General Terms & Conditions
Terms of Delivery
The Terms & Conditions (“T&C”) below apply to all our bids and orders awarded to us. By placing an order or accepting our order confirmation, our customers confirm that they will respect these T&C as binding. We hereby expressly object to all conflicting T&C imposed by our customers and will not include them in the terms of contract.
The legal relations with our customers shall solely be bound by our written order confirmation and/or a contract including these T&C and signed by both parties, which constitute the entire agreement between the parties as regards the subject matter concerned. Any oral commitments made before signing the contract are considered without legal obligation, and points orally agreed by the parties shall be superseded by the written order conformation/contract, unless such oral agreements stipulate to be binding henceforward. In order to be effective and enforceable, amendments and supplements to the agreements and these T&C shall be made out in writing. Only the General Managers or other authorised representatives of the parties shall be allowed to orally agree otherwise.
Our offers are generally considered subject to change. We are not bound by transactions and agreements until these are confirmed by us in writing. We may accept purchase and other orders within fourteen days after reception. We reserve title and copyright to cost estimates, drafts, drawings, calculations etc. They may not be used, reproduced or disclosed to third parties without our consent but returned to use upon our request and if an order is not placed. Technical details and dimensions in drawings and otherwise are provided for information only. They are no guaranteed properties but descriptions or other means of characterising the goods or service supplied. Customers must verify all drawing details. We reserve the right of improving, using alternative materials and to making minor changes to dimensions, designs, shades of anodized surfaces and models. All weights are approximations.
- Scope of goods/services supplied, non-assignment
Our written order confirmation is authoritative as regards the scope of goods/services supplied. Conflicting agreements are subject to the stipulations of clause 1. Extra services, later changes and additions to an order as well as acceptance, packaging and transport specifications made known to us after signing the contract justify an adequate recalculation and additional charges.
Customers are not allowed to assign or transfer claims against us or rights from the business relation to third parties. The same applies to claims and rights immediately derived from the applicable laws.
All prices are euro prices ex Arnsberg works. They are generally net prices excluding packaging, insurance, freight, customs, any further costs and statutory value-added tax. The risk of exchange rate changes shall be borne by the customer.
Deliveries up to a net goods value of € 1,200.-- are made carriage paid or free German border, not unloaded, at standard freight charges of € 35.--. Deliveries of goods values above € 1,200.-- are made carriage paid, not unloaded, transport and packaging paid. Special freight charges apply to shipments to the German islands in the North Sea or Baltic Sea and other non-standard shipments. Such special freight charges will be invoiced separately. Sea and airfreight as agreed in advance. Our prices consider the wages and material prices applicable at the time of signing the contract. Unless otherwise agreed and if the scheduled delivery date is more than four months after the contract date, we may adapt the agreed price to any wage increases and/or increases in raw materials or consumables prices that occur within the next 4 months.
- Retention of title
To the extent that the customer is an entrepreneur signing the contract as part of their commercial or self-employed activities, we will retain title to all goods supplied until all sums have been paid as claimed for goods and services shipped under the entire business relationship, including collateral claims, claims for damages and cheque payments or bills of exchange, . Other than that, we will retain title to the goods until the purchase price has been paid in full.
Retention of title will also prevail if some of our invoice claims are added to a current account and the remaining balance is accepted.
