall apply as the sole deciding factor for the
scope
of the delivery and/or assembly. Partial deliveries and partial services
shall
be admissible if this is reasonable for the Purchaser.
- The Purchaser may only assign claims against us with our consent. This
shall
not apply to payment claims of the Purchaser against us.
III. Prices and payment terms
- Prices shall be net prices plus value added tax. Prices for deliveries shall
apply
unless otherwise agreed ex works without packaging and for deliveries abroad
or
to a
foreign subsidiary of the Purchaser we shall deliver ex-works (EXW)
Incoterms
2020.
- Price adjustments shall be permitted if the delivery/service is delivered
more
than
four months after the conclusion of the contract and we provide evidence of
the
relevant cost increases.
- The assertion of offsetting or retention rights of the Purchaser shall only
be
permitted with undisputed or legally determined receivables.
IV. Delivery period / service period
- The deadlines agreed with the Purchaser in the order confirmation or
elsewhere
shall
apply. Adherence to this deadline shall also assume the prompt receipt of
all
documentation to be delivered by the Purchaser as well as compliance with
the
agreed
payment terms and other obligations. If these pre-conditions are not
promptly
fulfilled, then the deadline shall be extended for the period of the
delay.
- For deliveries, the deadline shall be deemed as adhered to when the
operationally
ready shipment is despatched or collected within this deadline. If the
delivery
is
delayed for reasons for which the Purchaser is responsible, the deadline
shall
apply
as having been adhered to with the notification of the readiness to ship
within
the
agreed period. If the shipment-ready goods are not called off for reasons
for
which
the Purchaser is responsible, we shall be entitled to charge a storage fee
of 1%
of
the net invoice amount for each commenced month, but at a maximum of 5% of
the
net
value of the goods. The assertion of a higher cost amount shall remain
reserved.
The
agreed assembly deadlines shall be extended by any downtime or waiting time
for
which we are not responsible.
- Should we be impaired in the fulfilment of our obligations due to the
occurrence
of
unforeseeable, extraordinary circumstances that we could not prevent despite
reasonable diligence, irrespective of whether they occurred in our plant or
in
the
plant of our sub-supplier – e.g. operational disruptions, official
interventions,
delays in the delivery to us of essential raw materials and building
materials,
energy supply difficulties, pandemic situations – then if the delivery or
service
becomes impossible due to this, the deadline shall be extended for the
period of
the
impairment. If the aforementioned circumstances make it impossible for us to
fulfil
our obligations, we shall be relieved from our obligation.
- The deadline for the delivery or service shall also be extended by an
appropriate
period in the event of a strike or lockout. Here also we shall also be
relieved
from
our obligation to fulfil the contract if the delivery or service becomes
impossible.
- If the delivery time or the time of the services provision is extended in
the
above
cases for an unreasonably long period, the Purchaser shall be entitled to
withdraw
from the Contract. The assertion of compensation claims shall be
excluded.
- If the aforementioned circumstances should occur at the Purchaser, then the
same
legal consequences shall also apply to its acceptance obligation.
- Both contractual parties shall be under the obligation to notify the other
party
immediately of any performance disruptions.
V. Liability limitations, compensation
- The following limitations shall apply to our contractual and
extra-contractual
(tortious) liability as well as to liability due to fault in the conclusion
of
the
contract. The burden of proof for the limitation or liability or facts
justifying an
exclusion of liability shall lie with us.
- We shall not be liable for slightly negligent breaches of non-material
contractual
obligations. In the event of a slightly negligent breach of material
contractual
obligations, compensation claims shall be limited to typical and foreseeable
contractual damage. In the event of a grossly negligent breach of
non-material
contractual obligations, we shall be liable for typical and foreseeable
contractual
damage.Material contractual obligations shall include those where their
fulfilment
is a pre-requisite to the due and proper performance of the contract and on
compliance of which the Purchaser may rely.
- A limitation of liability shall not apply to the extent that we are liable
for
injury to life, limb or health.
- Any claims of the Purchaser under the Product Liability Act shall not be
affected by
the aforementioned liability limitations.
VI. Place of performance, court of jurisdiction, applicable law
- The place of performance for all obligations arising from the contractual
relationship shall be Viechtach.
- The court of jurisdiction for all disputes arising from the contractual
relationship, provided the customer is a businessman, a legal entity under
public
law or a special fund under public law, shall be Viechtach. However, we
shall be
free to
invoke the court of competent jurisdiction for the head office of the
Purchaser.
