General Terms and Conditions of Sale and Delivery

 

Preamble

The General Terms and Conditions of Sale and Delivery of banke GmbH (“General Terms and Conditions”) have been drafted in a German and an English version, which is used for international business transactions. The German version of these General Terms and Conditions shall prevail exclusively. As a contractor, banke GmbH takes on various orders for the manufacturing and/or delivery of components, machinery, creation of plants, and for the provision of other services. Such orders are exclusively accepted under the following conditions.

§ 1    Scope of application, form of contract

(1)    These General Terms and Conditions apply to all our business relationships with our clients (“purchasers”). These General Terms and Conditions shall only apply if the purchaser is an entrepreneur (within the meaning of Section 14 of the German Civil Code), a corporate body under public law or a public separate estate.

(2)   These General Terms and Conditions shall apply, including, but not limited to any contracts regarding the sale and/or delivery of movable properties (“goods”) irrespective of whether the goods are manufactured by ourselves, or whether such goods are purchased from external suppliers (Sections 433 and 650 of the German Civil Code). Unless otherwise agreed, the Terms and Conditions of Sale and Delivery valid at the time of the purchaser’s order or, in any case, in the last version issued to the purchaser in writing, shall apply as a framework agreement for any similar future contracts, and without the need to make reference to these Terms and Conditions in each individual case.

(3)    Our Terms and Conditions of Sale and Delivery shall apply exclusively. Any deviating, contradictory or additional General Terms and Conditions of the purchaser shall become part of the agreement only if and to the extent as we have expressly agreed. This consent requirement shall apply in any case, e.g. also if we make a delivery to the purchaser without any reservation while having notice of the purchaser’s General Terms and Conditions.

(4)    Any individual understandings with the purchaser (including subsidiary agreements, additions, and amendments) shall prevail over these General Terms and Conditions. Subject to rebuttal, the content of such understanding shall be proven by means of a written agreement or by our written confirmation.

(5)    Any statements and notifications of the purchaser regarding the agreement that are relevant in law (e.g. setting a deadline, notice of defects, withdrawal from the contract or price reduction) must be made in writing (e.g. by mail, email, telefax). Any statutory formal requirements, and further requisite evidence remain unaffected, in particular in cases with doubtful legitimacy of the declaring party.

(6)    Any reference made to the validity of statutory provisions is made for the avoidance of doubt. The statutory provisions shall apply without such clarification, unless they were amended or expressly excluded in these General Terms and Conditions of Sale and Delivery.

§ 2    Offer and conclusion of contract

(1)    Our offers are subject to confirmation and non-binding. This also applies to any catalogs, technical documentation (such as drawings, plans, photographs, process flow diagrams, technical files, process and program descriptions, computations, calculations, normative references to DIN standards), other product specifications or documents, also in digital form, we have provided to the purchaser, and to which we reserve property rights and copyrights.

(2)    Any documents relating to our offer, such as figures, drawings, indications of weight and measurements, process flow diagrams, as well as any accompanying descriptions shall only be binding within the usual tolerances, unless the parties have agreed on such items to be binding in writing.

(3)   In case of the purchaser not placing an order for which he requested us to provide any further documents (drafts, plans, drawings, computations, etc.), we reserve the right to invoice our planning and engineering services based on the respective costs rates currently in force.

(4)   The purchaser’s order of the goods shall be considered as a binding contractual offer. Unless otherwise stated in the order, we may accept this contractual offer within 14 days after receipt.

(5)   The acceptance of the offer can either be declared in writing (e.g. by a confirmation of order) or by delivery of the goods to the purchaser.

§ 3    Delivery deadline and default in delivery

(1)   The delivery deadline is either agreed by individual case decisions, or stated by us together with the acceptance of the order.

(2)    If any binding delivery deadlines cannot be met for reasons beyond our control (non-availability of the service), we shall immediately notify the purchaser, and communicate the new estimated delivery deadline. If the service remains non-available until the new delivery deadline, we may, fully or partially, withdraw from the contract, and shall immediately reimburse any compensation already received from the purchaser. Non-availability of the service in terms of the previous sentence is deemed to be the case if we have not received the delivery from our supplier in time; if we have made a congruent hedging transaction; if neither we, nor our supplier are responsible for such non-availability; or if we are not obliged to procurement in the individual case.

(3)    In cases of force majeure, industrial disputes, riots, regulatory action, pandemics (e.g. COVID-19), shortage of raw materials, and any other inevitable and serious events, we shall be exempted from the duty to perform for the duration of the respective event and to the extent of its effect. This also applies if any of these events occur when we are already in default. We commit ourselves to immediately notify the purchaser to the extent reasonable and to adapt our liabilities to the changed situation in good faith and trust.

