General Terms and Condition for Delivery and Payment of BAYTEK Industriesysteme GmbH (BAYTEK), D-85386 Eching

1.  General

1.1. The following General Terms and Conditions forming part of the contract; they only applicable for companies according § 14 BGB. (Para 14 of German Civil Code)

1.2. Conditions of purchase of the costumer will not forming part of the contract and to applicable for BAYTEK then authoritative precedent, after written confirmation by BAYTEK. This is also applicable, in case BAYTEK in knowledge of alternative delivery conditions of the customer delivers the goods and/or carry out the service to the customer without any reservation. Is the customer with to preside handling not agreed, as he has after that immediately in any severally type express to their point. BAYTEK can in this case gap to retain from the contract.

2.  Quotation and closing Contract

2.1. Our offers are to confirm and not binding. A contract becomes exclusively valid after our written confirmation with a formal confirmation letter. Verbal agreement are for both sides compulsory only, after written confirmation from BAYTEK.

2.2. The Amendment, supplement and one comprehensible cancellation of the contract, inclusive of the delivery- and conditions of payment require a separate written agreement.

2.3. Images, drawings, weight- and dimensions in regard to this delivery item are non-binding, except a specific and written different agreement is made.

2.4. Quotations for estimated costs attempt for repair- and maintenance work are non-binding.

2.5. The customer is responsible for the accuracy and integrity of his specifications, particularly for his constructions drawings and documentation as well as all information provide, which have influence to the suitability of the delivery item for the designated use.

2.6. Drawings, proposal for organisation, calculation of costs, miscellaneous planning- and offer documentations provided remain as property of BAYTEK. In case the order come incapable all of these documents has to be returned to BAYTEK if requested.

2.7. Would BAYTEK overseas conclusion of the contract situation well known, the solvency of customer may inadequate, BAYTEK can discontinue the work and can reject the contract

3.      Intellectual property rights and privacy

3.1. All right on own sketches, drafts, final drawing etc. in every procedure and to every purpose to remain at BAYTEK, when not specific exceptional any different written agreement is made.

3.2. The customer to be liable, that documents and drawings provided by him not violating third party rights nor a patent- or other trade mark rights.

3.3. All of the documents, data and to issued Information supplied by BAYTEK are to be treated confident and shall not be reproduced, copied, faked or made otherwise accessible for third party without specific approval from BAYTEK; the customer has in such cases to take care that the third party is made obligated likewise to keep all documents, data and to issued Information in confidence.

3.4.  BAYTEK is binding them self to handle drawings and documentation marked by the customer as  confident as confidential and will made only available for subcontractor or third party only after the third party or subcontractor has confirmed in written confidential handling likewise for handling liable.

4.  Liability to keep record

Production drawings and documentation provided by the customer would only keep on record at BAYTEK, after explicative written agreement is made. In any case the safe record keeping period ends after 6 months, if no re-order is made until to this point of time.

5.  Pricing, Packaging

5.1. Our prices are valid according the terms and conditions stated in the order confirmation and the specified earned- and scope of delivery. All price are ex factory and/or warehouse as stated in the order confirmation, applicable value added tax at the date of delivery is excluded.

5.2. Contract changes agreed after the contract is signed and/or written order confirmation is made eligible BAYTEK may to calculate additional costs thereby. Reimbursement will be paid after deduction of the calculated additional costs raised by the changes of the contract. 

5.3.  If the contract is made in a currency other the Euro (EUR) and the exchange rate has changed between the contract has made and time of delivery significant (more than 15%), on request of one party in written, both contracting parties are obligated to proceed for negotiation of adjustment of the contract.

5.4. The customer will be charged for the costs of packaging, the level of primary costs will be computed.

6.  Term of delivery

6.1. The delivery time will be observed as best as possible, but however unaccommodating, except the delivery date would explicative specified as mandatory designated.

6.2. The delivery term starts with the date of written order confirmation by BAYTEK.

6.3. In case supplementary contract amendments agreed, the original term of delivery becomes decrepit until new period of delivery is agreed and in written confirmed by BAYTEK.

6.4. Precondition for the time of delivery to place is in any case the fulfillment of the obligations of the customer. In case partial payment arrangement agreed, the term of delivery becomes valid after record of first payment at bank account of BAYTEK. In case the customer is responsible for delivery of documents necessary for the delivery and fails to provide in time, the term of delivery extends according the agreement of delivery- and performance due date suitable.

