General terms and conditions

I. General Provisions

The following terms and conditions shall apply exclusively to all transactions to be concluded with BTS GmbH (hereinafter: BTS) concerning the sale, exchange (hereinafter: delivery) or repair or maintenance (hereinafter: service) of goods, unless otherwise agreed in writing.
 

II. Conclusion of contract and orders

1. he offers made by BTS are subject to change without notice and are non-binding.
2. BTS shall have the right to reject an order or an order (hereinafter referred to as "Order") immediately after it has been placed, even without stating reasons. In particular, this shall apply to any price agreements, price changes and order changes.
3. Obvious printing, spelling, calculation errors or similar errors shall not obligate BTS.
 

III. Prices and insurances

1. The price lists of BTS valid at the time of conclusion of the contract shall apply to the contracts, unless otherwise agreed in individual contracts. The prices shall apply ex works (in the case of drop shipments ex delivery works) and including loading, but excluding other manufacturing costs and plus the applicable value added tax. Unless otherwise agreed in writing, the Purchaser shall bear the costs of packaging and dispatch of the goods, including the costs of transport insurance taken out by BTS.
2. Unless otherwise agreed, the Incoterms 2010 shall apply to the deliveries of BTS.

IV. Terms of Payment

1. Invoices shall be due immediately and payable without any deduction to an account specified by BTS, even in the case of partial delivery, unless otherwise agreed in writing. The deduction of a discount requires a special written agreement.
2. As a new customer, the Purchaser shall pay in advance within the scope of the first three orders.
3. If the Customer, who is an entrepreneur, defaults on his payment obligation in whole or in part, he shall pay interest on arrears from this point in time at an annual rate of 8 percentage points above the respective base interest rate, unless BTS proves higher damages. BTS reserves the right to claim further damages caused by default.
4. if the fulfillment of the payment claim is endangered due to a deterioration of the financial situation of the purchaser which has occurred or become known after the conclusion of the contract, BTS shall be entitled to postpone the further execution of the order until payment has been made or, irrespective of any earlier agreement to the contrary, either to demand advance payment or other securities for further orders or to withdraw from the contract after setting a reasonable period of time.
5. n the event of non-fulfilment of the payment claim amounting to 70% of the total amount or in the event of the occurrence of circumstances affecting the creditworthiness of the purchaser, all claims shall become due for payment immediately. They entitle BTS to claim damages for non-performance, to prohibit the resale of the delivery and to repossess the delivery.
6. The Purchaser may only set off or retain payments against undisputed, acknowledged or legally established claims.

V. Retention of Title

1. The Deliveries shall remain the property of BTS until full payment of all claims, including future claims, arising from the business relationship (hereinafter: Retained Deliveries). In the case of current invoices, the reserved ownership shall be deemed security for the balance due to BTS.
2. In the cases of §§ 947 and 948 of the German Civil Code (combination and mixing), the Purchaser already now transfers to BTS the ownership or co-ownership of the new items and shall keep them in safe custody for BTS. Should the transfer of ownership to BTS not take place for any reason, the Purchaser hereby assigns to BTS any claims arising from § 951 BGB.
3. Within the framework of proper business transactions, the customer shall be entitled to sell the reserved delivery. He is not authorized to pledge them or to assign them to third parties as security. The Purchaser shall inform BTS without delay of any impending or actual seizures or other impairments of the rights of BTS by third parties. 
4. The Purchaser hereby assigns to BTS as security all claims, including ancillary rights, arising from the resale of the reserved goods. At the request of BTS, the Purchaser shall notify its customers of the assignment and provide BTS with the documents for asserting the rights. As long as BTS does not make use of the right to collect the claim to which BTS is entitled at any time, the customer shall be entitled and obliged to do so and shall pay the collected amount to BTS without delay.
5. If the value of the securities exceeds the value of the claims to be secured by more than 20%, BTS shall release securities in this amount upon notification by the Purchaser.

VI. Place of Performance and Transfer of Risk

1. Unless otherwise agreed, the Purchaser shall collect the delivery from BTS. The place of performance for all deliveries, including return deliveries, and payments shall be the registered office of BTS in Weilheim.
2. The risk of loss shall pass to the Purchaser upon delivery to the carrier.
3. The risk of accidental loss or accidental deterioration shall pass to the customer upon handover to the transport person. This shall apply irrespective of whether the shipment is made from the place of performance and who bears the freight costs. If the purchaser is in default of acceptance, the risk shall pass to the purchaser as of this day.

