Karl Baisch GmbH – Terms of Karl Baisch GmbH
Karl Baisch GmbH
Terms of Karl Baisch GmbH
The following terms and conditions shall be valid for all deliveries and services rendered by the Karl Baisch GmbH Company, Plattling, hereafter also referred to as "Seller" or "we", and for all offers and agreements for the deliveries we are required to render (hereafter also referred to as "Goods, Commodity or Product") and services insofar as no deviating agreements have been concluded expressly and in writing. These terms and conditions shall also be valid for all of our future declarations, bids and agreements. Any of the Business Terms and Conditions or Purchasing Terms and Conditions of the orderer (= "Principal"; "Customer", "Buyer"), which we have not expressly acknowledged in writing, are completely non-binding for us and shall not become a contractual component even if we have not expressly objected to them.
Drafted: Plattling, 10/09/2010
1. Bid, conclusion of a contractual agreement, determination of contractual obligations and the like
Our bids are always considered to be non-binding. If we state a price in a bid, this is our listed price that is valid for a delivery on this day insofar as we have not expressly declared something to the contrary.
Each bid and/or each cost estimate is considered to be a self-contained entity. The removal of individual items or a change in the types, quantities or delivery destinations shall require our approval; the freight costs we specify are always considered to be non-binding.
The prices we specify are calculated for an order volume of at least 95.00 € net (prices based upon the currently valid Baisch price lists). If the value of an individual order is below this amount, we reserve the right to bill a minimum quantity surcharge of 25.00 € net.
What features our deliveries or services must have shall be determined based only upon the provisions that have been expressly agreed in the contractual agreement. If an object is named alone or also with our product and/or type name in a bid or in an agreement, it is hereby declared that the feature that we are required to provide is specified in our product or type description which is valid for this object on the date that our bid was rendered. Third-party information, also in advertisements or in other third-party publications, shall substantiate no contractual claims for contractual performance, warranties or damages against us from any perspective.
Insofar and to the extent that the usage purpose or usability is not affected, the value remains intact or increases and the changes are reasonable for the Customer, we shall have the right to alter the object of our delivery or service in comparison with the model, the bid or the contractual description in order to improve our delivery or service in the sense of production or technical progress or because this is contingent upon deviations that are customary for the industry with regards to weight, quantities, dimensions, makeup and composition of materials, structure, external surfaces and colours or owing to the nature of the materials used.
We assume responsibility for assurances or guarantees made about the quality features of the deliveries and services and for the risk of their procurement respectively only if and insofar as this has been expressly agreed in writing.
Insofar as nothing to the contrary has been expressly agreed, our obligations shall be respectively subject to the proviso that we are correctly and promptly supplied by our own suppliers from a congruent coverage transaction which we have concluded, including also for preliminary and supplier products as well as for raw materials, auxiliary materials and operational resources or other third-party products which we require for our production or ability to deliver. (= Commercial trading clause: "Subject to prompt and correct delivery from one´s own suppliers").
Insofar as we procure goods or services which we use for the fulfilment of our contractual obligations for our Customer, we shall conduct incoming goods inspections or other controls only in our own interest and based upon our own requirements.
Contractual agreements and call-offs of goods and services as well as their modifications, supplements and all other agreements which are based upon an agreement or its implementation must be in writing.
We shall be entitled to use electronic or text forms; in this case, the Customer shall also be entitled to render declarations in these forms.
Any oral agreements are only then valid if they have been promptly confirmed in writing by one party.
If a contractual document has not been drafted in written form, an order issued to us shall only then be binding for us if we have confirmed it in writing. If we begin to implement an order without having an express written agreement or confirmation, a contractual relationship shall only then be substantiated through the rendering of our delivery or service in full. The contractual document which both parties have signed or, if such a contractual document does not exist, the content of our order confirmation or the content of our invoice, shall definitively describe our obligation.
Regardless of whether they are originals or reproductions, the sketches, drafts and other documents we have provided are only being lent and remain our property. They may not be used for other purposes, reproduced or disclosed to third parties and they must be returned to us as soon as possible without this having to be requested or if we request this.
We shall be entitled to save, process or use our contractual partners´ data for EDP purposes and to pass them on in the required scope to third parties who are providing us with credit or are insuring our claims against the contractual partner.
