General Conditions of Sale
General Conditions of Purchase
General - Scope
- Unless otherwise agreed in writing, the following Conditions shall apply exclusively to sales, deliveries and provision of services, including future sales, deliveries and provision of services (hereinafter referred to jointly as „Deliveries" only), to all customers listed under 1.2.
- The customer‘s terms and conditions of business shall apply only if we consent to them in writing. Above all they shall not attain validity simply because the customer refers to its terms and conditions of business (e.g. in the order) and we do not expressly object to these terms.
- These Conditions shall only be deemed to be used in respect of entrepreneurs within the terms of section 14 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), legal entities under public law and special funds under public law (hereinafter referred to as the „Customer").
Quotations, conclusion of contract
- Our quotations shall not be binding. Unless otherwise specified in the order, for a period of one month from receipt by us the Customer shall be bound by its order. Contracts shall only come into being when we confirm an order in writing or effect delivery.
- Our written confirmation shall be required in order for verbal amendments or telephone amendments to agreements that have already been reached and/or to these Conditions to be effective. We reserve the right to deviate from this information to an extent acceptable to the Customer, particularly if necessary to fulfil statutory requirements, for technical reasons or to promote progress.
- The information pertaining to dimensions and weights and other technical specifications in our brochures, illustrations or other representations are approximate values only unless a) expressly described as binding or b) material.
- Our product descriptions shall not constitute guarantees.
- We shall retain title and copyright to all contractual documents produced by us. Dissemination or reproduction of these documents is not permitted.
Transfer of risk, part delivery, delivery periods, late delivery, force majeure, own receipt of delivery proviso, late acceptance
- Delivery shall be in accordance with FCA ex-works (Incoterms 2010®).
- Unless we specify a different works to the Customer (e.g. in the quotation or order confirmation), the works shall be our works at Maulburg.
- Even if we have exceptionally assumed other services, e.g. the shipping costs or delivery and installation, including using our own carriers, the risk shall then also pass to the Customer in accordance with FCA ex-works (Incoterms 2010®).
- We shall be entitled to make part deliveries to an appropriate extent and accordingly to also submit part invoices.
- Delivery periods shall not be binding unless we have expressly confirmed in writing that they are binding.
- Delivery periods shall commence on receipt of our confirmation of order, but in any case not until clarification of all the details of order execution and technical issues and receipt by us of all necessary documents (such as drawings or permits) and following receipt of a corresponding down payment or security for payment, if agreed. A delivery period shall be deemed to have been fulfilled if the goods have been prepared for dispatch by expiry of the deadline. Where call-off orders are concerned the delivery period shall be a minimum of 6 weeks from receipt by us of the request. The above regulations shall otherwise apply accordingly.
- The day of unloading shall be deemed the delivery date if we are delivering to a consignment warehouse for the Customer.
- In the event of late delivery, our liability for ordinary negligence shall be limited to 0.5% per complete week of delay, but to a maximum total of 5% of the net invoice amount for the part of the delivery affected by the delay. The claim to compensation instead of the performance in accordance with section 7.1 shall not be affected. The Customer shall notify us of contractual penalties that apply in respect of its consumer at the latest on conclusion of the contract.
- The delivery period shall be extended by the duration of unforeseen and unavoidable occurrences, and events for which we are not responsible (e.g. force majeure, strikes and lock-outs, operational disruptions, difficulties in procuring materials and energy, transport delays, labour, energy and raw materials shortages, official measures, embargoes and problems procuring permits, especially import and export licences) and their impact. This shall also apply if the obstacles are caused by our upstream suppliers or during an existing delay. Both parties shall be entitled to repudiate the contract if the obstacle is more than temporary. In the cases set out in section 3.9, compensation claims shall be excluded.
- Our obligation to effect delivery shall be subject to timely and correct delivery to us by our suppliers, unless we are culpable for the incorrect or late receipt of delivery. We may repudiate the contract in such cases.
- We shall charge the storage costs incurred by us if dispatch is delayed as a result of circumstances for which we are not responsible.
