General business, delivery and payments terms (GTB) of BIOGASKONTOR Köberle GmbH 

I. General

1. 

The following general business, delivery and payment terms, hereinafter termed "GTCs" apply to all deliveries, services, and offers of BIOGASKONTOR Köberle GmbH, hereinafter termed "BIOGASKONTOR" and its clients, hereinafter termed "contracting parties". 

2. 

All supplies, deliveries and other offers of BIOGASKONTOR are administered exclusively by virtue of the following general terms and conditions of business. They are an integral part of all contracts BIOGASKONTOR concludes with its clients concerning the deliveries and services provided by BIOGASKONTOR. They shall also apply to all future supplies, deliveries and offers, even if the validity has not been again expressly stipulated. Deviating agreements as well as any other agreements, shall not be effective even if they have been expressly contradicted. 

3.

Individual agreements reached with the User in individual cases (including side agreements, additions and amendments) shall have precedence over these General Terms of Business. A written agreement or written confirmation by BIOGASKONTOR shall prevail in respect of the contents of such agreements.

4.

Additions and alterations of the agreements reached, including these TBCs must be in writing to be legally valid. Transmission by telefax will suffice to fulfil this provision. Furthermore, transmission by telecommunications, in particular, by e-mail does not suffice other than if written correspondence by email has been agreed by the parties in individual cases.

II. Design, approval and production documents

1. 

BIOGASKONTOR reserves the right to ownership and copyright of all catalogues, technical documentation (for example, drawings, plans, calculations, reference to DIN norms), and other production descriptions or documents - also in electronic form. They cannot be made reproduced or made available to third parties without the express prior written approval of BIOGASKONTOR. In the event of a contract not being concluded they must be returned without a further request to BIOGASKONTOR.

2. 

When not otherwise agreed, official and other approval documents are to be obtained by the contracting party.

III. Offer and conclusion of contract

1. 

All offers, prices and other details are without engagement unless otherwise expressly stated. This likewise applies when BIOKONTOR provides the contracting party with catalogues, technical specifications (for example, drawings, plans, calculations, references to DIN norms) other production descriptions or documents - also in electronic format. BIOGAS KONTOR is authorized to accept an offer of the customer within the meaning of § 145 BGB within 2 weeks of receipt. The customer is bound to his offer for this period. A contract is concluded only with acceptance of the offer by written confirmation by BIOGASKONTOR. If the order confirmation differs from the offer and the client is an entrepreneur, the content of the confirmation letter shall prevail, unless the customer complains immediately in writing about the deviation.

2. 

The details contained in the documents given to the client, in particular definitions of weight and size or other technical data as well as related DIN, EN, VDI and VDE or other norms and samples, only label the subject of the contract and are only a sure definition of qualities if a written confirmation is given by BIOGASKONTOR.

IV. Prices

1. 

The calculation of deliveries and other services is made at the agreed prices plus VAT at the statutory rate. In addition, expenses, including packaging, freight, postage, insurance and delivery, installation, etc. will be charged separately.

2.

BIOGASKONTOR is entitled in the case of goods and services that are provided later than four months after the conclusion of a contract, to demand for the period up to the time of performance of labour and materials price increases of more than 5% an appropriate corresponding adjustment to the originally agreed contract price. These rights do not apply if BIOGASKONTOR is responsible for the delay in service.

V. Terms of payment

1.

Invoices are due within 30 days after receipt without deduction, unless otherwise agreed in writing. Payment is deemed made only when checks have been cashed. With the expiry of the preceding payment date, the customer comes without warning in default (§ 286 Section 2 No. 2 BGB). The open balance must be payable during the delay with the applicable statutory default interest rate. The assertion of higher interest rates actually incurred and further damage in the event of default remains unaffected. For traders the claim to commercial maturity interest under § 355 HGB remains unaffected. 

2. 

The customer only is entitled to the retention of payments or to the setting off with counterdemands if the counterdemand on which the retention right is supported or shall be offset  is stated undisputedly or finally. In case of defects of the goods or services the rights of the client remain unaffected. 

3. 

In the case of contracting entities with which no on-going business relationship exists, BIOGASKONTOR reserves the right of prepayment of the invoiced amount. 

4. 

BIOGASKONTOR is entitled only to make deliveries or provide services against prior payment or deposit if, after the conclusion of the contract, circumstances become known to him which are of a nature to considerably reduce the Client’s credit worthiness and on account of which the payment of BIOGASKONTOR’s outstanding demands from the relevant contractual relations  is put at risk.

5. 

BIOGASKONTOR is entitled to assign its claims against the customer to third parties. 

6. 

