General terms and conditions of Bactiva GmbH
§ 1 Area of application of the terms and conditions
These terms and conditions apply to legal relations of Bactiva GmbH (further: BACTIVA) with enterprises in the sense of § 14 BGB (further: buyer or client) in the selling of products, offered by BACTIVA. Different terms and conditions and purchase conditions of the client do not apply, unless explicitly opposed in an individual case.
§ 2 Contractual relations
All sales only take place for the account of BACTIVA. Only by paying BACTIVA the buyer is released of his payment obligations
§ 3 Supply, delivery and delivery period
1. Date of delivery and delivery period can be agreed with or without obligation; obligatory dates of delivery need written confirmation by BACTIVA.
2. BACTIVA has the right to process the agreement by partial deliveries as far as it is reasonable to the client. Call orders can only be ended in writing.
3. At failure to comply with the delivery period, the client can resign the contract, if he has allowed BACTIVA a suitable extension of the period on beforehand, which begins at the moment of written setting of the period in the business premises of BACTIVA.
4. In case of force majeure and other unpredictable exceptional and through no fault occurred circumstances as e.g. strike, operational malfunctions, difficulties in energy supply, frost, hail and other weather damages – also when occurring at upstream suppliers, e.g. at transport – the delivery period will be extended with the duration of the obstruction and its after effect. BACTIVA can only refer to these circumstances if it or its operating agents (e.g. the expedition) notifies the buyer forthwith, as far as these circumstances are not otherwise already commonly known.
5. In the case the upstream providers of BACTIVA do not deliver or deliver inadequately, BACTIVA is released totally or partially of the obligation to deliver. BACTIVA commits itself in this case to assign its claims against the upstream providers when the buyer wishes so. Further legal claims of the client to the right of withdrawal are impossible, as far as these claims are not based on intent or great negligence by BACTIVA or its employees.
6. Moreover, BACTIVA is not responsible for delay of delivery, caused by freighter, railway or other sites in charge of providing, transport and reloading as far as it has selected the freighter etc. carefully.
7. Packing, Insurance, import, freight charges and such are at the expenses of the buyer, if not otherwise agreed. Unless the buyer decides different about the way of delivery, the shipping will be done the best possible way according the judgment of BACTIVA. BACTIVA is allowed to add to the agreed buying price transport cost increase, rate changes, ice, high or low water surcharges, when delivery take place later than 4 months after the in writing appointed delivery date. An insurance for transport damages is only possible at wish and expenses of the buyer.
§ 4 Risk and complaints
1. The risk is devolved to the buyer as soon as the ware is handed to the buyer. If shipping takes place, the risk is devolved to the buyer as soon as the ware is handed over to the person, operating the transport, or for the purpose of shipping has left the site of delivery, regardless of whether the shipping is operated from the place of performance and who pays the freight cost. When the ware is ready to send and there is a delay in sending or acceptance for reasons BACTIVA is not responsible, the risk is devolved to the buyer at the moment of the announcement of readiness for shipping. When delivery is free domicile, the risk is devolved to the buyer at the moment of delivery to the buyer.
2. Not hidden shortcomings of delivered ware should be claimed forthwith after receiving. Other shortcomings can be claimed forthwith after discovery. If the sale is a trading business for both parties, then the prescriptions of the §§ 377 ff. HGB are without prejudice.
3. The buyer has the obligation to offer BACTIVA the opportunity to have inspected the ware by a representative, who can check the rightness of the complaint. When the buyer takes the disputed ware in his possession without BACTIVA having waived the right on inspection and checking, then the buyer is excluded with his complaint. If the complaint raised by the buyer is unfounded, the buyer has to repay BACTIVA all costs for research.
§ 5 Liability for defects and damages
1. At justified complaints of defects, the claims of the buyer at first are limited to replacement. If replacement is not possible or does fail, then price reduction can be required.
2. At a justified complaint about amounts the buyer – with exclusion of other claims – can require the organizer to still deliver the failing ware (only in case of immediate availability) or he can require a credit note related to the failing amount.
