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1. General Information
1.1. Our General Terms and Conditions of Sale and Delivery shall apply exclusively. We shall not recognize conflicting terms and conditions unless we have provided express written confirmation thereof. They shall not be recognized even if we do not object to them again when we receive them.
1.2. Oral agreements, advice, explanations or assurances provided in any form whatsoever shall require our express written confirmation in order to be valid. This shall also apply insofar as such explanations, advice, assurances and the like are provided by our representatives or our vicarious agents.
2.1. Any documents such as representations, drawings, weight and dimensional measurements that are part of our offer shall be no more than approximations, unless they have been expressly designated as binding. We reserve title and copyright in and to any cost estimates, drawings and other documents. They must not be made accessible to third parties. We shall be obliged not to make plans designated by the Customer as confidential accessible to third parties unless it has given its prior consent.
2.2. Design changes shall be permitted where, allowing for the interests of both parties, the Customer can reasonably be expected to accept such change.
2.3. Design drawings shall not be submitted.
2.4. Unless otherwise agreed in writing, our offers shall be non-binding.
3. Scope of Delivery
The scope of the delivery shall be determined by our written order confirmation; where we issue an offer with a time limit and this offer is accepted within said time limit, the offer shall determine the scope of the delivery if the order confirmation has not been received in time. Ancillary agreements and changes shall require the Supplier's written confirmation.
4. Prices - Terms of Payment
4.1. Unless otherwise expressly agreed, prices shall apply ex works, including loading, but excluding packaging. These prices shall be subject to the VAT rate applicable at the time.
4.2. We request payment within 10 days of the invoice date less 2% discount or within 30 days without deductions. Pure assembly invoices shall be payable in cash without deductions. In the case of equipment and machinery that need to be assembled by us, payment shall, unless otherwise expressly agreed, be made in cash and without any deductions ex our paying agent, namely: one third down payment following receipt of the order confirmation, one third following delivery, one third following assembly.
4.3. For paying agents, see footer: Bank details
4.4. Where no fixed price has been agreed, we shall be entitled to change quoted prices accordingly if the cost factors that determine our costing change significantly between contract formation and delivery.
4.5. The Customer shall have set-off rights and rights of retention only if its counterclaim has been legally established, is uncontested or has been acknowledged by us.
5. Delivery Periods - Delay in Delivery
5.1. The delivery period shall commence when the order confirmation is sent, but not before the documents, authorizations and releases to be obtained by the Customer have been provided and not before an agreed down payment has been received.
5.2. The delivery period shall be deemed to have been adhered to if, up to its expiry, the delivery item has left our factory or notification that the goods are ready for despatch has been provided.
5.3. The delivery period shall be extended appropriately in the event of actions in the context of industrial disputes, particularly strikes and lockouts, and in the event of occurrence of unforeseen obstacles that are beyond our control, providing such obstacles can be shown to have a significant impact on the completion or supply of the delivery item. This shall also apply if the circumstances occur in respect of sub-suppliers. The aforementioned circumstances shall also be beyond the Supplier's control if they occur during an existing delay. The Supplier shall inform the Customer of such obstacles as soon as possible in important cases.
5.4. If the Customer incurs loss owing to a delay that has occurred through the Supplier's own fault, it shall be entitled to demand compensation for delay, to the exclusion of further claims. The compensation shall amount to 0.5% for each full week of the delay, but shall not exceed 5% in total of the value of that part of the complete delivery that, as a result of the delay, cannot be used on time or in a manner consistent with the Contract.
5.5. If despatch is delayed at the Customer's request, it shall be charged, starting one month after notification that the goods are ready for despatch, any costs incurred as a result of storage and, in the event of storage at our plant, at least 0.5% of the invoice amount for each month. We shall, however, be entitled, after a reasonable deadline has expired, to dispose of the delivery item elsewhere and to supply the Customer within an appropriately extended deadline.
5.6. Adherence to the delivery period shall be conditional upon the Customer's fulfilling its contractual obligations.
6. Transfer of Risk
6.1. Risk shall pass to the Customer no later than when the delivery parts are despatched, even if partial deliveries are made or we have assumed other performance aspects, such as despatch costs or carriage and installation. At the Customer's request, the consignment shall be insured by us at its expense against theft, breakage, transport, fire and water damage, as well as other insurable risks.
6.2. If despatch is delayed as a result of circumstances for which the Customer is responsible, risk shall pass to the Customer from the day on which the goods are ready for despatch, but we shall be obliged, at the Customer's request and expense, to take out the insurance policies that it requires.
6.3. The Customer shall, without prejudice to the rights arising from Clause 8, take delivery of supplied items even if they have minor defects.