If the customer with a deferred payment agreement falls into arrears with the payment of an amount equal to a rate of more than 14 days, the entire outstanding balance will become due. In this case and in case of default BIOGASKONTOR is entitled to secure their debt ensuing payable until the final payment, or if delivery was made already, regain possession of the goods. After granting an extension BIOGASKONTOR is also entitled to withdraw from the contract or claim damages for non-performance.

VI. Deliveries, delivery times and part shipments 

1. 

Time periods and deadlines communicated by BIOGASKONTOR for deliveries and services are deemed to approximate unless a firm period or date has been specified or agreed.

2. 

BIOGASKONTOR accepts no liability for inability to deliver or delivery delays insofar as these are attributable to acts of God or other events unforeseeable when the contract was signed (e.g. any kind of operational breakdown, problems in materials or energy procurement, shipping delays, strikes, lockouts, lack of manpower, unavailability of raw materials or energy, inability to obtain the necessary statutory authorisations, actions taken by authorities or third party failure to supply goods and services or supply incorrectly or late) for which BIOGASKONTOR is not responsible. Where such events make it difficult or impossible for BIOGASKONTOR to deliver or perform services and the hindrance is not of a temporary nature, BIOGASKONTOR shall be entitled to rescind the contract. For hindrances of a temporary nature the delivery terms of the goods and services shall be extended – or the deadlines postponed – by a period of time exceeding two months and the buyer cannot be expected to accept the delivery or service as a result of the delay, he can rescind the contract by immediate written notice of two weeks

3. 

The observance of delivery deadlines requires the clarification of all technical and other details of the contract, the timely provision of all necessary documents of the client, the payment of any agreed deposit, and compliance with the obligations agreed to by the client. The delivery shall be extended by at least a reasonable period in which the customer is in arrears with its contractual obligations. 

4. 

BIOGASKONTOR is entitled to make partial deliveries and partial services and supply of appropriate billings if the client is not thereby caused significant additional effort or expense and the partial delivery/part performance is to use to the client as part of the contractual intended use.

5. 

If BIOGASKONTOR is unable to delivery or service delivery, whatever reason,, then liability is limited as specified in Section X. of these TBCs. t

VII. Transport and transfer of risk

1. 

BIOGASKONTOR delivers in international trade in line with DAT / DAP according to INCOTERMS 2010. The client is obliged to indicate the place of delivery as accurately as possible - address, contact person, the exact date for the acceptance of delivery (AVIS). BIOGAS KONTOR excludes liability for the selection of the best and fastest shipping method. Completion of the freight and transport contract and export clearance is carried out by BIOGAS KONTOR. Customs clearance of the goods is the liability of the client. If the delivery status of BIOGAS KONTOR shipped to customer, the customer shall bear the cost of transport from the factory and the costs of transport insurance. In the case of exports carried by the customer any duties, fees, taxes and other public charges are payable by the client. 

2.

Containers, lattice boxes, cases and pallets remain the property of the client shall be stored accordingly and returned or sent back to the client if they have not been included in the costs. Wooden boxes, cardboard boxes and disposable packaging will be charged at cost price and are non-returnable.

3. 

The risk of accidental loss and accidental deterioration of the goods shall pass upon delivery to the customer. If dispatch or delivery is delayed due to circumstances for which the problem is with the client, the risk is transferred to the tag on the client when the delivery item is ready and handover ready at the agreed on the delivery place and this was communicated to the client is. If acceptance is agreed, this is crucial for the transfer of risk. Incidentally, for an agreed acceptance within the laws of business contract law apply accordingly. The transfer or acceptance have occurred even if the customer is in default of acceptance.

4. 

If the customer is in default of acceptance, he fails to issue a cooperative effort or the goods or services from another by the client delayed for reasons for which BIOGASKONTOR is entitled to charge the resulting costs for additional expenses and storage etc. the client. The assertion of legal claims by BIOGASKONTOR, especially cancellation and termination shall remain unaffected. The customer is entitled to prove that BIOGASKONTOR caused no or only minor damage.

VIII. Retention of title

1. 

All deliveries are subject to retention. The goods until payment in full resulting from the business relationship with the customer remains the property of BIOGASKONTOR.

2. 

The goods subject to retention may not be pledged prior to full payment of the secured claim to any third party, nor be by way of security. The client must inform BIOGASKONTOR immediately in writing if and when third parties attempt to assume ownership of reserved goods.

3. 

In the case of non payment of payment due, secured by the retention of title BIOGASKONTOR is entitled, under the statutory provisions of the agreement to rescind the contract/demand return of the goods and the product demand due to the retention of title out. The demand does not automatically mean a declaration of withdrawal; BIOGASKONTOR is furthermore entitled to reclaim the goods and reserves the right to rescind the contract. If the customer does not make the payments due these rights may only be exercised if BIOGASKONTOR has previously set a deadline of 10 calendar days to pay without avail, or if a similar period is not required by law.

4. 

