This English translation is provided for convenience only. In the event of any discrepancy, the German version shall prevail and is legally binding.
1.1 The following terms apply to all present and future contracts for the supply of goods and/or services concluded between BAFATEX GmbH (“BAFATEX”) and entrepreneurs, legal entities under public law or special funds under public law (“Customers”). This also applies if these terms are not specifically highlighted in an individual case or not expressly made part of the contract in an offer or confirmation from BAFATEX. These terms are subordinate to deviating agreements in the specific contract.
1.2 These terms also apply to the pre-contractual legal relationship and to non-contractual claims arising from or in connection with the contract and its performance.
1.3 Conflicting, deviating and/or supplementary terms and conditions of the Customer are not recognised without our express consent in text form. Silence on our part regarding the Customer’s terms and conditions shall in no case constitute recognition and/or consent. This also applies if the Customer declares that it only wishes to be supplied on its own terms.
2.1 All offers from BAFATEX are subject to change and non-binding unless expressly marked as binding. They are merely an invitation to the Customer to submit an offer in the legal sense. The Customer’s offer must be made in text form or in writing and is binding. BAFATEX may accept this offer by sending an order confirmation in writing or in text form or by delivering the goods.
2.2 BAFATEX’s information on the subject of delivery or performance (e.g. weights, dimensions, utility value, load capacity, tolerances and technical data) and representations thereof (e.g. drawings and illustrations) are only approximately authoritative unless usability for the contractually intended purpose requires exact conformity. They do not constitute a guarantee. Customary deviations and deviations resulting from legal requirements or representing technical improvements are permitted, provided they do not impair usability for the contractually intended purpose and are reasonable for the Customer.
2.3 All sales are concluded only for specific delivery dates, quantities, articles and qualities. Blanket orders are permitted.
2.4 BAFATEX reserves ownership and copyright in cost estimates, drawings, designs and other documents it provides. They may only be made available to third parties with BAFATEX’s prior express consent, at least in text form. All documents and any items handed over must be returned at BAFATEX’s request. Passing them on to third parties, publishing, reproducing or using them for any purpose other than the agreed purpose without BAFATEX’s express consent in text form is prohibited.
2.5 For items manufactured to the Customer’s specifications, the Customer warrants that implementing these specifications does not infringe third-party industrial property rights. If BAFATEX is prohibited from manufacturing and supplying such items on the basis of such rights, BAFATEX is entitled, without any obligation to examine the legal situation, to cease all further work for the Customer in this respect, to withdraw from the contract and to claim compensation for the damage incurred. The Customer shall indemnify BAFATEX without delay against all related third-party claims.
3.1 All risk passes to the purchaser when the goods leave BAFATEX’s dispatch point – including for carriage-paid shipments and collection by the Customer. This also applies if BAFATEX has contractually agreed to bear all or part of the freight and shipping costs.
3.2 Unless otherwise agreed, delivery is ex works, unpacked and uninsured.
3.3 Delivery periods and dates always refer only to the approximate time of delivery ex works or ex warehouse.
3.4 Subject to prior agreement in text form, BAFATEX is entitled to make partial deliveries.
3.5 For shipments, BAFATEX determines the forwarder, carrier and route without responsibility for the cheapest or fastest option, unless otherwise agreed individually.
3.6 BAFATEX’s obligation to deliver is subject to correct and timely supply to BAFATEX or provision of materials, unless BAFATEX is responsible for the failure or delay in supply or provision.
3.7 If goods to be provided are not provided on time, BAFATEX shall not be in default unless BAFATEX is responsible for the failure or delay.
3.8 Deliveries of up to 10 % below or above the quantity ordered are reserved. Any deviation in weight, quantity or specification of the goods delivered from the information in our delivery note and invoice must be proven by the Customer.
