GENERAL CONDITIONS

Of: BT8 GmbH

 

Article 1 Definitions

BT8  : Bt8 GmbH , the user of the general conditions, the seller, the service provider, the contractor.
Buyer : BT8’s counterparty, the purchaser, the client.
Agreement : the agreement between BT8 GmbH and the buyer.

Article 2 General

2.1 These general conditions will apply to all quotations, agreements and deliveries that BT8 concludes with the buyer who is performing a profession or running a business, unless the parties have deviated from these conditions in writing.

2.2 The current conditions will also apply to all agreements with BT8 GmbH for the performance of which BT8 GmbH uses the services of third parties.

2.3 The applicability of the buyer’s general conditions is explicitly excluded, unless the parties have agreed otherwise in writing.

2.4 If BT8 GmbH concludes agreements with the buyer more than once, these general conditions will apply to all subsequent agreements, irrespective of whether these have been explicitly declared applicable.

2.5 If one or more provisions of these general conditions are fully or partially null and void or are nullified, the remaining provisions of these general conditions will continue to apply (fully or partially, as the case may be).

Article 3 Offers and prices

3.1 All offers of BT8 GmbH are entirely free of obligation.

3.2 If a natural person concludes an agreement on behalf or for the account of another natural person, he/she will declare – by signing the order form/order – that he/she is authorised to do so. This person, in addition to the other natural person, will be jointly and severally liable for all obligations arising from the agreement.

3.3 The agreement will be concluded when BT8 GmbH confirms such in writing within eight days of having received the assignment to supply, or when it has commenced the performance of the assignment. A quotation will in any event be considered to have been rejected if it has not been returned to BT8 GmbH signed and accepted within six weeks.

3.4 In the case of an oral agreement, the invoice will be considered to contain a correct and complete representation of the agreement, unless a complaint is lodged within 30 days of the invoice date.

3.5 Changes to the order, after it has been issued, should be communicated to BT8 GmbH in writing and on time by the buyer. Changes communicated orally will be at the buyer’s risk. Oral changes will not come into force until they have been accepted by BT8 GmbH. Any additional or fewer costs as a result of the changes accepted by BT8 GmbH will, in principle, be at the expense or for the benefit of the buyer. Changes to the order may  result in the agreed delivery time being exceeded. BT8 GmbH cannot be held liable for such in any way whatsoever, without prejudice to the provisions of Article 9 et seq.

3.6 Samples will always be issued as an indication, without the items having to conform to such samples.

3.7 All prices are ex works in accordance with official price lists drawn up by BT8 GmbH, applicable on the day of delivery and exclusive of Dutch VAT and other government levies, shipping costs, freight charges, export levies, insurance fees, loading costs, packaging costs and handling expenses, unless the parties have expressly agreed otherwise.

3.8 If, in the period between the quotation date or the conclusion of the agreement on the one hand, and the date of delivery on the other, an increase in one or more cost factors occurs, BT8 GmbH will be entitled to increase the prices accordingly on the understanding:

  • that if the items are delivered within 30 days of the conclusion of the agreement, the prices stated in the agreement will remain unchanged;
  • that if a price increase takes place within three months of the conclusion of the agreement, the buyer will be entitled within eight days of the dispatch of the price increase notification to declare the unperformed part of the agreement dissolved, which declaration can be made only in writing. In such a case, the buyer will not be entitled to compensation.

3.9 BT8 GmbH will be entitled to adjust its prices each year by at least the rate of inflation, unlees agreed otherwise by Parties in written.

3.10 Discounts may be agreed upon only in writing.

3.11 BT8 GmbH may refuse an order or part of an order or attach conditions to an order without stating the reasons.

Article 4 Delivery

4.1 The items will be delivered ex works. The items will be at the expense and risk of the buyer from the time of delivery.

4.2 If BT8 GmbH is handling the delivery, delivery will always be made at the delivery address most recently communicated to BT8 GmbH by the buyer.

4.3 BT8 GmbH will be entitled to charge an advance. Delivery will be made to the buyer following payment of the advance, unless the parties have agreed otherwise.

4.4 If BT8 GmbH has stated a delivery period, this period will be considered an indication. A stated delivery time will therefore never be a deadline. If a period is exceeded, the buyer must give BT8 GmbH written notice of default and grant it a reasonable period of time to deliver as yet.

