General Standard Business Terms and Conditions of BayWa AG
This document is only valid and binding in its original German version
(As of: 02/2017)
All agreements are based on the following General Terms and Conditions of Business of BayWa AG (“the Company”). For contracts with distance selling or internet sales, the Special Terms and Conditions for Business for e-commerce business transactions apply on a supplementary basis. For the sale of seeds, the Specific Terms and Conditions (Seeds) apply additionally.
Any General Terms and Conditions of Business of the contractual partner (“Customer”) do not apply, even if the Company does not explicitly contradict them.
1. Price increase. An increase in labour costs, material costs or VAT after conclusion of the agreement is charged to the customer in the same amount if delivery is to take place more than 4 months after conclusion of the agreement. With a price increase of more than 5 %, the customer can withdraw from the agreement.
2. Delivery, freight, packaging, pallets. If the Customer is an entrepreneur, delivery is executed for its account and at its risk. Part-deliveries are permitted; they are regarded as separate deliveries. Packaging and pallets are charged at usual rates. Pallets are taken back by the company supplying them only in non-defective condition and minus appropriate handling and wear costs. The Customer is to notify the freight forwarder of loss or damage during transport and obtain written confirmation before accepting the goods. Where direct delivery to the Customer is agreed, fulfilment of the contractual supply obligations occurs on delivery of the goods and confirmation of receipt by signature of the Customer on the delivery note. Clause 7 applies.
3. If delivery free to construction site is agreed, the Customer is to ensure that the access route and the construction site can be driven on with a 40 tonne lorry (total laden weight of the trailer). The Customer is responsible for unloading, which occurs at his own risk. If delivered by mobile crane, the normal unloading costs are charged. Additional costs due to non-acceptance at the point of delivery are charged to the Customer.
4. Delivery of fuels and lubricants, heating oil and solid fuels. The agreed price is based on the quantity ordered. In the event of higher or lower delivery quantities, the price increases or decreases according to the scale prices of the Company valid on the day of the order. No liability is accepted for certain temperatures of the goods. The Customer can obtain information on the effectiveness of energy efficiency measures and corresponding offers in the publicly available supplier list of the Federal Office for Energy Efficiency (see www.bfee-online.de).
5. Force majeure /Reservation of self-delivery. Events of any kind for which both parties are not responsible (work stoppages, operational faults, transport difficulties, delivery blocks, natural events, unrest, war etc.), release the Company from the duty to deliver for the duration of the hindrance. The contract may be terminated by either party if the circumstances of force majeure continue for more than thirty (30) days without interruption. If the Customer is a consumer, self-delivery on time is reserved if delivery of the Company does not take place for reasons for which it is not responsible. In the case of companies, legal entities according to public law and special funds under public law, self-delivery on time is generally reserved.
6. Export control. The conclusion of the contract is subject to the condition precedent that there are no impediments due to national or international regulations, particularly export control regulations, embargo or other sanctions. Deliveries and services for the completion of the concluded contracts are subject to the condition that the performance of the contact is not prevented by any of the aforementioned impediments.
7. Warranty, term of limitation. If the Customer is an entrepreneur, a legal entity under public law or special funds under public law, he can demand elimination of the defect as post-fulfilment. If this fails, his rights are determined according to § 437 nos.2 and 3 BGB (German Civil Code); the right to subsequent delivery is excluded. In the case of sale of used movable property to entrepreneurs, legal entities under public law or special funds under public law, claims for defects are excluded. In the event of sale of new movable property to entrepreneurs as well as sale of used movable property to consumers, the claims for defects expire after one year. §§ 438 section 1, nos. 2, 479 and 634 and section 1, no. 2 BGB remain unaffected. If the Company is liable in accordance with clause 8, the statutory expiry period remains valid.
8. Liability. The Company is fully liable in cases of gross negligence and intent in accordance with the statutory regulations. In the event of damage resulting from loss of life, injuries, health impairments, infringements of the product liability act or of basic contractual obligations, the Company is also liable for every case of negligence. Basic contractual obligations are such obligations that performance characterizes the nature of the contract and the Customer may rely upon. Any liability beyond this is excluded.
9. Payments, unless otherwise agreed, are to be effected without deductions immediately on acceptance of the goods. The Company reserves the right to refuse cheques and other non-cash means of payment. Acceptance is always carried out only on account of payment. Payments in foreign currencies are credited according to the bank statement. Bank charges are to be borne by the Customer.
10. VAT exempted deliveries. If deliveries are exempted from VAT according to §§ 4 No 1 lit. b) in combination with § 6 a UStG, the Customer is obliged to sign and return to the Company an entry certificate within 30 days after delivery of the goods sold by the Company itself or by a third party instructed by the Company. In the case the Customer did not fulfil his aforementioned obligation, VAT will be invoiced subsequently to the Customer. The sold goods will remain property of the Company until receipt by the Company of either the entry certificate or the payment of the VAT as subsequently invoiced.
11. Announcement period for the collection of SEPA direct debits. If the Customer participates in the SEPA direct debit system, he is informed of collection one working day beforehand. The collection of regular payments of the same amounts is announced once a year.
12. Return of goods. Returns require the written permission of the Company, except for returns based on statutory rescission or withdrawal rights. Only defect-free goods in stock can be credited in the case of carriage paid return to the supplier and on presentation of the invoice minus a flat-rate processing fee of at least 15 % of their value. Special productions and goods specially purchased at the request of the Customer (goods on commission) are generally excluded from return.