3.9 If delivery is delayed by force majeure, the delivery time shall be extended by a period appropriate to the circumstances. This applies regardless of whether the cause of the delay occurs before the agreed delivery date or at a time when the party concerned is already in default. Operational disruptions, production stoppages, procurement difficulties, industrial action and other circumstances that make delivery substantially more difficult for BAFATEX but for which BAFATEX is not responsible are equivalent to force majeure. The Customer will be notified of any delay.
3.10 In any event, BAFATEX shall only be in default if, after the due date and a reminder from the Customer in text form, BAFATEX fails to perform within a reasonable grace period for reasons for which BAFATEX is responsible.
4.1 Material defects, incorrect deliveries and shortfalls that can be detected by a reasonable inspection must be notified in text form without delay, at the latest within 5 days of receipt of the goods. If a defect not detectable during the initial inspection becomes apparent later, it must be notified in text form without delay, at the latest within 3 days of discovery, and any processing must be stopped immediately.
4.2 If the Customer fails to give timely notice, the goods shall be deemed approved with regard to the defect. The same applies if the Customer does not allow BAFATEX to inspect the defect properly without delay upon request.
4.3 In the case of justified complaints, BAFATEX will, at its discretion, remedy the defect free of charge, deliver a replacement carriage paid to the original destination against return of the defective goods weight for weight, or take back the goods and refund any payment already made. BAFATEX must always be given the opportunity of subsequent performance within a reasonable period. If subsequent performance fails, the Customer may withdraw from the contract or reduce the purchase price.
4.4 Defective partial deliveries do not entitle the purchaser to any rights regarding the remaining partial deliveries.
4.5 Goods and other parts provided by the Customer are not inspected by BAFATEX for functionality, dimensional accuracy or completeness.
4.6 Claims for damages are governed exclusively by Section 10.
5.1 BAFATEX provides technical advice to the best of its knowledge and ability. Such advice is non-binding and does not release the Customer from carrying out its own tests and trials. The Customer is responsible for compliance with statutory and official regulations when using the goods.
5.2 BAFATEX reserves ownership or copyright in all offers submitted and in all drawings, illustrations, calculations, proposals for changes and improvements to products and processes, brochures, catalogues, initial samples, tools and other documents and aids provided to the Customer. Without BAFATEX’s express consent, the Customer may not make these items or their content available to third parties, disclose them, use them itself or through third parties, or reproduce them. At BAFATEX’s request, the Customer must return these items in full and destroy any copies if they are no longer required in the ordinary course of business or if BAFATEX’s efforts and negotiations do not lead to a contract.
5.3 If technical advice from BAFATEX reveals or suggests an improvement to products or processes, these findings, samples, related documents or similar may not be passed on to third parties. This applies in particular if the subsequent order is not placed with BAFATEX or is later transferred to another company. If BAFATEX becomes aware of such a case, BAFATEX reserves the right to claim damages or to invoice the expenses incurred in connection with the technical advice.
5.4 Information on design, scope of delivery, dimensions, weights, materials, appearance and performance serves to describe the delivery item and does not constitute a warranty of characteristics. If, at the time of transfer of risk, the goods lack a characteristic warranted in advance, BAFATEX will, at the Customer’s choice, rectify the defect free of charge, deliver a replacement carriage paid to the original destination against return of the defective goods piece for piece, or take back the goods and refund any payments already made.
6.1 Prices apply to the scope of services and delivery stated in the order confirmation. Additional or special services are charged separately. Prices are in euros ex works, plus packaging, delivery costs, statutory VAT, customs duties and fees for export deliveries and other public charges. Transport insurance requested by the Customer is also charged separately.
6.2 If, under the contract, the goods are to be delivered more than two months after conclusion of the contract, BAFATEX may adjust prices to changing market conditions in the event of significant changes in procurement costs, VAT or purchase prices. Price increases exceeding the originally agreed amount by more than 10 % must be notified to the Customer in text form before delivery. The Customer may withdraw from the contract within 14 days of receipt of the notification. For contracts with partial deliveries, this applies to each partial delivery, provided that both the increase and the withdrawal only concern the partial delivery affected; the other partial deliveries remain unaffected.
