- These terms and conditions apply to all deliveries and services rendered by Bavaria Getränkemaschinen GmbH (hereafter referred to as: the Supplier).
- Any terms and conditions of the Purchaser that conflict with or differ from these terms and conditions shall be deemed void unless their validity is expressly agreed.
- These terms and conditions shall apply for all subsequent contracts between the Purchaser and the Supplier without further reference.
Contents and Conclusion of Contract
- Any contract shall be deemed in force the latest upon delivery of ordered goods by Supplier.
- Information or specifications given in brochures, illustrations, drawings and other descriptions do not state any representation or warranty of characteristics unless expressly marked otherwise.
- All content and scope of the contract shall be deemed specified bindingly by by the Supplier’s order confirmation only, unless objected by the Purchaser immediately upon reception. Amendments or modifications given verbally or via telephone shall only become effective upon written confirmation by the Supplier.
Non-binding Offers, Binding Orders, Delivery Periods
- Offers by the Supplier are non-binding until placement of a binding order by the Purchaser according to the provisions of this section. The Purchaser is aware of the fact that offers made by the Supplier may refer to used machines that the Supplier has not yet acquired and may only do so upon placement of a binding order by the Purchaser.
- The order shall become binding upon irrevocable receipt of the Purchaser’s down payment.
- The Supplier does not bear any procurement risk for ordered goods and is entitled to cancel the contract if the delivery item cannot be obtained from the presupplier in spite of reasonable efforts to obtain timely receipt.
- Delivery periods are non-binding unless expressly agreed upon in writing. Any binding delivery period or delivery date shall be deemed void if the content of the order is changed after agreement on the delivery time.
- If non-compliance with an agreed delivery time arises from force majeure, industrial action, fire, unforeseeable obstacles or other circumstances for which the Supplier is not responsible, the delivery time shall be deemed extended for the duration of these circumstances. This shall apply even if the Supplier is in default. Should the delivery hindrance last longer than a month, the Supplier and the Purchaser are both entitled to rescind the contract. Any further rights and remedies of the Purchaser shall remain unaffected.
- The Supplier shall immediately inform the Purchaser about any delivery hindrances and in the event of recission refund any payments already made.
Prices, Down Payment, Due Date, Different Billing Address, Majority of Purchasers
- All prices quoted by the Supplier are net prices and do not include value added tax, costs for packing and dispatch or any other customs duties or taxes.
- The Purchaser undertakes to provide a down payment of 50% of the purchase price upon conclusion of contract. The remaining payment is subject to individual agreement and shall be due the latest upon delivery to the Purchaser.
- The Supplier shall be entitled to claim the total purchase price immediately irrespective of agreed payment dates or deferrals if (a) the Purchaser is in default with an agreed payment or (b) the Purchaser´s financial situation deteriorates significantly, in particular but not limited to by the commencement of insolvency proceedings against the Purchaser or refusal of commencement due to lack of assets.
- If the Supplier cancels the contract due to the Purchaser’s default in payment, the Supplier shall be entitled to claim liquidated damages at an amount of 20% of the net purchase price unless the Purchaser proves that less or no damages have been incurred. This shall not limit or affect the Supplier´s right to claim further damages.
- The Purchaser shall be liable for the obligations arising from the contract even if the invoice is issued to a third party at his request.
- Several Purchasers are jointly and severally liable. They are mutually considered to be authorized to make and receive declarations on behalf of the other Purchaser(s).
Partial Deliveries, Transfer of Risk in Sale Shipment, Assembly, Acceptance
- The Supplier is entitled to provide partial deliveries, unless partial deliveries are not reasonable for the Purchaser.
- Transfer to the transport company transfers the risk to the customer. The Supplier shall be deemed released from the obligation to perform upon transfer to the transport company. The transport of the goods is at the Purchaser´s risk. This shall apply, too, if partial deliveries are made or if the Supplier provides additional services, e.g. transport costs or delivery.
