General terms and conditions for Bähr Weinbautechnik GmbH
I. Scope / form
1. All deliveries and services are subject to these General Terms and Conditions of Supply as well as any separate contractual agreements. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the Contract if and to the extent that the Supplier has expressly agreed to their validity. This approval requirement shall apply in any case, including if the Seller unreservedly carries out the delivery to the Buyer although it is aware of the Buyer‘s general terms and conditions of business. These terms only apply if the Buyer is a contractor as defined in §14 of the German Civil Code (BGB), a legal entity under public law, or a special public fund under public law.
Unless otherwise agreed, the general terms and conditions of the Supplier apply at the time of the Buyer's order or at least in the version last communicated to him in text form as a framework agreement also for similar future contracts, without the Supplier having to refer to them again in each individual case.
2. References to the validity of legal regulations only have meaning for the purposes of clarification. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GTCs.
II. Conclusion of contract / price and payment / due date / refusal to perform and withdrawal
1. All offers are subject to change and are non-binding. If no special agreement is made, a contract is concluded with the Supplier's written or textual order confirmation.
2. Unless otherwise agreed, the prices apply ex warehouse including loading in the warehouse but excluding packaging. Value-added tax is added to the listed prices at the applicable statutory rate. In the event of an advance payment or down payment being agreed, sales tax at the respective statutory rate is added.
3. Changes or additions to the order or the essential order results after the written or textual order confirmation by the Supplier must in turn be recorded in writing or in text form and confirmed by both Parties. If the price of the service or the delivery date mentioned above changes as a result of subsequent changes, the Supplier shall, within 12 working days after receipt of the written or textual confirmation of the order change by the Buyer, issue a changed order confirmation according to I.1. of these conditions, from which the change in costs and / or the delivery date can be seen. If the Buyer does not reject this changed order confirmation within 12 working days of receipt, the changed conditions of this order confirmation shall apply as part of the Contract.
4. The purchase price shall be due and payable within 8 days from the invoice and delivery or inspection of the goods. However, even in the context of an ongoing business relationship, the Supplier shall be entitled at any time to only make a delivery, in whole or in part, against prepayment. The Supplier declares a corresponding reservation at the latest with the order confirmation. The Buyer is entitled to withhold payment only if his counterclaims are undisputed or have been finally determined by a court of law.
5. In the event that the Parties agree to pay in instalments, if the customer is in arrears with an instalment or payment in whole or in part for more than three days, the remaining amount shall be due immediately.
6. The Buyer has the right to offset counterclaims deriving from other legal relationships only if the claims are undisputed or have been finally determined by a court of law.
7. If, after the conclusion of the Contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that the Supplier's claim for payment is endangered by the Buyer's inability to perform, the Supplier is obliged to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - entitled to withdraw from the Contract (§ 321 BGB). For contracts made for the manufacture of custom items, the Supplier can declare such withdrawal immediately, with the statutory provisions concerning the dispensability of setting a deadline remaining unaffected.
III. Delivery, delivery time, delivery delay
1. The Delivery Time is based on the agreements between the Contract Parties. Compliance by the Supplier presupposes that all commercial and technical questions between the Contracting Parties have been clarified and that the Buyer has fulfilled all of his obligations. If this is not the case, the Delivery Time shall be extended accordingly. This does not apply if the Supplier is responsible for the delay.
2. Compliance with the Delivery Time is subject to correct and timely self-delivery in accordance with the Contract. The Supplier shall notify the Buyer immediately of any delays which become apparent. In the event that the service is not available due to failure to deliver through no fault of the Supplier, the Supplier is entitled to release himself from the obligation to fulfil the contract by declaring his withdrawal. In this case, the Supplier shall immediately inform the Buyer of the unavailability and immediately reimburse the Buyer for any consideration already received.
3. The Delivery Time is met if the delivery item has been dispatched by the time it expires. If an acceptance inspection is to be made, the date of such acceptance inspection or, alternatively, the notification of readiness for the acceptance inspection, shall be decisive, except in the case of a justified refusal of said acceptance inspection.
4. If the dispatch or the acceptance of the delivery item is delayed for reasons for which the Buyer is responsible, he shall be charged for the costs and damage caused by the delay. For this, the Supplier calculates a lump sum compensation in the amount of €10.00 per calendar day starting with the delivery period or, in the absence of a delivery period, with the notification of readiness for dispatch or readiness for acceptance.
