of Bacher Products GmbH, Lorscher Str. 13, 68642 Bürstadt

Hereinafter, Bacher Products GmbH is referred to as the Contractor and the buyer is referred to as the Client.

Section 1 – Scope of application / contractual relationship

1) The following General Terms and Conditions (GTC) apply exclusively to the contractual relationship between the Contractor and the Client, as referred to in this document. Should the Client propose conflicting terms and conditions, these will only be incorporated into the contract if they are either consistent with these GTC or the Contractor has explicitly agreed to them in writing.

2) The Contractor is the seller and the Client is the buyer. The Contractor supplies its products to the Client. The Client is responsible for ensuring that the products purchased from the Contractor are used in accordance with the manufacturer’s instructions and legal regulations. In particular, when purchasing the product “ArenaWet”, the Client is responsible for planning and creating the sub-base, as well as for installation. The Client must also ensure that the water quality meets the manufacturer’s requirements for the “ArenaWet” product. The Client is responsible for obtaining any necessary equipment, such as filters and pumps, to maintain adequate water quality.

3) The installation of the “ArenaWet” product is carried out by the Client. Any installation plan provided by the Contractor serves as guidance. The Client must procure the necessary tools and equipment for installation.

Section 2 – Written form requirement

Individual agreements between the Contractor and the Client that deviate from these GTC must be in writing to be valid and included in the contract.

Section 3 – Conclusion of contract

1) The Contractor’s offers are non-binding (invitatio ad offerendum). An offer made by the Contractor with an intention to create legal obligations can be accepted by the Client within 14 days of receipt. If the Contractor does not receive acceptance within this period, the offer expires.

2) A valid contract with the Contractor requires an express, written order confirmation signed by the Client. Unanswered confirmation letters do not result in a contract with the Contractor.

3) After the order confirmation, and in the case of a delivery already commenced, the Contractor reserves the right to withdraw from the contract if credit checks are unsatisfactory or if there is reason to doubt the Client’s ability to fulfil the contract.

Section 4 – Product specifications

1) Information provided during contract initiation or conclusion, possibly by sending a sample, regarding product specifications, such as size, weight, load-bearing capacity, tolerance and appearance, may be subject to formal and technical changes or deviations within the commercially accepted tolerance range.

2) Complaints about defects due to differences between samples and delivered goods are excluded, provided the material functions similarly. Deviations due to legal requirements are also permissible to a greater extent, provided they do not impair the product’s usability for the intended contractual purpose.

Section 5 – Prices

1) Unless otherwise agreed, our prices are in euros, excluding statutory VAT, postage, packaging, transport and all other shipping costs.
2) The terms “free on rail at receiving station”, “free truck to construction site”, “free ship at loading point” or “free ship at unloading point” include the freight and transport rates valid at the time of the offer for the chosen mode of transport.

3) Packaging costs, rental and wear and tear fees for packaging materials are borne by the Client as “self-costs”.

Section 6 – Delivery

1) Stated delivery dates are estimates only. Delivery on a day other than the projected date is explicitly allowed.

2) All delivered products or product parts are listed on the delivery note.

3) Unforeseen production obstacles, acts of God, operational disruptions, strikes, lockouts or raw material shortages entitle the Contractor to postpone or cancel the binding delivery obligation.

4) If it becomes unreasonable for the Client to continue with the contract as a result, it is granted a right to withdraw from the contract no earlier than 14 days after the projected delivery date.

5) Delivery delays may result from additional changes requested by the Client, which will be billed separately.

6) The Contractor may use a subcontractor to carry out the delivery. The Client is responsible for unloading. Delivery is “ex-works” unless otherwise agreed. The shipping costs are borne by the Client.

7) The risk of accidental loss or deterioration of the goods passes to the Client upon handover to the transport company. This also applies if freight-free delivery is agreed, and the transport is carried out with the Contractor’s own vehicles. Goods can be insured during transit upon the Client’s express request, with the Client bearing the insurance costs.

8) The agreement “free to construction site” or “free to point of use” requires express written confirmation by the Contractor. The Client must ensure that the delivery location is suitable for access by the expected delivery vehicles, particularly a loaded heavy truck. The Client bears the costs arising from non-compliance with the delivery location requirements.

Section 7 – Payment

1) Unless the order confirmation specifies a different payment term, invoices are payable immediately without deduction. A discount deduction requires a separate written agreement. Discounts only apply to the net invoice amount after deducting any rebates, freight and other ancillary costs. The discount period begins with the invoice date.

2) The Client must pay the invoice amount no later than four weeks (28 days) after receiving the invoice. If payment is incomplete or not made, the Client is in default without a reminder after the deadline.

3) Payments must be made in euros. The Contractor reserves the right to accept cheques or bills of exchange on a case-by-case basis. Acceptance is always on account of payment, and any resulting costs are charged separately.

4) Incoming payments are applied to the oldest outstanding debt. No discount is granted when a payment is applied to an old debt.

5) If the Client defaults on payment, the Contractor charges default interest at a rate of 5 percentage points per annum above the base interest rate. If the Client is not a consumer as defined by section 13 of the German Civil Code (BGB), the interest rate is 8 percentage points per annum above the base interest rate. The Contractor reserves the right to claim further damages due to the delay.

6) In the event of payment default by the Client, the Contractor is entitled to withhold other (partial) deliveries unless the Client provides payment on delivery, prepayment or adequate security. This also applies if the Contractor becomes aware of circumstances after the contract’s conclusion that, in its judgement, impair the Client’s creditworthiness regarding the agreed delivery volume. The Contractor is entitled to set a reasonable deadline for payment, prepayment or security and to withdraw from the contract if this period expires without result.

