General Terms and Conditions of Business for Battermann & Tillery GmbH and Battermann & Tillery Global Marine GmbH and their subsidiaries
(1) Area of application
- These General Terms and Conditions of Business (hereinafter GT&Cs) shall be applicable to all contractual relationships regarding surveys and all other services between Battermann & Tillery GmbH, Battermann & Tillery Global Marine as well as their subsidiaries (hereinafter "agent") and the client, with the exception of salvage sales for which separate terms shall be applicable. These GT&Cs shall be applicable in business operations with entrepreneurs.
- Any conflicting or deviating terms of the client shall not be accepted unless the agent expressly confirms their validity in writing. These GT&Cs shall also apply if the agent performs the services without reservation, even though they are aware of any terms and conditions of the client that conflict with or deviate from these GT&Cs.
- These GT&Cs shall also apply in their current version to follow-up instructions and in the case of ongoing business relationships. By issuing instructions, the client agrees to their validity.
- Individual contractual agreements take precedence over these GT&Cs. Amendments to or deviations from these GT&Cs must be made in writing.
- References to the supplementary application of statutory provisions are for clarification purposes only. The statutory provisions shall also apply without such clarification insofar as they are not directly amended or expressly excluded in these GT&Cs or otherwise by agreement between the contractual parties.
(2) Issuing of instructions, content of instructions and contractual amendments
- Cost estimates, prices and other information provided by the agent are not legally binding offers, but merely invitations to the client to submit an offer. The instructions shall only be binding on the agent if and to the extent that it has been confirmed in writing by the agent or the agent commences performance of the contract. If the agent makes a binding offer to enter into a contract, this shall be subject to change, and the agent shall be entitled to withdraw the offer until the instructions are accepted, unless a period for acceptance is specified in the offer.
- A written acceptance of instructions from the agent shall be authoritative for the content of the instructions. If the acceptance of instructions does not define the content of the instructions in detail, it shall extend to all activities necessary for the survey of the subject of the report.
- If, during the proper execution of the instructions, it becomes apparent that deviations, changes and/or extensions to the specified scope of the instructions or the agreed fixed compensation are necessary, the parties shall amend the contract accordingly, in advance if possible. The amendment to the contract shall be recorded in writing. If no agreement on the amendment to the contract can be reached, both parties shall be entitled to terminate the contract, with the consequence that the client shall compensate the work performed up to that point. Reference is made to Section 9 (Paragraph 5).
- Additions, amendments and verbal ancillary agreements must also be made in writing to be effective. This applies in particular to commitments and information provided by the agent's employees and third parties engaged by the agent.
- The requirement for written form also applies to any amendment or waiver of this written form clause.
(3) Agent’s Duties
- The client shall be responsible for carrying out all preparatory and cooperative measures necessary for the execution of the instructions in good time and at their own expense.
- The client is expressly obliged to provide the agent with all documents, records and information necessary for the performance of the service owed, conscientiously, completely and in good time at their own expense.
- The agent expressly emphasises that the documents, records and information provided by the client form the basis for the provision of services by the agent. The provision of services is therefore only possible with the corresponding cooperation of the client.
- If a survey is planned or necessary for the provision of services, the client shall ensure free access to the objects to be surveyed and provide the agent with all necessary permits, documents, information and contact persons. The agent expressly points out that, in principle, it is not possible to carry out a survey without access to the objects to be surveyed.
- If, in the course of rendering the service, the agent determines that a survey cannot be carried out safely, the agent shall be entitled to charge risk surcharges at their reasonable discretion or to refuse to perform the service until the risk has been eliminated. The right to terminate the contract due to non-fulfilment of (cooperation) obligations remains unaffected.
- The agent shall be entitled to call in necessary auxiliary personnel or aids on behalf of and with the authority of the client. If it is necessary for the agent to obtain information directly from third parties or to review documents, the agent shall be authorised to do so by the client.
- The agent shall be informed in good time and without being asked of all events and circumstances that could be of significance for the execution of the instructions.
- The client shall not issue any instructions to the surveyor that could distort their actual findings, professional conclusions, assessments or the result of the report.
- If the client fails to fulfil their obligations as set out in paragraphs 1 to 8, or fails to do so properly, the agent shall not be liable for their services in connection with the execution of the instructions, unless the client's breach of duty was not the cause.