(4)   The occurrence of the delay in delivery is based on the statutory provisions. In any case, however, the purchaser is required to send a reminder.

(5)   The purchaser’s rights according to these General Terms and Conditions of Sale and Delivery, and our statutory rights, including, but not limited to cases of an exclusion of the obligation to perform (e.g. in cases of impossibility or unacceptability of performance and/or supplementary performance) remain unaffected.

§ 4    Delivery, transfer of risk, acceptance, default of acceptance

(1)   Delivery shall be made from stock; this shall also be the place of fulfillment for the delivery and any supplementary performance that may be required. Delivery can be made to any other destination (sale by dispatch) at the purchaser’s request and expense. Unless otherwise agreed, we shall be entitled to choose the delivery method (including, but not limited to carrier, dispatch route, packaging).

(2)   The risks of accidental loss and accidental deterioration of the goods are transferred to the buyer upon delivery at the latest. In case of sale by dispatch, however, the risks of accidental loss and accidental deterioration of the goods, as well as the risk of delay is already transferred to the carrier, haulage contractor or any other person or entity taking care of the shipping at the time of delivery to such party.

Sale by dispatch is also expressly considered to be given if the order includes assembly or initial operation services. As soon as the goods are delivered to the carrier, they can no longer be influenced or monitored by us. After that, the purchaser shall be responsible for proper storage and protection of the goods, so that we can provide the assembly or initial operation services at a later date.

(3)    If the purchaser is in default of acceptance, if he fails to cooperate, or if our delivery is delayed for any reasons attributable to the purchaser, we are entitled to claim any damages resulting therefrom, including additional expenditures (e.g. warehousing costs).

Our statutory claims (including, but not limited to compensation for additional expenditures, reasonable compensation, termination) shall remain unaffected.

(4)   Inspection and acceptance:

1. Any contractual party can request formal acceptance of the completed services, especially in case of contracts for specific work.
2. An acceptance protocol containing the result of the inspection and any identified defects shall be prepared and signed by the contractual parties.
3. The purchaser is not entitled to refuse acceptance in case of minor defects.
4. If proof of performance was agreed, it must be accepted by the purchaser, as soon as we offer it.
5. The purchaser shall accept the installation upon provision of a positive proof of performance.
6. If our first proof of performance is unsuccessful and if the machinery is still put into and kept in operation, the date of initial operation shall be considered as the date of acceptance, however, this does not affect our obligation to provide proof of performance.
7. If no acceptance takes place upon our request, although no significant defects have been notified, acceptance is considered to have taken place on the date of the initial operation, however, 1 month after the first request for acceptance at the latest. The purchaser will be informed about this legal consequence upon request for acceptance.

§ 5    Prices and terms of payment

(1)    Unless otherwise agreed in the individual case, our prices valid at the time of conclusion of the contract shall apply as ex-works prices plus statutory value added tax.

(2)    In cases of sale by dispatch (Section 4 para 1), the purchaser shall bear the shipping costs ex works, as well as costs for any transport insurance the purchaser may request. A flat rate for transport costs, which is communicated upon acceptance of the offer (Section 2 para 5), is considered to be agreed, unless we invoice the actual transport costs for the individual case. This flat rate does not include transport insurance. The purchaser shall bear any customs, fees, taxes, or other public charges.

(3)    Unless otherwise agreed in the individual case, the purchase price shall be due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. Within the course of an ongoing business relationship, however, we are entitled to, fully or partially, carry out delivery against payment in advance. Such reservation shall be declared upon confirmation of the order at the latest.

(4)    The purchaser shall be in default upon expiry of the above term of payment. During the default period, the purchase price is subject to default interest at the applicable statutory rate. We reserve the right to assert further damages caused by the default. Our right to claim the commercial interest on maturity (Section 353 of the German Commercial Code) remains unaffected for any business-to-business relationships.

(5)   The purchaser shall only be entitled to the rights of set-off or retention if his claims have been determined without further legal recourse, or if such claims are uncontended. In case of defective delivery, the purchaser’s counter-rights, including, but not limited to Section 7 para 6 sentence 2 of these General Terms and Conditions remain unaffected.

(6)    If it becomes apparent after the conclusion of the contract (e.g. by an application for insolvency) that there is a risk to our claim to the purchase price due to the purchaser’s inability to perform, we are entitled to refuse performance according to the statutory provisions, and - after setting a deadline, if necessary - we may be entitled to withdraw from the contract (Section 321 of the German Civil Code). In case of contracts for the manufacturing of unjustifiable items (products made to specification), we can immediately withdraw from the contract; the statutory provisions making a deadline legally superfluous remain unaffected.