6.5. The term of delivery is fulfilled, if the goods leaves the factory or warehouse of BAYTEK or BAYTEK inform that the goods ready for dispatch in written prior or on the date written in the contract or order confirmation.

6.6.  In case of exceeding a mandatory date of delivery the customer only can withdraw the contract after an appropriate extension of time, with minimum 4 weeks  amount due, and in addition with a written seriously and finally decline of the contract (threat of resignation) except the conformation of readiness for dispatch within the appropriate extension of time.

6.7.  For late delivery  one primarily deliveryman or subcontractor, to be on hand upper force, by obstructive arrangements of legislator, by interruption of production out of scope of BATEK (e.g. power interruption) or the transport of the goods, in particular to provoke by chance of natural disaster, warfare, strike, Lock out, energy- and raw material scarcity, congestion, fire, regularly disposition and similar materials conjuncture the delivery time will be extended for the duration of disability. Begin and end of such disruption BAYTEK will inform the customer immediately in written with.

6.8. In case BAYTEK is not able to deliver in time caused by disruptions as pointed out under          Para 6.7., this gains not the right for the customer to deduce. In case such disruption periods as stated in Para 6.7 continues more two weeks, the customer has the right to request from BAYTEK an declaration, if the contract will be withdrawn or fulfilled within a reasonable time period.

7.  Delivery and partial shipment

7.1. Standard term of delivery is ex work (factory or warehouse) Eching.

7.2. In beneficiary exception, particularly caused by operational reasons or in case of disruption

as stated in Para 6.8 BAYTEK has the right after previous indication of partial delivery and severally to issue an invoice for the partial shipment.

7.3. In case in frame contract is an agreement of partial shipment, the customer has the obligation of specification in due course of classification after quantity, variety and delivery item in due time. In case of no delivery to call or grouping, after unsuccessful nomination of deadline for call BAYTEK is authorized, to decide call and grouping or to withdraw from the part of the frame contract and to demand compensation.

8.  Transfer of perils and dispatch

8.1.  Also in case of shipment free of transportation charges the customer take over the risk from the effective date on, where BAYTEK or a representative handing over the goods to a forwarder or a shipper for the purpose of deliver or the goods are loaded on own vehicle for the purpose of delivery. Is the dispatch delayed for reason on obligations of the customer, the risk is on the side of the customer with the information of readiness for dispatch of the goods. The hereby emerging additional costs are to carry by the customer.

8.2. In absence of contracted agreements it is the obligation of BAYTEK to determine the designation of packaging, the way of transport and the forwarder, without prejudice for selection of the lowest price and quickest way of transportation.

8.3. After the goods taken over from the forwarder without interception of the packaging, this is to obtained as verification of free of faults packaging at time of dispatch. The burden of proof of the opposite shall be responsibility of the customer.

9.  Limitation of liability

9.1. BAYTEK liability is limited according legal regulations for companies under German Law (GmbH), when BAYTEK negligence one substance duty under a contract (cardinal obligation) injured; in these case the compensation is limited to the predictable, typically damage.

9.2. BAYTEK and their staff to be liable – legal as well as stipulated – in case of injury of live, body or health caused negligent of duty. For any other business harm adhesion BAYTEK and their staff only at one deliberate or roughly negligent own neglect of duty as well at one such serious violation of obligations by a representative and auxiliary person.

10.  Guarantee

10.1. Quality of product are only then guaranteed, when in written as guarantee designated. Data mentioned in a brochure describing a product to motivate not an agreement on the legal and factual nature in meaning of Para § 434 I BGB (German Civil Code).

10.2. Delivery of good has to be accepted by the customer also if minor simply circumstantial defect is exhibit. Deliveries shall be checked prior of acceptance for possible damaging and attempted of theft. Visible transport damage and deficiency shall be express immediately and to show up to the forwarder and shall be endorsed on the acknowledgement of the delivery papers.

10.3. Apparently defect, incorrect or incomplete supplies, incorrect amount, variation on dimension as well transport- and packaging damage BAYTEK shall be noted not later than within one elimination period of 10 days after receipt the goods, to hide shortage without delay after discovery, in written and specified. BAYTEK shall have the opportunity to prompt verification.

10.4. Notice of defect to release the customer not for his duty of payment.

10.5. In case of beneficiary complaint by the customer BAYTEK has the right to select to supplementary performance of repair or replacement of the goods delivered. The costs for repair will take over by BAYTEK only so far, as they are not higher than the goods would be taken to a different place as the place of supplementary performance. Is a transport needed, the risk has to carry by the customer.

