Last updated: January 2022
I. SCOPE OF THE TERMS AND CONDITIONS
II. OFFER AND CONCLUSION OF THE CONTRACT/ORDER CONFIRMATION
III. OFFER DOCUMENTATION IV. PRICES V. PAYMENT OF THE PURCHASE PRICE/DUE DATE/DEFAULT
VI. DELIVERIES NOT SUBJECT TO VAT
VII. OFFSET/RIGHT OF RETENTION/EXCLUSION OF ASSIGNMENT
VIII. DELIVERY DEADLINES
IX. TRANSFER OF RISK/ASSIGNMENT OF INSURANCE CLAIMS
X. QUALITY/DIMENSIONS/QUALITY CRITERIA/TRANSPORT ROUTES
XI. MOUNTING INSTRUCTIONS XII. NOTICE OF DEFECTS/SUBSEQUENT PERFORMANCE
XIII. GENERAL LIMITATION OF LIABILITY/LIMITATION PERIOD
XIV. GUARANTEE OF RETENTION OF TITLE XV. PLACE OF FULFILMENT
XVI. PLACE OF JURISDICTION
XVII. SEVERABILITY CLAUSE
I. SCOPE OF THE TERMS AND CONDITIONS
1) These Terms and Conditions (hereinafter referred to as the “Terms and Conditions”) apply only in relation to companies as defined in Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), legal entities under public law and public law special funds (hereinafter referred to as the “Business Partner”, or “BP”). They apply to all legal business transactions and business deals concerning or being caused by the sale and delivery of BayWa r.e. products, including all associated subsidiary and auxiliary business transactions.
2) The business transactions, including the auxiliary, subsidiary and implementation business transactions (deliveries and services) associated with them and the preceding offers made by BayWa r.e. are exclusively subject to these Terms and Conditions. These Terms and Conditions also apply to obligations under statutory law caused directly or indirectly by business transactions between BayWa r.e. and the BP and to future business relationships between the same, should BayWa r.e. refer to such relationships.
3) These Terms and Conditions shall apply exclusively, subject to any individual agreements between the Parties that take priority over these Terms and Conditions. This shall also apply to oral business transactions, provided that BayWa r.e. referred to the applicability of these Terms and Conditions.
4) Any terms and conditions issued by the BP shall not apply. BayWa r.e. hereby rejects any of the BP’s general terms and conditions or terms and conditions of purchase as referred to by the BP at the occasion of entering into the business relationship or during the processing of the same; this includes any reference made in orders, order letters, acceptance declarations and the like. BayWa r.e.’s rejection of the BP’s terms and conditions shall also apply in cases where BayWa r.e.’s own Terms and Conditions do not include any provisions to this effect. This rejection applies equally to future business transactions, including in individual cases where BayWa r.e does not explicitly reject the applicability of any general terms and conditions referred to by the BP.
II. OFFER AND CONCLUSION OF THE CONTRACT / ORDER CONFIRMATION
1) The offers made by BayWa r.e. shall be non-binding and – to the extent they are not explicitly marked as binding – represent solely an invitation to the customer to submit an offer to BayWa r.e.
2) If the order issued by a BP can be qualified as an offer in accordance with Section 145 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), BayWa r.e. may accept said order within 14 days, provided that no further (longer) acceptance period has been agreed.
3) If the content of the order confirmation differs from that of the BP’s offer, the written order confirmation issued by BayWa r.e shall generally determine the definitive scope of the delivery, provided that the discrepancy between the two documents is limited to the tolerances in quantity and quality considered normal for the industry. If the business transaction in question is based on an offer issued by BayWa r.e. and in the absence of any further order confirmation, said offer shall be deemed definitive in terms of determining the scope of delivery. Unless expressly agreed otherwise, the due date for BayWa r.e.’s claim for payment shall be subject to the provisions of statutory law.