4.5 If BT8 GmbH requires information from the buyer within the context of the agreement’s performance, the delivery period will commence after the buyer has made such information available to BT8 GmbH

4.6 The buyer will be obliged to take possession of the items at the time that BT8 GmbH delivers them to the buyer or instructs others to do so, or at the time at which the items are made available to the buyer in accordance with the agreement.

4.7 If the buyer refuses to take possession or fails to provide information or instructions that are necessary for the delivery, BT8 GmbH will be entitled to store the items at the expense and risk of the buyer. If the buyer does not take delivery of the items within two months, the buyer will continue to owe the sales price and BT8 GmbH will be entitled to sell the items to another party. If it is unable to do so, BT8 GmbH will be entitled to destroy the items. The damage incurred by BT8 GmbH by selling the products to another party or by destroying them will be borne by the buyer.

4.8 If no period has been agreed for taking possession of the items, the buyer must take possession of the items within three months of the date of the written confirmation as referred to in Article 3.3.

4.9 The buyer will notify BT8 GmbH at least 24 hours in advance of when it will collect the items. If BT8 GmbH is handling the transport of the items at the buyer’s request, such will take place at the expense and risk of the buyer and BT8 GmbH will not accept any liability in this respect. In that case, the minimum standby period for the buyer will be 48 hours.

4.10 BT8 GmbH will be entitled to deliver the items in parts. BT8 GmbH will be entitled to invoice partial deliveries separately.

Article 5 Models, illustrations

5.1 The models, illustrations, figures, measurements, weights or descriptions included in offers, advertisements or price lists are shown only as an indication.

5.2 If the buyer has been shown a sample or an illustration, the parties must assume that it has been shown as an indication only, unless it has been explicitly agreed that the item to be delivered will be completely identical.

Article 6 Inspections, complaints

6.1 The buyer will be obliged to inspect the delivered items, or have others do so, at the time of delivery. In doing so, the buyer should check whether the quality and quantity of the delivered items are in accordance with what has been agreed, and should examine the size, tint, type and amounts, all this in so far as applicable. Any visible defects and deviations must be stated on the consignment note/packing list and reported by telephone within 48 hours, failing which the items delivered will be considered to be sound.

6.2 Any shortfalls must be reported to BT8 GmbH in writing within eight days of delivery.

6.3 Any complaints regarding the invoice must be submitted in writing within 30 days of the invoice date.

6.4 After the expiry of the period in which a complaint may be lodged, the buyer will be considered to have approved the items delivered or the invoice.

6.5 Complaints about the items delivered will not be dealt with if the items have been treated and/or processed after the defect was discovered.

6.6 The following situations will never justify the lodging of a complaint:

  • deviations in colour, weight and measurements of less than 10%;
  • typesetting errors or misprints and clerical errors in offers, advertisements or price

lists.

6.7 With regard to all complaints, BT8 GmbH will be given the opportunity to check such complaints. If BT8 GmbH considers the complaint to be well-founded, BT8 GmbH will have the option of taking back the items, exchanging them, reducing the price or taking other measures.

6.8 BT8 GmbH will in all cases be liable only within the limits of the provisions laid down in the ‘Liability’ article of these conditions.

Article 7 Payment and security

7.1 Invoicing will take place at the same time as delivery. The buyer should pay the invoice within 30 days of the invoice date. No settlement, payment suspension or discount will be permitted.

7.2 Objections to the invoice amounts will not suspend the buyer’s payment obligation.

7.3 Payment must be made to BT8 GmbH unless BT8 GmbH has transferred its claim against the buyer to a third party or has pledged it to a third party. If this is the case, BT8 GmbH will inform the buyer in writing of the fact that it will receive discharge of its payment obligation if it pays to that third party.

7.4 If the invoice amount has not been paid on the due date, the buyer will be in default by the mere expiry of the payment period, without any notice of default being required. In that case, BT8 GmbH’s claim will be increased by operation of law by interest of 1.5% per month (or a part of a month) on the invoice amount, inclusive of German VAT, to be calculated from the due date.

7.5 If the buyer is in default, it must also reimburse the costs incurred by BT8 GmbH in obtaining settlement out of court, which costs are being set at 15% of the invoice amount with a minimum of € 150. If BT8 GmbH incurs higher costs, which were reasonably necessary, these will also be eligible for reimbursement. Any reasonable court costs and enforcement costs will also be borne by the buyer.