The client is entitled to sell the goods under retention of title in the ordinary course of business and / or process with other things. In this case, in addition the following regulations apply.

5. 

Retention of title shall extend to the full value of manufactured items created by processing, mixing or combining BIOGASKONTOR goods, whereby we shall be considered the manufacturer. If goods are processed, mixed or combined with goods belonging to others who have retained title therein, then we shall acquire joint ownership proportionate to the invoice value of the processed, mixed or combined goods. Incidentally, the same shall apply to the manufactured item created as applies to goods delivered subject to retention of title.

6. 

The client is entitled to sell the goods in the normal course of business. The claims arising from the resale of the goods or products against third parties, the client assigns in total, or in the amount of the possible co-ownership of BIOGASKONTOR set out above, for the safety of BIOGASKONTOR. BIOGASKONTOR accepts the assignment. The customer remains entitled to collect the claim even after assignment. BIOGASKONTOR agrees not to collect the claim as long as the customer meets his payment obligations towards BIOGASKONTOR, is not in default of payment, and if no application has been made for the opening of insolvency proceedings and no other fault in his commercial performance. If this is the case, BIOGASKONTOR may require that the principal of the assigned claims and their debtors are made known to BIOGASKONTOR known, provide all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignation.

7. 

If the realizable value of the securities exceeds the claims of BIOGASKONTOR by more than 10%, BIOGASKONTOR will release collateral on demand of the customer. BIOGASKONTOR has the right to vote in the presence of various securities.

IX. Rights of the customer in the event of delay or defects

1.

For the rights of the client for material and immaterial damages, including the rights of the client for material and immaterial damages, including wrong and short delivery and improper installation or faulty assembly instructions apply to the following conditions.

2. 

The basis for liability for defects on the part of BIOGASKONTOR is mainly the agreement made regarding the properties of the services and goods. The subject of the contract applies as agreement on the properties of all product descriptions.

3. 

In the absence of any agreed specification of the goods, the existence of defects therein shall be determined in accordance with statutory provisions.

4. 

Any rights of the customer to make claims against the supplier in connection with defects of the supplied services shall be forfeited unless the customer has inspected the services in accordance with §§ 377, 381 HGB (German Commercial Code), as applicable. The delivered objects are immediately investigate thoroughly after delivery to the customer or its designated third party. They are considered approved if BIOGASKONTOR does not receive written complaint in regard to obvious defects or other defects which were recognized upon immediate and thorough investigation, within 10 days after delivery of the goods and performance of services or otherwise within 10 days after discovery of the defect or any earlier period where the customer did not declare the fault during normal use of the goods and the performance was evident, without further investigation.

5. 

The allegedly defective delivered goods or services are to be retained in the state in which they were at the time of discovery of the defect for inspection by BIOGASKONTOR. At the request of BIOGASKONTOR the alleged delivery item must be returned freight prepaid. BIOGASKONTOR bears no liability for removal and installation costs.

6. 

As far as the object of delivery or the service does not met the agreed condition or that generally specified in the contract or underlying purpose of use BIOGASKONTOR is obliged to provide replacement. This does not apply if BIOGASKONTOR on account of the legal provisions is entitled to decline replacement.

7. 

In case of defects of the goods or services provided BIOGASKONTOR is obliged and justified within a reasonable period of time to repair or replace the goods. In case of failure, that is the impossibility, unacceptability, refusal or twofold attempted improvement or replacement, the client may withdraw from the contract, reduce the contract price appropriately if the client then - justifiably - repairs the defect himself, The repair or replacement does not include the removal of the defective product. BIOGASKONTOR is entitled to make the service due dependent on the fact that the client pays the due invoice amount. The client is entitled to withhold a proportion of the latter in relation to the defect.

8. 

If BIOGASKONTOR uses components from other manufacturers in the fulfilment of the contract and these components are defective and BIOGASKONTOR can not repair for legal or factual reasons, BIOGASKONTOR will at its discretion make warranty claims against these manufacturers on behalf of the client or assign them to the client. Claims against BIOGASKONTOR exist for such defects under other conditions and in accordance with these TBCs only if the legal enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example, without expectation on account of insolvency. During the period of legal dispute the limitation of warranty claims by the customer against BIOGASKONTOR is inhibited.

9. 

The client has to give BIOGASKONTOR the necessary time and opportunity to examine the complaint. Only in urgent cases, for example, at risk of operational safety or to prevent excessive damage, does the client has the right to repair the defect and to demand reimbursement from BIOGASKONTOR of the necessary expenses. BIOGASKONTOR is to be informed immediately of such action in advance. The right of self does not exist if BIOGASKONTOR would be entitled to refuse appropriate repair under the statutory provisions.

10. 

The costs of unauthorized complaints concerning defects are charged to the customer.