6.4. Partial deliveries shall be permitted.
7. Retention of Title
7.1. All our deliveries shall remain our property (goods subject to retention of title) until such time as all our accounts receivable, irrespective of the legal cause, have been settled; these shall also include conditional receivables or receivables that are not yet due, resulting from contracts entered into at the same time or at a subsequent juncture. This shall also apply if payments are made to specifically designated receivables.
7.2. The Customer may sell the goods subject to retention of title only in its ordinary course of business on its normal terms and conditions and as long as it is not in default, providing the receivables from the resale are transferred to us, as described below. The Customer shall not be entitled to dispose of the goods subject to retention of title in any other manner. The Customer shall, by way of security, hereby assign to us the receivables that it obtains from any resale in the amount of the final invoice price agreed between it and us; said assignment shall serve as security to the same extent as the goods subject to retention of title. If the Customer includes the receivable from the resale in a current account relationship with its customer, the Customer's receivable from the current account relationship shall be assigned to us in the amount of the final invoice price of our goods. The Customer shall continue to be entitled to collect the receivable from the resale of the goods subject to retention of title as long as it is not in default of payment. The Buyer shall be entitled to assign the receivables from the resale of the goods subject to retention of title, including any sale to factoring banks, only with our prior written consent. The Customer shall, at our request, be obliged to disclose the names of the debtors to us and to surrender to us all documents that we require to collect the receivable ourselves; the Customer shall also be obliged to inform its debtor in writing of the assignment of the receivables to us.
7.3. The Customer may neither pledge the delivery item nor assign it as collateral. It shall notify us without delay in the event of seizures or confiscation or other injunctions by third parties.
7.4. If the Customer is in breach of the Contract, particularly if it defaults on payment, we shall, after issuing a warning, be entitled to repossess the goods, which the Customer shall be obliged to surrender. Any assertion of retention of title or seizure of the delivery item by us shall not be deemed to be rescission of the Contract unless the Abzahlungsgesetz (German Instalment Payment Act) is applicable. The same shall apply if we become aware of circumstances which, in our assessment after exercising due care and diligence, are likely to diminish the Buyer's creditworthiness.
7.5. At the Customer's request, we shall be obliged to release collateral insofar as the value of our collateral exceeds the value of our receivables by more than 15%.
8. Warranty and Liability
8.1. Our warranty obligation shall depend upon the Customer having complied without delay with the inspection and defect notification obligation incumbent upon it pursuant to sections 377 and 378 of the Handelsgesetzbuch (German Commercial Code). Irrespective of this inspection and defect notification obligation incumbent upon our customers, objections shall be raised in writing no later than within 8 calendar days, calculated from the date of discovery of the defect in question.
8.2. We shall be liable for defects in delivery, which shall also include expressly warranted properties, to the exclusion of other claims, as follows:
8.2.1. All those parts that prove to be unusable or whose usability is severely impaired within 6 months (in the case of multi-shift operation, within 3 months) of commissioning owing to a circumstance that has occurred prior to transfer of risk, particularly due to defective design, poor materials or inadequate execution, shall, at our discretion, be repaired or replaced, free of charge. We must be notified in writing without delay if such defects are detected. Replaced parts shall become our property. Should despatch, installation or commissioning be delayed through no fault of our own, liability shall lapse no later than 12 months after transfer of risk. Our liability for essential third-party products shall be limited to the assignment of the liability claims to which we are entitled in relation to the supplier of the third-party product.
8.2.2. No liability shall be accepted for damage that has been incurred for the following reasons: Unsuitable or inappropriate use, incorrect assembly or commissioning by the Customer or third parties, natural wear and tear, incorrect or negligent handling, unsuitable equipment, replacement materials, defective construction work, unsuitable subsoil, chemical, electrochemical or electrical impacts, unless they are due to our fault.
8.2.3. The Customer shall, after prior consultation with us, give us the required time and opportunity to carry out all repairs or replacement deliveries that, in our fair judgement, appear to be necessary; otherwise, we shall be released from the liability for defects. Only in urgent cases in which operational security is at risk and in order to avert disproportionate damage, in which case we must be notified immediately, or if we are in default in respect of removal of the defect, shall the Customer have the right to remove the defect itself or to have it removed by third parties and require us to provide compensation for the necessary costs.
8.2.4. Of the costs directly incurred as a result of the repair or replacement delivery, we shall, insofar as the objection proves to be justified, bear the costs of the replacement item including despatch and any reasonable dismantling and installation costs; furthermore, if this can be reasonably demanded in individual cases, we shall also bear the costs of any provision of service technicians and support staff that may be required. In other respects, the Customer shall bear the costs.