13. Duty to retain documents. If the customer purchases work or other services in connection with real estate and is not an entrepreneur or if he uses these as an entrepreneur for his non-business activities, he is obliged in accordance with § 14 b section 1 clause 5 UstG (German Value Added Tax Act) to keep the invoices until the end of the year after next.
14. Delivery date. The delivery date corresponds to the date of invoice unless otherwise stated in the invoice.
15. Assignment. The assignment of rights to third parties by the Customer is not permitted without the permission of the Company. This does not apply to consumers (“Verbraucher”).
16. Off-setting. The Customer can only offset against a demand which is undisputed or has been established as legally binding unless the demand results from the same contractual relationship.
17. Place of fulfilment for the mutual services is the respective seat of the business unit from which the Company provides the service; this does not apply with respect to services to be provided by consumers.
18. Assembly. Unless otherwise agreed, installation and assembly, e.g. of equipment and machinery, are not included in the price.
19. Data protection. Personal data are collected, stored and processes in accordance with § 28 BDSG (Federal Data Protection Act). This also includes the transmission of these data for verifying and monitoring credit to credit agencies. The personal data (name, address and date of birth) are sent to the companies SCHUFA AG, Kormoranweg 5, 65201 Wiesbaden and infoscore Consumer Data GmbH, Rheinstr. 99, 76532 Baden-Baden to verify credit-worthiness. The Company will obtain the credit-worthiness information on the basis of mathematical-statistical methods using address details. The Customer can receive information on the data stored with regard to his person free of charge from these companies.
20. Reservation of title.
20.1. The Company reserves title on its property until complete fulfilment of the contract, in transactions with entrepreneurs until redemption of all receivables that have already resulted from the business relationship or the additional receivables arising in direct connection with the delivered goods (interest payable for use, damages for delays etc.). In the case of business in a current account, the reservation of title also serves as security for the outstanding balance of the Company. The processing and machining, assembly or other use of goods subject to reservation of title is deemed to have occurred on behalf of the Company. If the goods subject to reservation of title are mixed, connected or combined, mixed or blended with other objects (“third-party goods”), the Customer assigns his property or co-ownership rights to the new owner or co-owner to the accepting company and stores these with the due diligence of a prudent businessman free of charge for the Company.
20.2. If goods subject to retention of title are sold by the Customer alone or together with third-party goods, the Customer hereby assigns receivables arising from re-sale to the value of the goods subject to reservation of title with all ancillary rights to the accepting company. The value of the goods subject to reservation of title is the invoice amount of the Company plus a security premium of 38 %. All claims of the Customer resulting from agreements in connection with the processing or installation of the goods subject to reservation of title and claims arising on the part of the Customer due to connection of the goods under reservation of title with the real estate of a third party are assigned in the same way. The assignment in advance also extends to the claim for the balance.
20.3. If the Customer installs goods subject to reservation of title in his own real estate as an essential part, he herewith assigns the claims arising from the sale of the real estate or of real estate rights in the amount of the value of the goods subject to reservation of title (including the security premium of 38 %) with all additional rights to the company accepting the assignment. The assignment in advance also extends to the claim for the balance.
20.4. The customer is entitled to re-sell, use or install the goods subject to reservation of title only in the normal, orderly course of business and only on condition that the receivables are actually transferred to the Company in accordance with the above clauses. The customer is not entitled to other disposals of the goods subject to reservation of title, in particular pledging or assignment by way of security. The Customer may not agree prohibition of assignment with his customers.
20.5. The Company authorises the Customer, subject to revocation, to collect the assigned claims in accordance with the above clauses. The Company will not make use of its own recovery authorisation as long as the Customer meets his payment obligations, also towards third parties. On the request of the Company, the Customer has to name the debtor of the assigned claim and provide comprehensive information – although it is not sufficient to allow the Company to inspect the books and business papers – and inform the debtor of the assignment. The Company itself is also entitled to inform the debtor of the assignment. In the event of stoppage of payment, application for or opening of bankruptcy proceedings or implementation of an out-of-court settlement with the creditors regarding the settlement of debts, the rights of the Customer to re-sell, use or install the goods subject to title and authorisation for collection of the assigned claims lapses.
20.6. The Customer is to inform the Company immediately of compulsory enforcement measures of third parties with regard to goods subject to reservation of title or the (previously) assigned receivables and present the documents necessary for objection.
20.7. In the event of defaults in payment on the part of the Customer, the Company is entitled to take back the goods supplied subject to reservation of title following one reminder and the customer is obliged to return them. The Customer grants the Company the right to enter his premises, to mark or remove the goods supplied. The costs for taking back the goods are borne by the Customer.
20.8. If the value of the securities granted exceeds the claims to be secured by more than 38 %, the Company is obliged to reassign or release the securities at the request of the Customer.
21. Applicable law and place of jurisdiction. German law applies to the exclusion of the UN Sales Convention. Excluded from the choice of law is consumer protection law compulsorily applicable outside of Germany. The language of the original agreement is German. All disputes between merchants (“Kaufleute”) shall be subject to the jurisdiction of the competent court in the district where the acting business unit of the Company is located.
22. Alternative dispute resolution. The Company does not participate in any alternative dispute resolution for the consumer arbitration body (“Verbraucherschlichtungsstelle”).