- If the client does not accept the service at the agreed time or fails to provide the necessary cooperation (e.g. access to the object to be surveyed is not granted), they shall reimburse the agent for the additional expenses incurred as a result, without prejudice to further legal rights. In particular, the client shall reimburse the agent for additional costs and additional time spent (e.g. for renewed travel or waiting times) in accordance with the agent's general hourly rates. Furthermore, the agent shall be entitled to terminate the contract without notice after the expiry of a reasonable period set for the client. In this case, the agent shall be entitled to demand the agreed compensation even for services not rendered. However, the agent must offset any expenses saved as a result of the termination or any income earned through other use of its labour. Further claims, such as claims for damages, remain unaffected.
- Pursuant to paragraph 10, the client shall also be obliged to reimburse any additional expenses if the provision of the service proves impossible for reasons beyond the agent's control.
- The responsibilities set out in paragraphs 1 to 8 are not merely provisions, but performance obligations on the part of the client. In the event of a breach of said obligations, the agent shall therefore also be entitled to the rights available in the event of a breach of duty by the debtor in accordance with the statutory provisions, for example to terminate the contract for good cause and to claim damages. The rights under Sections 642 and 643 of the German Civil Code (BGB) remain unaffected.
(4) Scope of the contract, obligations of the agent, execution of the assignment
- Insofar as the agent provides services such as consulting and training services, they shall not be liable for any specific results. It shall be the sole responsibility of the client to make decisions resulting from the consulting services provided by the agent. In the case of consulting services, the statements, information or opinions provided by the agent shall always be understood as suggestions. Unless expressly agreed in writing, the agent does not guarantee any increased or otherwise specified level of security when implementing individual or all of the suggestions provided.
- Even if not expressly stated in detail, the agent shall be entitled, within the scope of the instructions, to carry out all activities necessary for this purpose at the client's expense, in particular the necessary and customary investigations, sampling and testing, to obtain information, to carry out investigations, to undertake travel and surveys, and to prepare or have prepared photographs, diagrams and other supporting documents. In the event of the client defaulting on their obligation to cooperate, or if cooperation is required immediately for the provision of the service, the agent is entitled to procure or arrange for the performance of any such obligations on the client's behalf, and to do so at the client's expense. No separate consent of the client is required for the performance of these activities, unless the measures result in costs that are clearly disproportionate to the purpose and value of the agent's service or are extraordinary measures.
- The agent is not obliged to check the documents, records and information provided by the client or other services for completeness and accuracy, unless there are specific factual indications that this is necessary or the instructions expressly provide for this.
- The instructions also include, but are to be compensated separately, any appointment as a witness or expert witness in court proceedings. Reference is made to the provision in Section 7 (Paragraph 4).
- If sampling by the agent is necessary in the course of fulfilling the contract, this shall only be carried out by the agent if it is possible without endangering themselves. Otherwise, the agent shall be entitled to have the sampling carried out at the client's expense by auxiliary persons at the place of survey or by external specialist personnel. Unless otherwise agreed, the agent shall store samples at their premises for a period of twelve months after the report date, whereby the agent shall be entitled to destroy the samples without the prior consent of the client in the event of a legitimate interest. In this case, the client shall be informed before the sample is destroyed. Storage for longer than twelve months requires the express written agreement of both parties. After expiry of the storage period, the sample shall be destroyed without prior notice and at the expense of the client. The agent shall be entitled to charge a minimum flat rate of EUR 45.00 for the destruction.
The above storage period does not apply to samples stored at external laboratories that are involved in the survey. Depending on the laboratory in question, significantly shorter storage periods apply here. Therefore, the availability of samples after the end of the survey cannot be guaranteed. If storage is desired, this must be requested separately and paid for. - The agent shall perform the expert services neutrally, impartially, independently and to the best of their knowledge and abilities with the diligence of a prudent surveyor. Insofar as this is the subject of the instructions, the recognised technical regulations and rules existing at the time the instructions are issued shall be observed.
- The agent may accept the instructions and execute them, either wholly or partially, through competent third parties acting as their proxy.
- If the agent is commissioned to prepare a report, this shall be provided digitally and in German. The agent shall be entitled to charge separately for the provision of reports in foreign languages and for additional copies.