7.6 The payments made by the buyer will be used first to reduce any interest and costs due and then to settle the longest outstanding invoices payable, even if the buyer states that the payment relates to a more recent invoice.

7.7 BT8 GmbH reserves the right during the contract period to request an advance or security for payments.

7.8 All claims of BT8 GmbH will be immediately due and payable if:

  1. the buyer does not pay or pay on time;
  2. the buyer does not provide an advance or security following a request issued for that purpose by BT8 GmbH as referred to in Article 7.7;
  3. bankruptcy proceedings are instituted against the buyer;
  4. an attachment is levied on any part of the buyer’s possessions or assets.
  5. the buyer requests or obtains a suspension of payments;
  6. the buyer sells or liquidates all or part of its business operations;
  7. the buyer fails to fulfil its obligations with respect to BT8 GmbH

7.9 In the cases described in the previous paragraph, BT8 GmbH will have the right:

  1. to suspend its contractual obligations until the time that the buyer has met its obligations in full;
  2. to cancel and/or dissolve the agreement, either wholly or in part, by means of a simple communication, without a notice of default or court intervention being required, without prejudice to BT8 GmbH’s right to claim specific performance and/or compensation.

7.10 If the buyer is in default with respect to the payment of one or more of BT8 GmbH  due and payable claims, BT8 GmbH will be entitled to settle these claims with one or more claims of the buyer, which the buyer may have at any time against BT8 GmbH or against one or more companies within the group to which BT8 GmbH belongs.

Article 8 Retention of title

8.1 All items delivered and to be delivered will remain the exclusive property of BT8 GmbH, until all claims that BT8 GmbH has or will obtain against the buyer are settled in full.

8.2 As long as the title to the items has not passed to the buyer, the buyer may not pledge these items or grant a third party any rights to the items, except within the normal context of its business operations. The buyer undertakes at BT8 GmbH’s  first request to cooperate with the creation of a pledge on the claims that the buyer obtains or will obtain against its purchasers pursuant to the onward supply of items.

8.3 The buyer will be obliged to keep the items delivered under retention of title with due care and as the recognisable property of BT8 GmbH

8.4 The buyer should insure the items covered by the retention of title at new value. The insurance proceeds paid out by the insurer will replace the above items and will accrue to BT8 GmbH

8.5 If third parties levy an attachment on the items delivered under retention of title, or if they wish to create or enforce rights thereon, the buyer will be obliged to inform BT8 GmbH as soon as possible.

8.6 BT8 GmbH will be entitled to recover the items delivered under retention of title and still present at the buyer if the buyer is in default in fulfilling its payment obligations or if the buyer is having or is likely to have financial difficulties. The buyer will grant BT8 GmbH free access at all times to its sites and/or buildings to inspect the items and/or to exercise the rights of BT8 GmbH

8.7 The above provisions in this article will not prejudice the other rights of BT8 GmbH

Article 9 Intellectual property

9.1 All intellectual property rights relating to the products and their design, brochures and software of BT8 GmbH and items that BT8 GmbH develops and/or uses in the implementation of the agreement, will accrue to BT8 GmbH in so far as these items do not already accrue to third parties, unless otherwise agreed in writing.

9.2 The buyer will not be permitted to remove or change any indication relating to copyright, trademarks, trade names or any other intellectual property rights in or on the products, brochures and software and/or other items of BT8 GmbH

9.3 If an order must be effected in accordance with designs, drawings or other instructions of the buyer, the buyer will guarantee that this will not result in any violation of intellectual property rights or other rights of third parties. The buyer will indemnify BT8 GmbH against all claims of third parties resulting from violation of their intellectual property rights, whether or not including compensation.

Article 10 Returned items

10.1 Items purchased especially for the buyer cannot be returned or cancelled.

Article 11 Force majeure

11.1 The parties will not be obliged to fulfil any obligation if they are prevented from doing so as the result of a circumstance that cannot be attributed to gross negligence or an intentional act or omission on the part of the invoking party, and if it is not for their account in accordance with law, a legal act, or generally accepted standards.

11.2 Failures of BT8 GmbH in fulfilling the agreement as a result of force majeure, which should include, for instance, and be taken in any event to mean: war, mobilisation, disturbances, floods, closed shipping traffic, traffic congestion, standstills in or restrictions or halting of supplies by public utility companies, lack of means to generate energy, fire, machine breakdowns and other accidents, strikes, lockouts, trade union action, export restrictions, other government measures, non-delivery of required materials (and/or semi-finished products) and/or services necessary for production, either as a result of government measures or by third parties, an intentional act of omission or gross negligence on the part of auxiliary staff and other similar circumstances, will in any event be considered as not being attributable to BT8 GmbH, and will therefore not entitle the buyer to dissolve the agreement or to claim any compensation.