4) Any deviations from these Terms and Conditions in the order confirmations or in offers issued by BayWa r.e. shall supersede these Terms and Conditions to the extent of the deviation in the specific case in question (principle of the precedence of concrete commitments in order confirmations and offers over general terms and conditions). In case of a discrepancy between an order confirmation or offer issued by BayWa r.e and correspondence conducted prior to the issuing of said order confirmation or offer, the correspondence in question shall be superseded by the order confirmation or offer issued by BayWa r.e.
5) The business transactions are based exclusively on the commercially relevant legal acts (offer, acceptance, order confirmation, commercial confirmation letters where applicable). Any ancillary agreements or amendments to the documents relevant to the contract completion, including these Terms and Conditions, shall require an explicit confirmation from BayWa r.e. in order to be legally effective.
6) Planning services provided by BayWa r.e. shall only be deemed to be part of the contract if this has been expressly agreed upon.
7) The conclusion of the contract is subject to the condition precedent that there are no obstacles due to national or international regulations, particularly export control regulations, embargoes and other sanctions. Any deliveries or services for the performance of concluded contracts shall be subject to the proviso that the aforementioned obstacles do not occur.
III. OFFER DOCUMENTATION
1) BayWa r.e. reserves the proprietary rights and copyrights to its plans, drawings, illustrations, calculations and developed software (hereinafter referred to as Confidential Information). This also applies to the publication of the Confidential Information via electronic media. This Confidential Information must be treated as confidential, and must not be made accessible to third parties without the prior consent of BayWa r.e.
2) The above confidentiality obligation shall apply irrespective of whether BayWa r.e. has explicitly marked the Confidential Information in question as such.
3) The above confidentiality obligation shall not apply if and to the extent that:
− the Confidential Information was already known to the BP when the BP was made aware of it by BayWa r.e., and the BP was not previously subject to any other non-disclosure agreement with BayWa r.e. regarding the Confidential Information in question;
− the BP comes into possession of the Confidential Information via third parties who have received and passed on said Confidential Information without violating a non-disclosure agreement;
− the Confidential Information was already public knowledge before it was shared with the BP by BayWa r.e.; or
− the BP is required to disclose the Confidential Information due to a legal obligation or official government order. In the latter case, the BP must inform BayWa r.e. of said obligation as soon as the BP becomes aware of it.
1) Unless stated otherwise in the offer and/or order confirmation issued by BayWa r.e., the prices shall apply Ex Works (INCOTERMS 2020).
2) The prices stated by BayWa r.e. in its offers do not include packaging and transport costs nor any insurance premiums (transport insurance). If BayWa r.e. is obliged to take out transport insurance, this shall be done at the cost of the BP. BayWa r.e. is entitled, but not obliged, to insure the products or goods to be delivered against transport risks without the explicit instruction of the BP.
3) The offer prices specified by BayWa r.e. are net prices and exclusive of the legally applicable value-added tax.
4) Discount deductions are only permitted with express written approval from BayWa r.e. or if the relevant commercial document issued by BayWa r.e. contains an allowance of said discounts.
V. PAYMENT OF THE PURCHASE PRICE/DUE DATE/DEFAULT
1) The fee to be paid by the BP shall be due without any need for further separate invoicing.
2) If, following conclusion of the contract, the BP fails to meet its payment obligations, or payments occur late or are discontinued, or the BP requests a deferment, or concrete circumstances become known that raise reasonable doubts regarding the BP’s creditworthiness, BayWa r.e. shall be entitled to make the performance of any of its outstanding obligations subject to the provision of security or, at the BP’s discretion, payment up front of the full outstanding amount.
3) In case of BP’s default, which shall be governed by the statutory provisions, and unless stated otherwise in the agreements between BayWa r.e. and the BP or in these Terms and Conditions, the BP must pay from the commencement of the default a default interest of 9% above the applicable statutory base rate on the outstanding payment claim by BayWa r.e.; this does not affect Section 288, Para. 5 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
4) In all cases, payment shall be deemed to have been received on time if, prior to the agreed payment deadline, the sum in question is credited in full to an account belonging to BayWa r.e. (i.e. if it is no longer possible or permissible under the statutory regulations for national or international transactions to revoke the payment) or the appropriate payment surrogate is credited to or cashed in by BayWa r.e. in full. BayWa r.e. is not obliged to accept such surrogates (cheques etc.) unless these have been endorsed or guaranteed in accordance with standard banking practice. The acceptance of such surrogates is, in all cases, conditional on fulfilment.