- If the agent assists the client in advance of the conclusion of a contract between the client and a third party, in particular by providing contact details of surveyors abroad, this is generally done as a courtesy only. In this case, the agent shall not be obliged to select the surveyor and shall not be liable for the suitability or performance of the third party. The agent shall only undertake careful selection if this has been expressly agreed as a service to be compensated. In such cases, the contractual relationship shall be established directly between the client and the third party.
- The agent shall provide their services exclusively for the client. Third parties shall only be included in the scope of contractual protection if this has been expressly agreed in writing and the third party has been named. Similarly, any connection between third parties and the services provided by the agent or the establishment of trust in the results of the services shall not form part of the contractual services, unless this has been expressly agreed. This shall also apply if the client passes on the results to third parties or uses them as the basis for a legal declaration.
- The partial delivery of services is permissible to the extent reasonable.
(5) Date of completion
- Any specified completion dates are for project planning purposes only and are non-binding, unless expressly agreed in writing otherwise.
- Compliance with the agreed completion dates requires the timely fulfilment of all the client's cooperation obligations, particularly the provision of the necessary documents, records and information, as well as payment of any advance payments. If these obligations are not met in time, the deadlines will be extended accordingly, unless the agent is responsible for the delay.
- The agreed completion dates may also be extended if a planned survey is delayed for reasons beyond the agent's control.
(6) Copyright and rights of use
- The agent expressly retains the copyright to the results of the assignment which are subject to copyright.
- The services rendered, or results achieved, including all related details, may only be used by the client for the purpose agreed upon when the instructions were issued. This also applies if there is no copyright on the services provided. Any other or further use is only permitted with the prior express written consent of the agent. Use of excerpts is only permitted with the written consent of the agent. Reproductions may only be made within the scope of the agreed purpose of use. The results of investigations and expert opinions may not be published or used for advertising purposes without the written consent of the agent.
- The client's right of use is subject to full payment of the agreed compensation.
(7) Compensation and terms of payment
- The agent is entitled to compensation which conforms to the valid scale of fees of the agent unless fixed compensation had been agreed upon in writing. Alternatively, compensation shall be paid in accordance with rates customarily charged by freelance marine and cargo surveyors. In the case of billing based on time spent, all time related to the provision of services, including waiting times and travel times, will be billed at the same hourly rate as stated in the schedule of fees. Third-party costs and expenses will be charged at cost and shown separately on the invoice.
- All prices are exclusive of statutory value-added tax.
- Multiple clients are jointly and severally liable to the agent.
- If the agent or a proxy agent employed by the agent is summoned to appear as a witness or expert witness in court proceedings in connection with the matter underlying the instructions, the agent shall be entitled to charge the additional expenses incurred as a result at the hourly rates applicable at the time of the summons plus any necessary expenses. Any compensation under the German Judicial Remuneration and Compensation Act (JVEG) shall be taken into account.
- The agent is entitled to demand reasonable advance payments and/or to issue partial invoices for services already rendered. In particular, the agent is entitled to demand an advance payment of a reasonable amount for the expected compensation and expenses after conclusion of the contract and before commencement of work. The right to demand partial payments in accordance with the statutory provisions remains unaffected.
- The parties agree that invoices shall only be sent as PDF files by e-mail or created in electronic form.
- Invoices are due for payment immediately without deduction. The client shall be in default without further payment reminder if payment is not made by the date specified on the invoice or, if no date is specified, within 14 days of the invoice date. An earlier default in accordance with the statutory provisions, in particular by means of a reminder, remains unaffected.
- If the client is in default, the agent may refuse to continue with the assignment, withdraw from the contract and claim damages in accordance with the statutory provisions.
- In the event of default in payment, the agent shall be entitled to charge default interest and lump-sum damages in accordance with the statutory provisions (currently default interest at a rate of 9 percentage points above the respective base rate, lump-sum default payment of EUR 40.00). Furthermore, the client shall be entitled to charge reminder fees of EUR 2.50 per reminder.
- Offsetting against a counterclaim and a right of retention on the part of the client with regard to compensation are excluded, unless the counterclaim is undisputed or has been legally established.
