Section 1 – General / Scope of validity
(1) The General Terms and Conditions of Business (T&Cs) below shall apply for all contracts, goods and services as well as for consultancy services, if the Customer is a business (Section 14 of the German Civil Code [BGB]), a legal entity established under public law or a public-law special fund.
(2) The T&Cs shall apply in particular for contracts governing the sale and/or supply of movables (hereinafter also known as Goods), regardless of whether we manufacture the Goods ourselves or buy them in from suppliers (Section 433, 631 BGB) as well as Customer services associated with the Goods. The version of them in force at any time shall also apply as a master agreement for all future contracts governing the sale and/or supply of movables as well as contracts governing the provision of Customer services for the same Customer, without us having to draw attention to them in each individual case. The Customer’s Terms and Conditions of Business shall only be binding in those cases in which they have been confirmed by us in writing. The Customer’s purchasing terms shall be rejected by us even if we deliver Goods to him without reservation in the awareness of the Customer’s T&Cs.
Section 2 – Offer / Offer documents
(1) Our offers shall be subject to change without notice and they are not binding. This shall also apply if we have handed over to the Customer catalogues, technical documentation(e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents, even if they are in electronic format, to which we reserve title and copyrights.
(2) An order placed with us by the Customer shall be regarded as a binding offer to enter into a contract with us. The contract as well as other agreements and written guarantees shall only be entered into when we have confirmed the order in writing.
(3) If the contract materialises through a commercial agent it shall only be valid in those cases in which it has been confirmed in writing by us, or if the Goods ordered have been delivered. Verbal agreements shall only apply if they have been expressly confirmed in writing. Claims based upon a contract cannot be transferred by the Customer to another party without our written consent.
Section 3 - Prices
(1) Unless an agreement has been made otherwise, our prices shall apply ex works plus the rate of VAT in force at that time.
(2) Should Goods be taken back by us as a gesture of goodwill, the Customer shall be obliged to pay is a sum amounting to 20% of the value of the Goods to cover the costs incurred by us. The Customer shall reserve the right to prove that the loss incurred by us is less than said 20%.
Section 4 – Technical information
(1) The product statements such as, for example, dimensions, weights, diagrams, descriptions, calculations, assembly sketches and drawings in sample books, price lists and other printed matter included in our offers and hand-outs are for guidance purposes only and are not binding on us. The same shall apply for information passed out by the supplying works.
(2) Samples and models shall be regarded as average output. Samples shall remain our property.
(3) It must be assumed that the Customer is aware of the physical ratios and the characteristics of the building materials available from us in compliance with the state-of-the-art technology.
Section 5 – Supply and Acceptance obligations
(1) The delivery dates quoted by us are not binding, unless they have been expressly confirmed by us in writing as „binding delivery date“. We shall endeavour to comply with delivery periods quoted. Minor transgressions are allowed. Since we also source some or all of the Goods from other manufacturers, the delivery of our Goods shall be subject to the reservation that we have been supplied on time with the correct Goods. The Customer shall be informed straight away if Goods are not available. If a subsequent delivery cannot be considered (Impossibility) or if the delivery will not be available within a new delivery period either, we shall be entitled to withdraw from part or all of the contract, if we are not responsible for the failure to comply with the delivery periods. A counter-performance already rendered by the Customer shall be reimbursed by us. A delivery period shall be extended if hindrances materialise after the contract has been signed for which B.T. innovation GmbH is not responsible. This shall also apply within a period of default already extant. Delivery period extensions may arise, for example, as a result of operational disruptions, strikes, lock-outs, traffic hold-ups or technical difficulties affecting the order making it unreasonable or impossible for us or our supplier to carry out. This shall also apply if these circumstances affect our supplier. We shall inform the Customer straight away of resultant delivery problems. If the agreed delivery date is transgressed, the Customer may consequently set us a reasonable subsequent delivery period. If we fail to deliver by the end of this subsequent delivery period as well, the Customer shall be entitled to withdraw from the contract by means of making a written declaration to that effect. If the delay in delivery is attributable to a breach of contract for which we are responsible, our liability shall consequently be defined in Section 8.