The customer agrees to treating the goods supplied under retention of title with the care of a prudent businessman and to insure their full value against the risks of fire and shipwreck. Customers will not charge us for storing such goods under retention of title. They hereby assign to us the goods’ invoice value of any indemnity claims they may make for the aforementioned damages against insurers or other parties obliged to pay indemnities
No obligations will arise for us from mixing goods with or connecting them to other objects. A customer connecting, mixing or processing the goods does not gain ownership of the new object as defined by section 947 and foll. of the German Civil Code. Now and for future reference, the customer assigns to us their ownership or joint ownership rights in the new objects resulting from connecting, mixing or processing any goods supplied. Customers may sell or process our property as part of their ordinary course of business only for as long as their financial circumstances do not degrade. In case a customer intends to or does resell the goods in our possession, they agree, at the time of placing the order, to assign to us their present and future claims against third parties. The same applies to other claims made in lieu of the goods under retention of title or made in any other way with regard to such goods, including insurance claims or claims based on an unlawful act in case of loss or destruction. Upon our request, the customer concerned shall inform the third-party buyer of the fact of retention and their duty to make payments to us. The customer shall be allowed to collect the claims assigned by way of security as part of their proper course of business and subject to revocation only. A revocation is justified only if the customer violates their contract obligations, fails to make the agreed payments to us, is overindebted or unable to pay, exposed to insolvency proceedings applied for regarding their assets or a protest of a bill or cheque or if any of their assets have been seized. The above cases will also lead to the expiry of the customer’s right to resell or process the goods. In case of revoking the collection authorisation, the customer agrees to tell us the name or company name and address of their customers or clients. Notwithstanding our right of withdrawal, the customer’s right to process or resell the goods supplied or to collect the claims assigned by way of security, if the customer becomes overindebted or unable to pay or if the customer or third parties apply for starting insolvency proceedings regarding the customer’s assets. In case the customer is in default of payment, we are allowed to request the customer to return the goods under retention of title. Enforcing our retention of title shall be construed as withdrawing from the contract only if we expressly declare our withdrawal in writing. We may satisfy our claims by selling the goods retained and returned in the open market. We undertake, if so requested by the ordering party, to reassign and release the securities bestowed on us, is their value exceeds the claims secured by more than 20 %; we are free to choose the securities to be released.
The customer may neither pledge nor transfer the deliverable concerned as security. We shall be immediately informed in writing and the appurtenant intervention documents transferred to us when a third party takes hold of the goods supplied under a retention of title clause or of any claims assigned. The costs of intervention, including any process costs, shall be borne by the customer as governed by the relationship between the parties.
The customer is generally allowed to practise factoring for their receivables. They shall, however, inform us if they do. In case the customer sells claims under a real factoring contract, the customer will assign to us the replacing claims against the factor and transfer the share in its proceeds reflecting the value of our title in the goods. The customer undertakes to disclose the assignment to the factor in case it is more than ten days in default of paying an invoice or in case its financial circumstances degrade substantially.
Inasmuch as a centralised regulatory body is involved in and guarantees the handling of business transactions between us and the customer, we will transfer ownership in the goods to that regulatory body when the goods are shipped, albeit under the suspensive condition that said body will pay the purchase price. The customer will not be released from payment until said body makes the payment.
- Delivery period
The term of delivery specified by us starts with sending the order confirmation but not before the customer has duly submitted, and we have received, the documents, permits, approvals and other services the customer is obliged to provide or before we have received the agreed down payment.
The term of delivery will always be set such that meeting the deadline is very likely, provided that production
will take its due course. The customer will grant us an adequate grace period in case we exceed the delivery period. The customer may not reject part deliveries, if it can make practical use of the parts supplied. Terms of delivery and installation will be reasonably extended, if the customer asks for changes in the technical make, in cases of force majeure or if unforeseeable events occur that are not subject to our free will or responsibility, irrespective of whether they occur in our or our sub-suppliers’ factories (including interruptions of operations, strike, lock-out, rejects or delays in receiving critical third-party parts or raw materials). The contract will be adequately amended to the extent that such events have a major effect on the economic significance or the content of services or our business operations or if performance of contract proves to be impossible at some later date. Where this is economically unjustifiable, we may choose to cancel some or all of the contract under explicit exclusion of the customer’s claims for damages.