- German law shall apply exclusively. The application of the United Nations
Convention
on Contracts for the International Sale of Goods of 11 April 1980 (UN
Convention)
shall be excluded.
VII. Data privacy
The data privacy notices on our website www.batextrading.com/privacy shall
apply.
B. Specific provisions for deliveries
I. Shipment and transfer of risk
- Risk shall be transferred to the Purchaser with the shipment. Should the
shipment be
delayed for reasons that fall into the sphere of influence of the Purchaser
or
its
auxiliary persons, the risk shall then be transferred to the Purchaser on
the
notification date of the readiness to ship. The place of supply shall be
Viechtach.
- We shall not be under the obligation to insure the goods against
transportation
damages. Insurance shall only be concluded on the written request of the
Purchaser
and upon receipt of advance payment.
II. Retention of title
- We shall retain title on the delivered goods until receipt of the full
payment
of
the agreed price, including all receivables from the business relationship
and
future receivables and until the redemption of bills of exchange and
cheques.
- The Purchaser shall be entitled to perform a resale as part of a due and
proper
business transaction. The Purchaser shall already assign to us its claims
arising
from the resale of the goods subject to retention of title, in particular
the
payment claims against its customers. We shall accept this assignment. The
Purchaser
shall be under the obligation to notify its debtors of the assignment on our
request. Any receivables and names of the Purchaser‘s debtors shall be
communicated
to us.
- The Purchaser shall be entitled to collect receivables from the resale. In
the
event
of payment default, or if we become aware of circumstances which according
to
our
commercial assessment reduce the creditworthiness of the Purchaser, we shall
be
entitled to revoke the collection right.
- Treatment and processing of the goods subject to retention of title shall be
performed by us a manufacturer within the meaning of Article 950 BGB (German
Civil
Code). If the goods subject to the retention of title are processed or mixed
with
other items that we do not own, then we shall acquire co-ownership of the
new
item
in proportion to the net invoice value of the goods subject to retention of
title to
the net invoice value of the other goods used at the time of processing or
mixing.
- A transfer of security of the goods to which we have title shall be
inadmissible. In
the case of accesses by third parties to goods subject to retention of
title, in
particular attachments, the Purchaser shall make reference to our title to
the
goods
and inform us of this immediately by sending a copy of the attachment
report.
- In the event of the Purchaser conducting itself in a manner contrary to its
contractual obligations, we shall be entitled to withdraw from the contract
and
demand the return of the goods delivered by us.
- In the event of late payment exceeding 8 weeks from the due date, the
Purchaser shall incur a penalty interest charge. This penalty interest shall
be calculated at a rate of 12% per annum on the outstanding payment amount.
The penalty interest shall be due every 30 days until the full payment,
including the penalty interest accrued, is received by the Supplier. The
accrual of penalty interest does not exempt the Purchaser from their
obligation to settle the outstanding payment in full.
- In the event of late payment exceeding 8 weeks from the due date, the
Supplier reserves the right to take legal action to recover the outstanding
amount. All associated legal costs and expenses incurred in pursuing payment
shall be the responsibility of the Purchaser. The Supplier may, at its
discretion, suspend further deliveries or services to the Purchaser until
the outstanding payment, including penalty interest and any associated
costs, is settled in full. Late payments may result in reporting the
delinquency to credit reporting agencies, potentially impacting the
Purchaser's creditworthiness.
III. Rights of the Purchaser in the event of defects
- Claims from the Purchaser due to defects pre-suppose that the delivery item
does
not
have the contractually agreed quality or, if such was not agreed, is not
suitable
for the pre-supposed use according to the contract or for its usual use. For
delivery items produced on the basis of a drawing, the delivery item shall
be
defect-free if it corresponds to the drawing approved by the Purchaser.
- In the event of the delivery of used devices, we shall not assume any
warranty
for
defects.
- We shall hereby assign our claims against suppliers of essential third-party
products to the Purchaser. The Purchaser can only hold us liable for defects
(in
court) in essential third-party products if a previous out-of-court claim
against
the third-party suppliers was unsuccessful.
- In the event of justified defect notifications, we shall have the right,
within
a
reasonable period and at our discretion, either to repair the defect or
deliver
a
replacement. If the supplementary performance should fail, the Purchaser may
reduce
the price or – if the contractual breach is not merely minor – withdraw from
the
contract. If the Purchaser withdraws from the Contract, it shall return the
delivery
item to us and – regardless of other claims – it shall pay a reasonable
amount
at a
level of the usual rental for the time of use. Any additional legal claims
shall
remain unaffected.