(2) We shall be entitled to deliver part-consignments. The Customer shall be obliged to take delivery of, and pay for, part-consignments, unless he cannot reasonably be expected to take delivery of the part-consignment or if it should impair his other contractual rights.
(3) Our deliveries shall be supplied ex works wherever the place of fulfilment is located, unless agreed otherwise. The risk of accidental loss and accidental deterioration shall pass over to the Customer when the Goods are handed over to the carrier. This shall also apply if the goods are transported in our vehicles. Transport packing and all other packing in compliance with the German packing regulations shall not be taken back by us. The Customer shall be obliged to be responsible for disposing of the packaging at his own expense. Materials handling equipment such as wire cage pallets and Euro pallets are to be returned by the Customer straight away in a condition fit for exchange (Epal) after they have been unloaded to the carrier. If the Customer so wishes, we shall take out transit insurance cover for the consignment. The costs incurred for this shall be borne by the Customer.
(4) In the event of damage in transit, the Customer shall have to inform us straight away and arrange for the carrier to submit a damage assessment.
Section 6 – Terms and Conditions of Payment
(1) Payments are due for payment in full no later than 21 days from the date of invoice, unless another term for payment has been expressly agreed.
(2) If the Customer’s financial status deteriorates after a contract has been signed and we become aware of facts leading us to conclude that our claim for payment is jeopardised by the Customer’s ability to pay it, we shall, by setting a subsequent reasonable period of time for payment, be entitled to demand from the Customer, as he chooses, payments in advance or appropriate bank guarantees. In the event of refusal, we may withdraw from the contract. Invoices for part-consignments already delivered and/or made available for collection or not yet delivered, shall be payable immediately. Part-consignments not yet delivered shall be delivered following payment. The Customer shall undertake to pay for Goods we have already bought in or ordered as well as for parts of Goods already in our suppliers’ production processes, unless payment for them has already been covered sufficiently by another provision governing compensation for damages etc.
(3) Payments made by cheques or drafts shall be accepted as conditional payment only.
(4) In the event of default in payment default interest shall be charged by us at 8% above the base rate in force at that time. We shall reserve the right to prove that the default damages suffered by us are in excess of 8% above base rate and to claim the proven rate.
(5) The Customer may only offset with uncontested or adjudicated counter-claims. The Customer cannot claim a right of retention based on earlier or other transactions in the existing business relationship. A payment may only be retained on account of a defect or other complaints based upon a written complaint received by us.
(6) Securities to be furnished by us may be redeemed by us with guarantees deducted from the net amount owed to us.
Section 7 - Warranty
(1) Unless specified otherwise below, the statutory regulations shall govern the rights of the Customer for Goods supplied in the event that there are quality-related and legal defects (including the delivery of incorrect goods or short shipment as well as improper assembly or defective assembly instructions) or defective Customer service. Statutory special regulations applicable when the Goods are supplied to an end Customer (consumer) (Claims asserted against a Seller by a Buyer under a quality warranty, Sections 474 and 479 BGB) shall not apply in any circumstances.
(2) Claims under warranty shall not apply if the discrepancy from the agreed quality is no more than minor or if the impairment of use is no more than minor. Moreover, our liability for defects warranty shall be based upon the written agreement made on the quality of the goods or Customer service. Insofar as no agreement was made on quality, a judgement is to be made in accordance with the statutory regulations, whether a defect is extant or not. (Section 434 Para 1 Sentence 2 and 3 BGB). We shall, however, not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertisements).
(3) The Customer’s warranty claims assume that he has complied with his statutory obligation to inspect Goods and notify defects to the supplier (Sections 377 and 381 of the German Commercial Code [HGB]) properly. Written notification in detail of defects is to be submitted within a period of 10 days following receipt of the Goods. We cannot be held liable for defects not notified if the Customer fails to inspect the Goods and/or notify the defect properly.
