General Terms and Conditions

General Terms and Conditions of B&F Technik Vertriebs GmbH,
Anton Dengler Strasse 8, D-67346 Speyer, Germany
1. Conclusion of Contract, Basic Terms
1.1 The Terms and Conditions listed hereunder shall apply to the
present and all subsequent business transactions with B&F
Technik Vertriebs GmbH (“Seller”), i.e. Contracts, Delivery of
Goods and Services, including Consulting Services, (at the latest
when Goods are accepted in the case of orders placed by
telephone), irrespective of any other terms and conditions of
Buyer, whether or not Seller explicitly points out or raises
objections against any other restrictive deviations. Any special
agreement at variance with the present Terms and Conditions shall
be recorded in writing. Any intent or agreement communicated to
or by representatives and/or employees shall take effect only when
confirmed in writing by both contract partners. Buyer shall be
bound to the offer of the contract made to Seller for a period of
thirty days beginning from declaration of intent or else until the
contract is accepted.
1.2 All offers shall be subject to change without notice. A contract shall
arise only upon written confirmation of any received order by
Seller. Oral agreements, particularly supplementary agreements
made via telephone with regard to the execution of the order shall
require separate written confirmation by Seller. Seller’s lack of
response to subsequent requests for any changes and/or
supplements to orders placed shall be taken to mean dissent. All
changes and supplements to the present contract shall be recorded
in writing, likewise any agreement to waive the requirement of
written form.
1.3 Unless explicitly specified, all dimensions, functions, weights and
standards indicated in document annexes to offers and contracts
e.g. diagrams, drawings, brochures and other printed material shall
be taken to mean approximate descriptions only. Any assurance
that Goods supplied by Seller shall demonstrate specific properties
shall only be derived from explicit written statements made by
Seller.
1.4 Seller shall reserve the right to make any modifications provided
such modifications do not impede the contractual functionality of
supplied Goods due to deviations from stated weights, dimensions
and colour. Said modifications shall not in any manner affect other
items of the present Terms and Conditions, neither shall the Buyer
derive any rights and claims therefrom.
1.5 B&F Technik Vertriebs GmbH shall reserve all proprietary rights
and copyrights to all cost estimates, drawings and enclosed
documentation (“Documents”). Said Documents shall not be made
available to third parties. Buyer shall return said Documents to
Seller upon demand if Buyer does not place an order.
2. Prices, Terms of Payment
2.1 All prices are indicated in EURO inclusive of the applicable Value-
Added-Tax in Germany at the time of delivery ex works of Seller.
Binding prices shall be taken from Seller’s price list for the
respective timeframe. Any increase in prices shall apply only in the
event that Seller supplies Goods later than three months of
concluding the purchase contract.
2.2 Any rebates shall be granted only on the basis of a separate rebate
agreement.
2.3 Invoices shall be dated on the date of delivery, or in the event of
delays caused by Buyer, on the date on which the goods are
declared ready for shipment by Seller. The invoiced amount shall
be payable in full prior to shipment of Goods. Seller shall be
entitled to charge a fixed sum of EURO 20 (twenty) for payment
reminders. All payments shall be remitted only to the bank
accounts indicated on the invoice.
2.4 All claims of Seller arising from any ongoing business transactions
with the Buyer shall be payable in full in the event that Buyer fails
to fulfil acceptance and payment duties or other duties arising from
Item 5 (Title to Ownership) in full or in part, OR suspends
payments OR in the event that a legal petition is moved to recover
the assets of the Buyer in an insolvency proceeding, even if Buyer
has issued post-dated Bills of Exchange or cheques.
2.5 Seller’s business policy does not generally allow for the acceptance
of a Bill of Exchange as collateral for payments; in the event that
Seller accepts a Bill of Exchange (“Bill”) in exceptional cases, said
Bill shall be considered deferral of payments due to Seller
provided that financial circumstances of the Buyer are not
adversely affected subsequently. Bill charges shall be payable
immediately in full. Seller shall not accept any liability for timely
presentation of Bill, related claims and objections and/or return.
Cheques issued to Seller shall be construed only as formal intent
of payment. Goods shall be delivered outside Germany following
advance payment. Buyer shall bear all expenses related to Bills,
cheques and transfer of payments to Seller.
2.6 Irrespective of other claims, Seller shall be entitled to charge an
interest of 5 (five) per cent p.a. over and above the current market
lending rate, however not less than twelve per cent p.a. on
defaulted payments.
2.7 Buyer shall not derive any rights to adjust payable dues or to claim
Goods delivered by Seller on the basis of any compensation
claims not recognised by Seller or by a court of law.
