General Terms and Conditions

Convenience translation. Only the German version of these General Terms and Conditions is legally binding; in case of discrepancies, the German version shall prevail.

Section 1 General – Scope of Application
1. These Terms and Conditions apply exclusively; we do not recognize any terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions unless we have expressly agreed to their validity in writing. The Terms and Conditions of BMS Bau-Maschinen-Service AG shall also apply where delivery to the Purchaser is carried out without reservation in the knowledge of terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions.
2. Our Terms and Conditions apply only vis-à-vis entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).

Section 2 Offer – Offer Documents
1. If the order qualifies as an offer within the meaning of Section 145 BGB, we may accept it within 2 weeks.
2. We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents designated as “confidential”. The Purchaser requires our express written consent before passing them on to third parties.

Section 3 Prices – Terms of Payment
1. Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging; packaging will be invoiced separately.
2. Statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate applicable on the date of invoicing.
3. Any deduction of cash discount requires a separate written agreement.
4. Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) immediately upon invoicing. The statutory rules concerning the consequences of default in payment shall apply.
5. The Purchaser shall have rights of set-off only if its counterclaims have been finally established by a court of law, are undisputed or have been acknowledged by us. In addition, the Purchaser is entitled to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
6. If, in the case of contracts for work and services, in particular repair contracts, the Purchaser requests a binding quotation, a written cost estimate is required; this shall itemize the work to be performed and the materials required to produce the work, each with its respective price. We are bound by such cost estimate for a period of four weeks. Cost estimates are subject to a charge where so agreed. If an order is placed on the basis of a cost estimate, any costs for the cost estimate will be credited against the order invoice. The total price may be exceeded when invoicing the order only with the Purchaser’s consent.

Section 4 Delivery Time
1. The commencement of the delivery time stated by us is subject to the clarification of all technical questions.
2. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the Purchaser’s obligations. The defence of non-performance of the contract remains reserved.
3. If the Purchaser is in default of acceptance or culpably breaches other duties to cooperate, we are entitled to claim compensation for the damage we incur in this respect, including any additional expenses. Further claims remain reserved.
4. Where the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the Purchaser at the point in time at which the Purchaser is in default of acceptance or in default as debtor.
5. We are liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) no. 4 BGB or Section 376 of the German Commercial Code (HGB). We are also liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the Purchaser is entitled to claim that its interest in further performance of the contract has ceased to exist.
6. We are further liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault of our representatives or vicarious agents is attributable to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable damage typically occurring.
7. We are also liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, liability for damages is limited to the foreseeable damage typically occurring.
8. In all other cases of delay in delivery, we are liable for each completed week of delay by way of liquidated default compensation in the amount of 3% of the delivery value, up to a maximum of 15% of the delivery value.
9. Further statutory claims and rights of the Purchaser remain reserved.

Section 5 Passing of Risk – Packaging Costs
1. Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
2. Transport packaging and all other packaging will not be taken back; pallets are excepted. The Purchaser is obliged to arrange for disposal of the packaging at its own expense.
3. If the Purchaser so requests, we will cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the Purchaser.

Section 6 Liability for Defects and Other Liability for the Delivery of New and Used Machines
1. Claims of the Purchaser for defects presuppose that the Purchaser has duly complied with its obligations to inspect the goods and give notice of defects pursuant to Section 377 HGB.
2. If the purchased item is defective, the Buyer may demand rectification of the defect. In the case of rectification, BMS Bau-Maschinen-Service AG shall bear the expenses required for the purpose of supplementary performance, in particular costs of transport and material.
3. If rectification of the defect finally fails, the Buyer may withdraw from the contract.
4. BMS Bau-Maschinen-Service AG is liable in accordance with the statutory provisions if the Purchaser asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of its representatives or vicarious agents. Unless the breach of contract is intentional, liability for damages is limited to the damage typically occurring in transactions of this kind.
5. BMS Bau-Maschinen-Service AG is liable in accordance with the statutory provisions if a material contractual obligation has been culpably breached. In this respect, liability for damages is limited to the damage typically occurring in transactions of this kind.
6. Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act.
7. The limitation period for claims for defects is 12 months from the passing of risk.
8. With respect to used delivery items, liability for material defects is excluded.