The Supplier's right to demonstrate that he has incurred higher demands and his other legal rights to reimbursement (especially for additional expenses, reasonable damages, termination of contract) remain unaffected; the flat damages as described above shall be included in any further monetary claims. The Buyer shall be entitled to prove that the Supplier suffered no damage or that the damage caused is significantly lower than the above flat rate.
5. If the non-observance of the Delivery Time is due to force majeure, labour disputes, strikes or other events which are outside the Supplier's control, the Delivery Time shall be extended accordingly. The Supplier shall inform the Buyer of the beginning and end of such circumstances as soon as possible.
6. If the Supplier defaults and if the Buyer suffers a loss thereby, he is entitled to demand a flat fee in compensation for such default. For each full week of delay the compensation shall be 0.5 % of the complete order but no more than 5% of the value of that part of the complete order which, due to the delay, cannot be used on time or in accordance with the contract. The Supplier reserves the right to provide evidence that the Buyer has not incurred any damage or has incurred considerably lower damage than the aforementioned lump sum.
If – taking into consideration the statutory exceptions – the Buyer gives the Supplier a reasonable period of time after the due date to effect performance and if this period passes without performance, the Buyer is entitled to withdraw from the Contract in accordance with the legal regulations. He undertakes, at the Supplier’s request, to declare within a reasonable period of time whether he intends to exercise his right to withdrawal.
Further claims due to delivery delays are exclusively determined in accordance with Section VIII.2 of these General Terms and Conditions.
IV. Transfer of Risk
1. The risk is transferred to the Buyer when the delivery item is dispatched. This also applies in the event that partial deliveries are made or the Supplier has taken on other services. If an inspection of the order has been agreed, the risk is transferred at that time. The acceptance inspection must be performed without delay by the agreed date, alternatively following the Supplier’s notice that the order is ready for acceptance. The Buyer may not refuse delivery of the order due to the presence of a minor defect.
2. If shipping or acceptance are delayed or omitted as a result of circumstances which cannot be imputed to the Supplier, the risk shall transfer to the Buyer from the date of the notification of readiness for shipping or acceptance.
3. Partial delivery is admissible if acceptable to the Buyer.
V. Reservation of ownership
1. The delivery item remains the property of the Supplier until all claims to which he is entitled against the Buyer from the business relationship have been met.
During the existence of the retention of title, the Buyer is obliged to handle the delivery item carefully and to insure it for its replacement value against fire, water and theft damage at his own expense. Insofar as maintenance and inspection work are also required at certain times, the Buyer is obliged to have this carried out in good time at his own expense. In the event of defects or damage to the delivery item, the Buyer is also obliged to have these removed immediately at his own expense.
2. The Buyer is permitted to process or transform the delivery item ("processing"). The processing takes place for the Supplier. However, if the value of the delivery item belonging to the Supplier is lower than the value of the goods not belonging to the Supplier and/or the processing, the Supplier acquires co-ownership of the new goods in the ratio of the value (gross invoice value) of the processed delivery item to the value of the rest of the goods processed and/or the processing at the time of processing. If the Supplier does not acquire ownership of the new goods in accordance with the above, the Supplier and the Buyer agree that the Buyer shall give the Supplier joint ownership of the new goods in the ratio of the value (gross invoice value) of the delivery item belonging to the Supplier to that of the other processed goods at the time of processing. The preceding clause applies accordingly in the event of the inseparable mixing or connection of the delivery item with goods which do not belong to the Supplier. Insofar as the Supplier acquires ownership or co-ownership under this provision (retention of title), the Buyer shall store the item for the Supplier with the care of a prudent businessman.
3. In the event of the sale of the delivery item or the new goods, the Buyer hereby assigns his claim against his customer from the resale to the Supplier with all ancillary rights as a precaution, without the need for any further special declaration. This transfer shall include any balance claims. The assignment shall, however, only apply to the amount corresponding to the price of the consignment invoiced by the Supplier. The share in the claim assigned to the Supplier must be satisfied first.