(8) Warranty
- Warranty shall be determined in accordance with the statutory provisions. Insofar as the agent is obliged to perform work, Sections 631 et seq. of the German Civil Code (BGB) shall apply with the following modifications:
(a) Obvious deficiencies must be reported within five working days of receipt of the agent's service. Furthermore, the client must immediately inspect the service provided for any recognisable deficiencies and notify the agent in writing immediately after discovery, specifying the nature and extent of the deficiencies. Latent deficiencies must be reported in writing immediately after discovery. Otherwise, the contractual service shall be deemed to have been performed properly.
(b) In the event of justified claims, the client may, after notifying the agent of a deficiency, demand subsequent performance (rectification of deficiency or reissue of report). The agent shall be entitled to choose between rectifying the deficiency or reissuing the report.
(c) In the event that subsequent fulfilment is impossible, is finally and seriously refused, was not carried out in due time or a second attempt at supplementary performance failed, the client shall have the right to demand to lower compensation (diminution) or rescind the contract (rescission) under the prevailing legal requirements. In case of doubt, subsequent fulfilment shall only be deemed to have failed after the third failed attempt at subsequent fulfilment.
(d) The right of withdrawal shall also be excluded in case of merely minor deficiencies or if the agent is not responsible for the breach of duty leading to a deficiency.
(e) Warranty claims expire one year after the start of the statutory limitation period. This does not apply in the case of Section 634a (Paragraph 1) No. 2 of the German Civil Code (BGB), in the case of a guarantee or in the case of fraudulent concealment of a deficiency. In these cases, the statutory limitation period applies. - The provisions in Section 10 apply to claims for damages.
(9) Termination
- The client shall only be entitled to terminate the contract in accordance with the statutory provisions if the agent is responsible for the breach of duty.
- The contract may be terminated by either party at any time for good cause.
- Good cause shall be deemed to exist for the client in particular if the agent continues to grossly violate their contractual obligations despite prior warning.
- Good cause shall be deemed to exist for the agent in particular if the client fails to provide the cooperation necessary to carry out the instructions, influences the services and/or their results in an impermissible manner, exceeds the scope of the right of use granted to them, or falls into financial collapse or defaults on payment.
- Ordinary termination of the contract is excluded unless otherwise contractually agreed. Notwithstanding this, the client is entitled to terminate the contract at any time in accordance with Section 648 of the German Civil Code (BGB) in the case of contracts for work and services. If the client exercises this right of termination, the agent shall be entitled to the agreed remuneration in accordance with Section 648 (BGB), provided, however, that compensation for services not yet rendered shall be presumed to amount to 15% of the total price attributable to the part of the service not yet rendered. The client is entitled to prove that the agent is entitled to a lower compensation. The agent reserves the right to prove that they are entitled to a higher compensation.
- Termination must be made in writing.
- If the contract is terminated by either party for good cause, the client shall compensate the agent for the services rendered up to the date of receipt of the notice of termination. Claims for damages by either party in accordance with the statutory provisions shall remain unaffected. If the client is responsible for the reason for termination, the agent shall be entitled in particular to demand the agreed compensation for the entire service, less any expenses saved. Alternatively, the agent may claim a lump sum amounting to 15% of the total price attributable to the part of the service not yet rendered. The client is entitled to prove that the damage was lower, and the agent is entitled to prove that the damage was higher. If the agent is responsible for the reason for termination, the obligation to pay for services already rendered shall be inapplicable if these are objectively unusable for the client.
(10) Liability
- The following liability provisions shall apply regardless of the contractual or non-contractual basis on which a claim for damages is based and also in favour of the employees and other proxies whom the agent engages to fulfil the contract. Individual contractual liability agreements shall take precedence.
- If there are any special risks, extraordinary possibilities of damage or unusual amounts of damage, the client must inform the agent of this before the contract is concluded. In this case, the parties shall agree on a limitation of liability in an individual contract.
- The client shall notify the agent in writing of any damage immediately after it becomes known.
- The agent's liability is limited as follows. Any further liability on the part of the agent is excluded.
(a) The agent shall only be liable for simple negligence in the event of a breach of an obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the client may regularly rely (so-called cardinal obligation). Otherwise, liability for damages for simple negligence, regardless of the basis of the claim, including liability for fault in the conclusion of a contract, is excluded. If the agent is liable for simple negligence, liability shall also be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
(b) Furthermore, the agent's liability is limited to EUR 100,000.00 per claim. This limitation of liability applies regardless of how many claims are made in respect of a single claim. If the total amount of individual claims exceeds EUR 100,000.00, the amount shall be distributed proportionally in relation to the claims made. If the distribution among the claimants is disputed for any reason whatsoever, the agent may release themselves from liability to all claimants by depositing the maximum liability amount. Liability for indirect consequential damages, including consequential damages typical for this type of contract, is excluded.