3. The buyer should claim lost or damage in transport at deliveries “from place of performance Straelen” to the transporter and he should let the respective transporter/expeditor let certify the damage at receiving the goods. Damages at transport do not justify a refuse to accept, unless free domicile delivery is agreed. In case of free domicile delivery lost or damage should be notified to BACTIVA forthwith.
4. No liability is taken for defects or damages, caused by the following reasons:
- unsuitable or improper use
- natural wear, incorrect or careless handling
- chemical, electrochemical, biological or similar influences (like e.g. also by radiation, heat, lack of light, etc.) as far as they are not the responsibility of BACTIVA.
5. Claims for damages by the buyer, on whatever legal ground, in particular caused by breach of duty from the contractual obligations and tort are excluded. This exclusion of liability does not apply
- for damages resulting from injury to live, body and health
- in case of intent or gross negligence
- at breach of essential contractual obligations (cardinal obligations), like ones, which the contract of BACTIVA according to its content and goal really wants to impose, or of which the fulfilment is indispensable for the implementation of the contract and of which the buyer usually trust and should be able to trust its compliance. When such a breach of essential contractual obligations occurs, however, the liability is limited to in reason predictable damage, as far as it is not caused by intent, gross negligence or the characteristics, assured to the fail.
- if a limitation of liability is excluded according to law, e.g. at claims according to the (German) law on product liability.
A change in burden of proof to the disadvantage of the buyer is not associated with the above regulations.
§ 6 Payment
1. All prices exclude legal VAT, as far as they refer to VAT-free deliveries within the Community. If nothing else is agreed, the payment has to be made without any discount, forthwith after receiving the bill. If the buyer has granted a debit order and BACTIVA has used it, he waives the opportunity of revocation on the concerning credit institution. The buyer pays the cost of a foreign transfer.
2. The management can require payment in front or the adding of an adequate assurance.
3. BACTIVA explicitly reserves the right to refuse cheques and bills of exchange. The acceptance is always on account of performance; the payment is only considered as processed at the moment the cheque or bill of exchange is cashed. Expenses for discount and bills of exchange are at any time due to the buyer and should be paid immediately. If more bills of exchanges or cheques are passed referring to a delivery, BACTIVA has the right, in case of disclaim of one of the cheques or bills of exchange, to claim the entire debit balance immediately, also when bills of exchange or cheques already are given. A payment is only considered done, when BACTIVA has the sum at its disposal. All mutual receivables, resulting from the contract will be adjusted in a current account, for which stand the regulations of §§ 355 ff. HGB. Bank statements of BACTIVA, which are made at least annually, count for clearance of accounts. The balance stands for accepted, when the client has not raised objections within one month after receiving the clearance of accounts. BACTIVA has the right, despite other denominated regulations of the client, to take into account payments first to older debts. If already costs or interest have arisen then BACTIVA has the right to take into account the payment first to the costs, then to interest and finally to the main performance.
4. The client only has the right of balancing, retention or reduction of the sales price, also if complaints are enforced, when the complaints/ counterclaims have been legally confirmed or are indisputable. Unilateral debit notes thus are inadmissible and result in the immediate default of payment of the buyer.
5. At default of payment an agreed discount is cancelled. BACTIVA also can require interest for the delay in the height of 12% p.a.; The buyer is entitled to proof that a damage by delay in this height has not emerged. At least the legal interest rate (8 percentage points on top of the base rate of interest) is owed.
§ 7 Disruptions in performance
The purchase price is immediately due, when the client refuses to accept the ware, does not pay agreed instalment payments, does not give in or encash bills of exchange according the agreement or if facts become known to BACTIVA which seem to endanger the security of the receivables. BACTIVA can in above mentioned cases also withdraw from the contract and require compensation for damage.