Our prices are understood to be in EURO from Plattling, without any VAT and without any other public levies collected upon the supplying or trading of goods, without packaging, insurance, freight, mounting and commissioning insofar as nothing to the contrary has been expressly agreed.
Notwithstanding another express contractual provision, in the event that an estimated price has been agreed, we shall be entitled to bill a surcharge corresponding to the following changes: If our delivery or service, or our partial delivery or partial service, does not become payable within four months after the agreement is concluded and the costs for materials, wages, energy and/or freight and/or public levies increase or are newly introduced.
Insofar as no other agreement has been expressly concluded, then we shall be entitled to demand advance payments for the finished products which are not deliverable from the warehouse when the contractual agreement is concluded, namely one-third of the order amount after the order confirmation is made and an additional one-third after the notification of readiness for delivery is made.
We reserve the right to make delivery dependent upon instalment payments/advance payments or the provision of security. In each case, we shall be entitled to bill for any deliveries or services that have already been rendered and to declare the payment claim to be payable.
3. Delivery, performance, delays, exercising of options by the Customer
Delivery or performance timeframes are only then binding if they have been agreed in writing. In cases of doubt, the delivery timeframes listed on the order confirmation shall be valid. The timeframe shall begin to run upon the conclusion of the agreement, but nonetheless not before the fulfilment of existing cooperation obligations by the Customer, particularly the provision of the documents, the supplies, permits, approvals or agreed down payments or other security which the Customer must provide for the fulfilment of its contractual obligations. The agreed timeframes shall also be considered to have been met when the notification of readiness for shipment is made if the transport cannot be promptly made through no fault of our own.
If the non-adherence to the delivery or performance timeframes is attributable to force majeure and other disruptions for which we are not responsible, e.g. war, terrorist attacks, bad weather, importing and exporting restrictions, labour struggles, including such events affecting our own suppliers, the agreed timeframes shall be appropriately extended and certainly also then if we are late with the delivery.
If, in violation of our contractual obligations, we fail to adhere to a binding delivery or performance timeframe for other reasons than those listed in Sub-clause 3.2, then the Customer may withdraw from the agreement after having set an appropriate notice period for us in writing and then we still fail to make delivery.
Any more extensive rights of the Customer owing to delivery default, particularly for more substantial damage compensation, shall be excluded in the scope specified in Clause 7.
We shall be entitled to also fulfil our contractual obligations by rendering partial performances insofar as it concerns a divisible obligation and the respective partial performance is not unreasonable for the Customer and does not create compensable burdens for us.
If, owing to a contractual violation upon our part, the Customer has the option of asserting claims for performance, subsequent performance, rescission and/or damages and/or reimbursement of expenditures, we may request that it exercise its rights within an appropriate timeframe. If the Customer fails to make such a declaration, then it may only then demand damage compensation instead of performance and/or only then withdraw from the agreement after it has once again set an appropriate extension period which then lapses unsuccessfully.
4. Transfer of risk; shipment, obligations to inspect and make notification of defects
We are obligated to our Customer to supply the goods or render performance at our commercial branch (= "ex works") in Plattling. When the goods are transferred, the risk of the accidental destruction and the accidental deterioration of the goods shall be transferred to the Customer.
If, upon the Customer´s request, the goods are sent to another location, then we shall have the right to choose the method of shipment if the Customer has stated nothing to the contrary. Transport insurance shall be concluded only upon the Customer´s request and at its expense. The outgoing delivery to the carrier, the freighter or the other person or institution that has been designated to make the shipment shall be in accordance with Sub-clause 4.1 Clause 2.
If the surrendering or the transport of the goods is delayed owing to sets of circumstances for which we are not responsible, then risk shall be transferred to the Customer on the date that the notification of readiness for shipment/pick-up is made.
The goods must be promptly examined by the Customer upon their receipt and certainly also then if the outgoing delivery is not made to it, but rather to a third party it has designated to receive the delivery. Any notifications of defects, quantity-related shortages, incorrect deliveries or other complaints must be immediately submitted after the recipient of the goods becomes aware of such problems and notification must also be made in advance by telephone or fax so that we can examine the goods ourselves and document such complaints. Obvious defects and deficiencies must be reported to us in such a manner that we are notified of such complaints by no later than 48 hours after receipt of the goods. Any more extensive obligations of the entrepreneur that are owed to us in accordance with § 377 HGB [German Commercial Code] and the obligation to notify the freighter of obvious damage from transport and quantity-related shortages upon delivery shall remain unaffected.