- Our prices are understood to be in accordance with FCA ex-works (Incoterms 2010®) net in euros, plus packaging costs and the applicable value added tax.
- Our invoices shall be payable within 30 days from date of invoice, without deduction.
- Irrevocable receipt of payment to our account shall be authoritative for timely payment. We shall only accept cheques and bills of exchange on account of performance and only by written agreement, with the Customer bearing discounts and fees.
- In the event of the Customer defaulting on payment, we shall be entitled to make all invoices payable immediately and, if we do not sustain a further loss, to charge default interest at eight percentage points above the base interest rate (section 247 BGB).
- We shall be entitled to demand advance payments or payment of security if the Customer has defaulted on a due payment to us, or if realisation of our claims seems endangered for another reason. We shall then effect our delivery contemporaneously with the Customer's advance payment or provision of security. We can repudiate the part of the contract for delivery that has not yet been fulfilled if the Customer does not comply with our request within an appropriate period. This period may be dispensed with if the Customer is apparently unable to furnish the collateral, for example if an application has been filed for insolvency proceedings to be instituted against the Customer's assets.
- The Customer may only offset our claims or assert a right of retention if its counter-claims are undisputed or non-appealable.
Liability for defects
- The Customer must check the delivery immediately after receipt. We must be immediately notified in writing of all obvious material defects, but at the latest within eight days of receipt of the delivery. We must be notified in writing of concealed material defects at the latest five days after discovery. The Customer must state the nature of the material defect as precisely as possible in the notification. If these deadlines are exceeded, all claims and rights that should have been identified and notified, arising from the warranty for the defects, shall expire.
- In the event of justified complaints, we shall choose whether we effect substitute delivery or repair the goods. If the subsequent performance is abortive, the Customer shall be entitled to either choose to appropriately reduce the purchase price or to repudiate the contract in the event of grave defects. Should subsequent performance prove abortive, in accordance with section 7.1, the Customer shall be entitled to demand compensation instead of performance.
- The statutory concept of material defect shall apply. In particular the Customer shall not, General Conditions of Sale of Dr.-Ing. K. Busch GmbH and Busch Produktions GmbH, Maulburg Stand: 02/2014 therefore, be due warranty claims in the event of improper treatment of the goods, excessive use and other violations of the installation and operating instructions, in the event of use of unsuitable machinery and equipment, and in the event of excessive chemical, electronic or other exposures occasioned by use. Warranty claims shall furthermore be excluded in the event of improper transportation and incorrect maintenance or repair.
- We shall not assume the costs of supplementary performance incurred as a result of the goods having being brought after delivery to a place other than the Customer's commercial place of business.
- If the defect has been caused by a material third-party product, initially we shall be entitled to limit our liability to assignment of our warranty claims and rights due to us in respect of the supplier of the third-party product, unless satisfaction arising from the assigned claim or right is abortive or cannot be enforced for another reason. In this case the Customer shall again be due the rights under section 5.2.
- The limitation period shall be 12 months from passing of risk, unless we are liable for physical injury, intentionally or grossly negligently breach of our obligations, maliciously conceal the defect, or have assumed a more extensive guarantee in this respect, or there is compelling provision for a longer statutory period.
- Breach of third-party rights shall only constitute a defect if these industrial property rights exist in the Federal Republic of Germany.
Retention of title
- We shall retain title to the delivered goods until fulfilment of all claims arising from the business relationship with the Customer. If there is a current account arrangement, the retention of title shall extend to the acknowledged balance.
- Processing and finishing by the Customer of the goods supplied under retention of title (reserved goods) shall invariably be undertaken for us, without obligating us. In the event of mixing and combination with other goods, we shall acquire joint title to the new goods to the value of the reserved goods' net invoice value pro rata to the value of the other materials. The newly created object shall be regarded as reserved goods within the terms of section 6.
- The Customer shall be entitled to sell the reserved goods or the new goods on to third parties in the ordinary course of business. The Customer shall, however, hereby assign to us, as security, all claims that accrue to it from sale or use, in full and in advance. We shall accept this assignment. The Customer shall, however, remain revocably authorised to collect the claims assigned to us in its own name.
