General Terms and Conditions of Sale of B&W International GmbH
– Version 04/2025 –
§ 1 Scope of application, form
(1) These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (“Buyer”). The GTCS shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).
(3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the Buyer refers to his General Terms and Conditions in the context of the order and we do not expressly object to them.
(4) Individual agreements shall take precedence over the GTCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
(5) Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTCS includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, remain unaffected.
(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form.
(2) The order of the goods by the Buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 2 weeks of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
(4) Information provided by the Buyer on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery. Deviations that are customary in the trade and deviations that occur due to legal regulations, represent technical improvements or are technically unavoidable are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) We reserve the right of ownership or copyright to all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Buyer. The Buyer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without our express consent. At our request, he must return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of normal data backup.
§ 3 Delivery period and delay in delivery
(1) Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation, unless expressly stated otherwise by us. (
(2) In any case, the delivery period shall not commence until all technical and other questions relating to the delivery have been clarified.
(3) We may – without prejudice to our rights arising from the Buyer’s default – demand from the Buyer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Buyer fails to meet its contractual obligations to us.
(4) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining the necessary official permits, pandemics or epidemics, official measures or the non-delivery, incorrect or untimely delivery by suppliers despite a congruent hedging transaction concluded by us) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for us and the hindrance is not only of a temporary nature, we are entitled to withdraw from the contract. In the event of hindrances of a temporary duration, the delivery or performance deadlines shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period.
(5) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required.
(6) The rights of the Buyer pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Unless otherwise agreed in individual cases, delivery shall be EXW Junkendiek 5, 49479 Ibbenbüren, Germany (Incoterms 2020), which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Buyer, the goods will be shipped to another destination. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) Partial deliveries are permissible if they are usable for the Buyer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Buyer does not incur any significant additional expenses or additional costs as a result (unless we agree to bear these costs).
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to any agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(4) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a flat-rate compensation of 0.25% of the invoice amount of the goods to be stored per week elapsed.
Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have suffered no loss at all or only a significantly lower loss than the above lump sum.
§ 5 Prices and terms of payment
(1) The prices apply to the scope of delivery listed in the order confirmation, EXW Junkendiek 5, 49479 Ibbenbüren, Germany (Incoterms 2020) plus statutory VAT. Additional or special services shall be invoiced separately.
(2) In the case of shipment pursuant to § 4 para. 1 sentence 2, the Buyer shall bear the transportation costs ex warehouse and the costs of any transportation insurance requested by the Buyer.
(3) Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(4) The price is due and payable within 30 days of invoicing and delivery of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(5) The Buyer shall be in default upon expiry of the above payment period. During the period of default, interest shall be charged on the price at the applicable statutory default interest rate. We reserve the right to claim further damages for default.
(6) The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected, in particular pursuant to § 7 para. 4 sentence 2 of these GTCS.
(7) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the price is jeopardized by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
(1) The delivered goods (goods subject to retention of title) shall remain our property until all claims to which we are entitled against the Buyer now or in the future, including all current account balance claims, have been satisfied. If the buyer acts in breach of contract – in particular if he is in arrears with the payment of a claim for payment – we have the right to withdraw from the contract after we have set a reasonable deadline for performance. The transportation costs incurred for taking back the goods shall be borne by the Buyer. If we take back the reserved goods, this shall already constitute a withdrawal from the contract. It shall also constitute a withdrawal from the contract if we seize the reserved goods. We may utilize reserved goods taken back by us. The proceeds of the realization shall be offset against the amounts owed to us by the buyer after we have deducted a reasonable amount for the costs of the realization.
(2) The Buyer must treat the reserved goods with care. He must insure them adequately at his own expense against fire, water and theft at replacement value. If maintenance and inspection work becomes necessary, the buyer must carry it out in good time at his own expense.
(3) The Buyer may use the goods subject to retention of title and resell them in the ordinary course of business as long as he is not in default of payment. However, he may not pledge the reserved goods or assign them by way of security. The buyer hereby assigns to us in full by way of security the buyer’s claims for payment against his customers arising from the resale of the reserved goods as well as those claims of the buyer in respect of the reserved goods which arise for any other legal reason against his customers or third parties (in particular claims in tort and claims for insurance benefits), including all current account balance claims. We accept this assignment.
The buyer may collect these claims assigned to us for his account in his own name on our behalf as long as we do not revoke this authorization. This shall not affect our right to collect these claims ourselves; however, we shall not assert the claims ourselves and shall not revoke the direct debit authorization as long as the buyer duly meets his payment obligations.
