General terms and conditions

General Terms and Conditions Biogastechnik Süd GmbH (Status: 01.05.2015)

I. Scope

These terms and conditions apply to all contracts concluded between the customer and us for the delivery of systems, individual components, equipment, accessories, but also for the delivery of other items, as well as for contracts for assembly, maintenance and repair services. They shall also apply to all future business relations, even if they are not expressly agreed. We shall only accept the customer's terms and conditions that are contrary to or deviate from our General Terms and Conditions if we have expressly agreed to their validity in writing.

II. offers, conclusion of contract, documents provided
  1. We can accept an order from the customer within two weeks by confirming the order or by actually delivering or rendering services.
  2. Our offers are subject to change and non-binding, unless we have designated them as binding.
  3. We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, e.g. calculations, drawings etc. These documents may not be made available to third parties unless we give the customer our express written consent. If we do not accept the customer's order, these documents must be returned to us immediately.
III. prices
  1. Unless otherwise agreed, prices are ex warehouse or ex works of the respective manufacturer. Any packaging costs as well as the applicable value added tax are added.
  2. Carriage paid prices are subject to the condition of unhindered traffic.
  3. For repeat orders, the prices of the first transaction only apply if expressly agreed.
IV. Terms of payment
  1. Payments are due immediately and without deduction after execution of our deliveries / services and invoicing, unless otherwise agreed. Interest on arrears is charged at 8% above the respective base rate p.a. We reserve the right to assert higher damages caused by default. We are entitled to initially offset payments against older debts. If costs and interest have already been incurred, we shall be entitled to set off payments first against costs, then against interest and finally against the principal claim.
  2. The customer is only entitled to set off warranty claims or other counterclaims if these are legally established, undisputed or acknowledged by us.
  3. The customer may only exercise a right of retention if his counterclaim is based on the same contract.
  4. A payment is only considered to have been made when we can dispose of the amount. In the case of payment by cheque or bill of exchange, payment is only deemed to have been made when the cheque or bill of exchange has been honoured.
  5. We assume no liability with regard to the receipt of payments by the purchaser which are not made directly to Biogastechnik Süd GmbH or an expressly authorised person.
V. Delivery and performance time, delay in performance
  1. Delivery dates or periods are non-binding information if they have not been agreed as binding.
  2. In the event of a delay in delivery, we shall only be liable if the delay is due to an intentional or grossly negligent breach of contract for which we are responsible. Our liability is limited to the foreseeable, typically occurring damage if the delay in performance is not due to an intentional breach of contract for which we are responsible. In the event that a delay in delivery is due to a culpable breach of a material contractual obligation, we shall be liable in accordance with the statutory provisions with the proviso that in this case too, liability for damages shall be limited to the foreseeable, typically occurring damage. We do not assume any liability for consequential damage caused by failure of the system.
  3. The customer is obliged to accept our delivery or service at the latest 2 weeks after written notification of our readiness to perform. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for any damages incurred by us in this respect, including any additional expenses. We reserve the right to make further claims. Insofar as the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
VI. transfer of risk - dispatch

The risk is transferred to the buyer as soon as the consignment is handed over to the person carrying out the transport. Insurance against damage in transit shall be effected at the request and expense of the buyer.