The delivery period shall be considered met if a deliverable has left the factory premises or has been confirmed to be ready for shipment before the end of such delivery period. In case a shipment is delayed for reasons at the customer’s responsibility, we may, on the scheduled and confirmed date of delivery or readiness for dispatch, write the invoice at the terms of payment agreed. We reserve the right to claim warehousing charges amounting to 0.5 % of the invoice total at the beginning of every month, but not to more than 5 % of the invoice total, unless the shipment has to be stored elsewhere at verifiably higher costs. In case the customer suffers damage for reasons at our responsibility, it may claim a compensation for delays amounting to not more than 5 % of the verifiable value of the part of the overall delivery that, owing to the delay, cannot be utilised in due time or according to the contract; in claiming the compensation, the customer agrees to waive all further claims.
- Customer’s right of withdrawal
Apart from the cases discussed in these T&C, the customer may withdraw from the contract, if we are ultimately prevented from dispatching the entire delivery before the date of passing the risk. The customer may also withdraw from the contract, if we are prevented from making some of the deliverables and if the customer can show that the part delivery or provided part of the services is of no interest to the customer; apart from that, the customer may request the price to be adequately reduced. If we are responsible for not meeting an exceptionally binding delivery date, the customer may withdraw from the contract, if it, while making us aware of its imminent withdrawal, sets us an adequate grace period and we fail to deliver within that grace period for our own and actual fault. This is excluding all other customer claims to the extent resulting from clause 11. If none of the parties is responsible for non-delivery, we are entitled a part payment amounting to the share of the contract performed.
8. Custom-made products
If made to customer specifications or drawings, custom-made products cannot be cancelled, exchanged or returned. Our obligations in case of a notice of defect are to remedy the defect but not to deliver a replacement.
Where the goods supplied have been agreed to be inspected and approved, a delivery is considered accepted:
- when both the delivery and possibly the installation have been completed;
- when we have informed the customers accordingly and made it aware of the fictitious acceptance of this clause 8 and requested acceptance testing from it;
- if 12 working days have passed since delivery and installation or the customer has started to use the equipment and, in this case, 6 working days have passed since delivery and installation; and
- if the customer has not accepted delivery within aforementioned period for any other reason than a defect it has notified us of and that prevents or nearly prevents it from using the deliverable. We may immediately withdraw from a contract on making unwarrantable goods (custom-made products) if, after signing the contract and notwithstanding any statutory regulations on the dispensability of setting a deadline, the lack of the customer’s financial capacity is obviously putting our claim for payment at risk.
- Passing of risk and dispatch
Even if goods are transported by our own means of transport or if a delivery is made carriage paid, all risks shall pass to the customer when the goods leave our factory premises or when the customer is informed that the goods are ready for dispatch; this shall also apply if other services (such as installation services) have been agreed or if only a part of the contract is performed. If dispatching or handing over the goods is delayed for reasons the customer is accountable for, the risk shall pass to the customer on the day of readiness for dispatch as notified to the customer by us. Dispatch shall be at the customer’s risk and expense without obligation to find the most cost-efficient method of transport. Objections and complaints on missing parts can be considered only if they are made immediately upon accepting delivery by leaving a written note to that effect on the carrier’s issue slip. Packaging material will be charged at its original costs and cannot be returned.