5. Defects, warranty, statute of limitations
If the goods we have supplied or the services we have rendered are defective and the Customer demands that we make subsequent performance, we may select whether we will eliminate the defect (rectification) or supply flawless goods or services (replacement delivery). We shall promptly notify the Customer of our decision. If we opt to make rectification, the goods about which a notification of defects has been made must be sent back to us for rectification. We shall pay the costs for the cheapest round-trip shipment of the goods from/to the Customer´s domestic delivery address that was agreed for the original delivery of the goods insofar as the complaint turns out to be justified; this provision shall be accordingly valid if we travel to make the rectification on-site. The Customer must provide us or our designated third party with the appropriate time and opportunity to carry out the warranty-related work. It shall be entitled to carry out such work on its own only with our approval except in the cases of § 637 BGB [Civil Code].
If we make a replacement delivery, we may demand that, as we so choose and at our expense, the Customer either dispose of or sell the defective goods as best as possible, settle up with us and provide us with such proceeds that are obtained from such a sale less its selling costs insofar as the Customer trades such goods or similar goods or the selling or disposal of such goods is reasonable for it owing to other reasons.
Claims for defects shall not be valid for only minor defects from the agreed quality or for minor restrictions of usability.
If subsequent performance fails, then the Customer may, in accordance with the statutory provisions, demand either rescission of the agreement (rescission) or the reduction of the purchase price (purchase price reduction); Clause 7 shall be valid for damage compensation claims.
Any more extensive rights or other rights owing to a defect than the claims regulated in this Clause 5 shall - notwithstanding any contractual or non-contractual claims for damage compensation in accordance with Clause 7 - be excluded. Insofar as a defect is minor, the related damage compensation claim of the Customer shall not include the purchase price that has been paid, but rather only the damages which it has suffered financially owing to the fact that the goods were not flawless.
If the notification of defects turns out to be unjustified, then we shall be entitled to bill the Customer for all expenditures which we have incurred through this notification of defects.
The statute of limitations period for claims against us that arise from or in conjunction with defects in our delivery or service or the violation of a contractual obligation shall begin to run when the purchased goods are delivered; in other cases, upon the acceptance of our products/services.
The statute of limitations period shall be suspended for the duration of the time required for subsequent performance. It shall not begin anew.
The provisions of these clauses shall apply accordingly for legal defects (which are not based upon the violation of third-party copyrights or rights of authorship) and in the event that we have supplied or rendered something else or less than owed.
6. Proprietary rights, immaterial rights
Insofar as nothing to the contrary has been expressly agreed contractually, then we shall be obliged only to supply goods which are free of industrial property rights and immaterial rights in the country where the delivery destination is located.
With regards to damage compensation and reimbursement of expenditures in vain in accordance with § 284 BGB (hereafter also collectively referred to as "Damage Compensation") owing to the violation of contractual or non-contractual obligations, we shall be liable in unrestricted fashion only in the event of intentional wrongdoing or negligence upon the part of our legal representatives or our management personnel (in accordance with § 14 Para. 2 KSchG [German Consumer Protection Act]) and in the event that our vicarious agents have committed intentional wrongdoing or gross negligence.
In the event that our vicarious agents have committed simple negligence, our liability shall be limited to the damages that are typical when contractual agreements are concluded. Foreseeable contractually typical damages shall be considered to be those damages which we foresaw upon the conclusion of the agreement as being a possible consequence of the contractual violation or which we would have had to have foreseen while taking the sets of circumstances into consideration with which we were familiar or had to be familiar.
In the event of default damages which we have caused through our simple negligence, our liability shall be limited to 5% of the agreed fee.
We shall be liable, not in accordance with 7.1 but rather in accordance with the statutory directives, if and insofar as claims owing to the loss of life, physical injury or damage to health, from a warranty that has been provided or a procurement risk, from the violation of essential contractual obligations ("Cardinal Obligations"), are asserted for damage compensation instead of performance, owing to mandatory liability in accordance with the Produkthaftungsgesetz [German Product Liability Act] or other mandatory liability.
Insofar as our liability is excluded or restricted, this shall apply accordingly also to personal liability upon the part of all persons who have worked for us in negotiating, concluding and/or implementing the contractual agreement, thus particularly for a personal liability of all persons who have worked for us as contractors or in accordance with an employment agreement, our legal representatives and our vicarious agents and auxiliary personnel.