- If the Customer no longer fulfils its payment obligations to us, we can revoke the authority to sell on and use. We can then collect the claims assigned to us ourselves and demand that for this purpose the Customer notifies us of the assigned claims and their debtors, provides all the information required for collection, issues us with the concomitant documents and informs its debtors of the assignment. We shall also be entitled to take back the unused reserved goods. Taking back the reserved goods shall not constitute rescission of the contract. If we declare rescission, we shall be entitled to sell by private agreement.
- Whilst the retention of title exists, the Customer shall be obliged to treat the reserved goods carefully and to adequately insure these against loss and damage (in particular theft, breakage, fire and water), for the replacement value, and to maintain the insurance at its expense. The insurance policy and proof of payment of the premiums must be submitted to us on request. The Customer hereby now assigns to us claims arising from the insurance subject as a result of the transfer of title to the Customer.
- We must be immediately informed in writing of third-party access to the reserved goods. If they cannot be recovered from the third party, the Customer shall assume costs incurred as a result of preventing access.
- If the value of the security exceeds our claims by more than 10%, at the Customer's request and at our discretion we shall release our security to this extent.
- Should the retention of title be ineffective according to the law of the land in which the the reserved goods are located, at our request the Customer must furnish an equivalent security. If the Customer does not comply with this request, regardless of agreed payment terms, we can request immediate payment of all outstanding invoices.
- Claims for compensation against us are excluded, irrespective of their nature, if we, our legal representatives or vicarious agents have caused the damage through ordinary negligence. This exclusion of liability shall neither apply in the event of injury to life, limb or health, nor in the event of assumption of a contractual guarantee, nor in the event of a breach of material contractual obligations. Material contractual obligations are those whose fulfilment facilitates due and proper performance of the contract in general, and on compliance with which the Customer normally relies and should be able to rely and violation of which endangers achievement of the contract's purpose. In the event of assumption of a guarantee, our liability shall, however, be limited to the extent of the guarantee and, in the event of ordinary negligent breach of material contractual obligations, shall be limited to the foreseeable damage typical of the contract. Claims under the German Product Liability Act (Produkthaftungsgesetz) shall not be affected.
- Compensation claims shall be time-barred one year after the Customer acquires knowledge of the damage and the liability to pay compensation, or ought to have acquired it without gross negligence. Claims under the German Product Liability Act for injury to life, limb and health and for defects shall not be affected.
Applicable law, place of performance and jurisdiction
- German law shall apply. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
- The place of performance for payment shall be our registered office in Maulburg. The place of performance for all other obligations, in particular delivery, shall be our respective works.
- The jurisdiction for all legal disputes arising from the business relationship shall be governed by our registered office. We shall, however, also be entitled to sue before the courts competent for the Customer's registered office.
General Terms and Conditions of Purchase
for Busch Produktions GmbH, Dr.-Ing. K. Busch GmbH, Busch Dienste GmbH and Busch SE, Maulburg
To all – including future – orders and contracts the following Terms of Purchase shall exclusively apply, unless otherwise agreed in writing. The terms of business of the Supplier or Contractor (hereinafter jointly referred to as the Supplier) shall only apply if we have agreed to them in writing. ‘We' in the terms of these Terms of Purchase refers to the abovenamed company making the order.
- Only written orders and agreements are binding. In particular, our employees are obliged to confirm verbal agreements or commitments in writing that surpass the contents of the written contract or amend the Terms of Purchase to our detriment.
- The Supplier must immediately confirm all orders in writing. If we have not received order confirmation within 14 days of the order date, we are entitled to cancel the order without giving rise to any claims by the Supplier.
- The prices agreed are fixed prices DDP place of destination (Incoterms 2010) that include the packaging in accordance with point 3.1.
Packaging and dispatch
- The goods to be supplied must be packaged as standard or, at our request, with special packaging in line with our instructions.
- The Supplier must observe the regulations of the carrier, haulier or forwarding agent.
- We are entitled to return the packaging to the place of origin with carriage free and charge the Supplier for 1/3 of the calculated packaging value.