(7)   We are entitled to invoice additional claims arising from material prices or increases of agreed wages until the date of delivery or completion, if the date of order dates back at least 4 months. In case of a price increase of more than 5 % after the conclusion of the contract, we also have the right to withdraw from the contract.

(8)    Assembly and initial operation services are invoiced according to expenditure based on the statutory or standard working hours. We have the right to make use of third parties for assembly and services.

(9)    Any works without the scope of the order, including, but not limited to preparation works and subsequent works, are not included in the price and will be charged at the usual daily rates based on the time sheet. This regulation also applies to any waiting time within the course of the assembly or initial operation that is not attributable to us.

§ 6    Retention of title

(1)    We reserve the ownership of the sold goods until full payment of any current and future claims from the purchase contract, and from an ongoing business relationship (guaranteed claims) has been received.

(2)    Any goods subject to retention of title must not be pledged or transferred to third parties before full payment of the guaranteed claims. The purchaser undertakes to immediately provide us with a written notification if an application to open insolvency proceedings is made, or if any goods belonging to us are accessed by third parties (e.g. seizure).

(3)    If the purchaser acts in violation of the contract, including, but not limited to the non-payment of the purchase price due, we have the right to withdraw from the contract according to the statutory provisions, and/or to request the return of the goods subject to retention of title. Such request to return does not constitute a declaration of withdrawal from the contract; we are rather entitled to only request the return of the goods and to reserve the right to withdraw from the contract. If the purchaser does not pay the purchase price due, we shall only make use of these rights after the expiry of a deadline for payment, or if it is unnecessary to set such deadline according to the statutory provisions.

(4)    The purchaser may sell and/or process the goods subject to retention of title, until canceled according to the following letter (c). In this case, the following provisions shall apply.

(a)    Any products originating from the processing, mingling, or adjoining of our goods are subject to retention of title at the full value of such products, and we are considered as the manufacturer of such products. If our goods are processed, mingled, or adjoined together with goods subject to the retention of title of third parties, we shall become a co-owner of the products resulting therefrom; the ratio of the co-ownership is based on the invoice value of the processed, mingled, or adjoined goods. Furthermore, the same regulation as for delivered goods subject to retention of title applies to the manufactured product.

(b)    As early as now, the purchaser assigns any claims against third parties arising from the onward sale of the goods or the product to us as a collateral in the full amount, or in the amount of our respective co-ownership according to the previous paragraph. We accept this assignment. The purchaser’s obligations mentioned in paragraph 2 are also considered within the scope of the assigned claims.

(c)    The purchaser shall have the same rights to collect the claims as we do. We commit ourselves to not collect the claims if the purchaser meets his payment obligations to us, if the purchaser does not fail to perform, and unless we declare our right of retention by exercising one of the rights according to paragraph 3. If this is the case, however, we may request that the purchaser discloses to us any assigned claims and the respective debtors, that he provides us with any information necessary for collection as well as with any accompanying documents, and that he informs the debtors (third parties) about the assignment. In this case, we may also revoke the right of the purchaser to dispose of and to process the goods subject to retention.

(d)    If the recoverable amount of the collateral exceeds our claims by more than 10 %, we shall release parts of the collateral upon request of the purchaser, however, at our own discretion.

§ 7 Our services

(1)    We only provide drawings of our products or installed machines if they are necessary for the operation or maintenance of such product or plant by trained technical staff.

The usual documentation for systems contains:

• Process and instrumentation diagram (PID) (considering any possible changes during the project phase)
• Layout chart (in the corrected version agreed with the client)
• Documentation in German or English at the purchaser’s option

(2)    Any additional documentation is charged separately. Such additional documentation usually consists of:

• Changes to the process and instrumentation diagram or to the layout plan requested by the purchaser after the original PID or layout plan were approved
• Additional documents (e.g. isometric projection of pipes)
• Official permits
• Written certificate of material tests or certificate of origin
• Inspection of weld seams (e.g. by taking an X-ray or by endoscopy)
• Other quality certificates or approvals

§ 8     Purchaser’s obligations during assembly and initial operation

The purchaser undertakes to take care of the following at his own risk and expense:

• Preparation of the site of installation according to our instructions before commencement of our services, provision of the material to be delivered by the purchaser, protection of the site of installation from environmental impacts.
• Dry storage suitable for MSR devices with frost, theft, and damage protection, where the devices and material we deliver can be stored, even during a disruption of the operation, and suitable facilities for the preparation and assembly in the immediate proximity of the site of installation.
• Support staff to the extent required, and free of charge. During assembly, the support staff shall observe our instructions. We are entitled to reject any unqualified support staff. The purchaser remains liable for the support staff he provides, while we will take care of the monitoring of such support staff.
• Free provision of any scaffolding, including mounting and dismounting, if necessary, lighting and heating, ventilation, fuels, water, electricity, clean compressed air, and provision of any commodities required at the site of construction.
• Free unloading of the assembly material and the special devices to be provided by us, and their transport to the storage or site of assembly.
• Any preparatory construction measures and other deliveries shall meet the individual specifications we provide to the client.
• Provision of appropriate, lockable, and sufficiently lighted and heated rooms and sanitary facilities for our staff.
• Provision of any devices and equipment for the initial operation and operation of the system.
• Broadband internet connection for our staff, and, if part of the order, for the connection of the products delivered by us.

§ 9     Purchaser’s claims for defects

(1)    Unless otherwise agreed in the following, the statutory provisions apply to the purchaser’s rights relating to latent defects or defect of title (including wrong and short delivery, incorrect assembly, or faulty installation instructions). In any case, however, the statutory special provisions for final delivery of the unprocessed goods to consumer remain unaffected, even if such consumer (recourse of the supplier according to Section 478 of the German Civil Code) processed such goods. Any claims based on recourse of the supplier are excluded if the purchaser or another entrepreneur has processed defective goods, e.g. by fitting into another product.

(2)    The agreement on the quality of the goods serves as the basis of our liability for defects. Any product descriptions and manufacturer’s data, which are part of an individual agreement, and which we have made publicly available at the time of the conclusion of the contract (in particular in catalogs or on our website), are considered as an agreement on the quality of the goods.

(3)    If there is no agreement about quality, the statutory provisions shall be taken into consideration regarding the question of whether or not a defect is given (Section 434 para 1 sentences 2 and 3 of the German Civil Code). However, we do not accept any liability for public statements of the manufacturer or other third parties (e.g. advertising messages), which the purchaser has not referred to as being crucial for his purchase decision.

(4)    In general, we do not accept any liability for defects which were known to the purchaser at the time of the conclusion of the contract or defects the purchaser does not know as a result of negligence (Section 442 of the German Civil Code). Furthermore, the purchaser’s claims for defects shall only be valid if he has met his statutory obligations to inspect and to give notice of defects (Sections 377, and 381 of the German Commercial Code). In case of construction materials and other materials which are intended for the integration or other processing, such materials must be inspected before processing at the latest. In case of any defects being identified at the time of delivery, inspection or at any later point in time, the purchaser shall immediately provide us with a written notification. In any case, apparent defects shall be asserted within 5 weekdays after delivery, and any defects which could not be identified during inspection of the goods shall be asserted in writing within the above deadline after they have been identified. If the purchaser fails to properly inspect the goods and/or to properly assert any defects, we hereby exclude liability for any defects not timely or properly reported according to the statutory provisions.

(5)    If the delivered goods are defective, we have the right to choose, whether to offer supplementary performance by means of removal of the defect (rework) or by means of delivery of non-defective items (replacement delivery). However, our right to refuse supplementary performance according to the statutory provisions remains unaffected.

(6)   We are entitled to make any supplementary performance we may owe conditional on the purchaser paying the purchase price due. However, the purchaser shall be entitled to retain such part of the purchase price that is appropriate considering the severity of the defect.

(7)    The purchaser shall give us the opportunity to carry out the supplementary performance and the required time, including, but not limited to returning the goods subject to complaint for inspection. In case of a replacement delivery, the purchaser shall return the defective goods to us according to the statutory provisions. Supplementary performance does neither include the removal of the defective items, nor its renewed installation, if installation was not initially agreed upon.

(8)    Any expenses arising from the inspection and supplementary performance, including, but not limited to transport, travel, work and material costs, and costs for removal or installation, shall be reimbursed by us according to the statutory regulation, if a defect actually exists. In all other cases, we may claim reimbursement of the costs arising from an unjustified request for the removal of defects (including, but not limited to inspection and transport costs), unless the purchaser was not able to recognize the absence of such defects.

(9)    In urgent cases, such as risks to operational safety or for the defense against undue damage, the purchaser has the right to remove the defect himself, and to request from us the reimbursement of any objectively required expenses relating thereto. If possible, the purchaser shall inform us before carrying out such self-help. The purchaser does not have the right to carry out self-help if we are entitled to refuse supplementary performance according to the statutory provisions.

