General Terms and Conditions of Business and Delivery of Sinusverteiler GmbH
These Conditions of Sale shall exclusively and only apply to natural and legal persons or to legal entities or partnerships with legal capacity acting in execution of their commercial or self-employed occupational activity when concluding the contract (entrepreneur). Any and all of these sales under contract for goods and services as well as other sales are subject to the following terms and conditions, unless agreed otherwise.
- Our Conditions of Sale shall apply exclusively; we do not accept conflicting conditions or conditions of the customer deviating from our Conditions of Sale, unless we have expressly consented to their applicability in writing. Our Conditions of Sale shall also apply if we perform our delivery to the customer without reservation even though we are aware of conflicting conditions or conditions deviating from our Conditions of Sale.
- Any agreements entered into between us and the customer for the purpose of executing this contract (orally, by phone, per e-mail or facsimile) require our written confirmation in order to become valid; this shall also apply to collateral agreements and other commitments.
- Our Conditions of Sale shall also apply to any future transactions with the customer; in case of call orders for each call.
- The customer may cancel orders that have been conformed by us only for an important reasons. The right to withdraw from the contract in accordance with the statutory regulations and the agreed provisions shall remain unaffected. This shall in particular apply to successive delivery, framework and/ or call orders.
- Our offer is subject to change without notice. The order by the seller constitutes a binding offer. The contract will come into force on dispatch of a written order confirmation within 10 days after receipt of the order or by the fact that the ordered goods are sent to the seller within this period (acceptance). In case of call orders, the customer has to accept delivery 10 months after placing of the order at the latest, unless agreed otherwise; he has to declare the call in due time, but 4 weeks before delivery at the latest.
- The rights of the customer arising from this contractual relationship are not transferable. § 354a HGB (Commercial Code) shall remain unaffected.
- If any provision of this Contract is or becomes ineffective in whole or in part, this shall not affect the validity of the remaining provisions.
- All legal relations shall exclusively be governed by German law, including the UN Convention on Contracts for the International Sale of Goods (CISG) of 11/04/1980.
II. Offer documents / property rights
- We reserve all property rights and copyrights with regard to illustrations, drawings and calculations as well as any other documents; they must not be made available to third parties. This shall in particular apply to such written documents which are designated as “confidential”; before disclosing such documents to third parties, the customer requires our express written approval.
- As far as we have to deliver objects on the basis of drawings, models, samples or from tools, calculations or illustrations submitted to us by the customer, the customer shall warrant to us that property rights by third parties will not be violated by the manufacture and delivery of such objects. We shall not be responsible for verifying whether the tools to be made by us according to such order as well as the objects to be produced by means of theses tools will infringe any property rights by third parties at home or abroad; this will rather fall within the customer’s exclusive scope of responsibility.
- Insofar as a third party forbids us to produce or deliver objects based on drawings, models, samples, calculations, illustrations or tools of the customer with reference to a property right accruing to such third party, we will be entitled – without having to verify the factual and/or legal situation - and to the exclusion of any compensation for the customer, to stop production and delivery as well as to demand compensation from the customer for the costs incurred to us and for the loss of profit.
- The customer commits himself to indemnifying us against any claims for damages asserted by third parties immediately on our request. The customer has to effect an adequate advance payment to us for all direct and indirect damages resulting from the infringement and assertion of possible property rights, including consulting and legal costs incurred to us.
- Samples or drawings sent to us will only be returned upon request. If an order does not materialize, we will be entitled to destroy samples and drawings three months after submission of offer.
III. Prices and payment
- Provided that the order confirmation does not state otherwise, our prices apply “ex works”, excluding freight and packaging. These will be invoiced separately.
- Our prices are quoted net exclusive of the statutory value-added tax applicable at the date of invoice; VAT will be stated separately in the invoice.
- In case of continuous obligations, we reserve the right to price adjustments. The respective price and discount structures negotiated with the customer constitute the calculation basis for the prices. If increases regarding wages or material prices occur after three months as of the date of order confirmation, we will be entitled to pass on the wage or material price increases to the customer, unless these are compensated by a reduction of other cost factors of the price structure. Analogously, we will pass on non-compensated wage or material price reductions to the customer. Furthermore, the customer acknowledges that we are entitled to price increases, if the execution of the order indicates the necessity of additional operations and tools to a considerable extent which – in particular on first delivery – could not be identified in advance in accordance with the generally acknowledged state of the art and which could therefore not be taken into account in the preliminary calculations on which the price arrangements and contract negotiations with the customer have been based. Price increases in accordance with Clause 2 and Clause 3 are subject to §§ 315, 316 BGB (German Civil Code). In such a case, the customer shall be entitled to extraordinary termination of the services that have not yet been rendered. Services that have already been rendered have to be paid.
- Failing express written agreement, payment has to be effected net cash (= without any deduction) to us. Deviating terms of payment are to be agreed with us in writing. This shall in particular apply to longer periods of payment, payments by bill of exchange or cheque / bill of exchange transactions. Payment instructions, cheques and bills of exchange are only accepted on account of payment, by taking into account all collection and discount charges. We shall not assume liability for presentation in due time or for protest. Cash on delivery charges will be borne by the customer.
- Discount is principally only granted in writing; as far as a discount has been granted, this shall apply to the respective commodity price, excluding auxiliary costs.
- If there are several open claims, we will be entitled to stipulate the order of repayment.
- Provided that the order confirmation does not state otherwise, our invoices will be due for payment immediately after receipt. The customer will come in default 30 days after the due date and receipt of the invoice. § 286 Section 3 BGB shall otherwise remain unaffected.
- If the customer comes in default of payment, we will be entitled to charge default interest to the amount of 8 % above the respective base interest rate in accordance with § 247 BGB. We shall have the right to assert a higher loss of interest which will have to be proved by us. The assertion of further default damages remains reserved. In case of default of payment as well as in case of collection that may become necessary or on cessation of payment, discounts and/or price reductions that have been granted for the respective payment will no longer apply.
- Any payments have to be effected in Euro to us and not to our mediating agent nor to our commercial agent with authority to sign.
- The customer shall only be entitled to exercise a right of retention or a setoff right if the counterclaim is based on the same contractual relationship.
IV. Delivery periods
- The begin of the period of delivery specified by us presupposes that all technical issues have been settled with the customer and, provided that this has expressly been agreed upon, that agreed advance payments have been received; under no circumstances, it will begin before receipt of all documents, drawings, calculations and additional parts which are to be delivered by the customer and required for the execution of the order. If output samples have to be delivered, all delivery periods for the serial delivery will begin on acceptance of the output sample.
- Delivery periods specified by us shall only be binding if they have expressly designated as binding by us in writing. Compliance with the delivery period is subject to correct and timely self-delivery. We will inform the other party immediately about impending delays. In case of unavailability of the goods or only partial availability of goods for which we are not responsible we will be entitled to withdraw from the contract. We will immediately inform the customer and refund advance payments effected by the customer without delay.
Compliance with our obligation to deliver is subject to the timely and proper performance of the obligations on the part of the customer.
- If the customer comes in default of acceptance or if he violates any other obligations to cooperate, we will be entitled to claim compensation for the damage incurred to us, including any additional expenditures that might be incurred. In such a case, the risk of accidental destruction or accidental deterioration of the delivery item will be transferred to the customer at the point of time when the latter falls in default of acceptance.
- If it is agreed that the customer collects the goods himself or has them collected on his behalf, but collection does not take place within one week after notification of completion, we will be entitled to deliver the goods at the expense of the customer and the customer will be obliged to accept the goods delivered by us. The customer will at the latest come in default of acceptance in accordance with Clause 4 if he does not accept the delivered goods.
- Force majeure releases us from the performance of contract for the duration of the impediment; if it lasts for longer than 6 months, both contracting parties may withdraw from the contract. Force majeure also includes accidents and other causes that we can neither foresee nor avoid and which result in a postponement of our start of production or in a partial or full cessation of work such like, for example, shortage of material, shortage of fuel, transport difficulties, difficulties with regard to the energy supply, disruptions in our own business, and/or in a supply business and delayed delivery of raw materials, tools and machines for the ordered production.
V. Transfer of risk, delivery
- Provided that the order confirmation does not state otherwise, delivery “ex works” has been agreed. We always dispatch the goods for the account and at the risk of the customer, even in case of freight free delivery and in case of transport with the company’s own vehicles.
- Packaging and dispatch is performed at our best discretion; we will only be liable in accordance with Clause VIII.
- The goods and/or the transport thereof shall be insured by us according to customer's instruction and at customer's expense. The customer shall be responsible for the regulation of transport damages or losses.
- Partial deliveries shall be permitted to an extent that is reasonable for the customer, unless our order confirmation expressly specifies otherwise. In case of a partial delivery in violation of the contract, the right to withdraw from the contract will only be effective after expiration of an adequate period for performance or supplementary performance and only insofar as the customer explains that he is not interested in the partial delivery.
- The customer is not allowed to export our products out of the EU without our previous written consent; this explicit consent will not be required if the destination of the products coincides with the customer's invoice address. The customer has to ensure that his own clients comply with this regulation, as well.
VI. Additional parts
- In case that additional parts and/or additional packaging (e.g. pallets or moulded shells to be provided by the customer) are supplied by the customer, the latter undertakes to deliver these free our works with a quantity surcharge of 5 to 10 % for possible reject or additional production. Supply has to be effected in due time, in perfect condition and in such quantities that a continuous processing in our plant is possible.
- On late or inadequate delivery of additional parts, the customer will be obliged to reimburse additional costs incurred by this and to compensate the damages caused to us. In such cases we reserve the option to interrupt the production and to continue at a later time or, after having informed the customer in due time about our needs, to buy ahead on our own and to charge the additional costs to the customer. In such a case, any delivery periods shall be deemed to be suspended.
VII. Warranty for defects
- For defects in the goods existing on delivery we provide warranty. Our warranty is based on the agreement entered into as regards the condition of goods. If the goods are custom-made products for the customer, we manufacture the goods in accordance with the specification provided by the customer and accepted by us. The specification provided by the customer shall at least include the characteristics of the goods, in particular dimensions, weights, performance data and other quality features which are necessary in order to ensure that the goods are suitable for the intended use of the customer. We are not obliged to check the information provided by the customer with regard to feasibility, practicability or usability - no matter in what respect. If the goods are used for purposes that are not evident from the quality specifications, our warranty and liability shall no longer apply.
The warranty rights of the customer shall require that he has duly met his obligations to examine and reprimand in accordance with § 377 HGB (German Commercial Code); any costs involved in the receiving inspection of the examinations shall be born by the customer himself. Obvious defects may only be complained of in writing within seven days as from the transfer of risk to the customer and by exactly specifying the asserted defects. Other defects have to be asserted immediately after their discovery. Persons authorized to check for defects shall not be entitled to acknowledge defects with binding effect on us.
- On request, the customer shall provide us with the rejected goods for inspection purposes. If the complaint proves to be justified, we shall have the choice to render subsequent performance by means of remedy of defects or by substitute delivery. As an alternative, we may agree with the customer on reduction of remuneration; in case of permanent business relationships, the reduction of remuneration may be effected by issuing a credit note for defective goods. In case of subsequent performance we shall be obliged to bear any expenses required for the purpose of remedy of defects or substitute delivery, in particular transport, travel, labour and material costs as far as these have not been increased by taking the goods to another place than the place of performance or the agreed destination of the goods. This shall not include the costs for removing the goods nor those for re-installing the goods. These costs, additional consequential damages or damages caused by products that have not been manufactured by us will only be born as far as a culpable breach of duty on our part can be proven or if the goods are intended for installation at a consumer. If the demand for the remedy of defects by the customer turns out to be unjustified, we shall be entitled to demand from the customer that he will reimburse the costs incurred by this.
- Should the subsequent performance fail, the customer shall have the right, upon his sole discretion, to rescind from the contract or to reduce the remuneration by the amount by which the value of the defective item - in proportion to the remuneration - is reduced as a result of the defect. Subsequent performance shall be deemed to have failed after the second unsuccessful attempt thereof.
- We shall accept liability in accordance with the statutory requirements, if the customer asserts claims owing to the lack of a property which has been guaranteed by us. Warranty statements are only submitted by us in writing and are alsway designated as such. Apart from that, we will only be liable for disruptions of performance in accordance with Clause VIII.
- Upon our express request, the goods recognized as defective by us shall be returned to us within the framework of subsequent delivery.
- In the event of defective deliveries, the customer shall be obliged to effect payment for the part of the delivery that is indisputably free of defects plus the costs for transport and packaging as well as the proportionate amount of value-added tax.
- Warranty claims become statute-barred 24 month after the transfer of risk. This period of limitation shall not apply as far as § 438 Section 1 No. 2 BGB (buildings and items for buildings), § 479 Section 1 BGB (recourse claim) or § 634a Section 1 No. 2 BGB (construction defects) are applicable and provide for longer periods nor in case of intention, fraudulent concealment of the defect, in case of non-compliance with a quality guarantee or in the event of injuries to life, body or health.
VIII. Total liability
- We shall be liable towards the buyer only in such cases where we are responsible for the disruption of performance. We are only responsible for
a) the violation of essential contractual obligations based on at least ordinary negligence if this violation endangers the achievement of the purpose of the contract,
b) intentional or grossly negligent violation of non-essential contractual obligations,
c) fraudulent injury to life, body or health,
d) defects which have fraudulently been concealed by us or the absence of which we have guaranteed or
e) defects in the delivery item in so far as liability exists under the Product Liability Act for personal injuries or property damages involving privately used objects.
- Unless in case of gross negligence on the part of the management or executive employees, in cases according to Clauses VIII. 1a)-b), the obligation to compensate for damages shall be restricted to foreseeable damages that are typical for the contract.
- The buyer may only demand compensation for damage instead of performance in so far as we have been granted a reasonable period for performance or subsequent performance by registered letter. This period of grace must be at least 4 weeks. The same shall apply with regard to the right to withdraw from the contract.
- As far as our liability is excluded or restricted, this shall also apply to the personal liability of our staff members, employees, representatives and vicarious agents.
- All contractual claims for damages shall become statute-barred within 24 months as from the transfer of risk. This period of limitation shall not apply as far as § 438 Section 1 No. 2 BGB (building and items for buildings), § 479 Section 1 (recourse claim) or § 634a Section 1 No. 2 BGB (construction defects) are applicable and provide for longer periods nor in case of intention, fraudulent concealment of the defect, in case of non-compliance with a quality guarantee or in the event of injuries to life, body or health.
The costs for tools which are possibly stated in our offer or in our order confirmation only constitute a part of the material and labour costs which are actually to be apportioned to the expenses for tools and have therefore to be considered as target prices. By payment of this share of the tooling costs, the customer shall not acquire any title to nor any claim to the acquisition of title with regard to these tools. They rather continue to be our property and remain in our possession.
X. Reservation of title
- We reserve title to the goods pending payment in full of all claims to which we are entitled in connection with the business relationship with the customer now or in future.
- In the event of breach of contract on the part of the customer, particularly in case of default in payment, we shall be entitled to retrieve the goods. Retrieval of the goods by us shall not be deemed a withdrawal from the contract, unless we have expressly declared such withdrawal in writing. Seizure of the goods by us shall always constitute a withdrawal from the contract, however. After retrieval of the goods, we shall be entitled to their utilization. The utilization proceeds are to be setoff against the customer’s liabilities – less deduction of appropriate utilization costs.
- The customer shall be obliged to handle the goods with due care; he is in particular obliged to insure the goods adequately at this own expense at the original value against damages by fire, water and theft.
- The customer shall be entitled to sell and dispose of the goods within the course of ordinary business. Installation of the goods in real estate or in systems attached to buildings or the use of the goods for the performance of any other service contracts and work performance contracts shall be deemed to be equal to their resale.
- The customer shall already now assign to us all accounts receivable to the amount of the final invoice sum agreed with us (including value-added tax) which accrue to him from the resale to his buyers or third parties, irrespective of whether the goods have been sold without or after having been processed. The customer shall remain authorized to collect these accounts receivable even after the assignment. Our right to collect the receivables shall remain unaffected by this. We commit ourselves, however, to not collecting the receivables as long as the customer performs his payment obligations from the collected proceeds, does not come into default of payment and in particular as long as no petition for the institution of insolvency proceedings has been filed against the customer and the customer has not stopped to effect payments. If this should be the case, however, we can demand that the customer discloses to us the assigned accounts receivable and the debtors thereof, provides us with all information necessary for collection as well as with any associated documentation and notifies the debtor (third party) of this assignment.
- The processing or restructuring of the goods by the customer shall always be carried out on our behalf; in particular, we shall be regarded as manufacturer in accordance with § 950 BGB. The expectant right of the customer to the goods shall be continued in the new or restructured item. If the goods are combined or processed together with other items not belonging to us, we will acquire joint title to the new item proportional to the ratio between the objective value of our goods and the other combined or processed items at the time of combination or processing. Furthermore, the new item resulting from such combination or processing shall be subject to the same terms and conditions which apply to the goods delivered under title of retention.
- If the delivered item is inseparably mixed with other objects not belonging to us, we will acquire joint title to the new item proportional to the ratio between the objective value of our item and the other mixed objects at the time of mixing. If mixing is carried out in such a way that the item of the customer should be regarded as main item, it is agreed that the customer shall assign co-ownership to us on a pro-rata basis. The customer shall hold sole or co-ownership resulting thereof in trust for us.
- To secure our claims against the customer arising from the business relationship, the customer also assigns to us any receivables from third parties that arise for the customer as a result of the incorporation of the goods in real property.
- As far as the customer is entitled to claims towards insurers or other third parties owing to damage, diminution, loss or destruction of collaterals or for other reasons, these shall also now be assigned to us in advance by the customer.
- The customer shall be obliged to inform us immediately in writing about seizures by third parties of the reserved good or assigned claims, in particular in case of seizures under distress. In such a case, the customer shall immediately send a copy of the seizure report and an affirmation in lieu of an oath confirming the identity of the seized goods. In the event that such third party should not be able to reimburse the court and out-of-court costs of our proceedings and legal defence, in particular those of a lawsuit in accordance with § 771 ZPO (Code of Civil Procedure), the customer shall be liable for the loss occurred to us.
- We undertake to release the securities we are entitled to on request of the customer in so far as the realisable value of our securities exceeds the claims that are to be secured by more than 20 % or the nominal amount of the securities by more than 50 %; we shall be free to select the securities to be released.
- In countries where a right similar to reservation does not exist, the customer shall grant us – as far as possible already at this stage, otherwise at first request – a comparable type of security existing in the country concerned and shall cooperate with regard to any further measures required in this context in order to ensure effectiveness of the respective securities.
XI. Place of jurisdiction, place of performance
- The exclusive place of jurisdiction shall be our place of business; we shall also be entitled, however, to sue the customer at the location of his place of business or at the court of his place of residence.
- Provided that the order confirmation does not state otherwise, our place of business shall be the place of performance for any obligations arising from the contractual relationship.
Wettringen, January 2016