2.8 Seller shall be entitled to issue separate invoices for partial
deliveries.
2.9 Seller shall be entitled to balance incoming payments from Buyer
against the oldest payable invoice inclusive of any applicable
interest irrespective of any stipulations by Buyer, whereby the
Buyer shall not invoke statutory limitations of payment period.
2.10 In the event that Seller accepts Goods returned due to Buyer’s
liability, Seller shall be entitled to claim compensation for loss of
prospective profits, expenses and appropriate compensation for
depreciation of value.
3. Passage of Risk, Shipment
3.1 Seller shall ship Goods in accordance with Buyer’s instructions,
uninsured and at the risk of Buyer, even if free delivery is agreed
upon. The passage of risk to Buyer shall be determined by the
transfer of Goods to the shipping agent, however at the latest when
the Goods leave the premises of Seller. Should shipping of Goods
be delayed due to Buyer’s liability or for reasons beyond the
control of Seller, the passage of risk shall be determined by
Seller’s announced intent to ship the Goods.
3.2 Seller shall invoice packaging and shipping at actual cost.
4. Delivery of Goods, Delivery Period, Delivery Duties, Acceptance
of Delivered Goods
4.1 Seller shall not assume liability to adhere to confirmed delivery
periods or deadlines since these may in turn depend on due and
timely supply of goods to Seller. The delivery period shall begin on
the day on which Seller confirms the order, however not before all
details of the order have been clarified, extending automatically to
include any delays for which the Buyer may be responsible without
prejudice to Seller’s rights.
4.2 Seller shall be entitled to make partial deliveries of Goods.
4.3 In the event of deliveries delayed by Seller, Buyer shall initially
grant Seller a grace period not less than twelve weeks. Buyer shall
be entitled to withdraw from the contract in the event that the
Goods are not ready for shipment upon expiry of the grace period.
In the event of delays to partial shipments, Buyer shall be entitled
to withdraw from the entire contract only if the partial delivery is
irrelevant to Buyer’s needs. Buyer shall be entitled no further
claims whatsoever except to compensation for damages as under
Item 7.
4.4 In the event that delivery of Goods is significantly impaired or
rendered impossible due to force majeure or unforeseen events for
which Seller cannot be held responsible, e.g. due to strikes,
lockouts at the plants of Seller or Seller’s suppliers, subsequent
unavailability of materials, plant malfunctions, government
directives, import and/or export restrictions, defective or untimely
deliveries to Seller or Seller’s suppliers, Seller shall be entitled,
upon communication of the nature of impairment to Buyer, to defer
delivery of Goods for the period of impairment taking into account
reasonable start-up times or else, to withdraw from unfulfilled
portions of the contract. Buyer may demand to know whether
Seller intends to withdraw from the contract or resume delivery of
Goods within a reasonable period. Buyer shall be entitled to
withdraw from the contract in the absence of an appropriate
response from Seller. Buyer shall not be entitled to any
compensation for damages except to the extent specified under
Item 7.
4.5 Buyer shall be entitled to inspect the Goods at the pre-arranged
location within a period of eight days beginning from the
notification of availability and shall be obliged to conduct an
acceptance review within the stated period. Should shipping or
delivery of the Goods encounter delays arising out of Buyer’s risk,
Seller shall, upon expiry of an additional, fruitless grace period of
two weeks, be entitled to dispense with said Goods at own
discretion and resume delivery to Buyer at a later date or withdraw
from the contract or claim compensation for non-fulfilment of
contract from Buyer. The foregoing term clause shall also apply in
the event that Buyer cancels the order prior to delivery, in which
case the compensation payable shall amount to 15% per cent of
order value, unless otherwise specified. The compensation will be
reduced in case the customer can prove the occurred damage had
been lower.
4.6 Buyer shall not refuse to conduct an acceptance review if any
detected defect does not significantly impair usability of delivered
Goods and Seller accepts responsibility to repair said defect. In the
event that delivered Goods comprise several independently usable
units, any individual defective unit shall not constitute grounds for
summary refusal to conduct acceptance reviews for the remaining
units.
5. Reservation of Ownership
5.1 Until settlement of all outstanding dues and release of all
obligations and liabilities – e.g. Bills. – including all requests for
balances from current account, which Seller is entitled to claim
from Buyer on any legal basis whatsoever, Seller shall be granted
the following collateral, which Seller will release at discretion upon
request, provided the value of the collateral reliably exceeds the
outstanding amounts by more than 10%.