No change in the burden of proof to the detriment of the Customer is stipulated in the aforementioned provisions.
The provisions of this Clause 7 shall be valid insofar as nothing to the contrary is stated in these terms and conditions or in the agreement.
8. Reservation of ownership
The goods shall remain our property until all our own payment claims against the Customer, conditionally or unconditionally, to which we are entitled at the time that its (purchase) price comes due, are and/or all bills of exchange, checks or other documents are cashed which the Customer has given to us for payment and such amounts are definitively credited to us. In the event that ongoing billing is conducted, our reservation of ownership to the goods shall serve as security for the payment claim for the balance owed to us. The inclusion of individual payment claims in a current account as well as the settling of such individual claims and their recognition shall not affect the reservation of ownership. Our assignment of ownership to the Customer shall in no case be contingent upon the fact that the Customer has satisfied payment claims of a third party which we may assert or offset against it.
Until payment in full is made, the Customer shall be obliged to handle our goods and to safeguard them as the party in direct possession of the goods in such a manner that they are recognisable as being our property. The Customer shall safeguard the ownership for us upon a free-of-charge basis. The same shall apply accordingly to goods to which we hold co-ownership.
The Customer shall be obliged to insure our goods that are in its possession against damages in the same scope which it uses to insure its own property and to issue us all information and documents that are required for the assertion of our rights.
The Customer shall be entitled to resell, reprocess or install the goods, which are still our property or to which we hold co-ownership rights, only in accordance with the following provisions and only then if the aforementioned payment claims are indeed assigned to us:
The Customer shall be entitled to resell the goods that are subject to the reservation of ownership in normal business dealings. However, it shall not be permitted to pledge or assign them by way of security.
The processing or reworking of goods that are subject to a reservation of ownership shall always be conducted for us as the manufacturer and we shall acquire ownership to the new goods, but nonetheless without any obligation for us. If our ownership is no longer valid owing to the processing, combining, mixing or linking with goods which do not belong to us, then it is already now agreed that we shall acquire co-ownership to the new uniform goods at this point in time in the percentage of the invoiced value of our reserved goods to the invoiced value of the overall new goods.
The aforementioned authorisations granted to the Buyer shall end if the Buyer fails to promptly fulfil its obligations owed to us, its financial circumstances deteriorate, it discontinues its payments or a petition is filed for the opening of bankruptcy proceedings for its assets.
The Customer shall already now assign to us its respective payment claims from any resale of the reserved goods or the goods to which we have (co-)ownership. We hereby accept this assignment. This assignment of the payment claim shall include the entire payment claim insofar as its amount is smaller than or just as large as our outstanding payment claim; otherwise, this assignment shall affect the first-priority partial amount of this payment claim of the Customer only in the amount of our outstanding payment claim. If the Customer´s payment claim is inserted into a current account, then the "payment claim" in accordance with this assignment agreement shall be respectively the final balance of the current account.
Notwithstanding our own collection right, the Customer shall be authorised, subject to a condition subsequent, to collect the payment claims from the debtors which have been assigned to us. This authorisation issued to the Customer shall end automatically (subject to the fulfilment of a condition) if it recognises that it has excessive debt or it discontinues its payments or a third party files a petition for the opening of bankruptcy proceedings for the Customer´s assets.
Upon our request, the Customer must provide us with information about the assigned payment claims which we require to collect the payment claims, provide us with all documents in their original form that are related to these payment claims or allow us to review such documents, particularly it must disclose the names of the debtors with their full addresses, the amount and basis for their debt and to notify the debtors of such an assignment.
Notwithstanding any other rights, we shall be entitled to revoke all authorisations of the Customer that are specified in this clause which relate to our ownership and/or our rights if the Customer, despite a warning, culpably violates contractual obligations or we become aware of sets of circumstances which would substantiate a suspicion upon our part that the Customer´s financial circumstances have deteriorated or such a financial deterioration upon the part of the Customer is looming and the Customer fails to immediately and credibly convince us that it is still solvent.
The Customer must promptly notify us of any third-party debt enforcement measures undertaken for the reserved goods or the payment claims that have been assigned to us in advance while providing us with the documents that are required for an intervention.