(4) If the delivered Goods or Customer services are defective, we may first of all choose whether we shall render a cure by means of elimination (Remedy of a defect pair) or by supplying a fault-free thing (Delivery of a replacement). Our right to refuse to carry out the selected method of cure subject to the statutory preconditions shall not be affected.
(5) We are entitled to make the cure owed dependent upon the Customer having paid the purchase price due in full. The Customer is however entitled to retain a reasonable amount of the purchase price in proportion to the defect.
(6) The Customer has to allow us the time and opportunity necessary to carry out the cure owed, in particular he has to hand over to us the Goods about which a complaint has been made to allow us to inspect the Goods. Otherwise we shall be exempted from the liability for the resultant claims. In the event that a replacement is supplied, the Customer shall have to return the defective thing to us in accordance with the statutory regulations.
(7) The expenditure necessary for the purposes of inspection and rendering a cure, in particular transport expenses, fares, labour and the cost of materials shall be borne by us, if there actually is a defect in the goods supplied.
(8) In urgent cases, e.g. if operational safety is placed at risk or if to avert disproportional damage, the Customer shall be entitled to rectify the defect himself and to demand the reimbursement from us of the costs necessary from an objective point of view. We are to be notified, beforehand if possible if the Customer does intend to rectify a defect himself for the reasons given above. The Customer shall not be entitled to rectify a defect himself if we would have been entitled to refuse to effect a cure for such a defect in accordance with the statutory regulations.
(9) If our attempt to effect a cure has been unsuccessful, or if a reasonable period of time to be set by the Customer for a cure to be effected has expired without a cure having been effected, or if such a cure is not essential in accordance with the statutory regulations, the Customer may withdraw from the contract or reduce the purchase price. The Customer shall not, however, be entitled to withdraw from the contract if the defect is minor.
(10) Section 8 shall apply for the Customer’s claims for compensation for damages or a reimbursement of expenses he has incurred in vain.
Section 8 – General limitation of liability
(1) Provided that these T&Cs including the provisions below do not provide otherwise, we shall be liable in accordance with the relevant statutory regulations in the event that we are in breach of our contractual or non-contractual obligations.
(2) We cannot be held liable for damages attributable to incorrect use or improper installation of our products, provided that we are not to blame for this. We expressly point out that the Goods may only be used for the purposes specified in the contract or for the designated use normal for such products.
(3) We shall be liable for compensation for damages – regardless of whatever legal reason upon which they are based – in the event of intent and gross negligence on our part. In the event of ordinary negligence we can only be held liable for a) damages arising from death, personal injury and physical harm b) a breach of a cardinal contractual duty (obligation the fulfilment of which makes it possible to carry out the contract in the first place and upon the compliance with which the Customer normally relies and may rely); in this case our liability shall, however, be limited to making good the foreseeable loss typically occurring.
(4) Insofar as liability is excluded or limited in accordance with Section 8 Para 1-3, this shall also apply for the liability of the owner, the executive bodies, senior staff, employees as well as other assistants.
(5) The limitations of liability produced by Section 8 Para 2 - 3 shall not apply, insofar as we have maliciously concealed a defect or have furnished a guarantee for the quality of the goods. The same shall apply for claims the Customer may assert under the German Product Liability Act.
(6) The Customer may only withdraw from the contract or serve notice of termination on account of a breach of duty not resulting in a defect, if we are responsible for the breach of duty.
Section 9 – Reservation of title
(1) We are to be furnished with the following securities until all claims have been fulfilled (including all outstanding balance claims from the current account) to which we are entitled for any legal reason against the Customer now or in the future: we shall retain the title to the Goods until payment has been made for them in full. If our (co-)ownership expires as a result of the Goods being processed, mixed or combined, it shall onsequently be agreed here and now that a proportion of the value (invoice value) of the Customer’s (co-)ownership of the actual thing shall pass over to us. The Customer shall keep our (co-)ownership in safekeeping for us free of charge. Goods to which we are entitled (co-)ownership, shall be designated below as goods subject to reservation of title.