5.2 All Goods delivered by Seller shall remain property of Seller. In all
cases, any processing and other working on the Goods is
performed for Seller as the producer, for which however, Seller
assumes no obligations. In the event that (co-) ownership of Goods
arises out of conjunction with goods not owned by Seller, it is
hereby stipulated that Seller shall acquire co-ownership of said
Goods in proportion to Seller’s share in the invoice value or, in the
event that the invoice value cannot be determined, the current
market value of the conjoined goods as applicable. All Goods to
which Seller enjoys full or partial rights of ownership are
hereinafter called Conditional Commodity.
5.3 Buyer shall be entitled to process and sell the Conditional
Commodity within ordinary course of business, provided that Buyer
is not in default of payments to Seller, that Buyer has not
suspended payments and that no legal petition is moved to
recover the assets of Buyer in an insolvency proceeding. Buyer
shall not pledge, assign as security or otherwise transfer the
Conditional Commodity. Buyer hereby undertakes to assign
forthwith, any claims arising from resale or other legal basis
(insurance, tort) in regard to the Conditional Commodity (including
all requests for balances from current account), to Seller, to the
extent of Seller’s rights on the Conditional Commodity. Seller
hereby grants to Buyer, revocable rights to collect such claims on
Buyer’s behalf as may have been assigned to Seller, which Seller
may revoke if Buyer fails to fulfil payment duties. Buyer shall, upon
Seller’s demand, disclose full whereabouts and addresses of
Buyer’s debtors and notify assignment of claims to said debtors.
5.4 Buyer shall take due care of Conditional Commodity on Seller’s
behalf free of charge, maintain said commodity in proper condition,
insure said commodity sufficiently and bear the costs for the same.
Buyer shall assume full liability for delivered Goods, irrespective of
any fault of Buyer, until said Goods are fully paid for. In the event
that Conditional Commodity is attached by third parties (e.g. by
impounding), Buyer shall announce the fact of Seller’s (co-)
ownership, object immediately to attachment and notify Seller
without delay. Buyer shall assume all costs to secure release of
Conditional Commodity from third parties, insofar as such costs
cannot be claimed from the third parties involved. Furthermore,
Seller shall be granted access to Buyer’s accounts to the extent as
may be necessary to safeguard Buyer’s rights.
5.5 In the event of breach of contract by Buyer, in particular default of
payments, Seller shall be entitled to demand immediate and
unconditional return of Conditional Commodity, to enter into the
premises of Buyer and recover Conditional Commodity and if
necessary, demand transfer of Buyer’s rights to recover
possession from third parties. Said exercise of Seller’s rights, in
particular the recovery or attachment of Conditional Commodity
shall not be construed as withdrawal from contract, insofar as the
(German) instalment payment act is not applicable.
5.6 Seller shall be entitled to dispense with Conditional Commodity at
discretion, upon expiry of a reasonable grace period and resume
delivery of Goods to Buyer upon receipt of payment within a new
delivery period.
6. Warrantee and Liability for Defects
6.0 The warrantee covers demonstrable defects of material or production,
which had been included into the good at moment of overtake.
Excluded are parts subjects to wear and tear and defects
caused by improper use or by intrusion of others. Reparation may
only be effected by B&F or by an B&F therefore authorized company.
Transport, packaging and travel costs as well as “out of use”
costs are excluded from the warrantee cover. These have to be
borne by the buyer.
6.1 Buyer shall inspect delivered Goods without delay for defects,
quality and assured characteristics and must, in order to avoid
foregoing rights to warranty claims, submit a written complaint
stating recognisable defects immediately and hidden defects as
soon as they are discovered. For deliverys of spare parts and
equipment the customer must check their correct function before
initial operation of aircraft or system.
6.2 Seller warrants that the delivered Goods are free of defects to the
extent permitted by the current status of technological
development and undertakes to assume following duties for a
period of one year (and for two years in regard to the provisions
under Article 475 Paragraph 2 and Article 479 Paragraph 1
German Civil Code (Purchase of Consumer Goods) beginning
from date of delivery: in the event that the Goods are defective
and/or damaged, Seller shall repair defects (if necessary, by using
new spares) or deliver replacement Goods upon Seller’s discretion.
Aforesaid term shall also extend to damage resulting defects in
other delivered Goods. Excluded are deliverys of spare parts and
equipment which are not installed from us. Seller shall reserve
right of ownership over defective components. Buyer shall grant
Seller reasonable and sufficient time and opportunity to correct any
defects, failing which Seller shall be released from warranty
obligations. In the event that efforts to correct defects or deliver
substitutes should fail twice within reasonable periods
communicated in writing by Buyer, Buyer shall be entitled at
discretion to reduce payments appropriately or to withdraw from
the contract.