In the event of late payment or some other culpable contractual violation upon the part of the Customer, we shall be entitled to withdraw from the agreement in accordance with the statutory directives and to demand the return of the goods that are subject to our reservation of ownership or to which we hold co-ownership rights.
Upon the Customer´s request, we shall be obliged to release portions of the security to which we are entitled in accordance with the aforementioned provision as we so choose if its value from our listed prices that are valid at this point in time for this Customer exceed the payment claims to be secured by 15 % or more.
9. Payments, offsetting, payment due dates
Insofar as nothing to the contrary has been agreed in writing or a case in accordance with Sub-clause 2.4 exists, we shall issue our invoice with the delivery and the Customer shall owe us the payment within 10 days after the invoicing date without any deductions. After this timeframe lapses, the Customer shall enter into default. However, we shall also have the right to make deliveries contingent upon a payment (at our choice, also through COD deliveries or bank direct debiting procedures). Sub-clause 2.4 shall remain unaffected.
The payments must be made in cash to us or payments must be transferred to our bank account that is stated on the invoice. In cases of doubt, any discounts we grant shall be based upon the invoicing date.
Bills of exchange and checks shall be accepted merely for payment satisfaction purposes and shall require a separate agreement. Any charges for discounts or bills of exchange and costs shall be billed based upon the date that the invoiced amount comes due and must be paid by the Customer. The Customer must assume the risks and costs associated with the transfer of the invoiced amount.
If the Customer culpably enters into payment default, then we shall be entitled to charge payment default interest in the amount of the credit costs which we must pay ourselves or in the amount of 8 % points above the respective base lending rate, but at least in the amount of 8 %. The costs, including attorneys´ costs which we incur through the collection of our payment claims, must be assumed by the Customer. Our right to assert more extensive or statutory claims for damage compensation shall remain unaffected.
In the event that the Customer culpably enters into payment default, then we shall be always be entitled to render any payment dates that have been granted invalid and to accelerate the due date for the remaining amount owed from the business relationship and to demand immediate payment in cash as well as rebates even if they have not been expressly indicated in the order/agreement or on the invoice and revoke any other agreed discounts. This right shall not be excluded through a payment respite or through the acceptance of checks or bills of exchange. Furthermore, we shall be entitled to make any outstanding deliveries only against advance payment or the provision of security. Our rights from § 321 BGB (objection owing to uncertainty) shall in all cases remain unaffected and we shall already then be entitled to them if the Customer has culpably entered into payment default in this business dealing or other business dealings with us.
An offsetting against our payment claims with the Customer´s own payment claims is permitted only if the claims are undisputed or have been legally upheld or which the Customer is entitled to based upon its conclusively substantiated assertion from the business deal for which we are asserting our respective payment claim. Any right of retention from previous or other business deals than this contractual relationship may not be asserted. The assignment of claims shall require our written approval.
If the Customer´s financial circumstances deteriorate (= excessive debt, insolvency or looming insolvency) and thus a petition is filed to open bankruptcy proceedings for its assets, then, at the point in time that such a petition is filed for the opening of bankruptcy proceedings, all our payment claims against it shall become due and unconditionally payable and certainly also insofar as this concerns payment claims that are old, subject to conditions subsequent or subject to conditions precedent.
Insofar as we have payment claims against the Customer at this point in time which do not have a monetary basis or their monetary amount is undetermined or not definitively known, then we shall be entitled to, in our fair discretion, estimate the monetary amount owed and to demand it.
If bankruptcy proceedings are opened for the Customer´s assets, then we shall be entitled to also offset our claims against its payment claims even if our claims are still conditional or not yet payable. Insofar as the payment claims against the Customer at this time do not have a monetary basis or their monetary amount is undetermined or not definitively known, then we shall be entitled, in our fair discretion, to estimate the monetary amount owed.
10. Legal venue; applicable law
The legal venue shall be Deggendorf if the Customer is an entrepreneur or juridical person under public law or a special foundation under public law. We shall also be entitled to take legal action in the court which is competent for the Customer´s commercial residence or its branch office.
German substantive law shall be valid for all legal relationships between the Customer and us.
In the event that individual provisions of these Sales and Delivery Terms and Conditions should be invalid, then this shall not affect the validity of the remaining provisions. By mutual agreement, the invalid provision shall be replaced by a valid provision which most closely corresponds to the commercial intent of the invalid provision. This shall likewise be valid if these terms and conditions turn out to be invalid as a whole.