10.6. All replaced product and part will be property of BAYTEK again, so far they still not in their properties condition. To remedy of defects the customer shall give BAYTEK the opportunity of supplementary performance especially the required time and occasion to grant, particularly to have access to the product claimed. Products for replacement or supplementary performance shall be made accessible for BAYTEK without delay, this also apply for goods-parts. If the customer fails these obligations the guarantee is no longer applicable.

10.7. The guarantee is also withdrawn in case the delivery goods altered, improperly processed or not in original packaging shipped. For goods of third party or subcontractor the guarantee of BAYTEK is restricted to the responsibility to transfer the guarantee claims, in form of the guarantee that BAYTEK is granted by the third party and/or subcontractor.

10.8. In case the supplementary fell, the customer after his selection can either the compensation to reduce (reduction) or withdrawn the contract. The right of the customer of compensation or reimbursement of expenses to charge, stay here of unaffected.

10.9. The pretension of the customer by compensation from shortage of delivery is limited acc. figure. 9; the reimbursement of expenses is limited to thus predictable, typically applicable disbursement defined.

10.10. The guarantee period of defects is limited to 12 months; the period starts with transition of the risk to the customer, Para § 479 BGB (German Civil Law) stay inviolately. The legal period of prescription stays unaffected at injury of life, health, in case of roughly careless neglect duty as well at the violation of cardinal liabilities.

10.11. For goods, which after disposition to the customer or a third party are modified or contrary to the technical guidance of the manufacturer or by BAYTEK in other white inadequate modified any guarantee claim barred.

10.12.  In case BAYTEK sales used machines, equipment or constrictions, the guarantee is excluded, regardless if shortage or functions troubles on the goods recognized and visible or not.

11.  Payment conditions

11.1. Computation are immediately after receipt payable. Cash discount or different commission may would not take.

11.2. BAYTEK is authorized for cash on delivery, the cost are payable by the customer.

11.3.  Payment by note are only acceptable, if they are accepted by BAYTEK with a conclusion of a contract specific to allowed to get and in the scope of term of payment at BAYTEK contract. Payment by note and check to count first with their acceptance and receiving of payment. Transition and discount charge are on charge of the customer and are payable in cash immediately.

11.4. BAYTEK is despite different true copy regulations of customer authorized, payment made initially to transfer to old responsibilities chargeable. In case that interests applicable and costs already gained, BAYTEK is authorized, to use the payment initially for the costs, then for the interest and at last auf major benefits to attribute.

12.  Lagging and security deposit

12.1. BAYTEK is authorized, interest in high one their prime rate to estimate at any rate of interest for open account credit in addition to the value added tax to charge.

12.2. To continue claim for damages are stay inviolate.

12.3. In case the customer its liabilities to pay not to comply, in particular when one change protest to go, in case a check is dishonored or in case BAYTEK get knowledge about circumstances, that the credit rating of the customer in question to put, BAYTEK is authorized, to request safety deposit in high of the contracted price in addition to extra expenses prepayment or collateral security to request; figure 2.7 stay hereof inviolate.

13.  Counter claim, act of transfer

13.1.  The customer is for charging or without holding entitled only, when letter of complaint or counter claim would  make good effect, when the counter claim effective determine will or decision ripe or undisputed are.

13.2. The customer is not authorized, bills outstanding raised by the business relationship with BAYTEK to step up to a third party.

14.  Reservation of Proprietary Rights

14.1. BAYTEK keep the right of property on all deliveries of merchandise until full doorway of all payment agreed in the contract or order confirmation. By contrary to contract behave the customer, in particular by default of payment, BAYTEK is authorized, the goods to taking back. By taking back the goods back to BAYTEK to lie neither resignation from contract, except, BAYTEK has this specifically declared in written. The garnishment of the goods delivered by BAYTEK lie always one resignation of the contract. BAYTEK is after withdrawal of the goods entitled to re-use the goods, the benefit of re-use shall deducted the responsibilities of the costumer – discounted reasonable cost for re-use – chargeable.

14.2 It is on duty of the customer of proper handling of the goods, especially it is on his duty to insure the goods against damages caused by fire, water and robbery in amount of the value at date of delivery.

14.3.  In case of garnishment or other intervention of third party it is the duty of the customer to inform BAYTEK in written, that BAYTEK is in the position to apply for legal claim according Para § 771  ZPO (code of civil procedure). As fare that third parties are not in the position to pay back to BAYTEK the legal costs and other costs of a legal claim according Para § 771 ZPO, it is the liability of the ordered to reimburse the costs.