11.3 If BT8 GmbH has agreed a deadline with the buyer, and BT8 GmbH is faced by a temporary force majeure situation, BT8 GmbH will be entitled to extend the delivery period by the duration of the force majeure situation. During this extension, BT8 GmbH will therefore not be considered to have failed in the fulfilment of its obligations, so that the buyer will not be able to claim dissolution of the agreement or compensation.

11.4 BT8 GmbH will also be entitled to invoke force majeure if the circumstance that prevents fulfilment or further fulfilment takes effect after BT8 GmbH should have fulfilled its obligation.

11.5 In so far as BT8 GmbH at the time of the occurrence of the force majeure, has already fulfilled or will be able to fulfil its obligations arising from the agreement, and the fulfilled or to be fulfilled part has independent value, BT8 GmbH will be entitled to invoice the already fulfilled or to be fulfilled part separately. The buyer will be obliged to pay this invoice as if it were a separate agreement.

Article 12 Liability

12.1 BT8 GmbH will be fully liable for damage resulting from an intentional act or omission or gross negligence of managers and senior subordinates.

12.2 BT8 GmbH  liability for damage, which is the result of its attributable failures to fulfil, which are not covered by Article 12.1, will be limited to no more than the invoice value of the delivery in question.

12.3 BT8 GmbH  liability for damage caused by errors in its designs and advice will be accepted only in so far as the designs and advice were issued in writing and the work in question was performed entirely in accordance with the designs and advice and with the material prescribed and delivered by BT8 GmbH

12.4 The liability referred to in Article 12.3 will be limited to no more than the invoice value of the materials advised and delivered by BT8 GmbH which are incorporated in that part of a project to which any error in a design or advice relates.

12.5 BT8 GmbH will not be liable for damage if the items are incorrectly treated and/or processed.

12.6 BT8 GmbH will not be liable for damage resulting from non-functional characteristics of the items and with respect to deviations in size or tint, which fall within the usual tolerances.

12.7 The buyer will indemnify BT8 GmbH against liability with respect to third parties.

12.8 BT8 GmbH will not be liable for damage in the form of trading loss, consequential loss, loss of turnover or reduced goodwill in the business operations or profession of the buyer.

12.9 Every claim against BT8 GmbH for compensation will lapse after 15 months, to be calculated from the date on which the claim was brought.

Article 13 Secrecy

13.1 Both parties will be obliged to observe secrecy regarding all confidential information they have obtained from one another or from another source in the context of their agreement. Information will be considered confidential if this has been communicated by a party or if this follows from the nature of the information.

13.2 If BT8 GmbH is obliged, on the basis of a statutory provision or a court decision, to supply information to third parties designated by law or a competent court, and BT8 GmbH cannot invoke a right of non-disclosure in this matter that is recognised or accepted in law or by a competent court, BT8 GmbH will not be obliged to pay any compensation and the buyer will not be entitled to dissolve the agreement on the basis of any damage that has resulted.

Article 14 Authentic version

The German version of these conditions will be considered the only authentic version. If a translation deviates in any way, the German text will have preference.

Article 15 Disputes

15.1 All agreements between BT8 GmbH and the buyer will be governed by German law, also if the buyer has its registered office outside Germany. The operation of every international treaty relating to the sale of movable tangible property, the operation of which may be excluded between the parties, will not apply and is hereby expressly excluded. More particularly, the applicability of the Convention on the International Sale of Goods 1980 is expressly excluded.

15.2 All disputes arising from or relating to agreements concluded between BT8 GmbH and the buyer will be exclusively adjudicated in the first instance by the District Court of Mönchengladbach, Germany, except for competence in Sub-District Court cases. This choice of forum stipulation is nevertheless included exclusively for the benefit of BT8 GmbH so that BT8 GmbH if it so desires, will be entitled at all times to apply to a court that is competent on the basis of other legal provisions.

Article 16 Filing

These general conditions, filed with the Chamber of Commerce of Mönchengladbach, under no. HRB 17790, will be sent on request and will apply to all agreements concluded after October 1 st.