4. Until further notice, the Buyer is authorised to collect the claims assigned to the Contractor in accordance with regulation V 1. of these conditions (retention of title). The Buyer shall immediately forward payments made on the assigned claims up to the amount of the secured claims to the Supplier. In case of a legitimate interest, including, but not limited to, situations involving delay/default in payment, suspension/cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or strong evidence of excessive indebtedness or impending insolvency on the part of the Buyer, the Supplier is entitled to revoke the Buyer's entitlement to collect claims. In addition, and upon giving prior notice, the Supplier may disclose the transfer of security, utilise the transferred claims and demand the disclosure of the transfer of security by the Buyer against the customer, subject to a reasonable period of notice.
5. If a party with a legitimate interest proves credible, the Buyer must provide the Supplier with the information necessary to assert his rights against the customer and hand over the necessary documents.
6. During the retention of title, the Buyer is prohibited from pledging or assigning the delivery item as security. In the event of liens, seizures, or other third-party attempts to intervene with the reserved goods, the Buyer must inform the Supplier immediately. The resale of the consignment or of the new goods shall only be permissible in accordance with correct business procedures and allowed only on the condition that payment of the counter-value of the consignment ensues to the Buyer. The Buyer must also agree with the customer that the customer shall acquire property only after this payment.
7. Insofar as the realisable value of all security rights to which the Supplier is entitled exceeds the sum of all secured claims by more than 10 %, the Supplier shall release a corresponding portion of the security rights at the Buyer's request. The Supplier may choose between different security interests after release.
8 In the event that the Buyer violates any of his obligations, particularly in relation to default of payment, the Supplier shall be entitled to demand surrender of the consignment or the new goods, even without setting a time limit, and/or to withdraw from the contract – against a time limit, if necessary; the Buyer shall undertake said surrender. A demand for the surrender of the consignment/new goods shall not constitute a withdrawal declaration on the part of the Supplier, unless this is expressly declared.
VI. Claims for defects
The Supplier is liable for material and legal defects in the delivery to the exclusion of further claims - subject to no. VIII of these conditions - as follows:
The ability of the Buyer to make warranty claims requires his compliance with his statutory obligation per §§ 371, 381 of the German Commercial Code to examine the goods and give notice of any non-conformity. The Supplier is entitled to make the remedial performance owed dependent on whether the Buyer pays the due purchase price. However, the Buyer is entitled to retain a reasonable portion of the purchase price relative to the defective part of the delivery.
1. All delivery items which turn out to be defective as a result of a circumstance prior to the transfer of risk are to be repaired or replaced free of defects at the option of the Supplier. The Supplier is to be notified in writing as soon as any such defects become apparent. Replaced parts become the Supplier’s property.
2. The Buyer must give the Supplier the necessary time and opportunity to undertake all subsequent improvements and replacement deliveries which appear necessary to the Supplier. Alternatively, the Supplier is exempt from liability for the consequences resulting therefrom. Only in urgent cases which pose a risk to safe operating or in order to avert excessive damage, whereby the Supplier is to be notified at once, shall the Buyer have the right to rectify the defect himself or employ a third party for the task and demand that the Supplier reimburse the requisite expenditure.
3. If the complaint turns out to be justified, the Supplier bears the direct costs of the repair or the replacement delivery including shipping, provided that this does not result in a disproportionate burden on the Supplier. The subsequent performance shall neither constitute the dismantling of the faulty item nor the renewed installation if the Supplier was not originally under obligation to install.
4. The Buyer has a right to withdraw from the contract in accordance with legal regulations - in consideration of exceptions provided by law - if the Supplier lets the reasonable period of time granted to him for subsequent improvement or replacement delivery in respect of a material defect pass by without results. If the defect is not significant, the Buyer is only entitled to request a reduction in the agreed price. The right to a reduction in the agreed price is otherwise excluded.
5. Further claims are determined exclusively according to regulation VIII. 2 of these conditions.
6. No liability is accepted for, in particular, the following types of cases:
Unsuitable or improper use, faulty installation or commissioning by the Buyer or by a third party acting on the Buyer's behalf, normal wear, improper or careless handling, improper maintenance, improper equipment, chemical, electrochemical or electrical influences - provided they are not the responsibility of the Supplier.
7. If the Buyer or a third party acting on his behalf improperly improves the subject of the contract, the Supplier is not liable for the resulting consequences. The same shall apply to any changes to the delivery item without prior agreement from the Supplier.
Defects of title
8. If use of the item supplied leads to an infringement of domestic industrial property rights or copyrights, the Supplier shall on principle procure, at his own expense, the rights to continue using the machinery supplied or modify it in a manner acceptable to the Buyer in order to avoid an infringement of property rights.