VI. DELIVERIES NOT SUBJECT TO VAT
If the delivery is not subject to VAT in accordance with Section 4, Para. 1b) in conjunction with Section 6a of the German VAT Act (Umsatzsteuergesetz, UStG), the BP must sign and return a confirmation of arrival. The confirmation of arrival must be returned to BayWa r.e. by the BP or a third party acting on the BP’s behalf within 30 days following the handover of the purchase item. If the BP does not meet its obligation, VAT will be charged retrospectively. Ownership of the purchased item shall remain with BayWa r.e. until the confirmation of arrival has been received and/or the retroactively charged VAT has been paid.
VII. SET-OFF / RIGHT OF RETENTION / EXCLUSION OF ASSIGNMENT
1) BayWa r.e. is entitled to offset all claims it has in relation to the BP against all of the BP’s claims, irrespective of their legal basis. This also applies if the mutual claims are based on different legal relationships.
2) The BP is not entitled to offset any claims due to the BP, in particular those due as a result of subsequent performance, damages or other counterclaims, or to exercise any retention rights with regard to claims made by BayWa r.e. on account of such claims being due to the BP, unless the counterclaims in question have been acknowledged, have been legally established as enforceable, are not disputed by BayWa r.e., or are considered ready for a decision by a court of law in a related legal dispute.
3) Without the approval of BayWa r.e., the BP shall not be entitled to assign to third parties any claims due to the BP from the business transaction based on these Terms and Conditions, except in cases where the legitimate concerns of the BP with regard to the assignability of contractual claims outweigh the conflicting interest of BayWa r.e.
VIII. DELIVERY CONDITIONS AND DEADLINES
1) Unless agreed otherwise, EXW (INCOTERMS 2020) shall be deemed to be the agreed delivery conditions. Unless specified otherwise, the place of delivery shall be BayWa r.e.’s warehouse in either Tübingen or Duisburg (Germany), at the discretion of BayWa r.e.
2) In cases where no agreement has been made with regard to delivery deadlines, BayWa r.e. hereby undertakes to deliver the goods within 60 days after the purchase contract comes into effect or after the relevant call-off demand. The delivery deadline shall commence with the transmission of the order confirmation – where applicable in accordance with the deadline specified therein – or, in the absence of an order confirmation, with the acceptance of the offer issued by BayWa r.e. or the acceptance by BayWa r.e.; however, the delivery deadline shall not begin until the documentation, approvals and releases to be obtained by the BP have been provided and any prepayments due as agreed in these Terms and Conditions or individual contracts have been received.
3) The delivery deadline shall be deemed to have been met if, prior to its expiry, the delivery item has left the factory or branch of BayWa r.e. in question or, in cases where it is the BP’s duty to collect the goods, readiness for handover of same has been communicated. This shall render the delivery complete – including for the purposes of VAT legislation.
4) In the absence of any other explicit agreements, the dates and deadlines stated by BayWa r.e. are no fixed dates and deadlines.
5) Delivery delays due to force majeure (e.g. traffic disruptions including those affecting the international transportation of goods, in particular during import, operational disruptions, strikes, lockouts, and official government orders for which BayWa r.e. is not responsible, even if these occur at the premises of BayWa r.e.’s suppliers) are not the responsibility of BayWa r.e. Such delays shall entitle BayWa r.e. to delay the delivery by the duration of the obstruction or to cancel in part or in whole the portion of the contract that has not yet been fulfilled if the obstruction persists for a period of more than two months.