 

VII. Delivery Conditions

1. The commencement of the delivery period shall be subject to the timely and proper fulfillment by the Purchaser of all its obligations, such as the payment of the deposit, information or other requirements necessary for the processing and fulfillment of the delivery.
2. BTS shall be entitled to make partial deliveries.
3. If the Purchaser is in default of acceptance or culpably violates other duties to cooperate, the Purchaser shall pay the full purchase price and, for each month or part thereof, storage charges in the amount of 0.5% - but not more than 5% - of the value of the total delivery. The parties are at liberty to prove higher or lower storage costs.
4. If the customer is in default with his obligations, the delivery time is extended by this period. The right to assert claims arising from delay remains unaffected.
5. Force majeure, labor disputes, riots, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default. The contracting parties shall be obliged to provide the necessary information without delay within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
 

VIII. Compensation in the event of default

1. In the event that BTS is obliged to compensate the Purchaser for damage caused by delay, the Purchaser shall not be entitled to claim compensation for any loss of profit or compensation for damage resulting from business interruptions. This shall not apply if liability is mandatory in cases of intent, gross negligence or injury to life, body or health. In the event of slight negligence, the Purchaser shall be entitled to compensation for additional freight costs and/or retrofitting costs. In the case of fruitless setting of a grace period or in the case of proof of loss of interest in delivery, compensation for damages with regard to covering purchases shall be limited to a reasonable amount.
2. Upon assertion of a claim for compensation, the Purchaser shall submit to BTS detailed and substantiated documents substantiating the claim.
3. The Purchaser may only withdraw from the contract within the framework of the statutory provisions if BTS is responsible for the delay in delivery. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
4. At the request of BTS, the Purchaser shall inform BTS within a reasonable period of time whether it intends to withdraw from the contract due to the delay or continues to insist on delivery of the order.

IX. Duty to cooperate

1. The Purchaser shall provide BTS with all details, documents or other order-related information required for the fulfillment of the delivery obligation in a suitable form upon submission of the order.
2. If the Purchaser fails to take these measures and the delivery is delayed as a result, the Purchaser shall bear the costs incurred by BTS as a result.
 

X. Acceptance, inspection obligations

1. The Purchaser shall not be entitled to refuse acceptance of the Supplies due to insignificant defects.
2. The Purchaser shall inspect the Supplies immediately upon receipt. If the inspection reveals a defect, the Purchaser shall notify BTS without delay.
3. If the purchaser fails to make such notification, the goods shall be deemed to have been approved. The statutory provisions of § 377 HGB shall remain unaffected.
 

XI. Material defects, warranty and liability

1. f the delivery is defective within the limitation period, BTS shall decide whether to repair the delivery or to deliver a new delivery, provided that the cause of the defect already existed at the time of the transfer of risk.
2. The general limitation period for claims arising from material defects shall be one year for entrepreneurs and two years for consumers from the date of delivery.
3. The Purchaser shall immediately notify BTS in writing of any material defects.
4. In the event of a justified notice of defect - i.e. in the event of a defect that is not merely insignificant - the Purchaser shall be entitled to withhold payments that are in reasonable proportion to the material defects that have occurred. If the notice of defect has not been justifiably raised, BTS may demand reimbursement from the Purchaser for the expenses incurred as a result.
5. BTS shall first be granted a reasonable period of time for subsequent performance.
6. In the event that the subsequent performance fails, a) the Purchaser shall grant BTS a further attempt at subsequent performance. b) in the event of renewed failure, the Purchaser may - without prejudice to any claims for damages in accordance with clause XIV - withdraw from the contract or reduce the remuneration.
7. Expenses incurred by the Purchaser for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded if they were incurred because the Supplies were subsequently brought to another location than agreed.
8. The Purchaser's right of recourse against BTS pursuant to § 478 of the German Civil Code (recourse of the entrepreneur) shall exist only to the extent that the Purchaser - in the event that its customer is a consumer - has not entered into any agreements with the latter exceeding the statutory claims for defects. Furthermore, Clause 7 shall apply mutatis mutandis to the scope of the Purchaser's right of recourse against BTS pursuant to Sec. 478 para. 2 BGB.
9. Clause XIV (other claims for damages) shall otherwise apply to claims for damages. Further claims or claims other than those regulated in this clause by the Purchaser against BTS and its vicarious agents on account of a material defect shall be excluded.
10. If a defect occurs after assembly / installation not carried out by BTS, BTS shall only be liable within the scope of liability for material defects if the assembly or installation of the item previously processed or sold by BTS was carried out in a competent and professional manner, in particular in accordance with the manufacturer's specifications and regulations. The Client must prove that the assembly or installation was carried out in a competent and professional manner.
11. BTS shall be entitled to rescind the contract if it is not supplied by its supplier for reasons for which it is not responsible despite having concluded a corresponding covering transaction (reservation of self-delivery).
 

XII. Subcontractors

BTS shall be entitled to engage third parties for performance in cases where this is necessary for completion of the production or order in accordance with the order. BTS shall not be liable for any damage caused by such third parties.
 