Section 7 Liability for Defects and Other Liability for Work Services
1. BMS Bau-Maschinen-Service AG warrants, in accordance with the following conditions, that repair, inspection and customer services are performed free from material defects and defects of title. The warranty for new and used spare and replacement parts delivered or installed is governed by the conditions set out in Section 6 for the delivery of new and used machines.
2. Claims for defects will only be recognized if the work performed is – insofar as this is reasonable weighing the interests of both parties – inspected for obvious defects without undue delay after delivery and identified defects are notified in writing without undue delay, at the latest within 5 working days after discovery of the defect.
3. If the work is defective, BMS Bau-Maschinen-Service AG shall, at its option, provide supplementary performance by rectification or new production. If the agreed remuneration has not yet been paid in full, BMS Bau-Maschinen-Service AG may make supplementary performance conditional upon the customer paying part of the remuneration, insofar as this is appropriate taking into account the defect asserted.
4. If the customer still has liabilities towards BMS Bau-Maschinen-Service AG under other contracts, BMS Bau-Maschinen-Service AG may also assert a right of retention with respect to the machines delivered for repair or maintenance.
5. Supplementary performance extends only to those parts of the work that exhibit the defect or those parts that were inevitably damaged by the defect despite proper handling. Replaced parts become the property of BMS Bau-Maschinen-Service AG.
6. The Purchaser is entitled, at its option, to reduce the remuneration or to withdraw from the contract and to claim damages in lieu of performance if supplementary performance is seriously and finally refused, if the type of supplementary performance chosen by us has failed or is unreasonable for the Purchaser, or if the Purchaser has unsuccessfully set a reasonable period for supplementary performance.
7. Claims for withdrawal from the contract and damages in lieu of performance are excluded if and to the extent that the defect asserted does not impair, or only insignificantly impairs, the suitability of the work for the contractually intended use or the use customary for services of the same kind.
8. Any further liability of BMS Bau-Maschinen-Service AG for material defects or defects of title is excluded unless such defects were fraudulently concealed or BMS Bau-Maschinen-Service AG has assumed a written guarantee for the quality of the service.
9. BMS Bau-Maschinen-Service AG is liable in accordance with the statutory provisions for damage resulting from injury to life, body or health based on an intentional or negligent breach of duty by its legal representatives, employees or vicarious agents, as well as for other damage based on an intentional or grossly negligent breach of duty by its legal representatives, employees or vicarious agents.
10. BMS Bau-Maschinen-Service AG owes damages or reimbursement of the Purchaser’s expenses in accordance with the statutory provisions if the damage is based on the breach of a guarantee assumed by us for the quality of the work service, or if our legal representatives, employees or vicarious agents have culpably or grossly negligently breached an obligation that is of material importance for achieving the purpose of the contract. BMS Bau-Maschinen-Service AG is also liable if its legal representatives, employees or vicarious agents have culpably or grossly negligently breached a duty of care with respect to the rights, legal interests and interests of the Purchaser and the customer can no longer reasonably be expected to accept performance by BMS Bau-Maschinen-Service AG. In this respect, liability is limited to the damage typically occurring in transactions of this kind.
11. To the extent that liability is excluded or limited, this also applies to the personal liability of salaried staff, employees, representatives and vicarious agents of BMS Bau-Maschinen-Service AG.
12. The limitation period for claims and rights based on defects of the delivered products, services and work services, and for damage arising therefrom, is one year.
13. This limitation period does not apply in cases of intent, where the defect was fraudulently concealed, where a guarantee for the quality of the service was assumed, for claims for damages based on injury to life, body, health or liberty of a person, for claims under the German Product Liability Act, in the case of a grossly negligent breach of duty, or in the case of a culpable breach of material contractual obligations.

Section 8 Total Liability; Requirements for Warranty or Guarantee Claims
1. Any liability for damages beyond that provided for in Section 6 or Section 7 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault upon conclusion of the contract, from other breaches of duty or from tortious claims for compensation for property damage pursuant to Section 823 BGB.
2. To the extent that liability for damages vis-à-vis us is excluded or limited, this also applies with regard to the personal liability for damages of our salaried staff, employees, staff members, representatives and vicarious agents.
3. Warranty or guarantee claims may only be asserted if the maintenance, inspection and service work prescribed or recommended by BMS Bau-Maschinen-Service AG has been carried out without gaps by BMS Bau-Maschinen-Service AG or a recognized specialist workshop (master-craftsman business) and original parts (spare parts, wear parts) are used in all work on the machines. The performance of this work must be proven to BMS Bau-Maschinen-Service AG when asserting any warranty or guarantee claims.