VII. warranty and general liability Contracts with companies
  1. In the case of deliveries, the customer shall only be entitled to claim for defects if the customer has fulfilled his obligation to inspect the goods and give notice of defects in accordance with § 377 HGB.
  2. In case of justified notices of defect, we are entitled to subsequent performance within a reasonable period of time. Only if the subsequent performance has failed or is refused by us, the customer may, at his discretion, demand a reduction of the purchase price/compensation for work, withdraw from the contract or claim damages under the following conditions.
  3. The customer's warranty claims shall expire after 1 year. The period of limitation begins
    • in the case of pure supply contracts with the delivery of the goods to the customer,
    • for contracts for work and contracts for work and materials after acceptance.
      A system installed and delivered by us shall be deemed to have been accepted two weeks after its commissioning. Upon acceptance, our liability for obvious defects ceases to apply unless the customer has expressly asserted such defects in writing in the acceptance protocol.
  4. Irrespective of the following limitations of liability, we shall be liable in accordance with the statutory provisions for damage to life, body and health resulting from a grossly negligent or intentional breach of duty by us, our legal representatives or vicarious agents, as well as for damage covered by liability under the Product Liability Act.
  5. We shall only be liable for other damages if they are based on intentional or grossly negligent breaches of contract or fraudulent intent on our part, on the part of our legal representatives or our vicarious agents. In this case the liability for damages is limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted with intent or gross negligence. We do not assume any liability for third party, secondary and consequential damages.
  6. We shall also be liable for damages caused by the simple negligent breach of such contractual obligations which make the proper execution of the contract possible in the first place and on whose compliance the buyer regularly relies and may rely. However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. In doing so, we do not assume liability for third party, secondary and consequential damages.
  7. Any further liability is excluded irrespective of the legal nature of the asserted claim; this applies in particular to tortious claims or claims for compensation for futile expenditure in lieu of performance; this shall not affect our liability pursuant to Section VII. 4.
VIII. Warranty and general liability Contracts with consumers
  1. If there is a defect in the goods for which we are responsible, we are obliged to make a subsequent delivery or repair, excluding the rights of the buyer to withdraw from the contract or to reduce the purchase price, unless we are entitled to refuse subsequent delivery or repair on the basis of statutory regulations. The buyer must grant us a reasonable period of time for subsequent delivery or repair.
  2. The customer's warranty claims shall expire after 1 year. The period of limitation begins
    • in the case of pure supply contracts with the delivery of the goods to the customer,
    • for contracts for work and contracts for work and materials after acceptance.
      A system installed and delivered by us shall be deemed to have been accepted two weeks after its commissioning. Upon acceptance, our liability for obvious defects ceases to apply unless the customer has expressly asserted such defects in writing in the acceptance protocol.
  3. Irrespective of the following limitations of liability, we shall be liable in accordance with the statutory provisions for damage to life, body and health resulting from a grossly negligent or intentional breach of duty by us, our legal representatives or vicarious agents, as well as for damage covered by liability under the Product Liability Act.
  4. We shall only be liable for other damages if they are based on intentional or grossly negligent breaches of contract or fraudulent intent on our part, on the part of our legal representatives or our vicarious agents. In this case the liability for damages is limited to the foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted with intent or gross negligence. We do not assume any liability for third party, secondary and consequential damages.
  5. We shall also be liable for damages caused by the simple negligent breach of such contractual obligations which make the proper execution of the contract possible in the first place and on whose compliance the buyer regularly relies and may rely. However, we shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. In doing so, we do not assume liability for third party, secondary and consequential damages.
  6. Any further liability is excluded irrespective of the legal nature of the asserted claim; this applies in particular to tortious claims or claims for compensation for futile expenditure in lieu of performance; this shall not affect our liability pursuant to Section VIII.
  7. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
IX. Consequences of non-performance by the buyer
If the buyer does not fulfil his obligations from the contract to accept the object of purchase and he is in default of acceptance, we shall be entitled to withdraw from the contract and to demand an amount of 25 % of the purchase sum as flat-rate compensation.
X. Reservation of title
  1. The delivered goods (goods subject to retention of title) remain our property in the extended retention of title until all claims we are entitled to against the customer now or in the future have been settled. The customer is obliged to treat the goods subject to retention of title with care as long as the ownership has not yet been transferred to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the buyer must carry this out in good time at his own expense.
  2. In the event that the buyer acts in breach of contract, e.g. in the event of default in payment, we shall be entitled to take back the reserved goods after having set a reasonable deadline. If we take back the goods subject to retention of title, this constitutes a withdrawal from the contract. If we seize the goods subject to retention of title, this is a withdrawal from the contract. We are entitled to use the reserved goods after taking them back. After deduction of a reasonable amount for the costs of realisation, the proceeds of realisation shall be offset against the amounts owed by the buyer.
  3. The customer is entitled to sell and/or usage of the goods subject to retention of title in business transactions as long as he is not in default of payment. Pledging or transfer by way of security is not permitted. By way of security, the customer hereby assigns to us in full any claims arising from the resale or on any other legal grounds in respect of the reserved goods; we accept the assignment. We revocably authorise the customer to collect the claims assigned to us for his account in his own name. The direct debit authorisation can be revoked at any time if the buyer does not properly fulfil his payment obligations.
  4. Any processing or transformation of the reserved goods by the customer shall in any case be carried out for us. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items at the time of processing. The same applies to the new object resulting from processing as for the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other mixed items at the time of mixing. In order to secure our claims against the customer, the customer also assigns to us such claims which accrue to him against a third party through the combination of the goods subject to retention of title with a property; we hereby accept this assignment.
  5. In the event of access by third parties to the reserved goods, in particular seizures, the buyer shall draw attention to our ownership and inform us immediately so that we can enforce our ownership rights. As far as the third party is not able to compensate us for the judicial and extrajudicial costs of a lawsuit according to § SECTION 771 ZPO the customer shall be liable for the loss incurred by us.
  6. the customer shall be liable for the loss incurred by us. 20 % The selection of the securities to be released is incumbent on us.
XI. Severability clause

Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of the remainder of the contract. In place of this ineffective provision, the statutory provision shall apply.

XII. Place of performance, place of jurisdiction, applicable law
  1. The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as for all disputes arising between us and the buyer from the contracts concluded between us is our registered office. However, we are also entitled to sue the customer at his place of residence and/or business.
  2. This contract and the entire legal relations between the parties shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
  3. The contract language is German.

The TERMS AND CONDITIONS are also available as PDF under AGB-BTS_2015-05-04_DE retrievable.