14.4.  The customer has the right to re-sell the goods in an ordinary business way; in this case he yield immediately all rights in favor of BAYTEK in amount of the factored total payment including applicable value added tax. This rights are transferred to the third party which received the goods independent from the fact that the goods with or without further processing are sold from the third party. The customer is entitled of confiscation of the amount due also in case he already transfer his rights. The right of BAYTEK, to confess the amount due by their own, remain hereby inviolate. BAYTEK is bounded not to confess the amount due, as long as the customer fulfilling his obligations of payment from payments made by his customers, not delay in paying a debt and especially has not filed insolvency proceedings or discontinuation of payments. But in case of filing for insolvency proceedings or discontinuation of payments BAYTEK has the right, to force the customer to made information about the third party available for BAYTEK and hand over all documents to claim the rights of BAYTEK against the third party.

14.5. The use of the goods delivered by BAYTEK in a product produced or assembled by the customer will be done in favor of BAYTEK always. If the goods combined and/or assembled with other parts not delivered BAYTEK, BAYTEK gain establishment of joint ownership on the new/assembled product in amount of the facture value including applicable value added tax in relation to the new value of the new/assembled product and the time of production and/or assembling.

14.6. In case the goods delivered by BAYTEK are re-furnished and/or assembled in such a way that it no longer can separate from the other parts again than BAYTEK gains to co-ownership on the new product in amount of the good delivered by BAYTEK including applicable value added tax. The customer take over the responsibility to gain the rights on the goods on behalf of BAYTEK.

14.7. The customer also yield the rights to BAYTEK for securing the amount due which caused by combination of the goods delivered by BAYTEK with a property also against third parties.

14.8. BAYTEK is obligated to give back the securities on request of the customer as fare as the value of the securities is over the value of 20 percent of outstanding debits. The selection of the securities to give back to be incumbent on BAYTEK.

15.  Commission processing

15.1. Under the condition of commission processing at BAYTEK the material and parts provided by the customer will be handled and used with caution. BAYTEK is not obligated of proof that the material is fit for use of purpose.

15.2. In case parts cannot be used due to material defect, BAYTEK is entitled for re-imbursement of handling expenses and charges.

15.3. In case parts get un-usable during the commission processing at BAYTEK due to failure caused by BAYTEK production and/or assembling process, BAYTEK will re-commission processing on their own costs.

16.  Data Security

16.1. BAYTEK is authorized to store and process data in electronic form from the customer caused by the business relationship or in relation to this, independent if there are about the customer or from a third party.

16.2. The customer is herewith informed that his data are processed and stored for purpose of documentation and computation of payment in electronic format.

17.  Delivery into member states of the European Community

17.1. For delivery into member states of the European Community prior to order confirmation the customer has the obligation to provide the documentation that he is entitled for tax free deliver within the European Community in accordance with Article 28c part A lit. a and b of their EG-tax directive dd. 16.December 1991. Especially the customer has to provide his Value added tax number.

17.2. In case of incorrect data and information it is the liability of the customer to pay may applicable value added taxes. In general it is the liability of the customer to pay may applicable taxes. In case BAYTEK will be forced by the tax authorities to pay applicable tax for the customer it is on the obligation of the customer to indemnity BAYTEK from these obligations.

18.  Applicable law, Place of fulfilment, Place of jurisdiction, partial nullity [law]

18.1. For the General Terms and Conditions forming part of the contract and the whole privates of contract between BAYTEK and the customer German law will apply; the validity of the United Nations Convention on Contracts for the International Sale of Goods [abbr.: CISG] (CISG) is excluded.

18.2. Place of fulfilment for all liabilities raised out of the business relationship between BAYTEK and the customer will be Eching. This is also applicable for payment and liabilities on bills.

18.3. Place of jurisdiction is Munich (München). In case of international dispute German courts having jurisdiction.

18.4.  In case that one or several of the above mentioned conditions legally void or will be become legally void, the legally effectiveness of the other conditions and paragraphs is not influenced. The legally voided condition shall be replaced with a valid one, with a wording that pursue the economic objective as best as possible.

18.5 In case of dispute of the correctness, interpretation and validity of this above English translation of the "Liefer- und Zahlungsbedingungen der Baytek Industriesysteme GmbH (Baytek), D-85386 Eching" the German original has the prejudice validity.