If the acceptance by the client is delayed, BACTIVA can store the ware at its own or at a third party at cost and risk of the client or exploit it in way that looks proper to BACTIVA on account of the client. Moreover, BACTIVA can claim 10% of the purchase price as flat rate compensation, regardless the possibility to claim a bigger actual compensation of damages. The client is entitled to proof that the damage has not occurred or is essentially less than the flat rate.
§ 8 Retention of title
1. The delivery of the ware takes place under retention of title, including prolonged and extended retention of title. The ownership of the delivered ware is transmitted to the buyer not before he has redeemed all his contractual obligations of the commercial relation to BACTIVA.
In running clearing the retention of title stands if necessary for security of the demand of balances. In the case cheques are issued as payment, the encashment stands for redemption.
2. In the case of seizure by third parties of the conditional goods of retention (especially pledge) the buyer will point out the ownership of BACTIVA and will inform BACTIVA forthwith. The buyer has to reimburse to BACTIVA all the costs, relating to the pledge exemption, whatever its nature. The buyer has the obligation in all cases to repel the seizure of third parties against the properties of BACTIVA and is liable for al damages and costs, which possibly emerge from such a seizure by third parties.
3. The buyer has the right to work with the conditional goods in regular business and to dispose of it, as far as he is not in default. For safety’s sake, the buyer already transfers to BACTIVA the out of resale or another legal ground (e.g. insurance contract, tort) arisen receivables referring to the conditional goods (including all additional rights and immunities) at the amount of the value of the conditional goods. The buyer is in such cases due to record a corresponding note in his books or invoices, however at least also in the list of open debtor items for every single receivable, with specification of time of cession and identification of the assignees. BACTIVA authorizes him revocable to cash in his own name the receivables transferred to BACTIVA. This authorization of encashment can only be withdrawn, if the buyer does not fulfil his payment obligations in a regular way.
4. At the requirement of the buyer, BACTIVA will release to its choice the immunity that it reserves so far as the feasible value of the immunity does not only temporarily exceed 20% of the reserved receivables.
5. The retention of title does not release the buyer of his liability of the downfall and accidental deterioration of the goods, after they have become in his possession.
§ 9 Privacy
1. It is known to the client, that the client data, which are necessary for the business process, like name, address, location etc. are saved in an electronic database at BACTIVA. The data are protected against abuses according to the regulations of the German Bundesdatenschutzgesetzes (federal law on the privacy of data). The client agrees with the saving of this data.
2. BACTIVA can make de confirmation and the maintenance of the contractual relations dependable of the guarantee given by a credit insurer, that the client is protected by insurance. The client agrees with the transfer of relevant client data to the credit insurer and agrees, that this credit insurer uses client data – including address data – according to § 28 b Bundesdatenschutzgesetz in order of the implementation of a scoring procedure (procedure to determinate probability values for specific future behaviour on mathematical-statistical base for evaluation of creditworthiness). On requirement of the client BACTIVA reveals the name and address of the credit insurer.
§ 10 Place of operation
Place of operation for all deliveries is – if nothing else is agreed –Straelen.
§ 11 Governing law and jurisdiction
1. The law of the Bundesrepublik Deutschland is applicable. The application of the UN agreements on treaties on international sale of movable goods, and also on the conclusion of international contracts of sale of movable goods is excluded.
2. Place of jurisdiction for all claims arising from the contractual relations with traders is the in the residence of BACTIVA competent court. The same place of jurisdiction is applicable when the client has no general jurisdiction in Germany, moves his domicile or usual residence after the conclusion of the contract outside Germany or when his domicile or usual residence is unknown at the moment of raising the complaint. Depending on its factual competence the Amtsgericht (lower court) Geldern or the Landgericht (higher court) Kleve is exclusively locally competent.
§ 12 Severability clause
If a regulation within the terms and conditions or within other contractual regulations with the contractual partner of BACTIVA is or becomes invalid, then the validity of all other regulations of the contractual agreements as well as the business conditions shall not be affected. The permissible, closest to the meaning and goal of the invalid regulation, valid regulation is considered as agreed.