6) If the obstruction outside the responsibility of BayWa r.e. within the meaning of Paragraph 5 above lasts more than two months, the BP shall be entitled, upon expiry of a reasonable deadline, to withdraw from the part of the contract that has not yet been fulfilled. This shall preclude the BP from bringing any further claims. The same shall apply in situations where BayWa r.e. is not responsible for the delayed delivery for other reasons.
7) In all cases, BayWa r.e.’s commitments are subject to the timely and correct supply of incoming goods. This reservation of BayWa r.e.’s timely and correct supply shall apply subject to the condition that BayWa r.e. has concluded the corresponding supply transaction in good time, and/or that BayWa r.e. is not responsible for the delay in supply on the part of its suppliers. If the performance interruption in accordance with the aforementioned circumstances lasts for more than one month, the BP shall be entitled, upon expiry of a reasonable deadline, to withdraw from the part of the contract that has not yet been fulfilled if the BP deems the delay in delivery to be no longer acceptable.
8) BayWa r.e. is entitled to make partial deliveries at any time, providing this does not entail additional costs for the BP.
9) In all cases, the delivery deadlines shall be extended by the period of time during which the BP fails to meet its obligations towards BayWa r.e., BayWa r.e. has a retention right as a result of this failure on the part of the BP and BayWa r.e. exercises said retention right.
10) If the BP is late with acceptance or violates other obligations to contribute, BayWa r.e. shall be entitled to demand compensation for any damages incurred as a result of this, including any additional expenditure. In such cases, the risk of loss and the price risk –
including, in particular, the risk of accidental damage or deterioration of the purchased item – shall pass to the BP. Further contractual or statutory claims are reserved.
11) If the BP does not accept the goods by the time the delivery deadline expires, BayWa r.e. shall be entitled to charge the BP for storage and finance costs starting from the second week after the deadline. These are calculated, in case of solar modules, at a flat rate on the basis of the output of the non-accepted solar modules, and amount to €0.60/kWp per week commenced. The storage and finance costs correspond to the liquidity costs and space requirement for solar modules arising regularly from late payment and extended storage.
12) In situations where BayWa r.e. arranges the transport of products or goods for the BP, BayWa r.e. shall bear no responsibility for the conduct of the delivery service, forwarding agent or any other transport company involved in this activity; this shall apply in particular with regard to the honouring of the delivery deadline by the delivery service, forwarding agent or other transport company in question. However, on request and subject to proof of a corresponding discrepancy between the scheduled delivery time and the actual delivery time, BayWa r.e. shall refund the BP any surcharges received for fixed-date or express delivery.
IX. TRANSFER OF RISK/ASSIGNMENT OF INSURANCE CLAIMS
1) In the event of a sale by delivery to a place other than the place of performance, the risk of accidental loss, destruction or deterioration and the risk of non-payment shall transfer to the BP upon handover of the shipment to the person conducting the transportation.
2) If delivery is to be conducted Ex Works and no separate agreement has been made with regard to the delivery deadline, the BP must collect the goods without delay once the BP receives notification that the goods in question are ready for shipping. If the BP fails to do so, BayWa r.e. shall be entitled, at its own discretion, to either send the goods at the expense and risk of the BP or to store them and charge the storage costs incurred from the 10th day of default on acceptance, to the BP; Section VIII, Para. 10 of these Terms and Conditions applies.
3) To the extent BayWa r.e. has taken out transport insurance and the BP has met its payment obligation towards BayWa r.e. concerning the goods insured for transport in full, BayWa r.e. shall assign its claims against the insurer to the BP to the extent permissible by law and the insurance contract, unless such assignment is not permitted under the terms of the insurance contract, the provisions issued by the insurer, the German Insurance Contract Act (Gesetz über den Versicherungsvertrag, VVG) or other statutory regulations.