- Claims of the Purchaser due to requisite costs for the purposes of the
supplementary
performance, in particular transport and travel expenses, work and material
costs
shall be excluded if these expenses increase because the delivery item has
been
subsequently shipped by the Purchaser or a third party to another place than
the
delivery location, unless the transfer corresponds to the intended use of
the
delivery item and was agreed with us when the contract was concluded. Within
the
framework of the supplementary performance, all transport costs incurred
shall
be
assumed by the Purchaser.
- In the event of a return of the delivery item, the Purchaser shall pay us a
compensation for use. This shall be determined based on the usual rental
amount.
- Claims by the Purchaser shall expire after 12 months. This shall not apply
if
the
law of the German Civil Code in Sections 438 Para. 1, No.2, 479 Para. 1 and
634a
Para. 1, No.2, prescribes longer deadlines, specifically for buildings and
items
used for buildings, recourse claims and structural defects.
- Compensation claims due to defects shall be limited as follows: We shall not
be
liable for a slightly negligent breach of non-material contractual
obligations.
Our
liability for consequential damages due to defects shall be excluded apart
from
in
the case of intent, gross negligence or breach of material contractual
obligations.
To the extent we are liable for consequential damages due to defects,
liability
shall be limited to foreseeable damages and not attributable to
extraordinary
circumstances. Material contractual obligations shall include those where
their
fulfilment is a pre-requisite to the due and proper performance of the
contract
and
on compliance of which the Purchaser may rely. The burden of proof for the
facts
justifying a limitation of liability shall be incumbent on us.
- Claims of the Purchaser arising from physical or health impairments or loss
of
life
of the Purchaser or its auxiliary agents which are attributable to us shall
not
be
restricted by the aforementioned limitation of liability. Claims by the
Purchaser
arising from the Product Liability Act and claims arising from a guarantee
given
by
us as well as any fraudulent concealment of a defect shall be unaffected by
this.
Statutory limitation periods shall apply to these claims.
C. Specific conditions for assemblies
I. Cooperation of the Purchaser
- The Purchaser shall provide all the requisite official authorisations, in
particular
any special authorisations for specific risk situations and for Sunday and
Public
Holiday working. It will also advise us promptly of any applicable visa and
vaccination regulations.
- The Purchaser shall inform our assembly manager prior to starting the works
of
any
specific safety provisions and danger zones.
- On the first day of assembly at the latest, the Purchaser shall assign a
contact
person who shall be responsible for our staff.
- The Purchaser shall undertake the requisite specific measures to protect
staff
and
materials at the place of assembly. It shall also comply with every
reasonable
request from our staff regarding additional safety measures. Should these
not be
in
place, our staff shall be entitled to discontinue with the work.
- If the provision of auxiliary staff has been agreed, then the Purchaser
shall
make
suitably qualified staff available. These persons shall then comply with the
instructions of our assembly manager. We shall assume no liability for the
workforce
provided by the Purchaser.
- The Purchaser shall create the conditions for a test run after completion of
the
assembly. If this should not be possible on the part of the Purchaser, then
in
the
event of any potential reworks, any additional travel expenses will be
invoiced.
II. Preparatory work, technical support
- The Purchaser shall create the pre-conditions for a smooth start to the
assembly
–
the requisite items and preliminary work (equipment and setup) are to be
finalised
as far as possible so that assembly can begin with the arrival of our
staff.
- If we travel directly by car from Viechtach we shall bring all the necessary
standard
tools and hand tools with us. Otherwise, without a separate agreement, the
Purchaser
shall provide all the usual tools such as standard tools, lifting gear,
scaffolding
and welding devices. The Purchaser shall provide and guarantee the energy
and
tools
and any further technical support as stated in our order confirmation.
- The Purchaser shall provide washing opportunities and sanitary facilities.
First
aid
facilities for assembly staff must also be provided. The Purchaser will
provide
us
with a lockable room for our property used during the assembly. It shall
also
ensure
that an appropriate insurance policy is in place.
- The agreed technical assistance must in particular enable us to start the
assembly
immediately upon the arrival of our staff and without delays until the
acceptance or
completion can be performed.
III. Substitute performance, waiting time
- If the Purchaser does not comply with its obligations in accordance with
Clauses
C I
and/or C II above, then we shall be entitled but not under the obligation,
following
a prior notification and having set a reasonable extension period, to
perform
the
actions incumbent on the Purchaser on its behalf and at its expense.
- The Purchaser shall assume any costs that ensue due to waiting times of our
staff.