However, if the buyer acts in breach of contract – in particular if he is in default of payment of a claim for payment – we may demand that the buyer informs us of the assigned claims and the respective debtors, informs the respective debtors of the assignment and hands over to us all documents and provides all information that we require to assert the claims.
(4) Any processing or transformation of the reserved goods by the Buyer shall always be carried out on our behalf. If the reserved goods are processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the new item created by processing as to the goods subject to retention of title.
If the reserved goods are inseparably combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the Buyer’s item is to be regarded as the main item, the Buyer and we hereby agree that the Buyer shall transfer co-ownership of this item to us on a pro rata basis. We accept this transfer.
The buyer shall keep the sole ownership or co-ownership of an item created in this way for us.
(5) In the event of seizure of the reserved goods by third parties or other interventions by third parties, the Buyer must draw attention to our ownership and must inform us immediately in writing so that we can enforce our ownership rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for such costs.
(6) If the Buyer so requests, we shall be obliged to release the securities to which we are entitled to the extent that their realizable value exceeds the value of our outstanding claims against the Buyer by more than 10%. However, we may select the securities to be released.
§ 7 Claims for defects of the buyer
(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) shall remain unaffected.
(2) The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or are made public by us (in particular in catalogs or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement in this sense. If the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (3) BGB).
(3) The Buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 7 working days of delivery and defects not recognizable during the inspection within the same period from discovery. If the Buyer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, the Buyer shall in particular have no claims for reimbursement of corresponding costs.
(4) If the delivered goods are defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(5) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(6) Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling (in particular due to non-compliance with our operating and maintenance and/or care instructions, improper application, use or use or excessive strain, unsuitable operating materials or which arise due to special external influences which are not provided for under the contract.
(7) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the Buyer shall not be entitled to return the item.
(8) We may demand reimbursement of the costs incurred by us as a result of an unjustified request by the Buyer to remedy a defect if the Buyer knew or could have recognized that there was in fact no defect.
(9) Claims of the Buyer for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB). Claims of the buyer for damages or reimbursement of futile expenses (§ 284 BGB) shall only exist in accordance with the following §§ 8 and 9, even if the goods are defective.
§ 8 Other liability
(1) Unless otherwise stated in these GTCS, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), for
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Statute of limitations
(1) Notwithstanding § 438 para. 1 no. 3, the general limitation period for claims arising from material defects and defects of title shall be 1 year from delivery. If acceptance is required, the limitation period shall commence upon acceptance.
(2) If the goods are an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period for claims of the buyer in accordance with the statutory provision of § 438 para. 1 no. 2 b) is 5 years from delivery. Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The Buyer’s claims for damages pursuant to § 8 para. 2 sentence 1 and sentence 2 (a) and pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ Section 10 Export control provisions, embargo regulations, sanctions lists
(1) The Buyer is obliged to comply with all relevant national and international export control regulations as well as embargo regulations and sanctions lists, in particular embargo regulations and sanctions lists of the EU, hereinafter collectively referred to as “Export Regulations”, irrespective of its registered office, even if it is neither domiciled in the EU nor in the USA nor is an EU or US citizen. In the case of onward deliveries or resales, the buyer is obliged to check whether there are any trade restrictions relating to goods or persons based on the above export regulations and to comply with these trade restrictions.
(2) The Buyer shall obtain all necessary permits and other authorizations required for the import, use or export of the goods by the Buyer in accordance with the export regulations applicable to the Buyer.
(3) We are entitled to refuse the contractually agreed delivery or to withdraw from the contract if the Buyer violates export regulations within the meaning of the above provision in paragraph (1). The same shall apply irrespective of any infringement by the Buyer if we would infringe export regulations within the meaning of the above provision in paragraph (1) by performing the contract. In such cases, the Buyer shall not be entitled to any claims for damages or other claims in connection with our justified exercise of the right to refuse performance or to withdraw from the contract.
(4) In the event of intentional or negligent breaches of the obligations set out in paragraph (1) above, the Buyer shall indemnify us in full against all claims asserted against us by authorities or other third parties due to the Buyer’s failure to comply with the obligations set out in paragraphs (1) and (2) above and undertakes to reimburse us for all damages and expenses incurred in this connection. The Buyer is obliged to provide us immediately with all documents and information necessary for the defense against such claims. If a competent authority requires us to submit documents that require the cooperation of the Buyer (e.g. end-use declarations, import certificates, etc.), the Buyer shall be obliged to provide the documents or other information required for this purpose at our request and to hand them over to us in good time.
§ 11 Choice of law and place of jurisdiction
(1) These GTCS and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 49479 Ibbenbüren, Germany. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or an overriding individual agreement or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