- Terms of payment
Invoices are payable within 30 days after the invoice date. Invoice amounts are due without deduction. The date of receiving an invoice is the relevant reference for the due date for payment. A 2 % discount applies to invoices paid within 10 days after the invoice date. A discount on new invoice is not granted for as long as older invoices have not been paid yet. Bills of exchange will be accepted only upon prior agreement. Bills of exchange and cheques will be accepted for payment only. Discounts and expenses shall be paid by the orderer. Interests of 8 % points above the applicable base lending rate or, if higher, the damage caused by default will be charged for late payments, provided that the customer is an entrepreneur signing the contract as part of their commercial or self-employed activities. Otherwise, the interest rate is 5 % points above the applicable base lending rate. The customer may, however, show that we did not suffer any damage or that the damage is substantially lower than the flat penalty rate. Unless open invoice amounts including any interest for default have been fully paid, we shall be under no obligation to make further deliveries without a non-delivery being considered a delay in delivery. Unless the customer pays its equivalent in advance or provides sufficient security, we may refuse performance, if a situation occurring after signing the contract justifiably leads us to believe that we will not receive all of the customer’s equivalent on time. This provision particularly applies if, after the contract has been signed, our credit insurer refuses to insure the price of the deliverable because of the customer’s credit rating. The customer may not refer to non-acknowledged or not finally approved counterclaims to justify any balancing of our claims or its non-payment for such claims. Provided that the customer is an entrepreneur signing the contract as part of its commercial or self-employed activities, its notice of defect shall affect neither its duty to pay nor any due dates. A customer acting as an entrepreneur who signs the contract as part of its commercial or self-employed activities will also waive its right to refuse performance or right of retention, unless we or our legal representatives or agents can be shown to have violated major parts of the contract or the customer’s counterclaims used to justify its right of refusal or retention are undisputed, legally binding or ready for judgment. We may, at any time, cancel any forbearance previously granted by us particularly any forbearance implied by accepting a bill of exchange. Our agents are not authorised to collect any payments on our behalf. If goods were ordered erroneously and are therefore returned of if they are returned without giving any reasons (except for incorrect ex works deliveries), we shall be eligible for a handling fee amounting to 10 % of the net goods value. Any discounts granted by us will not apply in case of judicial or extrajudicial settlement proceedings, insolvency or late payments (s. 286 of the Germany Civil Code) or collection by court order.
Complaints and notices of defect will be considered only if filed in writing within 3 working days after taking delivery; otherwise, the object of complaint is considered as accepted by the customer. A written complaint about latent defects will be sent as soon such latent defect is discovered. Section 377 of the German Commercial Code applies. Apart from the aforementioned duty to examine and complain, the customer shall again file written complaints about obvious defects within 3 working days after taking a delivery. The deadline will be considered observed if the complaint is sent on time. Further processing and/or installing any products supplied is always considered a waiver of a notice of defect, provided that the defect was obvious. The warranty period for new products supplied is limited to 12 months after delivery and/or its acceptance and, in fact, to supplementary performance. If used objects are delivered, the right to complain about material defects expires after 6 months already. We will decide on the type of supplementary performance, that is to say, we will decide whether to remedy the defects complained about by the customer on time within a reasonable period of time and at no cost chargeable to the customer, or to deliver a replacement free from defects. We have the right to refuse supplementary performance if such performance would cause us unreasonable costs. In that case, we may choose to request an abatement of the agreed price instead. Likewise, if supplementary performance or replacement fail several times, the customer may request a reduction of the invoice amount or a cancellation of the sales contract. Warranty is only granted for defects that can be shown to be caused by circumstances applicable before the passing of risk and particularly for defects caused by faulty construction, low-quality material or poor workmanship. This provision does not apply to the sale of consumer goods as defined by law. Liability for defects neither applies to defects attributable to inappropriate or incorrect use, faulty operation, natural wear, inappropriate consumables, incorrect handling and care etc., nor to defects attributable to poor installation or commissioning by the customer or a third party. As regards major third-party products included in our delivery, our liability shall be limited to the assignment of warranty claims we may raise against our suppliers. Notwithstanding all other requirements and the provisions of these terms of delivery, warranty for such defects may be claimed against us only if the judicial enforcement of the aforementioned claims against the manufacturer or supplier failed. All warranty claims of the customer in excess of the aforementioned claims are excluded, unless clause 7 above stipulates otherwise with particular regard to personal injury, material damage to goods not included in the delivery, loss of profit, consequential costs etc. This disclaimer of warranty particularly applies to all claims for damages, unless such claims are justified by gross negligence (culpable fault) or intent on our part, our legal representatives’ or agents’ part. Claims for damages caused by the impossibility of performance, default, positive violation of contractual duties, faults made when signing the contract, or unlawful acts are excluded, unless their cause is intent or gross negligence on our or one of our executives’ part. If claims for damages are justified just by a negligent breach of obligations by us or our agents, our liability is limited to the foreseeable damage typical for the contract. If so, our liability to pay for material damage or personal injury is limited to € 2,556,460 per claim (equivalent our current cover of our liability insurance), even if such breach concerns major contract duties. In that case, we may choose to perform our liability mainly by assigning our entitlement to our liability insurer’s performance. The above liability limitations shall not apply to damages caused by a risk to a person’s life, limb or health which, in itself, is due to a negligent breach of obligations on our part or an intentional or negligent breach of obligations on the part of one of our legal representatives or agents. This disclaimer of warranty shall neither apply, if liability for personal injury or damage to privately used objects is mandatory pursuant to the Act on the Liability for Faulty Products of December 15, 1989, as amended. Rejected goods may not be returned to us, unless previously agreed. Ownership of faulty objects replaced by us is transferred to us.