Delivery time, delivery
- The agreed delivery dates and deadlines are binding. The delivery time runs from the order date. A delivery date or deadline is observed if the goods have been delivered to the destination by the specified time. Agreed upon acceptance dates are also binding. The acceptance date has been met when a person so authorised by one of us has confirmed the successful acceptance in writing, e. g. by signing the acceptance protocol.
- If the Supplier realises that it is not possible to supply the delivery or service (hereinafter jointly referred to as the delivery), in full or in part, by the agreed deadline, it must inform us of this situation immediately, stating the reasons for it and the expected length of the delay.
- Partial deliveries are only permissible if we have authorised them in writing
- 4 In the event of delivery delays, we are entitled to claim a contractual penalty of 1.0% of the agreed price of the entire delivery for each complete week of delay, up to a maximum of 5%. This does not affect further legal rights. The Supplier is entitled to provide evidence of less damage. We reserve the right to assert this contractual penalty until final payment has been made.
- All deliveries must come with a delivery note that specifies the ordering party, order number, article number and delivery quantity, as well as the transport company.
- The period for fulfilling our contractual obligations shall be extended in the event of force majeure, strikes, disruptions in operations, power shortages, shortages of raw materials, riots and other non-foreseeable or unavoidable events for which we are not responsible, for the duration of the disturbance and in line with the extent of its effect. We shall immediately notify the Supplier of the start and end of any of the aforementioned obstacles.
Transfer of Risk
- Risk passes to us according to DDP place of destination (Incoterms 2010). This also applies in exceptional cases in which we use our own transport personnel. Should acceptance have been agreed upon or be required by law, we assume risk upon successful acceptance by a person so authorised by one of us.
- Our payment is made – at our discretion – either within 14 days with a 3% discount or within 30 days as a net payment.
- The payment term shall commence on full receipt of the goods in line with the contract or on acceptance of the services and receipt of a verifiable invoice, but not before the agreed date of supply
- The Supplier shall warrant that on delivery, the delivered goods are free of all defects of quality or title, and complies with the state of the art, the applicable laws, safety and accident prevention regulations and the common technical and quality assurance standards (e.g. DIN, EN/ISO, VDE, CE mark, ATEX directive). If these standards are interpreted differently, the German version shall prevail.
- The Supplier must carry out an outgoing goods inspection. On receipt, we will inspect the goods for obvious defects, identity, shortages and transport damage. No further obligation to inspect the goods shall exist. We shall notify the Supplier of any defects immediately after discovery. The Supplier shall therefore waive the right to object to delayed notifications of defects. The requirement that the goods must be inspected on receipt shall be dispensed with when acceptance has been agreed upon or is required by law.
- In the event of defects, we shall be entitled, at our discretion, to request either a replacement delivery of the defective goods or their repair – including at the place of use. Furthermore, we are entitled, following the fruitless expiry of an appropriate grace period or – if it is no longer possible to establish a grace period due to particular urgency – after informing the Supplier, to resolve the defect ourselves, commission third-parties to resolve the defect or to procure a replacement for the defective goods at the Supplier's expense. This assignment of costs does not apply when the defect is not the Supplier's fault.
- The period of limitation for making claims on defects is 36 months from the time of delivery or – if so agreed or required by law – from the time of acceptance.
- If, following our notification of defects, delivered items are repaired or replaced, the period of limitation specified under point 7.4 shall start again in relation to this defect of these parts, unless the subsequent performance is negligible or involves explicit goodwill from the Supplier.
- The Supplier warrants that the use of the supplied goods will not infringe upon any property rights (e.g. patents or registered designs), or any other rights or business or trade secrets of third parties – including in the country of use. The Supplier therefore undertakes to indemnify us from any claims by third parties at our first written request. However the Supplier is not bound by the previous clause if it manufactures the goods solely in line with our drawings and models and did not know or was not required to know that manufacturing the goods would result in the violation of third party rights.
- In the event that a customer or other third party asserts a product liability claim against us, the Supplier undertakes to indemnify us from such claims at our first written request providing the violation was caused in full or in part by a fault with the product delivered by the Supplier. In cases of liability due to fault, however, this does not apply if the Supplier is not at fault.