(c) The agent shall be liable for damages caused by delay up to a maximum of 5% of the value of the services in default. - The above exclusions and limitations of liability do not apply:
(a) if the agent is liable for intent or gross negligence,
(b) insofar as the agent has assumed a guarantee,
(c) for damages that are to be compensated in accordance with the Product Liability Act,
(d) for damage to life, limb or health. - Claims for damages pursuant to section 10 paragraph 5 shall become time-barred in accordance with the statutory provisions. Otherwise, claims for damages shall become time-barred one year after the start of the statutory limitation period.
(11) Confidentiality and data protection
- The agent shall not disclose, use or pass on any information, facts or documents that become known to them in the course of executing the instructions and that relate to the client and the subject matter of the instructions without authorisation. This does not apply to obligations to disclose information imposed by law, official authorities or courts, or to facts that are obvious or generally available.
- However, the parties agree that all information disclosed to the agent by the client or third parties in connection with the agent's activities or which the agent determined in the course of their activities may be used in the report to be prepared. The agent is entitled to pass on the report in accordance with the agreed purpose of the instructions (e.g. to the client's insurer).
- The agent may make and retain copies of documents provided for review or handed over for the purpose of executing the instructions for their own records.
- The agent shall store and process personal data that becomes known to them in the course of carrying out the assignment for the purpose of proper performance of the assignment in compliance with data protection regulations, in particular the EU General Data Protection Regulation. For more information on data processing, please refer to our privacy policy at https://www.ba-ty.com/privacy-policy.
(12) Closing provisions
- The contractual relationship is governed exclusively by the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of performance for obligations from the contract is the seat of the agent’s headquarters (Bremen/Germany).
- The seat of the agent’s headquarters (Bremen/Germany) shall be the jurisdiction for all disputes.
- Where these terms and conditions require compliance with the written form, compliance with the text form within the scope of Section 126b of the German Civil Code (BGB) shall also suffice.
- Should any provision of these GT&Cs be or become invalid or should an unintended loophole arise, the validity of the remaining provisions shall remain unaffected. In this case, the client and agent undertake to regulate the intended purpose by agreeing on a replacement provision.
This is a translation of the original German General Terms of Business. In case of any deviation in wording and/or interpretation of these General terms of Business, the German original shall prevail.
General Terms and Conditions of Sale
(as of 27 May 2019)
1 Introductory provisions
Battermann & Tillery GmbH (hereinafter Battermann & Tillery) does not sell in its own name, but rather on behalf of third parties (hereinafter Sellers). These General Terms and Conditions of Sale (hereinafter GTS) shall apply to such sales, particularly salvage sales, including the corresponding pre-contractual measures Battermann & Tillery carries out on behalf of Sellers. Buyers, as defined by these GTS, are also potential Buyers who merely submit a bid without being awarded the sale. These GTS shall govern the conclusion and content of the sales contract between the Seller and the Buyer.
The bidder (hereinafter Buyer) accepts these conditions by submitting a bid.
Terms and conditions of the buyer which exclude or deviate from these GTS shall not apply.
The current version of these GTS shall also apply to subsequent orders and to permanent business relationships.
Individual contractual agreements take precedence over these GTS. However, agreements on changes or deviations from these GTS shall be made in writing to be effective.
References in these GTS to the supplementary validity of statutory provisions have only clarifying significance. The statutory provisions shall also apply without corresponding clarification insofar as they are not directly amended or expressly excluded in these GTS or otherwise by agreement between the contracting parties.
These GTS shall apply only to entrepreneurs pursuant to § 14 of the German Civil Code. A sale to consumers pursuant to § 13 of the German Civil Code shall not occur. Consumers shall not be entitled to place bids. Battermann & Tillery shall verify the entrepreneurial status of the Buyer before the submission of a bid. The Buyer shall have to prove its entrepreneurial status upon request.
Insofar as compliance with the written form is required in these terms and conditions, compliance with the text form pursuant to § 126b of the German Civil Code shall also suffice.