- Any assembly of the delivery item by the Supplier shall be at the Purchaser´s expense. It is understood that assembly costs include necessary travelling, accomodation and food expenses of the assembly personnel. The Purchaser shall take care for auxiliary teams, set-up and hoisting equipment and other items necessary for the assembly at his expense. For work lasting several days the Purchaser undertakes to provide the Supplier with a lockable room for the storage of his materials and equipment.
- The Purchaser undertakes to accept the delivery item upon delivery. The acceptance shall be deemed as granted if the Purchaser does not object within 14 days from the day of delivery, in case of assembly by the Supplier from the day of completion.
Retention of Title, Extended Retention of Title
- All goods remain the Supplier´s property until fulfilment of all claims against the Purchaser arising from the business relationship. This also applies if individual or all receivables were included in a current invoice and the balance was drawn.
- In the event of the Supplier´s goods being sold, the Purchaser assigns his claim from the resale with all ancillary rights including any balance receivable to the Supplier. However, the assignment shall be limited by the invoiced price of the delivery item.
- If the Purchaser combines the Supplier´s goods with land or movable property, he assigns his claim for remuneration for the connection with all ancillary rights to the Supplier in the extent of the relation of the value of the Supplier´s goods to the other goods combined.
- The Purchaser undertakes to notify the Supplier immediately of any access to goods subject to retention of title as well as any damage or destruction. The same applies to a change of possession and storage place of the goods.
Warranty, Limitations and Guarantee for Used Machines
Warranty for material defects shall be determined by the statutory provisions. In addition, the following rules apply:
- If the supplementary performance fails, the Purchaser may, at his discretion, demand a reduction or rescind the contract. In the event of a minor breach, in particular but not limited to minor defects, the Purchaser shall not be entitled to rescind the contract, though.
- If the Purchaser rescinds the contract for legal or material defect after failed supplementary performance, he shall not be entitled to claim damages due to the defect.
The following additional provisions apply if the delivery item is a used machine:
- The Supplier delivers used machines in the condition in which they are at the time of conclusion of the contract. The Purchaser's rights due to defects are excluded unless (a) the Supplier has given a guarantee for the defective component according to subsection 4 or (b) the Supplier has fraudulently concealed a defect or (c) the item lacks an assured quality. The Purchaser may inspect the delivery item before entering into the contract.
- If the Supplier has overhauled parts of the machine, warranty is given for a time period six months starting from the day of operation commencement - but no later than six weeks from the date of receipt of the machine by the Purchaser - for any defects in the components specified as replacement parts in the order, contract, delivery note or invoice. The warranty is limited to the Purchaser's right to demand replacement of the defective component at the Supplier´s expense. Costs for removal and installation must be borne by the Purchaser. The warranty does not comprise defects from wear and tear.
Limitation of Liability
- The Supplier is liable in cases of intent or gross negligence in accordance with statutory provisions. Incidentally, he shall only be liable in accordance with the German Product Liability Act (Produkthaftungsgesetz), due to injury to life, limb or health or due to the culpable violation of essential contractual obligations or if he has fraudulently concealed a defect or assumed a guarantee for the quality of the delivery item. However, the claim for damages for the breach of essential contractual obligations is limited to the typical and foreseeable damage. Significant contractual obligations are those whose fulfilment characterizes the contract and on which the Purchaser may rely.
- The Supplier's liability for loss of earnings shall be excluded if the delay is due to the fact that the goods cannot be obtained in good time from the presupplier in spite of reasonable efforts to obtain timely receipt.
Form Provision, Severability Clause, Choice of Law, Place of Jurisdiction
- All agreements between the Supplier and the Purchaser concerning the contract require written form in order to be effective. This also applies to a waiver of the requirement of written form.
- Should individual provisions of these terms and conditions prove ineffective or invalid, this shall not affect the validity of other provisions.
- The contract shall be governed exclusively by German law.
- Place of jurisdiction for disputes arising out of or in connection with the contract is Flensburg.