7.1 Unless otherwise agreed, payment shall be made by bank transfer. Deliveries to new customers are made only against advance payment for the first three orders; thereafter, payment is due net within 30 days unless otherwise agreed. Payment periods run from the invoice date. For deliveries and invoices abroad, payment is likewise due net within 30 days of the invoice date.
7.2 Formal errors and/or insufficient information on the invoice do not entitle the Customer to extend the payment period and must be notified to BAFATEX without delay after receipt of the invoice if a reissued invoice is required.
7.3 If payment deadlines are exceeded, BAFATEX may charge default interest at the usual bank lending rate, but at least at the applicable statutory default interest rate under Section 288 of the German Civil Code (BGB).
7.4 Set-off and retention are only permitted if the Customer’s counterclaim has been finally established by a court, is undisputed or is ready for decision. Set-off is only permitted if notified in advance (one week before the due date).
7.5 If the Customer fails to comply with the payment terms, or if BAFATEX becomes aware of circumstances which, in the opinion of BAFATEX or of a third party relevant to BAFATEX, cast doubt on the Customer’s creditworthiness or solvency, BAFATEX may revoke all payment terms granted and demand advance payment or security, without prejudice to its other statutory rights. This does not apply if the Customer has an undisputed or finally established counterclaim.
7.6 All taxes and other charges incurred in the country of destination for BAFATEX’s deliveries and services shall be borne by the Customer.
7.7 For deliveries to member states of the European Union, the Customer must provide BAFATEX with its VAT identification number when ordering. If the Customer fails to do so or provides an incorrect number, BAFATEX may claim compensation for any resulting damage. The same applies if, for deliveries ex works, the Customer does not provide BAFATEX with the necessary confirmations of transport and final destination of the goods. If the VAT identification number provided is incorrect, the invoice will not be tax-exempt but will include German VAT.
8.1 The goods remain the property of BAFATEX until all present and future claims arising from the business relationship with the Customer have been settled in full.
8.2 If the Customer processes BAFATEX goods, BAFATEX shall be deemed the manufacturer, without incurring any obligations, and acquires ownership of the new goods. If processed together with other materials, BAFATEX acquires co-ownership in the ratio of the invoice value of its goods to that of the other materials.
8.3 If BAFATEX goods are combined or mixed with an item of the Customer that is to be regarded as the main item, co-ownership of the item passes to BAFATEX in the ratio of the invoice value of the BAFATEX goods to the invoice value or, failing that, the market value of the main item. In such cases, the Customer holds the item in safe custody.
8.4 The purchaser hereby assigns to BAFATEX, as security, all claims arising from the sale of goods in which BAFATEX holds ownership rights, to the extent of its share of ownership in the goods sold. BAFATEX accepts this assignment.
8.5 The Customer may dispose of goods owned by BAFATEX in the ordinary course of business and collect the assigned claims as long as it meets its obligations from the business relationship with BAFATEX on time – in particular the payment terms – and there is no apparent risk to BAFATEX’s retention of title. Otherwise, BAFATEX may demand the provisional return of the goods it owns at the Customer’s expense, even without withdrawing from the contract and without setting a grace period. At BAFATEX’s request, the Customer must grant access for taking inventory and taking possession of the goods. BAFATEX may also revoke the authorisation to collect claims.
8.6 At BAFATEX’s request, the Customer must provide all necessary information on the stock of goods owned by BAFATEX and on the claims assigned to BAFATEX, and inform its customers of the assignment.
8.7 If the value of the security exceeds BAFATEX’s claims by more than 10 %, BAFATEX will release securities of its choice to that extent at the Customer’s request.