2 Subject matter of the contract, role of Battermann & Tillery
Battermann & Tillery conducts the sale of the items on behalf of, in the name of and for the account of the Seller. Battermann & Tillery shall act exclusively as a representative of the Seller throughout the entire execution of the sales contract. The naming of the Seller is guaranteed and occurs at the latest upon the issuance of the invoice in the case of the conclusion of a sales contract. The purchase contract for the items is concluded directly between the Seller and the Buyer. There is no contractual relationship between the Buyer and Battermann & Tillery.
Battermann & Tillery provides its services exclusively for the Seller. The Buyer shall not be included in the scope of protection of the contractual relationship between Battermann & Tillery and the Seller. Justification of trust in the services of Battermann & Tillery shall not be a part of the contractual services.
3 Conclusion of the sales contract
The tender for the damaged goods does not constitute a binding offer to conclude a sales contract. There is no entitlement to admission to the invitation to tender. By placing a bid, the Buyer submits a binding and irrevocable purchase offer for the goods offered on the basis of these GTS. Bids must be submitted within the bidding period of the relevant invitation to tender. Only the system time clock of Battermann & Tillery shall be decisive for determining the closing time, which ends the respective term. Battermann & Tillery as representative of the Seller reserves the right to shorten or extend the duration of tenders at its own discretion or to cancel tenders without concluding a contract.
The purchase bids must be submitted to Batterman & Tillery as the Seller’s representative in writing (by email, via the tender platform or fax) in due time. Bids by telephone shall not be accepted. The decision to accept the bid (hereinafter Acceptance) shall be taken after the evaluation of the bids has been completed, usually 24 hours (one business day), but no later than five business days after the end of the tender period. Upon receipt by the Buyer of the notification of the Acceptance, a sales contract is concluded between the Seller and the Buyer on the agreed upon terms on the basis of these GTS.
The highest bidder shall not be entitled to the issuance of Acceptance of said bid. Battermann & Tillery reserves the right to decide freely on the issuance of Acceptance and expressly reserves the right to refrain from the issuance of Acceptance, particularly if the highest bid does not meet the price expectation. Battermann & Tillery shall be entitled to withdraw the goods or parts thereof from sale for any reason whatsoever up until the issuance of Acceptance.
4 Information on the object of the sale, exclusion of warranty
The goods in question consist of used goods or goods from damage events, which is why they are not equivalent to new products.
The description of the damage refers to known existing damage. The representations and pictorial descriptions are non-binding. Unless expressly agreed otherwise, they do not constitute guarantees pursuant to § 443 of the German Civil Code nor agreements on quality pursuant to § 434 1 p. 2 of the German Civil Code. This applies particularly to dimensions, weights, completeness, origin and condition. The information concerning the impairments does not include the statement that the goods are otherwise free of defects. The goods offered for sale may be inspected and examined by the Buyer. It is strongly discouraged to submit a bid without prior inspection.
Battermann & Tillery shall not assume any obligations of its own towards the Buyer. Battermann & Tillery shall not be obligated vis-à-vis the Buyer to inspect or examine the goods. Descriptions of the goods by Battermann & Tillery are made to the best of Battermann & Tillery’s knowledge. A warranty for the correctness of the information from the Seller and third parties shall not be assumed.
The goods shall be sold in the condition which they were in at the time of the issuance of Acceptance, under caveat emptor. This caveat shall not apply if a defect has been fraudulently concealed by the Seller or a guarantee has been given for the quality of the object of the sale. The liability for damages is assessed pursuant to § 7.
Insofar as weight determinations are necessary or prescribed, the resulting costs shall be borne by the Buyer. Battermann & Tillery shall be entitled to demand weighing by an explicitly accredited inspector. Vehicle/wagon weighing shall be accepted only with the prior consent of Battermann & Tillery.
5 Sales price, payment
The sales price shall be exclusive of the value-added tax applicable at the time of delivery.
All taxes, customs duties and import permits of any kind whatsoever shall be borne by the Buyer.
The Buyer shall be obligated to pay the sales price for the goods within 48 hours after the Acceptance and receipt of invoice. In the case of perishable goods, the sales price must be paid within 24 hours of the Acceptance. Payment deadlines are agreed upon and fixed. Payment must be made to the account specified in the invoice. If the Buyer does not pay within the aforementioned period, it shall be in default. All transfer charges and the like shall be borne by the Buyer. The goods are generally not transferred until after receipt of the funds in the account indicated in the invoice. If the sales price is not credited to the account within five business days after the Acceptance, the Seller may withdraw from the the contract. The assertion of claims for damages in accordance with the statutory provisions shall remain unaffected.