X. QUALITY / DIMENSIONS/QUALITY CRITERIA / TRANSPORT ROUTES
1) The quality and dimensions of the products that constitute the subject of the business transaction are governed by the DIN standards or material data sheets, certificates etc. and other product-specific standards and calculations, to the extent no other standards, in particular foreign standards, have been agreed or are part of the content of the offer or the order confirmation issued by BayWa r.e. If no DIN standards or material data sheets, certificates or similar exist, the corresponding European standards and, in their absence, customary commercial practice shall apply. Individual agreements regarding the condition of the products that constitute the subject of the business transaction shall always take precedence.
2) Any reference to standards, material data sheets or factory test certificates of any kind and/or the description of the contractual deliveries with corresponding specifications does not constitute an assurance of product properties. Even to the extent the delivery or service is intended for a specific type of use by the ordering party and this becomes part of the contract, this shall likewise not constitute an assurance of product properties. In the absence of explicit written announcements in the corresponding commercial documents issued by BayWa r.e., BayWa r.e. shall have no obligations towards the BP with regard to guarantees or assurances of product properties of any kind.
3) Any liability from assurances of product properties or guarantees is excluded in all cases where such liability is not based on any explicit written assurance by BayWa r.e.
4) Unless specifically stated otherwise, BayWa r.e. may select or define the transport route and means of transportation at its reasonable discretion for the dispatch of the products that constitute the subject of the business transaction.
XI. NOVOTEGRA MOUNTING INSTRUCTIONS
The mounting instructions for the novotegra mounting system (or parts thereof) can be found online at https://www.novotegra.com/en/downloads
XII. NOTIFICATIONS OF DEFECTS / RECTIFICATION
1) The supplied good is defect-free if it fulfils the subjective requirements (Section 434 Para. 2) and the installation requirements (Section 434 Para. 4 BGB) at the time of the passing of risk. However, it is not necessary for the supplied good to fulfil the objective requirements of Section 434 Para. 3 in order to be considered defect-free, provided that and to the extent the business partner and BayWa r.e have made an agreement about the subjective requirements of the supplied object. The provision set out in Sentence 2 above does not apply in cases of “supplier recourse” (Section 478 BGB), when the supplied good is an item with digital elements in the sense of Section 327a Para. 3 BGB. 2)
2) The BP shall inspect the delivery item immediately after delivery in accordance with the requirements of § 377 HGB. Obvious defects shall be notified without delay. The date of receipt of this notice of defect by BayWa r.e. shall be decisive. Defects that cannot be discovered within this period, even with the most careful inspection, shall be notified immediately after discovery, with immediate cessation of any processing of the delivery item. If notice is not given in due time, the BP shall be excluded from asserting warranty claims, unless the respective defect was fraudulently concealed by BayWa r.e. The BP shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
3) For defects in the goods that have been reported with justification and in good time, BayWa r.e. shall provide subsequent performance in the form of repair or replacement, at its own discretion.
4) Insofar as the BP is obligated to install or remove the purchased item as part of the BP’s duty of subsequent performance to its customer, the BP must give BayWa r.e. the opportunity to perform this installation itself or commission a third party to do so; failure on the part of the BP to give BayWa r.e. this opportunity shall result in all expenses claimed for the installation/removal in question being deemed unnecessary.
5) If the subsequent performance fails, the BP may in principle demand, at the BP’s discretion, either a reduction of the charges or a withdrawal from the contract. However, the BP shall have no right of withdrawal if the contract violation in question is only minor in nature, and particularly if the defect in question is only minor in nature. If the BP demands compensation for damages incurred following failed subsequent performance and with a correspondent culpability of BayWa r.e., the goods shall remain in possession of the BP if so reasonably requested by BayWa r.e.
6) If the BP does not afford without undue delay BayWa r.e. the opportunity to inspect the defect, and if, in particular , the BP does not make the subject of the contract to which the complaint refers or samples or parts thereof available without undue delay upon request, BayWa r.e. shall be entitled to refuse to satisfy the BP’s warranty claims until such time as BayWa r.e. has inspected the purchased item. This shall not apply in cases where BayWa r.e.’s ability to conduct an inspection is hindered by circumstances beyond the BP’s control.
