1.1 For offers and deliveries from BCS, the following conditions exclusively apply. With the first contract concluded between BCS and the customer it is agreed that these conditions are taken as a basis, also with all follow-up business - also any such that is concluded verbally, especially via telephone. Purchasing and special conditions of the customer apply only insofar as they do not contradict the following conditions. This also applies if we unreservedly perform the delivery to the customer in knowledge of conflicting or deviating conditions of the customer. With the placement of an order, the buyer confirms his ability to pay.
1.2 Special agreements and subsidiary agreements only attain validity if they are confirmed in writing by BCS.
2. Offering, conclusion of contract
2.1 Offers from BCS are subject to change.
2.2 A contract first materialises with order confirmation or delivery of the goods by BCS.
3. Prices, conditions of payment
3.1 As long as it does not state otherwise in the order confirmation, payments are payable immediately, without rebate.
3.2 Payments must be carried out to the bank account of BCS indicated on the invoice free of costs and expenses.
3.3 Payments are also calculated with differing instructions of the customer exclusively in accordance with § 366 BGB (German Civil Code).
3.4 Drafts and checks are solely accepted on account of performance.
3.5 All prices are to be understood plus value added tax in the legal amount on the day of the issuing of an invoice.
4. Payment default, purchase price financing
4.1 If equipment of the customer, with a payment, in whole or in part, is more than ten days in default, he allows drafts or checks go to reclamation, or a request is placed for the opening of bankruptcy, legal insolvency, or general enforcement proceedings over his assets, then BCS is, irrespective of other rights, entitled:
a) If the default/remonstration concerns financing or repayment agreement, all requirements from it are immediately due; b) All deliveries or services from contracts that are not yet fulfilled are held back; c) All rights from the retention of title (Numeral 10) are made applicable.
4.2. BCS is furthermore entitled to demand delay interest in the amount of 4% above EURIBOR as damages caused by delay, however, at least in the amount of 12% p.a. The assertion of higher damages accrued by BCS remains unaffected. The customer is entitled to furnish evidence that BCS has only accrued significantly lower damages or none at all.
4.3 If the purchase price is financed, then in the case of default, the rights named on the front of the purchase contract in the payment conditions, as well as the rights of retention of title are entitled to BCS.
5. Off-setting, withholding
5.1 In the face of claims by BCS, the customer can only explain the off-setting if the demand of the customer is determined to be undisputed or valid.
5.2 The customer can only then make an applicable right to refuse performance or to withholding if the demand for payment by BCS and the counter-claim of the customer are based on the same contractual affair.
6. Delivery and delivery time, supply
6.1 The adherence to agreed-upon delivery appointments assumes that all necessary authorisation, documentation to be delivered by the customer, clearances, services to be rendered, and other obligations of the customer are present and/or fulfilled in due time. If this does not happen, then the period extends to an appropriate time frame; firm deals are not concluded.
6.2 The delivery period is adhered to, if the ordered goods have left the warehouse up to its expiry, or readiness for delivery has been communicated.
6.3 If the non-adherence to an agreed-upon delivery period is attributed to higher law, labour dispute, fire, machinery breakdown, unforeseen hindrances or other circumstances not attributable to BCS, then the delivery period is extended for the length of these events. This also applies accordingly in the case that BCS is in default of delivery with the occurrence of one of these events.
6.4 If, with a length of the hindrance of performance in the sense of Numeral 6.3, BCS and the customer exceed 3 months, with non-adherence to the delivery appointment for reasons other than those named in Numeral 6.3, only the customer is entitled to withdraw from the contract, in respect of the delivery in default Requisite for the withdrawal by the customer is that he has set an additional appropriate period (at least 3 weeks) for BCS, in writing, with refusal/rejection.
6.5 Demands for damages because of default or impossibility, also such that arise up to the withdrawal from the contract are excluded in the scope of the regulation in Numeral 9.
6.6 BCS is entitled to early delivery as well as execution of partial deliveries. Partial deliveries can be immediately invoiced by BCS.
6.7 BCS reserves the correct and timely supply in all cases.
7. Transfer of risk and acceptance
7.1 The customer is obligated to accept the goods within eight days of access to the notification of the readiness of the goods for collection at the agreed-upon location of acceptance.
7.2 The assumption takes place in the branch of BCS designated in the contract. As long as the customer desires the delivery at another location, this occurs at the risk and expense of the customer. The same applies for eventual returns. BCS determines the transporter with exclusion of liability for the choice of the least expensive and fastest means of delivery.
7.3 The risk goes over to the customer with acceptance of the goods, at the latest with transfer of the goods to the transporter, and also if partial deliveries take place or BCS has assumed additional performances, e.g. transport costs or delivery.
7.4 Equipment of the customer in delay of acceptance or if the delivery is delayed from such circumstances for which he is responsible, then the risk goes over to the customer from the day of the notification of the readiness of the goods for collection. In this case the purchase price matures with the date of the communication of the readiness for delivery. Costs of the storage with BCS or with third parties are borne by the customer. The assertion of an additional demand for damage toward the customer remains unaffected.
7.5 BCS will exclusively furnish transport insurance on specially-written request at the customer's expense.
8. Guarantee, Duty of inspection and rejection
8.1 BCS guarantees in the scope of the following instructions that deliveries are free of faults in the legal-warranty sense and that the written, agreed-upon specifications, as well as the written, warranted characteristics are adhered to.
8.2 The warranty claim of the commercial customer presumes that this has properly complied with his obligatory inspection and rejection conditions in accordance with §§ 377, 378 HGB (German Commercial Code).