- 2 If the cause of the damage lies within the Supplier's area of responsibility, the evidence that the error caused the damages is sufficient, for the rest the burden of proof shall fall to the Supplier.
- In all cases, the Supplier shall bear the costs and expenses proportionate to its share of responsibility or fault, including the costs of any legal action or product recall campaigns; this also applies to discernable or impending production series errors.
- The Supplier is obliged to take out an appropriate insurance policy to cover its liability risks and provide us with evidence of this cover on request.
- All claims for compensation against us – regardless of the type of claim – are excluded if we, our legal representative or vicarious agents have caused the damage through simple negligence. This exclusion from liability shall not apply in the event of personal injury or a breach of essential contractual obligations that pose a risk to the fulfilment of the purpose of the contract. In such cases, our liability is, however, limited to foreseeable damages which are typical of the contract
- The Supplier is obliged to treat all confidential information and articles of any sort, such as samples, drawings, tools, models, and all further details of the order and his deliveries and work, as well as all information of a confidential nature provided by us either deliberately or accidentally (subsequently referred to as "Confidential Information") as trade secrets and not to disclose them to third parties. Our company name can only be mentioned for promotional purposes with our prior written permission.
- All Confidential Information as well as all other documents and articles that we provide the Supplier must be returned to us free of charge without a request as soon as they are no longer needed to carry out the order, or at any time at our request. The Supplier must neither use such Confidential Information for its own purposes nor make it accessible to third parties.
- Should the Supplier fail to comply with this non-disclosure obligation, it undertakes to pay a contractual penalty of 20% of the order value unless it is not responsible for the breach. We reserve the right to claim this contractual penalty until the final payment has been made. Furthermore, in the event of particularly severe breaches, we are entitled to terminate the entire contractual relationship with the Supplier with immediate effect and with no recourse to damages, and to request reimbursement of any payments already made. A particularly severe breach exists if the Supplier passes on the information it has acquired to third parties that are in competition with us.
Ownership of Production Equipment, Provision of Materials
- Tools or other manufacturing equipment made on our order and paid for by us (hereinafter jointly referred to as "Production Equipment") become our property upon full payment. Instead of a transfer of ownership, the Supplier loans the Production Equipment from us. We can request the return of the Production Equipment at any time, unless otherwise agreed in writing. The Supplier shall store the Production Equipment that belong to us separately from other items that do not belong to us. Our ownership of the Production Equipment must be noted both on the resources themselves and in the accounts. Upon termination of our business relationship, the Production Equipment must be returned to us at our request. The Supplier must take out an appropriate insurance policy to cover loss or damage. The Supplier cannot use the Production Equipment for its own purposes or make them accessible to third parties.
- Products manufactured using the documents (drawings, models etc.) drafted by us or on the basis of our information or with our Production Equipment or reproduced Production Equipment cannot be used by the Supplier itself or offered or supplied to third parties.
- Materials and parts provided by us remain our property. They may only be used within the scope of our order. Processing of the materials and assembly of parts by the customer is always carried out on our behalf. To the extent that our materials and parts are mixed with, connected to, or processed with other items not belonging to us, we acquire co-ownership of the new item in the proportion of the value of our materials and parts to the value of the other processed items. Should the Supplier's item can be considered to be the principle item, the Supplier must transfer proportional title to us.
- If the Supplier's representatives work at our factory or for our customers, they must observe the house rules, the accident prevention regulations and all other safety and security regulations. The Supplier shall be liable for all damages that it or its representatives intentionally or negligibly cause in our factory or on our customers' premises.
- The working hours and the materials provided by the Supplier must be confirmed in writing by a representative from our factory immediately upon execution of the work or by no later than on the same day as the execution.
Applicable law, place of jurisdiction, place of performance
- German law shall apply. The UN Convention on Contracts for the International Sale of Goods of 11/04/1980 is excluded.
- The place of jurisdiction is the court responsible for our registered office. However, we are also entitled to involve the court responsible for the Supplier's registered office.
- The place of performance for all deliveries and services is the destination we have specified.