7) If the BP makes a claim for defects where there are none, BayWa r.e. shall be entitled to compensation for the internal and external expense incurred as a result of said claim. This expense shall be priced at a minimum of EUR 50.00 unless the BP is able to prove that the actual expense incurred is less than this amount.
8) For subjects of the contract that have been sold as downgraded material, the BP shall have no entitlement to subsequent performance or other warranty claims concerning the specified defects or such defects as can normally be expected.
9) Any further inalienable claims on the part of the BP concerning product liability remain unaffected by these provisions.
10) BayWa r.e. shall bear the cost of any transport, travel, labour, assembly or material expenses that it incurs during subsequent performance, providing said expenses cannot be traced back to the BP having taken the purchased item to a location other than the place of delivery; the cost of expenses caused by such action on the part of the BP shall be borne by the BP.
XIII. GENERAL LIMITATION OF LIABILITY / LIMITATION PERIOD
1) To the extent not otherwise stipulated in these Terms and Conditions or mandatory statutory provisions to the contrary exist, BayWa r.e. shall only be liable for damages resulting from the violation of contractual or non-contractual obligations in cases of intent or gross negligence. Liability for both slight negligence and for gross negligence on the part of employees of BayWa r.e. is excluded unless the claim in question is being made due to an injury to life, limb or health or the violation of a material contractual obligation. A material contractual obligation in this context is defined as an obligation whose fulfilment is essential to the proper execution of the contract and on the observance of which the BP can usually expect to rely. The liability exclusion/limitation stipulated herein also applies to damages due to default or delay.
2) In cases of slight negligence as defined in Paragraph 1 of this Section, the liability of BayWa r.e. shall not cover damages which could not be typically expected during the specific business transaction in question, unless the claim in question is being made due to an injury to life, limb or health. Liability for subsequent damages due to defects is excluded in all cases of only slight negligence and, for the remainder, also for gross negligence in the legally permitted scope.
3) All defect claims against BayWa r.e. are subject to a limitation period of one year after delivery, unless BayWa r.e. has granted for a different (longer) limitation period in writing in the respective individual case. Sentence 1 above does not apply to expense reimbursement claims (Section 445a BGB) and other warranty claims of the business partner in accordance with Section 437 BGB in cases of “supplier recourse” (Section 478 BGB), in which case Section 445b Para. 2 BGB applies.
XIV. GUARANTEE OF RETENTION OF TITLE
1) All physical service or delivery items (products/goods) shall remain the property of BayWa r.e. (retention of title) until all claims due to BayWa r.e. have been satisfied, including actual claims that become due at a later date and conditional claims. This shall also apply in situations where payments are made for specifically designated claims. In the case of rolling invoicing, the retained title acts as security against BayWa r.e.’s claim for the balance.
2) BayWa r.e. may at any time prohibit the sale and/or the combination and/or mixing of the item(s) subject to retention of title if the customer is in default with their payment obligations and/or has payment difficulties or becomes insolvent.
3) In case of mixing, processing and/or combination of the item(s) subject to retention of title with other movable objects not belonging to BayWa r.e., BayWa r.e. shall be entitled to percentage ownership of the new item equivalent to the ratio of the invoice value of the item subject to retention of title to the invoice value of the other or new item, including the expenses for processing (combination, mixing). If the invoice value of the other item is not known, its value must be calculated based on the principles of commensurability.
4) The adaptation and processing of the item subject to retention of title takes place on behalf of BayWa r.e. as the manufacturer as defined in Section 950 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), without placing any obligations on BayWa r.e. The
processed item is deemed to be the item subject to retention of title as defined in these Terms and Conditions. If the subject of the contract is processed together with other items not belonging to BayWa r.e., BayWa r.e. shall acquire a percentage co-ownership of the new item that is equal to the ratio of the value of the purchased item (invoice amount including value-added tax) to the other processed items at the time of processing. For the remainder, the same shall apply to the item being produced through processing as for the purchased item delivered subject to retention of title.