12. Place of performance and venue
The parties agree on Arnsberg, Germany, as the place of performance regarding all rights and obligations under the contract. The contractual relationship is subject to the laws of the Federal Republic of Germany. The Law on the International Sale of Goods is excluded. The place of venue for all matters concerning the business relationship between registered merchants is Arnsberg, Germany.
If any of the above provisions is or becomes invalid, that shall not affect the validity of any other provision or the entire transaction. In case there are any omissions in the contract or these terms of delivery, the parties agree to fill these gaps with the legally effective provisions that best reflect the economic intent of the contract and that the parties hereto would have agreed had they realised the existence of such omission. The customer’s rights under the contract are non-transferable. We collect or use probabilistic values based, inter alia, on address details for the purpose of deciding on the start, performance or termination of the contractual.
With regard to the delivery and installation of cooking and smoking equipment, cooking kettles, cooking chambers, smoke generators, smoke elimination equipment, equipment for climatic ageing and afteraging, the following supplements to our general terms of delivery apply:
- Delivery and installation
The customer shall bear the costs of any and all installations required. Equipment will not be set up by our installers, unless all construction work has first been completed such that there are no obstacles to the installation process. On-site lines and pipes will be in place up to the equipment in accordance with out specifications. Connecting lines or pipes to the equipment will be provided on-site along with the installation process. On the scheduled date of installation, the requested skilled and qualified labour will be available on site if so requested by our installers. Construction work will comply with the building regulations concerning the construction of combustion systems. Electrical equipment will be connected pursuant to the applicable VDE regulations. The fixed installation price agreed shall apply to the one-time on-site presence of one of our installers only, provided that the installer can start the uninterrupted installation process immediately. Where installation or commissioning are delayed by on-site circumstance not under our accountability, the customer shall bear costs of waiting times and additional on-site visits of our installers. The parties agree that the specified installation and production dates are approximate. Our separate terms of carrying out installations and repairs additionally apply and take priority for installing, servicing and repairs.
- Liability for defects
The warranty does not include any damages not under our accountability but caused by poor construction workmanship, inappropriate smokestack installations, chemical and electrical influences, a non-standard supply of energy, excessive stress or exposure and inappropriate consumables. Modifications and remedies of any kind or installing third-party parts without our consent exclude any and all liability on our part. We may choose to serve warranty claims by repairing or replacing the defective parts. If supplementary performance or replacement fail several times, the customer may request a reduction of the invoice amount or a cancellation of the sales contract. If the subject matter of the contract includes installation or repairs, only reducing the price is available in cases of warranty. The customer will grant enough time and opportunity for us to make the required changes and/or to supply spare parts. We disclaim any and all liability for indirect damages that may occur when commissioning the equipment and training the personnel. Other than that, the terms of warranty of our general terms of delivery and payment (clause 11) apply.
BASTRA GMBH Arnsberg, Germany, March 2010