The parties agree that invoices will be issued only in electronic form in PDF format.
The Buyer shall be entitled to set off and withhold funds only if its counterclaims have been legally established or are undisputed.
If the Buyer no longer has proper business operations, particularly if the business is seized, a cheque or bill protest is in effect or payments are delayed or even suspended or if it has applied for judicial or extrajudicial settlement proceedings or proceedings under the insolvency code, the Seller shall be entitled to demand immediate payment of all claims arising from the business relationship, even if bills of exchange or cheques have been accepted. The same shall apply if the Buyer is in default with its payments or other circumstances become known which make the buyer’s creditworthiness appear doubtful. Furthermore, in such a case the Seller shall be entitled to demand advance payments or the provision of security or to rescind the contract.
If additional or increased charges – particularly customs duties, levies, currency adjustment – are incurred between the conclusion of the contract and delivery due to changed legal norms, the Seller shall be entitled to increase the agreed upon sales price accordingly.
6 Delivery, transfer of risk
The delivery is made from the storage location of the goods, as specified in the tender. The Buyer collects the goods at its own expense and risk.
Disassembly and removal are at the expense and risk of the Buyer. Entering the premises on which the objects for sale are located for the purpose of examining or collecting them is at the Buyer’s own risk.
Collection shall take place no later than the date specified in the invitation to tender. If the collection date is exceeded, the Buyer is automatically in default without notice. If the Buyer is in delay with the collection, it shall be obligated to pay the storage fees specified in the invitation to tender from the date specified therein. The assertion of further damages as a result of the delay on the part of the Buyer remains reserved. Any further statutory rights, particularly the right to terminate the contract in accordance with the statutory provisions and to claim damages, shall remain unaffected.
The risk is transferred to the Buyer when the goods are handed over to the Buyer or to the transporting party named by the Buyer.
7 Rescission, compensation
A right to rescind the contract in accordance with the statutory requirements shall exist only if the Seller is responsible for the breach of duty.
The liability of the Seller and the liability of Battermann & Tillery shall be limited in accordance with the following provisions
Liability exists only in the event of intent or gross negligence and for damage to life, limb or health, insofar as the other prerequisites for a claim exist. In the case of simple negligence, liability exists only in the event of a breach of an obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (material contractual obligations). In all other respects, any liability for damage of any kind, no matter the basis of the claim, including liability for culpa in contrahendo, is excluded.
In the case of liability for simple negligence, liability is limited to the foreseeable, typically-occurring damage.
The above exclusions and limitations of liability shall also apply to employees, vicarious agents and other third parties involved in the performance of the contract.
These limitations of liability do not apply to claims under the Product Liability Act, fraudulent concealment of a defect or assumption of a warranty for the quality of the item.
8 Limitation
The limitation period for all claims against the Seller arising from the sales contract shall be shortened to one year. This shall not apply to claims for damages arising from injury to life, limb or health due to gross negligence or intent on the part of the Seller or its vicarious agents.
The limitation period begins with the transfer of the goods.
9 Liability of the Buyer
The Buyer undertakes to the Seller and Battermann & Tillery, individually in each case, to strictly adhere to all requirements in the terms and conditions of the tender, for example a restriction on the use of the goods. The Buyer is obligated not to sell defective products, pursuant to § 3 of the Product Liability Act.
In the event that the products are placed on the market, even after any processing, the Buyer shall indemnify the Seller against all claims, including product liability claims, for which the Seller is liable to third parties in accordance with the statutory provisions, but which are based on breaches of duty by the Buyer or its legal successors. This includes, but is not limited to, the sale of defective products pursuant to § 3 of the Product Liability Act, although its defect was known upon purchase from the Seller.
The Buyer is also liable for compliance with sanitary and phytosanitary standards, food regulations, and other laws, regulations, conditions, etc. from the time of the Acceptance.
The Buyer shall compensate the Seller as well as Battermann & Tillery for all damages which arise in the case of violation of the aforementioned regulations by the Buyer and also to indemnify them from all claims raised against them due to such violations.
