Terms and Conditions

General terms of business of Battermann & Tillery

1. Area of application

These general terms of business shall be applicable to all contractual relationships between Battermann & Tillery GmbH (hereinafter "agent") and the client. These General Terms of Business 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 General Terms of Business shall be valid in their respective current version, including for subsequent instructions/assignments and on-going business relationships. The client confirms their validity by issuing the instructions.
The General Terms of Business are available for review in the offices of the agent and on its internet page www.ba-ty.com.

2. Issuing of instructions

The instructions shall be binding for the agent not until and only insofar as they were confirmed in writing. Amendments, changes and verbal supplements shall be required in written form in order to render them valid. This shall apply in particular to promises and information provided by the agent’s staff members and Surveyors instructed by the agent.
The requirement of written form shall also apply to changes and revocation of the requirement of written form.
If the instructions for the agent’s services are received electronically, the agent shall immediately confirm the instructions. The confirmation of receipt shall not constitute a binding confirmation of the instructions but it may be combined with the confirmation of acceptance.

3. Client’s duties

The client shall provide the agent with all documents, records and information required to complete the assignment. These documents, records and information shall be provided conscientiously, completely, free of charge, in due time and on the client’s account, if no other written agreements exist.
The agent shall not be required to review the documents, information or other services made available by the client for completeness and accuracy insofar as the circumstances of the individual case do not require this or the instructions do not expressly include this.
The agent shall be informed of all occurrences and circumstances which may be of substance for the completion of the assignment in due time and without making any respective requests.
Carrying out the assignment without fulfilment of the above items 3.1 to 3.3 shall be done at the sole risk of the client insofar as there is no contributory negligence on the part of the agent.
The client shall, at its own risk and on its own account, carry out all preparatory actions required to carry out the assignment. Items which are to be surveyed shall be freely accessible and shall be kept available for inspection.
If it is not possible to complete the assignment at the agreed upon time due to a circumstance within the sphere of the responsibility of the client, the agent reserves the right to invoice the loss incurred (order value less saved expenses with regard to the respective appointment). The client shall be permitted to provide proof that no loss was incurred or that the loss was lower than specified.
If there are any delays during the arranged appointment as a result of the client’s neglect of duty, the agent reserves the right to invoice the additional costs at the agreed upon rate or alternatively the customary hourly rate.

4. Agent’s duties

The agent shall provide its services neutrally, impartially and to the best of its knowledge with the due diligence of a respectable Surveyor. As far as this is included in the instructions, the provisions and codes of practice existing and recognised at the time of accepting the assignment shall be observed.
The services to be rendered by the agent shall be defined in writing by issuing the instructions. Partial services shall be possible. In case there are any deviations, changes and/or amendments of the defined scope of the assignment or the agreed upon fixed compensation these shall be settled by the contractual parties supplementary in writing, and in advance as far as possible.
Insofar as the client may not be expected to adhere to the contract in view of the deviations, changes and/or amendments, the client may rescind the contract. The client shall be obligated to compensate for services rendered up to that point upon exercising the right of withdrawal.
The agent shall have the right to have the assignment carried out by qualified third parties in full or in part.
In order to complete the assignment, the agent shall, at the expense of the client, carry out the required and normal inspections and efforts as per dutiful discretion, make inquiries and carry out investigations, travel and carry out surveys and prepare or have prepared photographs, drawings, pictures and records. This does not require a separate approval from the client provided that no time-consuming or costly investigations are required or the measures to be taken are not extraordinary.
For consultation services, the explanations, indications and statements made by the agent generally shall be considered suggestions only. Unless expressly agreed upon in writing, the agent does not guarantee an increased or otherwise substantiated degree of safety upon carrying out any or all suggestions.

5. Confidentiality

The agent shall not disclose, use or forward without authorisation the survey report or any other facts or documents which emerge in the course of carrying out the assignment and which pertain to the client and the object of the assignment. Legal, governmental or court ordered obligations for disclosure as well as obvious facts shall be excluded from the above.
The agent shall be authorised to make copies of the documents provided for review for their own records or for carrying out the assignment.

6. Copyright and rights of use

The agent expressly retains the copyright to the results of the assignment which are subject to copyright.
The scope of services of the agent is defined in writing by the confirmation of the order. The client may use the services rendered or the results obtained with all related details only for the purpose which was agreed upon as the instructions were issued. Any other application or usage is permissible only after prior expressed written consent from the agent.