5) To the extent the BP resells goods that are the subject of the contract without or after processing, the BP shall be entitled to sell the item subject to retention of title during its normal course of business. The BP hereby assigns to BayWa r.e. its claims from the resale to the amount of the invoice value of the item subject to retention of title. The authorisation to resell the item is subject to the validity of the assignment of claims. This shall also apply analogously for cases in which the item subject to retention of title is used by the BP to fulfil a work contract or contract for work and materials, in particular for construction firms; here too, the claim from the work contract or contract for work and materials is assigned to BayWa r.e. in advance to the amount of the invoice value of the item subject to retention of title. The authorisation to process BayWa r.e.’s item is subject to the validity of the assignment of claims.
6) The BP is not entitled to transfer the item subject to retention of title to third parties as security, to pledge it, or to use it for swap transactions. Likewise, the BP is not permitted to assign the claims ceded to BayWa r.e. on the basis of the extended retention of title as a factoring client to a factoring bank, unless the factoring bank in question directly enters into the payment obligations of the customer with BayWa r.e. For the remainder, the assignment or sale of the claims ceded on the basis of the extended retention of title to the factoring bank shall require the written approval of BayWa r.e.
7) If debtors (third party debtors) pay to the BP the claims ceded to BayWa r.e. on account of the extended retention of title by cheque or other payment surrogate, the property or ownership to said payment shall pass to BayWa r.e. as soon as the BP has acquired it.
8) BayWa r.e. is entitled to collect claims from resale up to the point of revocation, which it is entitled to issue at any time, and which may also be issued orally. Upon request, the BP must notify the third party debtor of the assignment, inform BayWa r.e. of this notification, and send the necessary information and documentation for the collection of the assigned claims to BayWa r.e. together with the information regarding the notification. BayWa r.e. must be informed by the BP without delay of any attachment or other impediment by third parties.
9) The assertion of the retention of title, and in particular the recall of subjects of the contract and the collection of claims from third parties, does not constitute a withdrawal from the contract. In particular, BayWa r.e. is entitled to take back the item subject to retention of title – without having to withdraw from the contract – if the buyer of the item subject to retention of title has exceeded the payment target granted to them, has not settled other obligations in relation to BayWa r.e. on time, is in default or fails to fulfil their obligations under these Terms and Conditions.
10) If the BP includes its claims from a resale of such materials for which BayWa r.e. has a simple, extended or prolonged retention of title in a current account relationship, the BP hereby assigns the current account claim to BayWa r.e. to the amount of the value of the goods subject to retention of title. Once balance payment has been completed, this shall be replaced by the accepted balance that is considered to have been assigned up to the amount representing the original current account claim.
11) To secure BayWa r.e.’s claim, the BP also assigns to BayWa r.e. those claims against a third party that arise from the combination of the purchased item subject to retention of title with a land plot to the amount of the invoice value of the purchased item.
12) BayWa r.e. hereby undertakes to release the securities to which it is entitled upon the request of the BP insofar as the actual value of its securities exceeds the claims to be secured by more than 10%; the securities to be released shall be selected at BayWa r.e.’s discretion.
XV. PLACE OF FULFILMENT
1) The place of fulfilment for all deliveries and services provided by BayWa r.e. shall be the registered office of BayWa r.e.
2) The place of fulfilment for payments by the BP shall be the registered office of BayWa r.e.
XVI. PLACE OF JURISDICTION
The exclusive place of jurisdiction for any disputes arising from or in connection with the contract concluded between the Parties shall be the registered office of BayWa r.e. However,
BayWa r.e. is also entitled to bring legal action against the BP at the BP’s ordinary place of jurisdiction.
XVII. SEVERABILITY CLAUSE
If one (or several) provision(s) of these Terms and Conditions is or becomes invalid, the validity of the remaining provisions shall remain unaffected. The relevant statutory provisions shall apply in place of the invalid provision, unless these have been legally excluded by the remaining provisions.