If this is not possible under appropriate economic conditions or in a reasonable time limit, the Buyer is entitled to withdraw from the contract. In the circumstances thus described, the Supplier shall also be entitled to withdraw from the contract.
In addition, the Supplier shall indemnify the Buyer from undisputed or legally established claims by the proprietor of property rights.
9. Regulation VI. 8 of these terms and conditions are subject to regulation VIII 2. These conditions are conclusive in the event of property rights or copyright infringement.
They only exist if
• The Buyer informs the Supplier immediately of any alleged infringements of property rights or copyrights,
• The Buyer supports the Supplier to a reasonable extent in defending against the asserted claims or enables the Supplier to carry out the modification measures in accordance with regulation VI. 8 of these conditions,
• The Supplier reserves the right to take all defensive measures, including out-of-court settlements,
• The deficiency in title is not based on an instruction from the Buyer - in particular drawings, images, catalogues, specifications or materials provided by the Buyer - and
• The infringement of rights was not caused by the Buyer arbitrarily altering the delivery item or using it in a non‐contractual manner.
VII. Intellectual property rights and industrial property rights
1. The Supplier reserves the right of ownership and copyrights to all samples, cost estimates, drawings and similar information of a tangible and intangible nature - including in electronic form. They may not be made accessible to third parties by the Buyer.
VIII. Supplier's liability, exclusion of liability
1. If the Buyer is unable to use the item delivered in accordance with the contract because, either prior to or after conclusion of the contract, the Supplier culpably omitted to provide consultancy and propose options, or his provision thereof was faulty, or if he culpably breached other ancillary duties under the contract - in particular the provision of instructions for operation and maintenance of the machinery supplied – the provisions of sections VI and VII.2 of these conditions shall apply to the exclusion of further claims on the part of the Buyer.
2. Irrespective of the legal grounds, the Supplier is liable for damage which has not been sustained by the actual item supplied only
a) in case of intent,
b) in the event of gross negligence on the part of the owner/the executive bodies or executive employees,
c) in the event of culpable injury to life, body or health,
d) in the event of defects which he has fraudulently concealed,
e) as part of a guarantee
f) in the event of defects in the delivery item, insofar as there is liability for personal injury or property damage to privately used items under the Product Liability Act.
In the event of a culpable breach of essential contractual obligations, the Supplier is also liable for gross negligence on the part of non-executive employees and in the case of slight negligence, in the latter case limited to the reasonably foreseeable damage typical of the contract. The limitations of liability resulting from VIII. 2 of these terms and conditions also apply in the event of breaches of duty by or in favour of persons for whom the Supplier is responsible in accordance with statutory provisions.
The basis for claims under data protection law is not covered by this liability regulation.
Further claims shall be excluded.
IX. Limitation period
The Buyer’s claims - irrespective of their legal grounds - shall all become time-barred at the end of 12 months. For claims for damages according to regulation VIII. 2 a) –d) and f) the statutory deadlines apply. They shall also apply to defects for which we are responsible in a structure or to goods which have been used normally within a building.
When reselling the delivery items from within Germany in the form of export, the Buyer is obliged to comply with the relevant legal regulations for the sale of such items.
XI. Applicable law, place of jurisdiction
1. The law of the Federal Republic of Germany applies exclusively to all legal relationships between the Supplier and the Buyer, excluding uniform international law. The application of the UN Convention on Contracts for the International Sale of Goods shall be excluded.
2. If the Buyer is a merchant as defined under the German Commercial Code, a legal entity under public law, or a special public fund, whether domestic or foreign, the exclusive jurisdiction for any disputes arising directly or indirectly under this Contract shall be the Supplier's headquarters in Ilbesheim. The same applies if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code. In all cases, however, the Supplier is also entitled to take legal action at the place of fulfilment of the delivery obligation in accordance with these terms and conditions or a priority individual agreement or at the general place of jurisdiction of the Buyer. Statutory provisions which have precedence, in particular regarding exclusive responsibilities, remain unaffected.
2020 - BÄHR Weinbautechnik GmbH An der Ahlmühle 8 76831 Ilbesheim / Landau
Tel. +49 63 41 - 92 98 22
Fax +49 63 41 - 92 98 23