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.
The agent shall be entitled to demand advance payment and/or issue partial invoices for services rendered. If the client is in default of payment of a partial invoice in spite of extension of time, the agent may refuse to further carry out the assignment, may rescind the contract or demand damages.
Once the assignment has been carried out and the invoice submitted respectively, compensation shall be paid immediately or, in case a due date is specified in the invoice, by said due date, without deductions. Multiple clients shall be liable as joint debtors.
The value added tax in effect at the time the instructions are confirmed shall be identified separately and is charged to the client in addition to the compensation.
Cheques, bills of exchange and payment authorisations are accepted on account of performances only and shall be considered payment upon redemption. Any normal expenses customary in banking are on account of the client.
Offsetting with a counterclaim and the right of retention of the client with regard to compensation are excluded unless the counterclaim is undisputed or has been established as final and absolute.

8. Warranty

Insofar as the agent renders services, the agent does not owe any specific success. It is incumbent upon the client alone to make the decisions resulting from the services provided by the agent.
The client shall immediately review the services provided for any recognisable deficiencies. The agent is to be notified in writing of these deficiencies immediately after they are found and they are to be specified precisely in type and extent. Otherwise, the contractual service shall be considered as properly rendered.
In case of any justified claim the client shall have the right to demand supplementary performance (removal of deficiencies or reissuing) after the agent was notified of the deficiency. The agent shall be entitled to choose between removal of deficiencies and reissuing.
In case that supplementary performance 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 rescinding the contract (rescission) under the prevailing legal requirements. Any further warranty rights shall be excluded.
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.

9. Termination

Both contractual parties may withdraw from the contract in writing for important reasons at any time. Proper notice of termination is possible only if this was previously agreed upon contractually.
An important reason for the client is at hand particularly if the agent continues to grossly neglect its duties as Surveyor in spite of a previous written warning.
An important reason for the agent is at hand particularly if the client refuses to provide the cooperation necessary to carry out the assignment, manipulates/influences the services and/or their results negatively or enters financial collapse or debtor’s delay.
If the reason for termination is within the responsibility of the agent, the agent may demand compensation for services rendered up to the time of termination only insofar as these services are objectively useable for the client.
If the reason for termination is within the responsibility of the client, the agent shall retain the right to compensation for the services rendered as per the contract with setting off of saved costs. The client shall provide proof of fewer contractual services or higher saved costs.

10. Liability

The subsequent liability provisions shall be applicable regardless of which contractual or extra-contractual basis the claim for damages is based on. Further limitations of liability in individual agreements shall remain unaffected.
The client is to point out to the agent prior to conclusion of the contract any particular risks, extraordinary contingencies and unusually high amounts of loss. The client shall notify the agent in writing of any damage immediately after it becomes known.
The agent shall be held liable without limitation in cases of wilful intent or gross negligence on the part of the agent or a legal representative or assistant / vicarious agent and in case of injury to life, limb or health.
Regardless of the above, the agent’s liability shall be limited as follows:
1. The agent shall be liable only for culpable infraction of contractually essential obligations by the agent, a legal representative or assistant / vicarious agent. Obligations shall be defined as contractually essential when their fulfilment renders the contract possible in the first place, their violation endangers the achievement of the purpose of the contract and the contractual partner can trust that they will be adhered to on a regular basis. If the violation of the contractually essential obligations is due to simple negligence, the obligation to indemnify shall be limited to the loss foreseeable at the time of closing the contract and typical for the contract.
2. Beyond this, the agent’s liability shall be limited to € 100,000.00 per incident of loss in cases described in the preceding paragraph. This limitation of liability shall be applicable regardless of how many claims are raised as a result of one incident of loss. If the sum of all individual claims exceeds € 100,000.00, the amount shall be distributed on a prorata basis in proportion of the claims raised. If the distribution is contested among the claimants, for whatever reason, the agent shall be able to relieve itself of liability against all claimants by lodging a maximum amount of liability.
3. Insofar as claims for damages against the agent are ruled out, limited or restricted, this shall also apply to possibly existing liability of the agent’s mouthpieces or employees as well as assistants / vicarious agents or other third parties which the agent employs/uses in order to fulfil the contract.
4. Insofar as the agent owes only the closure of the contracts required in order to render the contractually required services, it shall be liable only for the diligent selection of the instructed third party.
5. Liability for collateral consequential loss, including contractually typical consequential damage, is excluded.
Beyond that, the agent’s liability is excluded.

11. Closing provisions

The relations among the parties are based on the contract for which the only applicable law is German law. The United Nations Convention of Contracts for the International Sale of Goods (CISG) shall be excluded.
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.

12. Severability clause

In case individual provisions of these General Terms of Business are or will be invalid or if there is an unintentional gap, the remainder of the contract shall remain in effect. In that case, client and agent shall commit to settle the intended purpose by agreeing on a substitute/alternate 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)

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
1. 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.
2. In the case of liability for simple negligence, liability is limited to the foreseeable, typically-occurring damage.
3. 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.
4. 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:
1. 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.
2. 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.
3. 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.
4. 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).