XIII. Impossibility; Adjustment of Contract

1. If delivery is impossible, the Purchaser shall be entitled to claim damages, unless BTS is not responsible for the impossibility. This limitation shall not apply insofar as liability is mandatory in cases of intent, gross negligence or injury to life, body or health; this shall not entail a change in the burden of proof to the detriment of the Purchaser. The Purchaser's right to withdraw from the contract shall remain unaffected.
2. if unforeseeable events within the meaning of clause VII number 5 substantially change the economic significance or the content of the delivery or have a considerable influence on the operation of BTS, the contract shall be adapted appropriately in good faith. If this is not economically justifiable, BTS shall be entitled to withdraw from the contract. If BTS makes use of this right of withdrawal, BTS shall notify the Purchaser thereof without undue delay, even if an extension of the delivery period was initially agreed with the Purchaser.

XIV. Other claims for damages

1. Claims for damages and reimbursement of expenses of the purchaser (hereinafter: claims for damages), are excluded. This shall not apply if BTS is compulsorily liable by law, in particular under product liability, in the event of intent, gross negligence, injury to life, limb or health, or breach of material contractual obligations.
2. The claim for damages for the violation of essential contractual obligations is, however, limited to the contract-typical, foreseeable damage, insofar as there is no intent or gross negligence or liability due to injury to life, body or health. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
3. The claims arising from clauses 1 shall become statute-barred within the period of time specified in clause XI clause 2.
4. In the case of claims for damages under the German Product Liability Act (ProdHaftG), the statutory limitation provisions shall apply.

XV. Provisions for services

1. Acceptance
The transfer of risk shall take place upon partial / final acceptance of the service.
a) Acceptance shall take place immediately on the agreed acceptance date or after notification of readiness for acceptance (due date for acceptance).
b) If the Customer does not accept the service within the time specified in a), BTS may charge an appropriate storage fee.
c) Three months after the due date for acceptance, BTS shall be entitled to announce a threat of sale with the content that after expiry of a period of four weeks BTS will sell the item on which the service is based to cover its claims.
2. Defect rights
a) § 377 HGB remains unaffected.
b) BTS may, at its own discretion, remedy the defect or produce a new work (subsequent performance). BTS may refuse subsequent performance if this is only possible at disproportionate cost. If BTS produces a new work, the Purchaser shall, at the request of BTS, surrender the defective work and pay compensation for the value of the benefits derived.
c) If the subsequent performance has failed, the Customer may assert its rights in accordance with Clause XI Items 1-7, 9.
3. Compensation for damages
Clause XIV shall apply accordingly to claims for damages.
4. Lien
BTS shall be entitled to a right of lien on the Customer's object which has come into its possession on the basis of the order on account of its claim arising from the order. For other claims arising from the business relationship, the right of lien shall only apply insofar as these claims are undisputed or have become res judicata.
5. Statute of limitations
Warranty rights shall become statute-barred within the statutory periods.

XVI. Exchange and old parts deposit

1. If the delivery of a reconditioned object of the contract has been agreed in return for the handover of a corresponding old engine, an assembly or an individual part of the same type (exchange parts), the exchange parts handed over by the Purchaser must not have any defects or other faults that cannot be attributed to natural wear and tear. In particular, the exchange parts provided by the Purchaser must be free from welded or non-welded fractures and cracks. This shall also apply to such parts which the Purchaser has handed over to BTS for installation. 
2. When agreeing the price for the exchange parts provided by the Purchaser, the reparability of these parts shall be decisive. The entire purchase price shall be due for the exchange parts which cannot be repaired. In this case, the Purchaser shall be entitled to reclaim these exchange parts.
3. An old part deposit shall be charged for each delivery of an exchange part. Upon return of the used part, the purchaser shall have a claim for repayment of the deposit amount. This claim expires at the end of the 12th month from the invoice date. The customer must return the old part in the packaging of the part delivered in exchange at his own expense. Otherwise, the deposit amount will not be refunded (used part return system back-in-box). Furthermore, the deposit amount will only be refunded to the customer as long as the manufacturer's type plate is still on the used part and the used part has not been dismantled in any way.

XVII. Jurisdiction, Applicable Law; Miscellaneous

1. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of BTS in Weilheim if the Customer is a merchant or has its place of residence or general domicile abroad. However, BTS shall also be entitled to bring an action at the place of the Purchaser's registered office.
2. The legal relationship in connection with this contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. The remaining parts of the contract shall remain binding even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.

XVIII. Privacy

1. BTS shall be entitled to store the data of the Customer necessary for the business transaction and to pass them on to service providers commissioned by BTS to the extent necessary for the performance of the contract.
2. BTS reserves the right to collect and process address and order data for its own marketing purposes. For third-party marketing purposes, only such data shall be passed on for which this is permitted by law.

Notice:
The customer can object to the use, processing and transmission of his personal data for marketing purposes at any time by sending an informal message by post to BTS GmbH, Paradeisstraße 56 D-82362 Weilheim or by sending an e-mail to info@bts-turbo.de. However, this does not apply to the data required to process the order. After receipt of the objection, BTS may no longer use, process and transmit the data concerned for purposes other than the processing of the order and may not send further advertising material to customers.