(10)    In case of unsuccessful supplementary performance, or if the vendor failed to meet a deadline for supplementary performance set by the purchaser, or if such deadline is not necessary according to the statutory provisions, the purchaser shall have the right to withdraw from the purchase agreement or to reduce the purchase price. However, the purchaser does not have the right to withdraw from the contract in case of minor defects.

(11)   Any claims of the purchaser regarding damages or reimbursement of wasted expenses, resulting from defects, shall only be valid in the sense of Section 10, and are excluded otherwise.

§ 10    Further liability

(1)   Unless otherwise stated in these General Terms and Conditions of Sale and Delivery and in the following provisions, our liability in case of a violation of a contractual or non-contractual obligations is based on the statutory provisions.

(2)    Irrespective of the legal basis, we shall be liable for damages in cases of intent and gross negligence if such damages are attributable to us. In cases of ordinary negligence, and subject to statutory limited liability (e.g. diligence for own affairs, insignificant violation of duty), we shall only be liable

a)    for damages arising from damage to life, limb or health;

b)    for damages arising from a violation of a significant contractual obligation (an obligation that is vital for the proper execution of the contract, and which the other contractual party relies and may rely on); in such case, however, our liability shall be limited to the compensation for any foreseeable, typically occurring damage.

(3)    The limited liability according to paragraph 2 also applies to third parties, as well as in case of violations of duties by persons (also in their favor), whose fault we are responsible for. However, the limited liability is not given if a defect is maliciously concealed or if a guarantee regarding the quality of the products was given, and in case of claims of the purchaser according to the product liability act.

(4)   The purchaser shall only be entitled to withdraw from or terminate the contract due to a violation of duty not constituting a defect if we are responsible for such violation. The purchaser shall not have any other right of termination (including, but not limited to Sections 650, and 648 of the German Civil Code). In all other cases, the statutory requirements and legal consequences shall apply.

§ 11    Limitation of liability

(1)    In case of any claims of the purchaser according to Sections 3 and 9 of these General Terms and Conditions, our liability shall not exceed the maximum contract value.

(2)   The following applies to any other claims for damages according to Section 10 of these General Terms and Conditions:

• For immediate damage to property, we are liable up to € 2,500,000.00 per damaging event, and in case of several damaging events up to a total amount of € 5,000,000.00.
• We are not liable for any other damage, such as loss of profit, loss of production, other consequential damages or damage to the processed items.
• We shall only be liable for such damage occurring during the period of limitation, and which were notified to us promptly after their occurrence.

(3)   The above regulations on liability shall also apply in favor of our suppliers, licensors and other agents.

§ 12    Period of limitation

(1)    Notwithstanding the provisions of Section 438 para 1 no. 3 of the German Civil Code, the general period of limitation for claims arising from defects as to quality and legal defects shall be one year from delivery. If acceptance has been agreed, the period of limitation shall commence after such acceptance has been made.

(2)    If the subject of the contract is a building or an item, which is used for buildings according to its usual use, and which has caused the defectiveness of such building (construction material), the statutory period of limitation is 5 years from delivery (Section 438 para 1 no. 2 of the German Civil Code). Furthermore, any other statutory special provisions regarding the period of limitation (including, but not limited to Section 438 para 1 no 1, and para 3, as well as Sections 444, and 445b of the German Civil Code) shall remain unaffected.

(3)    The above periods of limitation from the sale of goods law also apply to any contractual and non-contractual claims for damages of the purchaser, which are based on the deficiency of the goods, unless applying the usual statutory period of limitation (Sections 195, and 199 of the German Civil Code) would have a shorter period of limitation as a result in the individual case. The purchaser’s claims for damages according to Section 8 para 2 sentences 1 and 2(a), as well as according to the product liability act, shall exclusively expire by limitation based on the statutory periods of limitation.

§ 13    Choice of law and place of jurisdiction

(1)   These General Terms and Conditions and the contractual relationship between us and the purchaser are subject to the law of the Federal Republic of Germany; international uniform law, especially the UN Convention on Contracts for the International Sale of Goods (CISG), is excluded.

If the purchaser is a businessperson within the meaning of the Commercial Code, a corporate body, or a public separate estate, the exclusive (international) place of jurisdiction for any disputes, directly or indirectly arising from our contractual relationship, shall be our registered office in Taufkirchen (Vils). The same applies if the purchaser is an entrepreneur within the meaning of Section 14 of the German Civil Code. In any case, however, we have the right to take legal action at the place of fulfillment according to these General Terms and Conditions of Sale and Delivery or to any preceding individually negotiated terms, or at the purchaser’s general place of jurisdiction. Any preceding statutory provisions, including, but not limited to exclusive competences, shall remain unaffected.