Section 9 Retention of Title for the Delivery of New and Used Machines
1. We retain title to the purchased item until receipt of all payments arising from the business relationship. In the event of conduct by the Buyer in breach of contract, in particular default in payment, we are entitled to take back the purchased item. Our taking back of the purchased item does not constitute a withdrawal from the contract unless we have expressly declared this in writing. Our seizure of the purchased item always constitutes a withdrawal from the contract. After taking back the purchased item, we are authorized to realize its value; the realization proceeds shall be credited against the Buyer’s liabilities, less reasonable realization costs.
2. The Buyer is obliged to treat the purchased item with care until full payment; in particular, the Buyer is obliged to insure it adequately at replacement value, at its own expense, against fire, water and theft damage. If maintenance and inspection work is required, the Buyer must carry this out in good time at its own expense.
3. In the event of seizures or other interventions by third parties, the Buyer must notify us in writing without undue delay so that we can bring an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, the Buyer is liable for the loss incurred by us.
4. The Buyer is entitled to resell the purchased item in the ordinary course of business; however, the Buyer hereby assigns to us all receivables in the amount of the final invoice amount (including VAT) of our claim which accrue to the Buyer from the resale against its customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The Buyer remains authorized to collect these receivables even after the assignment. Our authority to collect the receivables ourselves remains unaffected. However, we undertake not to collect the receivables as long as the Buyer meets its payment obligations from the proceeds received, is not in default in payment and, in particular, no application for the opening of insolvency proceedings has been filed and no suspension of payments has occurred. If this is the case, however, we may demand that the Purchaser disclose to us the assigned receivables and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
5. Any processing or transformation of the purchased item by the Buyer is always carried out for us. If the purchased item is processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same applies to the item created by processing as to the purchased item delivered under retention of title.
6. If the purchased item is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Purchaser’s item is to be regarded as the main item, it is deemed agreed that the Purchaser transfers proportionate co-ownership to us. The Purchaser holds the sole ownership or co-ownership thus created in safe custody for us.
7. We undertake to release the securities to which we are entitled, at the Purchaser’s request, to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is at our discretion.

Section 10 Export Control and Sanctions – Prohibition of Re-Export to Russia
1. The goods delivered by the Seller fall within the scope of Article 3k (1) in conjunction with Annex XXIII of Regulation (EU) No 833/2014; the Buyer must therefore not sell, export or re-export them, directly or indirectly, to the Russian Federation or for use in the Russian Federation.
2. The Buyer shall undertake all necessary measures reasonably available to it to ensure that the purpose of the preceding paragraph is not frustrated by third parties further down the commercial chain, in particular by resellers. To this end, the Buyer shall set up and maintain an adequate monitoring procedure.
3. The Buyer may pass on the goods or technologies concerned to third parties only if it contractually obliges them, at least to a corresponding extent, to comply with the obligations under paragraphs 1 and 2 and provides for adequate remedies in the event of a breach.
4. The Buyer shall inform the Seller without undue delay of any circumstances indicating a breach of the above obligations or their circumvention. Upon the Seller’s request, the Buyer shall without undue delay provide the Seller with all information and documents required to verify compliance, in particular information on the final recipient, the destination and the intended end use.
5. Any breach of paragraphs 1 to 4 constitutes a material breach of contract. In such a case, the Seller is entitled, in particular, to immediately suspend deliveries not yet carried out and to withdraw from the contract or terminate the contract for good cause. Further statutory and contractual claims remain unaffected.
6. The Buyer shall indemnify the Seller against any claims, damages, reasonable costs of legal defence and charges imposed by authorities that are based on a culpable breach by the Buyer of the above obligations.
7. For each culpable breach of paragraph 1, the Buyer shall forfeit a contractual penalty to be determined by the Seller at its reasonable discretion and, in the event of a dispute, to be reviewed for appropriateness by the competent court. The right to credit such penalty against any further claim for damages remains reserved.

Section 11 Place of Jurisdiction – Place of Performance
1. If the Purchaser is a merchant, the registered office of BMS Bau-Maschinen-Service AG is the place of jurisdiction; however, we are also entitled to sue the Purchaser at the court of its place of residence.
2. Unless otherwise stated in the order confirmation, our registered office is the place of performance.