(2) The Customer is entitled to process and sell the goods subject to reservation of title in a proper commercial transaction, as long as he is not in default with his payments to us. He must not pledge the Goods or assign them by bill of sale as a security to a third party. The claims materialising from a resale or other legal reason (insurance, unlawful act) with regard to the goods subject to reservation of title shall be assigned by the Customer in full here and now to us as a security. The Customer shall authorise us irrevocably to collect the accounts assigned to us for our account and in our own name. Upon being requested to do so, the Buyer shall disclose the assignment and pass over to us all the information and documents necessary. In the event of third party seizures of the goods subject to reservation of title the Buyer shall point out that the Goods belong to us and notify us of seizures straight away. The costs and losses shall be borne by the Buyer.
(3) In the event of the Customer acting in breach of contract – in particular if he is in default with his payments – we shall be entitled to take back the goods subject to reservation of title at the Customer’s expense or possibly demand the assignment to us of the Customer’s right to recovery against third parties. Taking back the goods subject to reservation of title and the levy of execution upon the goods subject to reservation of title by us shall not constitute withdrawal by us from the contract – provided that the German Consumer Credit Act. If Goods subject to reservation of title are installed by the Customer as an integral part of the property belonging to a third party, the Customer shall assign here and now the claims materialising for remuneration against the third party, or to whomever it may concern, amounting to the value of the Goods subject to reservation of title with all ancillary rights including a right to be granted a cautionary mortgage having priority over all other claims. We accept the assignment. The seller of building components which are designed to be installed in a building belonging to a third party as integral parts as a result of the contract for services between the Customer and the developer, agrees that the right of the Buyer’s company under the law of obligations to have a cautionary mortgage created (Section 648 BGB) on the basis of and with the assignment of account agreed above for the value of the building components supplied shall pass over to the Seller. To assert these rights the Customer shall be, upon request, obliged to inform us whether and when the supplied building components have been installed. The Customer shall be authorised to effect the entry of a cautionary mortgage himself, but upon request he shall be obliged to transfer these rights to us (cf Section 1153, Section 1154 Para 3, 873 BGB).
(4) Cash payments, bank transfers or payments by cheque made against the remittance of a draft drawn by the Seller and accepted by the Buyer, shall only be regarded as fulfilment within the meaning of Sentence 1 if the draft has been honoured by the drawee and the Seller (Buyer) is therefore no longer liable as endorser. The agreed reservation of title (irrespective of agreements still in force) shall therefore remain in force until the draft has been honoured for the benefit of the Seller. Insofar as the value of the securities to which we are entitled exceeds our total claims by more than 10%, we shall, at the Buyer’s request, be obliged to reassign them, whereby the selection of the securities to be released shall be incumbent upon us.
Section 10 – Place of jurisdiction
(1) If the Customer is a registered business within the meaning of the German Commercial Code [HGB], a legal entity established under public law or a public law special fund, the sole place of jurisdiction for all disputes arising from or in connection with the contract shall be Magdeburg. Magdeburg shall also be the place of jurisdiction for dealing with international disputes as well. We shall also be entitled to sue the Customer at his general place of jurisdiction.
Section 11 – Applicable law
(1) The law of the Federal Republic of Germany alone shall apply for these T&Cs and all legal relationships between us and the Customer. No international or supra-national (Contractual) legal systems shall apply, in particular the CISG shall not apply.
Section 12 – Severability Clause
(1) If individual provisions of these General Terms and Conditions of Business should be partially or completely invalid, the validity of the remaining provisions shall not be affected as a result. The partially or completely invalid provision is to be replaced by that regulation which comes closest to the aim and object of the invalid clause, taking into account the set economic objective. Such a regulation must be legally possible.