10 Securities
The Seller shall be granted the following securities until all claims (including all outstanding claims from the current account) to which the Seller is entitled against the Buyer now or in the future, for any legal reason, have been satisfied:
The Seller retains title to all delivered goods until payment of all existing and future claims arising from the business relationship (Reserved Goods) has been made. In the event of breach of contract by the Buyer, particularly default of payment, the Seller shall be entitled to take back the object of purchase after rescission; the Buyer shall be obligated to surrender it. After taking back the goods, the Seller shall be entitled to market them, the proceeds from the sale shall be set off against the liability of the Buyer – less reasonable costs of the sale.
The Buyer shall be obligated to store the goods and products belonging to the Seller and to which the Seller is entitled to co-ownership with due care at the Buyer’s own expense and to insure them against the risk of fire and theft and to provide proof of the conclusion of the insurance policy upon request.
The Buyer shall be entitled to sell the Reserved Goods in the ordinary course of business and is authorised to collect the assigned claim. The authorisation shall end if the Buyer is no longer willing or able to fulfil its obligations towards the Seller properly, particularly if the Buyer ceases payments or applies for the opening of insolvency proceedings over its assets. If the Buyer sells the Reserved Goods, it hereby assigns the Seller its claim from the resale with all ancillary rights to secure the claims of the Seller. In the event that the Reserved Goods are sold by the Buyer together with other goods not belonging to the Seller, the assignment of the sales price claim of the resale shall only apply to the amount of the proportionate invoice value accruing for the Reserved Goods in each case. The Buyer is authorised until revocation to collect the claim from the resale. The Seller may, however, demand that the Buyer informs the seller of the debtors of the assigned claim and informs the debtors of the assignment.
Reconditioning and processing of the Reserved Goods shall be carried out for the Seller as manufacturer pursuant to § 950 of the German Civil Code without obligating the Seller. The reconditioned and processed goods shall be regarded as Reserved Goods. If the Buyer processes, combines or mixes the Reserved Goods with other goods, the Seller shall be entitled to co-ownership of the new item in the ratio of the invoice value of the Reserved Goods to the invoice value of the other goods used. If its ownership expires as a result of combining, mixing or processing, the Buyer hereby assigns to the Seller the ownership or expectant rights to which it is entitled to the new stock or item to the extent of the invoice value of the Reserved Goods, in the case of processing to the ratio of the invoice value of the Reserved Goods to the invoice value of the goods processed and shall keep them in safe custody for the Seller free of charge. The regulations concerning Reserved Goods shall also apply to the items generated by processing, combining or mixing, insofar as they are co-owned by the seller. If the Buyer sells the new item, the Buyer shall hereby assign to the Seller, as security for the purchase price claim, the claim to which the Buyer is entitled to against the purchaser of the new item in the amount of the share corresponding to the Seller's share of ownership, but not exceeding the invoice value of the claims to which the Seller is entitled against the Buyer
Any impairment of the Seller’s rights by third parties shall be notified to the Seller without delay. The Buyer shall immediately provide the Seller with all information and documents necessary for an intervention so that legal action may be filed pursuant to § 771 of the German Code of Civil Procedure. Insofar as the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs of an action pursuant to § 771 of the German Code for Civil Procedure, the Buyer shall be liable for the expenses incurred by the Seller.
11 Data protection
The processing of personal data is carried out pursuant to the legal provisions, particularly the EU General Data Protection Regulation and the German Federal Data Protection Act.
We process personal data in connection with salvage sales to initiate and process the contracts concluded with the customer. After the bid has been accepted, Battermann & Tillery will transmit personal data of the Buyer to the Seller such as name, address and email address.
Further details can be found in the data privacy statement available at https://www.baty tenders.com.
12 Closing provisions
Should any provision of these GTS be invalid, this shall not affect the validity of any of the other provisions or agreements.
Battermann & Tillery reserves the right to change these GTS at any time. The version of the GTS valid at the time of the conclusion of the contract shall apply. The current version of these GTS can be downloaded from https://www.ba-ty.com/terms-and-conditions.
The Buyer may assign claims arising from legal transactions concluded with the Seller only with the express written consent of the Seller.
Unless otherwise agreed upon, the place for performance or any obligation arising from these GTS shall be Bremen, Germany.
The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including actions on bills of exchange and cheques, shall be Bremen.
The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG)