General Terms & Conditions of Sale and Supply of Sanner GmbH (Vendor)
§ 1 Scope
- These terms and conditions apply only to companies incorporated according to § 310 para. 1 BGB (German Civil Code).
- Only these terms apply. Contradictory or deviating terms in the customer’s terms and conditions apply only in so far as these have been expressly agreed to in writing by the vendor.
- These terms apply to all future legal transactions between the parties, insofar as they have been received by the customer in the course of a past transaction.
§ 2 Offer and Conclusion of Contract
- In so far as an order is to be considered as an offer to purchase under § 145 BGB (German Civil Code), the vendor can accept the order within two weeks. A contract materializes only when the order is confirmed in writing by the vendor.
- Quotations made by the vendor are not legally binding unless they are declared as binding offers.
§ 3 Documents and samples supplied to customer
- The vendor reserves the right to ownership and copyright of documents and samples (e.g. models, moulds, devices, drafts, drawings, calculations) supplied to the customer in connection with the order as well as any possible industrial property rights.
- It is not permissible to make any documents or samples under para. 1 available to a third party, unless the vendor expressly gives his permission to the customer in writing.
- When the vendor does not accept the offer of the customer within the time specified under § 2 para. 1, all documents and samples under para. 1 shall be returned without delay and unsolicited.
§ 4 Prices
- Unless otherwise agreed, the vendor’s prices are valid ex works excluding freight, customs, any additional import costs and packaging plus the applicable sales tax. Costs of freight, customs, additional import costs and package will be invoiced separately plus the applicable sales tax.
- Should a significant increase in cost factors (e.g. wages, material costs and delivery) occur, a reasonable price increase is permitted.
- The vendor is not bound by past prices for new orders or follow-up orders.
§ 5 Terms of Payment
- All payments shall be made in Euro to the vendor’s stipulated account.
- The purchase price shall be paid in full without deductions within 14 days after the invoice date. The vendor’s payment receipt date is definitive.
- Interest payable on arrears shall be charged at the rate of 8% p.a. above the prime rate. The vendor reserves the right to assert a higher claim because of damages caused by default.
- Cheques may be rejected. Cheques are only accepted in fulfilment; the customer shall bear all involved costs.
- The customer is not entitled to assert claims and rights over defective goods received if he has not made the payment due, and if the amount due (including any payments already made) is appropriate to the value of the defective goods.
- The non-compliance with the terms of payments or false information on creditworthiness or the existence of circumstances which give reason for serious doubt about the customer’s creditworthiness shall result in the customer being required to make an immediate settlement of all claims against him. Over and beyond these sanctions, the vendor shall be entitled to withdraw from the contract after having set an appropriate extension of the payment deadline.
- The vendor shall be entitled to demand advance payments or deposits from the customer.
§ 6 Off setting and rights to refuse payment
- The customer has the right to offset against his account only if his claims have been established as legally valid or are indisputable.
- The customer is not authorised to assert the right of retention or the right of refusing payments.
§ 7 Delivery
- The beginning of the delivery period named by the vendor requires the clarification of all technical questions as well as the punctual and proper fulfilment of the customer’s obligations. This applies especially to the receipt of all documentation required to execute the order, of the advance payment and the provision of material, where agreed. The vendor has the right to cancel the contract in the event of non-fulfilment of the contract by the customer. The completion date shall be considered fulfilled from the date of notification of despatch readiness, should the despatch itself be delayed or made impossible by circumstances beyond the vendor’s control.
- Partial deliveries may be made; tolerances in the quantities ordered, up to plus/minus 10%, where standard practice, and if the agreed price is amended accordingly, are permissible.
- In the case of call orders without a fixed time limit, manufacturing batch sizes and dates of acceptance, the vendor is entitled to demand a binding commitment, at the latest three months after confirmation of order. If the customer does not comply with this demand within three weeks, the vendor shall give an extension of two weeks, and after this deadline the vendor is permitted to withdraw from the contract and to claim compensation. The assertion of other rights remains unaffected.
- If the customer does not fulfil his obligation to receive the goods, the vendor is not bound to sell elsewhere, but shall be free, notwithstanding any other rights, to sell the goods at his discretion.
- Goods to be returned to the vendor as a gesture of the vendor’s goodwill require to be in a faultless condition, in their original packaging and carriage free and sent at a mutually agreed time. The vendor is entitled to demand a reasonable compensation for costs arising from the return of the goods.
- Force majeure entitles the vendor, notwithstanding other rights, to postpone the delivery for the duration of the hindrance and to specify an adequate restarting time, or due to incompletion of the contract, to withdraw completely or in part from it. Equivalent to force majeure are strike, lock-out or unpredictable circumstances such as breakdowns, which make punctual delivery impossible despite all reasonable efforts. This ruling also applies, if the above mentioned hindrances occur during a delay or at a sub-contractor’s. The vendor shall inform the customer without delay if a force majeure, as described in paras. 1 and 2, has occurred.
§ 8 Packaging, delivery, transfer of risk
- If not otherwise agreed, the vendor shall choose packaging, method of despatch and route at his discretion.
- The risk transfers to the customer as soon as the goods leave the vendor’s premises. This also applies to carriage free despatch. With delays in despatch attributable to the customer, the risk transfers upon notification of despatch readiness.
- Upon the written request of the customer, the goods can be insured at his expense against risks named by him (e.g. storage damage, breakages, transport damage and fire damage).
§ 9 Retention of title
- The goods – future deliveries included –remain the property of the vendor until all the vendor’s rights resulting from the business relationship are fulfilled, even when the price for specially designated requirements has been paid. On a running account the title to the goods secures the outstanding balance of the vendor.
- As long as the title to the goods resides with the vendor pledging as collateral, transfer of title as a collateral or any other disposal of the goods under title is denied the customer. Resale is only permitted as usual business practice on condition that payment of the equivalent of the goods shall be made to the vendor and that the customer has agreed with the buyer that he will not become the owner until this payment has been made to the vendor.
- The customer is permitted to process the goods or mix or combine them with other items. The process, mixing or combination (together: “processing”) takes place for the vendor. The item resulting from this process is designated “new goods”. The customer stores the new goods in the same manner as the vendor’s titled goods with the care expected from good business practice.
- When processing with other goods not belonging to the vendor, the vendor is entitled to a co-ownership of the new goods. The value accruing to the vendor is determined by the ratio of the vendor’s net invoice value to the net invoice value of the other manufactured goods at the time of processing. In so far as the customer acquires sole ownership of the new goods, the parties agree that the customer grants co-ownership of the new goods in the ratio of the vendor’s net invoice value to the net invoice value of the other manufactured good at the time of processing.
- If the goods or the new goods are sold on, the customer herewith transfers, until all rights of the vendor are satisfied, the claims arising from the resale and other legitimate claims with all ancillary rights against the buyer to the vendor without need of any special request in this regard. The vendor accepts this assignment. The assignment includes any claim on the remaining balance of payment. But the assignment applies only to the amount invoiced by the vendor. Payment of the vendor’s share has priority.
- To enable the vendor to assert his rights under this paragraph, the customer shall give all necessary information and all necessary documents to the vendor. In case of seizures, confiscation or other disposals or intervention by a third party, the customer shall inform the vendor without delay. The costs of intervention arising out of this shall be borne in every case by the customer as long as they are not borne by a third party.
- If the value of the securities existing for the vendor exceeds the total of his demands by more than 10%, the vendor shall, if the customer demands it, release such securities as chosen by the vendor.
- If the vendor makes use of his property rights by demanding return of the goods, he is entitled to sell the goods freely or to put them up for auction. The vendor’s demand to return the goods due to his ownership constitutes a withdrawal from the contract. In this case, the customer is obliged to pay to the vendor the difference between the sale or auction price – up to a maximum of the contractually agreed price– and the contractually agreed price. Further claims for compensation, especially loss of profit, are reserved.
§ 10 Material specifications and Defects
- Specifications on material and performance of moulds shall be made in written form. The same applies to agreements or supplementary agreements regarding the functionality or the suitability of the supplied goods. The reference to technical standards serves as a description of performance requirements and should not be interpreted as a guarantee of the material composition.
- Warranty rights of the customer require that he has followed in the correct manner, according to § 377 HGB (German Code of Commercial Law), his obligation to check and make complaints. If complaints should occur, despite the utmost care, according to § 377 HGB (German Code of Commercial Law) obvious defects should be notified in writing immediately, or at the latest within 14 days of receipt of the goods. Complaints about hidden faults should be notified in writing immediately or at the latest within one week of their discovery. Otherwise the product is considered to be accepted.
- Claims for defects in products supplied by the vendor to the customer are limited to six months after receipt of the goods, unless German law prescribes a longer period. Before returning goods to the vendor, his approval should be obtained.
- If, despite all care and attention, a defect should be found in delivered products which already existed at the time of the risk transfer, then subject to a claim being raised within the period stipulated, the vendor shall have the choice to repair the product or to supply a replacement. The vendor shall be given a reasonable period of time to make restoration. Replaced parts are to be sent back to the vendor on demand at his expense. The vendor shall be allowed at least two attempts at restoration.
- If the restoration does not succeed, the customer can cancel the contract or reduce the price. The customer cannot demand compensation for expenses for unsuccessful work.
- Claims for defects cannot be raised for slight deviations from the agreed material composition, for slight diminution of the effectiveness, for normal wear and tear and for damages occurring after the risk transfer due to incorrect or negligent treatment, excessive use, unsuitable equipment or because of special external influences not foreseeable at the time of signing the contract. If unauthorised repair works or changes are carried out by the customer or a third party, no claims for defects or their consequences will be entertained.
- Customers’ claims for expenses due to restoration, especially costs relating to transport, route, work and materials, are excluded, in so far as these additional costs are due to the goods supplied by the vendor having been taken to a location other than the registered premises of the customer, unless their removal is a requirement for their use.
- Claims exceeding the above mentioned or claims against the vendor and his personnel for defects, other than the claims mentioned above, are excluded, as long as § 444 BGB (German Civil Code) is not opposed to exclusion of liability.
§ 11 Liability
- The vendor is liable in cases of intent or gross negligence according to legal regulations. Otherwise, the vendor is only liable according to production liability law, or injury to life, limbs or health or for a violation of essential contractual obligations. But the entitlement to damages because of breaking essential contractual duties is limited to foreseeable damages typical of the contract. The liability of the vendor is also limited in cases of gross negligence for foreseeable damages typical of the contract and otherwise to 5 % of the value of the supplied product, if none of the named exception cases in clause 2 exist. In case of late delivery the damages are, insofar as a liability exists and none of the named exception cases in clause 2 exist, at the most a flat rate of 0.5 % for every full week of delay and in total at the most 5% of the value of that part of the delivery which has not been supplied according to the contract.
- The liability for damages caused by the supplied product to the customer’s property is completely excluded, for example damages to other goods. This does not apply if intent or gross negligence is present or because of injury to life, limb or health.
- The regulations of paragraphs 1 and 2 cover damages along with the performance of the contract and to damages instead of the performance, for whatever legal reason, in particular because of defects, the violations of obligations arising from the relationship, delay, impossibility or from unauthorised actions. They also apply to the reimbursement for unsuccessful work.
§ 12 Provision of materials
- If materials are supplied by the customer, they shall be delivered on time and in perfect condition, at his expense and risk with an adequate extra quantity of a minimum of 5%.
- If the conditions under para.1 are not fulfilled, the deadline for delivery is reasonably extended. Except for force majeure, the customer also bears the additional costs arising from breaks in production.
§ 13 Industrial property rights
- If the vendor has to supply his product based on drawings, models, samples or using parts provided by the customer, then the customer shall take responsibility that property rights of third parties are not thereby violated. The vendor will inform the customer about rights of which he is aware. The customer shall exempt the vendor from demands of third parties and provide compensation for any damages which arise. If the vendor is forbidden to fabricate or deliver by a third party with reference to a property right, the vendor is entitled without examination of the legal position to stop and/or to withdraw from the contract without being obliged to pay compensation. The vendor’s price for previously delivered or produced items, as well as other claims for compensation, remain unaffected.
- Documents supplied to the vendor such as drawings and samples, which do not result in an order, will be sent back on request, otherwise the vendor is entitled to destroy these documents three months after transmitting the quotation.
- The vendor is entitled to the copyright and industrial property rights, especially use and exploitation rights on all models, moulds, devices, designs and drawings created by him or by third parties at his order.
§ 14 Other
- This contract and all the legal relations of the parties are subject to the law of the Federal Republic of Germany excluding the United Nations purchasing statutes (CISG).
- The court of jurisdiction shall be at the location of the vendor’s premises. Vendor’s premises as pertaining to these General Terms & Conditions are the vendor’s premises at: Schillerstrasse 76 in D-64625 Bensheim-Auerbach.
- The exclusive court of jurisdiction for all cases resulting from and in connection with this contract shall be at either the location of the vendor’s or customer’s premises at the vendor’s discretion. This applies also for certificate and cheque cases.
- Changes or supplements to this contract require to be in writing. This also applies to this clause. Verbal sub-agreements have not been made.
- The inapplicability of or loopholes in one or more provisions does not result in the invalidity of the contract in whole. The parties agree to replace inapplicable provisions with provisions of legal standing and to close loopholes with provisions that closely approach the economic purpose of the invalid provision or cover these loopholes