8.8 The Customer’s authorisation to process and sell goods subject to retention of title and to collect assigned claims in the ordinary course of business ends when it stops payments or when insolvency proceedings are applied for over its assets. It also ends if the Customer is in default of payment and BAFATEX therefore revokes the authorisation in text form. In this case, the Customer must provide BAFATEX with a list of the remaining third-party debtors and of goods still subject to retention of title, and surrender the reserved or processed goods on BAFATEX’s first request.
8.9 BAFATEX will realise the returned goods as best it can and credit the proceeds. Revocation or a demand for return of the goods by BAFATEX does not constitute withdrawal from the contract.
8.10 Pledging these goods or transferring them by way of security to third parties is excluded without BAFATEX’s consent. If these goods are seized by third parties, the Customer must notify BAFATEX without delay.
Circumventing the payment and delivery terms, including through commission transactions, is prohibited.
BAFATEX shall pay damages or compensation for wasted expenditure arising from or in connection with the respective contractual relationship, irrespective of the legal grounds, only to the following extent:
1. BAFATEX is liable without limitation for damage resulting from injury to life, body or health culpably caused by BAFATEX, its legal representatives or its vicarious agents.
2. BAFATEX is also liable for damage caused by a culpable breach of cardinal obligations by BAFATEX, its legal representatives or other vicarious agents. In the case of slight negligence only, however, liability is limited to the damage that was typical and foreseeable at the time of the performance causing the damage. Cardinal obligations are the essential obligations that form the basis of a contract, whose fulfilment makes proper performance of the contract possible in the first place, and on whose observance the client regularly relies and may rely.
3. Otherwise, BAFATEX is only liable for damage caused intentionally or by gross negligence by BAFATEX, its legal representatives or other vicarious agents.
4. The above limitations of liability do not apply to claims under product liability law.
Any further liability is excluded.
11.1 The purchaser’s right to assert claims for defects under Section 4 becomes time-barred one year after the transfer of risk. This does not apply in cases of intentional or fraudulent conduct by BAFATEX or where a guarantee for the quality of the goods has been given. BAFATEX gives no warranty for used goods unless agreed at least in text form.11.2 The Customer’s claims for damages due to a defect under Section 4.6 in conjunction with Section 10 become time-barred one year after the transfer of risk. This does not apply in cases of gross fault on the part of BAFATEX or in the event of injury to body or health or death attributable to BAFATEX.
12.1 The Customer warrants that the provision and contractual use of documents and information supplied by the Customer do not violate applicable law, in particular industrial property rights, copyright or competition law.
12.2 If BAFATEX is prohibited from manufacturing and supplying such items on the basis of such rights, BAFATEX is entitled, without any obligation to examine the legal situation, to cease all further work for the Customer in this respect, to withdraw from the contract and to claim compensation for the damage incurred. The Customer shall indemnify BAFATEX without delay against all related third-party claims.
12.3 Paying all or part of the tooling costs does not give the Customer any rights to the tools themselves. Deviating agreements require text form.
The Customer acknowledges that BAFATEX stores the data required for business transactions within the contractual relationship and reserves the right to pass on such data to contracted service providers (e.g. insurers) where necessary for performance of the contract. To the extent permitted by law and taking into account the Customer’s legitimate interests in excluding transfer or use, BAFATEX may transmit data to and request information from SCHUFA (a German credit agency) for credit checks.
14.1 No oral or telephone side agreements have been made. These terms may only be amended in text form. This also applies to any amendment of this text form requirement.
14.2 The place of performance for all obligations under the contract and the place of jurisdiction for all disputes arising from the business relationship between BAFATEX and the Customer is Wipperfürth, Germany.
14.3 All legal relationships with BAFATEX are governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
14.4 If individual provisions of these terms are or become invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by the corresponding provision of non-mandatory law.
Version: 22 December 2017
Leiersmühle 19
51688 Wipperfürth/Germany
E-mail: info@bafatex.de
Phone: +49 (0) 22 67 87 13-0