7) The Client is not entitled to offset any counterclaims unless these are legally established, undisputed or expressly acknowledged by the Contractor. The same applies to any right of retention the Client asserts that is not based on the same contractual relationship.

Section 8 – Rights concerning defects / liability

1) The Client must inspect the delivered goods immediately upon receipt and report any visible defects in writing within one week. Hidden defects must be reported in writing as soon as they are discovered. For the “ArenaWet” product, a test run must be carried out before installing the top layer. If the product functions correctly during the test, it is considered defect-free. Any leaks reported after the top layer has been installed are deemed to have been reported too late.

2) Products intended for installation or processing must be inspected before installation or processing. Any defects must be reported immediately afterwards. Unless there is an undiscoverable or fraudulently concealed defect, the goods are otherwise deemed to be accepted as free of defects.

3) Breakage within commercially acceptable limits does not constitute a defect, nor do deviations in the order quantity within the usual tolerance.

4) If the Contractor is responsible for a defect, it may choose to rectify the defect or provide a replacement. In the case of rectification, the Contractor bears the costs, unless these are increased by the defect’s rectification taking place at a different location from the original delivery site.

5) If the rectification fails or is refused, the Client is entitled to a right of withdrawal or reduction.

6) The Client does not have a right of withdrawal in the case of only minor contractual breaches. If the Client is entitled to withdraw from the contract, claims for damages due to the defect are excluded. In the event of a claim for damages by the Client due to failed rectification, the goods remain with the Client.

7) The Contractor’s liability for damages is limited to injury to life, limb or health resulting from a breach of duty by the Contractor. Furthermore, the Contractor is liable for other damages not directly caused by the defect of the delivery item, which result from intentional or grossly negligent breach of duty or a culpable breach of an essential contractual obligation. If the claim for damages is based on the culpable breach of essential contractual obligations or gross negligence by a simple vicarious agent, the claim is limited to foreseeable damages according to general expectations. No liability exists for entrepreneurs in the event of slight negligence in non-essential contractual obligations. In the case of delivery delays caused by the Contractor’s negligence, the delay damage is limited to 30% of the price of the goods not delivered or delivered late.

8) This does not affect liability for breach of an express warranty, liability under the German Product Liability Act or liability for fraudulently concealed defects. The Contractor does not assume the guarantees of its suppliers.

9) If the Client sells the goods supplied by the Contractor to a consumer, the Client must notify the Contractor in writing of any claims made by the consumer due to defects and await the Contractor’s decision on the recognition of the defect before settling the claim. If the goods are resold by the Client to a third party who, in turn, sells them to a consumer, the Client must impose the same obligation on its customer.

10) The limitation period for claims based on defects is one year after delivery if the Client is an entrepreneur, unless the goods are intended for use in a building and their defectiveness caused a defect in the building. Claims for damages brought by the Client’s customer against the Contractor expire with the Client’s customer’s claims against the Client, but no later than four years after the sale.

Section 9 – Retention of title

1.) The Contractor retains ownership of the goods until full payment of all claims arising from the business relationship with the Client. In the case of a current account, the retained title secures the Contractor’s acknowledged balance claim against the Client. In the event of a breach of contract by the Client, particularly payment default, the Contractor is entitled to withdraw from the contract and demand the return of the goods.

2.) After taking back the goods, the Contractor is entitled to dispose of them. The proceeds of disposal are credited against the Client’s liabilities, minus disposal costs. In the event of seizures or other third-party interventions concerning the retained goods, the Client must immediately notify the Contractor in writing and inform the third party of the Contractor’s ownership rights. If the third party cannot reimburse the Contractor for the costs incurred, the Client is liable for them.

3.) The Client is entitled to resell the goods delivered under retention of title but hereby assigns all claims from the resale, including any balance claims, to the Contractor to the extent of the Contractor’s claim against the Client arising from the business relationship. This applies regardless of whether the goods are resold without further processing.

4.) If the goods are combined or processed with other goods not owned by the Contractor, the Contractor acquires co-ownership of the new item in proportion to the value of the purchased item compared to the other processed items at the time of processing. If the combination/connection results in the Client’s item being regarded as the main item, it is agreed that the Client will transfer co-ownership to the Contractor on a pro-rata basis. In the event of resale of the new item, the Client assigns to the Contractor its claims from the resale to the extent of the value of the retained goods invoiced by the Contractor. The Client is authorised to collect the assigned claims for the Contractor, subject to revocation. The Contractor reserves the right to revoke this authorisation if the Client defaults on its payment obligations. In the event of revocation, the Client must immediately disclose the assigned claims and debtors and provide all necessary information and documents for their collection. The Contractor is hereby authorised to notify the debtors of the assignment in the name of the Client. Any authorisation granted to the Client to collect claims lapses if an insolvency application is filed for the Client’s business. The Contractor is then entitled to withdraw from the contract immediately and demand the return of its goods.

5.) The above provisions also apply in the case of a connection between the retained goods and a property or building of the Client or a third party. If the retained goods are incorporated as an integral part of a property of the Client or a third party, the Client already assigns to the Contractor the claims arising from the sale of the property or property rights up to the value of the retained goods, along with all ancillary rights.

Section 9 – Place of performance and jurisdiction

The place of performance is Lampertheim. The place of jurisdiction for all disputes arising from the contractual relationship is Lampertheim. We reserve the right to sue or be sued at the court with jurisdiction for our location in Lampertheim. German law is exclusively applicable for the interpretation of the contract.

Section 10 – Severability clause

Should any provisions of these terms and conditions be invalid or void, the validity of the remaining provisions shall remain unaffected. The invalid provisions shall lapse in their entirety and the legally valid provisions shall take their place.

 

 

Last updated: 16/04/2024