6.3 Buyer shall have no claims to redress or remedy should defects
arise from improper use/operation/care/maintenance or use of
force, or else if delivered Goods are stored in unsuitable conditions
or worked on for repair or other purposes by persons not
authorised by Seller in writing.
6.4 Defective Goods shall be made available to Buyer’s dealer or to a
dealer nominated by Seller for repair and remedy. Buyer shall not
claim compensation for any additional expenses incurred in the
course of redress and remedy of defects in particular for transport
expenses and labour and material costs insofar as such additional
expenses result from repair and remedy not conducted at Seller’s
business premises. Any repair and remedy to be conducted
outside of Seller’s facilities in Speyer shall require prior written
consent from Seller. Negotiations conducted over Buyer’s
complaints shall not free Buyer from the duty to submit a proper
complaint report.
6.5 Seller shall not entertain any claims due to non-fulfilment of
assured properties insofar as Seller has only assured contractual
compliance. The provisions under Item 7 shall apply in all other
cases.
6.6 By purchasing the Goods, Buyer undertakes to observe the
instructions in the operating manual, to carry out checks and to
receive operating instructions from manufacturer or authorised
third parties.
7. Limitation of Liability
7.1 Seller shall not entertain any claims for damages suffered by Buyer
arising from culpa in contrahendo (violation of mutual confidence
in the preparation of a contract), from breach of principal or
auxiliary contractual duties, from positive breach of contract
particularly in regard to consequential damages, from illicit action
or other legal grounds, also insofar as these are based on actions
of Buyer’s legal representative or agent. The foregoing term shall
not apply insofar as liability is mandatory, e.g. in accordance with
product liability laws, in the event of intentional tort, gross
negligence, injury to life, body or health. Rights of indemnification
due to loss of use or advanced pretensions are excluded.
7.2 In all cases, the extent of liability shall be limited. Compensation for
damage shall not exceed actual loss and lost profits which Seller
ought to have anticipated at the time of entering into the contract
on the basis of facts known to Seller or such facts that Seller might
be reasonably expected to have known. The foregoing term shall
not apply to compensation claims which are limited to the
purchase price of delayed and non-delivered Goods.
7.3 In regard to duty to compensate as under Item 4.4, compensation
to be paid to Buyer shall be limited to such damages that might
have been reasonably assumed to exist at the time of concluding
the contract, however not in excess of 10 % of the value of the
delivered Goods or parts thereof, which may have been rendered
contractually unusable in due time because of non-delivery or
delays.
7.4 All damages claimed from Seller shall be limited in time by the
periods stated under Liability for Defects (Item 6.2), beginning from
the time when the defect was detected by Buyer and the liable
party.
7.5 No executive organ or employee of Seller who has performed
agent’s duties shall be held personally liable.
7.6 Seller assumes no liability for the function and safety of delivered
Goods. The Instructions for Use and Maintenance accompanying
the Goods and the Warranty Terms of Seller shall be valid at all
times. Seller does not assume liability for any damages or damage
to other objects that might result from the use of delivered Goods.
8. Other Terms and Conditions
8.1 Rights and duties in regard to the present contract shall be
transferred only upon receiving prior written consent from Seller.
8.2 The legal relationship between Seller and Buyer shall be
exclusively governed by the law of Federal Republic of Germany.
Standard Laws governing international purchase of movable goods
and those governing international purchase contracts for movable
goods shall not be applicable to the present contract.
8.3 Seller’s headquarters (Speyer) shall be the place of jurisdiction for
all disputes including disputes related to cheques and bills,
provided that Buyer is a fully qualified merchant and does not have
recourse to a place of jurisdiction in Germany or that Buyer has
relocated to a foreign country since entering into the present
contract. Seller however reserves the right to initiate legal
proceedings against Buyer at Buyer’s place of jurisdiction.
8.4 Nullification of individual parts of the aforementioned Terms and
Conditions shall not affect the validity of the remaining parts in any
manner whatsoever. Nullified items shall be replaced by
regulations that best reflect the intended purpose of the voided
part.
8.5 Tacit non-utilisation of rights by Seller shall not be construed as
waiver of said rights.
While every effort has been made to faithfully preserve the letter,
Spirit and legal intent of the German text of the contract in the present
translation, the contract partners hereby agree that the German text of
the contract alone shall retain legal validity.
Speyer, 26.9.2012