This shall not apply if we are responsible for the waiting times. Waiting
times
shall be charged at the same rate as assembly times.
IV. Defect liability
- The Purchaser must notify us immediately of any identified defects.
- Compensation claims due to defects shall be limited as follows: We shall not
be
liable for a slightly negligent breach of non-material contractual
obligations
by us
or our staff. Our liability for consequential damages shall be excluded
apart
from
in the case of intent, gross negligence or breach of material contractual
obligations. Material contractual obligations shall include those where
their
fulfilment is a pre-requisite to the due and proper performance of the
contract
and
on compliance of which the Purchaser may rely. To the extent we are liable
for
consequential damages, liability shall be limited to foreseeable damages and
not
attributable to extraordinary circumstances. The same limitations of
liability
shall
apply to staff deployed by us. A reverse burden of proof shall not be linked
to
the
above limitations of liability.
V. Performance recording, invoicing and prices
- The Purchaser shall certify the working hours and work performance of our
staff.
Upon completion of the assembly it shall provide us with a handover
certification.
- The assembly will be invoiced on an hourly and cost basis. In principle the
rates
are included in our order confirmation.
- If our staff are unable to start the assembly on grounds for which we are
not
responsible or if the assembly is interrupted on grounds for which we are
not
responsible, our staff shall be entitled, after a reasonable deadline, to
depart
from the site of the Purchaser at the cost of the Purchaser and then to
return
to
the assembly site for the start/continuation of the assembly. The Purchaser
shall
assume the associated costs (arrival and departure travel costs).
D. Guarantee conditions
I. Pre-requisites of the guarantee, duration
- We guarantee, in addition to the statutory defect liability and over and
above
this
for a period of 24 months after commissioning, however, for a maximum of 30
months
after delivery or 4,000 operating hours for high-pressure pumps and pump
units,
that
these are free from material and processing faults. The guarantee further
covers
the
due and proper assembly if this was also commissioned by the Purchaser.
- In order to assert its rights from the guarantee, the Purchaser must
register
the
delivered product on our portal within six months of the commissioning.
Non-registered products will not be protected by
the
guarantee.
II. Scope of the guarantee
- The guarantee shall cover all parts manufactured by us. For components and
devices
that we purchased from third-party suppliers – e.g. diesel and electric
motors,
hydraulic components, pre-pressure pumps – the defect liability or guarantee
of
the
manufacturer shall apply. We shall guarantee, however, the flawless
installation
of
the devices and components of third-party suppliers. The guarantee service
must
be
requested via the current guarantee application.
- In a guarantee claim we shall decide between a repair and a replacement. In
this
regard the repair shall include the exchange of the defective parts
including
installation. The Purchaser shall assume specific costs for any complicated
disassembly and reinstallation.
- We shall assume the freight costs for the exchanged parts or replacement
parts
(cheapest shipping method to the destination), and for delivery outside of
Europe to
nearest seaport or airport.
- We shall authorise the Purchaser to undertake the repair or exchange of
defective
parts autonomously, and in this case after prior approval, we shall
reimburse it
with the associated costs incurred on receipt of an invoice. Defective parts
must be
returned to us. We shall also be entitled to verify the repair. To this end
and
after prior agreement, the Purchaser must grant us access to its business
premises
during normal business hours.
- For parts produced by us and installed as part of an exchange, a new
guarantee
for
2,000 operating hours shall apply, a maximum however for a period of 12
months
after
the installation.
III. Exclusion of the guarantee, costs to be assumed by the Purchaser
- The guarantee shall not cover wear parts.
- A guarantee claim shall not apply in the event of breaches by the Purchaser
of
the
operating and maintenance instructions, of improper installation of the item
under
guarantee in a device unit of the Purchaser or third-party or if
inappropriate
accessories, tools or spare parts have been used.
- The Purchaser shall assume the costs associated with the assembly and
disassembly of
devices in which our product was incorporated.
- The Purchaser shall assume the costs for transporting the device in or on
which
our
product was installed or assembled. It shall make the guarantee item
available
for
the performance of the repair works at Viechtach, or at another jointly
agreed
location.
In relation to the delivery of replacement items the Purchaser shall assume
any
additional costs if it chooses a more expensive shipping method, import
costs
including customs, inland freight etc. Any travel costs incurred by us
outside
of
Viechtach shall also be assumed by the Purchaser. The Purchaser shall also
assume
any
overtime charges and any additional costs for work performed between 20:00
hours
and
07:00 hours and on Saturdays, Sundays and Public Holidays.