8.3 Warranty claims do not exist if the error that has arisen is in causal connection with:
- faults that have arisen beforehand and have not immediately appeared;
- non-adherence to instructions of handling, maintenance, care, and start-up on the part of the buyer;
- refurbishment, maintenance, or care for the item of purchase by a company not recognised by the manufacturer/importer or by the customer himself;
- the installation of replacement parts, mounting parts, or attached parts into the item of purchase that are not approved by the manufacturer/importer.
8.4 As long as a defect of the purchase item for which BCS is responsible exists, BCS is entitled, according to its own choice, to repair deficiencies or a replacement delivery. If the customer does not make the rejected goods available to BCS on request, or he sells or uses the goods, then all warranty claims are inapplicable.
8.5 If BCS is not ready for or unable to execute the repair of deficiencies/replacement delivery, protracts this over an acceptable period based on reasons for which BCS is responsible, or the repair of deficiencies/replacement delivery fails in some manner, then the customer is entitled, according to his choice, to demand redhibitory action (cancellation of the contract) or an appropriate reduction of the purchase price.
8.6 All further liability of IBM toward to the customer because of the defects in the delivery or in the performance is - subject to the regulation in Numeral 9 - excluded.
8.7 Used machines/components are purchased with exclusion of every warranty.
9.1 Damage claims against BCS are excluded independent of legal ground, especially because of default or impossibility, the injury of obligation to advice and contractual collateral duties, preliminary obligations, positive contractual injury, the injury of industrial property rights of third parties, and unauthorised handling, unless BCS has deliberately or grossly negligently acted, or the damage claims result from the injury of a warranted nature. BCS is obligated, in the same manner, if an obligation from one if its legal representatives or leading employees, who is considerably meaningful for achievement of the purpose of the contract, is lightly negligently injured.
9.2 As long as BCS is liable for the cause, the claim for damages is limited to the foreseeable damages. In each case, compensation for consequential damages like loss of profit is excluded. This limitation of damages does not apply if the damage-causing event was grossly-negligently or intentionally caused by a legal representative or leading employee of BCS.
9.3 All damage claims against BCS are time-barred to six months after delivery. This does not apply for damages because of unauthorised liability.
9.4 Existing liability limits find no application to claims according to the product liability law.
9.5 As long as the liability of BCS is excluded, this also applies for the personal liability of the employees, workers, co-workers, representatives, and assignees of BCS.
9.6 BCS is not liable for machines, machine parts, etc., that are shut down on the BCS premises.
10. Retention of title
10.1 BCS retains the ownership of the goods delivered to the customer (conditional goods) up to the payment in full. The retention of title also extends to all accounts already accrued at the time of the conclusion of this contract; it extends further to all accounts from follow-up business, especially deliveries of replacement parts and after-sales services
10.2 The customer is obligated to handle the conditional goods carefully and especially to furnish machine insurance at his own expense, which also includes fire and theft risk. The customer must have maintenance and inspection work conducted in a timely manner, according to the manufacturer's provisions, at his own cost, by BCS or one of the companies recognised by BCS or the manufacturer.
10.3 The customer is only entitled to the resale, pledging, transfer by way of security, leasing, or transfer of the conditional goods abroad after prior written agreement by BCS.
10.4 The customer conveys all accounts and demands for payment due to him for the conditional goods (e.g. from unauthorised handling, insurance claims) already in the amount of the invoice value of the conditional goods - with an agreed-upon open account in the amount of the payment balance request.
10.5 With third parties sharing the conditional goods, the customer has to indicate the ownership of BCS and immediately inform BCS in writing. As long as the third party is unable to repay BCS the legal and out-of-court expenses of a dispute in accordance with § 771 ZPO (Civil Process Order), the customer is liable for the accrued shortfall.
10.6 If the conditional goods are inseparably combined with objects not belonging to BCS, then BCS acquires the co-ownership of the new item in the proportion of the value of the conditional goods to the remaining combined objects at the time of the combination. If the combination takes place in the manner that the item of the customer is viewed as the primary item, then the customer imparts proportional co-ownership to BCS. The customer keeps the individual or co-ownership that has arisen for BCS. The customer also conveys the requirements toward him for security, which have accrued to him through the combination of the conditional goods with a property towards a third party.
10.7 If the feasible value of the securities owed to BCS from the retention of title exceeds the total demands of BCS toward the customer by more than 20%, then BCS is obligated at the customer's request to release the securities owed to BCS from this agreement, according to his choice up to the named value limit.
10.8 With conduct of the customer that is contrary to the contract, especially with existence of one of the cases named in Numeral 4.1, BCS is entitled to retrieve the conditional goods and to enter the place where the conditional goods are kept for this purpose, even without explaining the withdrawal beforehand, or to exercise the rights from § 326 BGB (German Civil Code). The customer forgoes the rights that he would be entitled to from infringement of property rights.
10.9 If BCS demands restitution of the conditional goods without withdrawing from the contract (§ 326 BGB (German Civil Code)), then BCS is entitled to make use of this after a letter of notice by sale or through acquisition for the dealer purchase price according to the estimated value by a publicly-ordered expert or DEKRA. Costs of the estimate go to the encumbrance of the customer. The proceeds of sale are calculated with off-setting of estimated lump sum costs of 15% of the proceeds of sale to the liability of the customer. Numeral 4.2 Sentence 2 applies accordingly.
11. Place of performance, court of jurisdiction
11.1 The place of performance for all claims from the contract concluded between the customer and BCS is the headquarters of the administration of BCS in Twist.
11.2 The exclusive jurisdiction is Meppen.
12. Applicable right, effectiveness, written form
12.1 The law of the Federal Republic of Germany applies. The applicability of the uniform law on the international sale of goods (UNCITRALD-agreement) is excluded.
12.2 Changes and amendments to the instructions contained in these conditions require written form and agreement in the purchase contract for their effectiveness. Verbal or written subsidiary agreements are only binding for BCS after written confirmation.