11. 

Claims of the Buyer for damages or reimbursement of fruitless expenses shall only exist
according to § X and are incidentally excluded. 

X. Damages and liability

1. 

The liability of BIOGASKONTOR for damages - for whatever legal reason - especially resulting from delay, impossibility, defective or incorrect delivery and performance, breach of contract, breach of duty in contract negotiations and tort, whereby it is of importance that it is a violation pursuant to this Section X of the TCBs. 

2. 

BIOGASKONTOR is not liable in the case of simple negligence of its bodies, statutory representatives, employees or other vicarious agents to the extent that this does not apply to the violation of substantial contractual obligations. Substantial contractual obligations are obligations the fulfilment of which make possible proper fulfilment of the contract and which the client should be able to trust in.

3. 

In as far as BIOGASKONTOR is liable to pay damages according to the preceding paragraph 2, liability is limited to damages that BIOGASKONTOR has foreseen in the contract as a possible consequence of a breach of contract or BIOGASKONTOR should have foreseen when applying due diligence. Direct or consequential damages that result from defects of the goods or the performance of BIOGASKONTOR are only eligible for compensation to the extent that such damages are to be expected typically from improper use of the goods and the services of BIOGASKONTOR.

4. 

In the event of liability for simple negligence, the obligation of BIOGASKONTOR to make compensation for  property damage and personal injury is limited to an amount of EUR 1 million per claim.

5. 

The above liability exclusions and limitations apply to the same extent in favour of bodies, legal representatives, employees and other agents of BIOGASKONTOR.

6. 

Insofar as BIOGASKONTOR provides technical information or consultancy services and if such technical information or consultancy services do not belong to the scope of services agreed in the contract, the provision of technical information and consultancy services shall be deemed as being free of charge and excluded from all liability. 

7. 

The foregoing limitations of this Section X. of the TCBs shall not apply to the liability of BIOGASKONTOR for deliberate conduct, fraudulent concealment of defects, for guaranteed material characteristics, injury to life, limb or health, as well as to liability under the Product Liability Act.

XI. Statute of limitations

1. 

Notwithstanding § 438 Par. 1 No. 3 BGB the general statute-of-limitations for claims from defects of quality and title is one year from delivery. Insofar as an acceptance has been agreed the statute-of-limitations shall begin with the acceptance.

2. 

If the contractual object is a building or an object that, in conformity with its customary manner of utilization, has been used as a building and which caused the defect (building material), or a contract work the success of which consists in the rendition of planning and supervisory services for a building then, according to the legal stipulations, the statute of limitations is five years as of delivery or acceptance - see § 438, Section 1, No.2, BGB. Statutory special regulations for in rem claims to return of third parties remain unaffected (§ 438, Section 1, No. 1 BGB), wilful deceit of the vendor (§ 438, Section 3) and for supplier regress for final delivery to the customer (§ 479 BGB).

3. 

The above statutory period of limitations in the law on purchase contracts apply also for contractual claims of the Purchaser for damages and those claims outside of the contract which are based on a defect in the goods unless the application of the normal statutory period of limitations (§§195, 199 BGB) would lead to a shorter period of limitations in the specific case. The statutory period of limitations under the German Product Liability Act remain unaffected in any event.  Otherwise, the statutory period of limitations applies exclusively for claims of the Purchaser for damages under §X of these General Terms and Conditions.

XII. Applicable law, Place of performance, Court of jurisdiction .

1. 

The law of the Federal Republic of Germany shall apply to these GTCs and all legal relations between BIOGASKONTOR and the Buyer under the exclusion of all international and supranational legal regulations, in particular the UN Convention on the International Sale of Goods. The pre-requisites and effects of the reservation of title according to § 8 of the GTCs are subject to the law of the respective storage location of the object insofar as accordingly insofar as accordingly the choice of law which was agreed is inadmissible or invalid for the benefit of German law.

2. 

Place of fulfilment of all obligations under the contract is D-89611 Obermarchtal, unless the parties agree otherwise. If BIOGASKONTOR has assembly obligations unfulfilled, place of fulfillment is the place where the assembly has to be carried out.

3. 

Provided that the customer is a trader within the meaning of the code of commercial law, corporate body under public law or trustee of public-sector fund, for all disputes, which develop in the context of the completion of this contractual relation, Ulm is agreed upon as exclusive venue of jurisdiction. However, BIOGASKONTOR is also entitled to bring an action at the general jurisdiction of the client.

XIII. Regulatory gaps

In the eventuality of the contract or this Sales and Delivery conditions containing regulatory gaps, to fill these gaps those legally effective regulations apply, which the contractual parties would have agreed upon keeping in mind the cost-effective objectives of the contract and the purpose of this GCA, i.e. if they had known of these regulatory gaps.

Status: 15.10.2012