8.2.5. The warranty period for the replacement item and the repair shall be three months; however, it shall extend at least until the original warranty period for the delivery item expires. The liability period for defects in the delivery item shall be extended by the duration of the interruption of operations caused by repair work.
8.2.6. Any modifications or repair work carried out improperly by the Customer or third parties without our prior consent shall void liability for any consequences arising therefrom.
8.2.7. Further claims on the part of the Customer, particularly any claim to compensation for damages that have not been incurred in respect of the delivery item itself, shall be excluded. This limitation of liability shall not apply in the event of wilful intent or gross negligence on the part of the owner or senior employees or to cases in which, under the Produkthaftungsgesetz (German Product Liability Act), the Supplier is liable for personal injury or damage to privately used objects in the event of defects in the delivery item. It shall also not apply to the absence of properties that have been expressly warranted if the warranty has been specifically given in order to protect the Customer against damages that have not been incurred in respect of the delivery item itself.
8.2.8. Any and all other further claims by the Customer shall be excluded, particularly those for rescission, termination or reduction in price as well as for compensation for damages of whatever kind, including such damages as have not been incurred in respect of the delivery item itself. This limitation of liability shall not apply in the event of wilful intent or gross negligence on the part of the owner or senior employees or to cases in which, under the Produkthaftungsgesetz (German Product Liability Act), the Supplier is liable for personal injury or damage to privately used objects in the event of defects in the delivery item. It shall also not apply to the absence of properties that have been expressly warranted if the warranty has been specifically given in order to protect the Customer against damages that have not been incurred in respect of the delivery item itself.
8.3.1. Where our liability is excluded or limited, this shall also apply in respect of the personal liability of our employees, officers, agents and services.
8.3.2. The Customer's right to assert claims arising from defects shall be time-barred in all cases 6 months from the date of timely notification, but no earlier than on expiry of the warranty period.
9. Liability for Ancillary Obligations
If the Supplier is at fault for the Customer's being unable to use the supplied item in a manner consistent with the Contract as a result of a failure to execute, or incorrect execution of, proposals and advice provided prior to or after contract formation as well as other ancillary obligations, particularly instructions for operating and maintaining the delivery item, the provisions in Clauses 8 and 10 shall apply to the exclusion of other claims by the Customer.
10. Rights of Rescission
10.1. The Customer may rescind the Contract if it becomes once and for all impossible for us to render full performance prior to transfer of risk. The Customer may also rescind the Contract if, in the event of placement of an order for similar items, implementation of a part of the delivery becomes impossible in terms of quantity and the Customer has a legitimate interest in refusing partial delivery; if this is not the case, the Customer may reduce the consideration on its part accordingly.
10.2. If there is a case of delay in performance pursuant to Clause 5 of the Terms and Conditions of Delivery and if the Customer grants us a reasonable grace period while explicitly stating that it will refuse to accept performance after this grace period has expired and if the grace period is not adhered to, the Customer shall be entitled to rescind the Contract.
10.3. If the impossibility occurs while the Customer is in default of acceptance or through the Customer's fault, it shall continue to be obliged to provide consideration.
10.4. In the event of unforeseen circumstances within the meaning of Clause 5.3 of the Terms and Conditions of Delivery, providing they substantially change the economic significance or the content of performance or have a significant impact on our operation, and in the event of the subsequent impossibility of execution, providing we are not responsible for said impossibility, the Contract shall be appropriately amended. Where this is not economically defensible, we shall have the right to rescind the Contract in whole or in part.
10.5. If we intend to avail ourselves of the right of rescission, we must inform the Customer thereof as soon as we have recognized the implications of the circumstances, even if an extension of the delivery period had initially been agreed with the Customer.
11. Legal Venue - Miscellaneous
11.1. Irrespective of the amount of the sum in dispute, the legal venue shall be the district court having jurisdiction over our business domicile; we shall, however, also be entitled to sue the Customer at the court that has jurisdiction over its personal domicile.
11.2. The place of performance for the obligations arising out of or in connection with this Contract shall be D-35216 Biedenkopf.
11.3. The foregoing Terms and Conditions shall apply only in relation to business people within the meaning of section 24 of the AGB-Gesetz (German Act Governing Standard Terms and Conditions of Business).
11.4. The contractual relationships shall be governed by German law; the applicability of the Uniform Laws on the International Sale of Goods shall be expressly excluded.
11.5. Should individual provisions in these General Terms and Conditions of Sale and Delivery be wholly or partly invalid, the remaining terms and conditions shall continue to be valid. The Parties shall agree to replace the invalid provision by a valid ruling that both Parties can reasonably be expected to accept and comes closest in economic terms to the purpose intended with the invalid provision.