General Terms of Sale and Delivery
SAHM SPLICE GmbH
1. Scope of these terms and conditions
1.1 All purchase contracts, contracts for work and materials, work and service contracts, etc. concluded by us as seller or contractor are subject to the following terms and conditions. Individual deviations from these terms and conditions have to be respectively agreed.
1.2 Our terms and conditions shall be deemed as agreed with the buyer, customer, etc. (hereinafter referred to as “Customer”) with the conclusion of the respective contract (cf. Subclause 2). Business terms and conditions of the customers, which are hereby explicitly objected to, shall in no way apply unless we had explicitly approved these in writing.
1.3 Should individual provisions only apply to one customer, which is a legal entity under public law, special assets under public law or a merchant, for which the contract belongs to the operation of its trade enterprise, then this is respectively marked separately.
2. Conclusion of contract
2.1 All agreements require a written form in order to be valid.
2.2 All documents made accessible to the Customer within the framework of the initiation, conclusion or processing of contracts, such as e.g. diagrams, drawings, measurement and weight details shall only contain customary approximate values. The right is reserved to make changes to these documents and objects. In case of standardised goods the deviations permitted on standard sheets shall apply. Samples shall be deemed as representative samples, which are to illustrate the approximate failure of the goods.
Any order for delivery by instalments over a period shall be deemed to be one single contract and is accepted subject to the conditions that:
3.1 All prices are deemed in Euro ex works Bremerhaven, excluding packaging.
3.2 Reservation to change in price:
3.2.1. An increase in the price stated in the contract is permitted if the agreed deadline for delivery or service is more than four months. We can then use our list price, which is valid at the time of delivery or service, as a basis if this was not already known when the contract was concluded. In this case the Customer is however entitled to cancel by written declaration within three weeks since the receipt of the notification about the price increase if the price increase exceeds the increase in the general costs of living of all private households during the time between the order and delivery or service by at least 50 %.
3.2.2. If the Customer is a legal entity under public law, special assets under public law or a merchant, with which the contract belongs to the operation of its trade enterprise then our list price, which is valid on the day of the delivery or service, shall apply in any case. Subclause 3.2.1 Sentences 2 and 3 are however to be applied accordingly if the Customer proves an interest in this respective which is worthy of protection and also clearly indicate this upon conclusion of the contract.
3.2.3. If, as an exception, no list price exists for a delivery or service the afore-mentioned provisions shall apply accordingly.
3.2.4. If a fixed price has explicitly been agreed for an agreed deadline for delivery or service of more than four months then we shall only be bound hereto as long as the Customer satisfies its duties to provide assistance as per contract.
4. Mode of payment
4.1 All prices are due and payable immediately in cash upon delivery of the goods or after execution of the service and hand-over or sending of the invoice without any deduction. The place of performance for payments to us is in any case our registered seat.
4.2 We are entitled to issue corresponding partial invoices corresponding with the respective status of the services before the completion of the whole scope of services already. Subclause 4.1 shall apply accordingly to these partial invoices.
4.3 We only accept bills of exchange and cheques after prior agreement and subject to their ability for discounting. All discount expenses shall be for the expense of the Customer and are to be remunerated to us immediately. A credit of the bill of exchange and cheque amounts shall only be made when the counter-value is finally available.
4.4 If partial payments have been agreed the total residual debt – irrespective of the due date of possible bills of change – shall be due and payable immediately if: 1) the buyer, who is not entered in the register of companies as a merchant, is in default with at least two consecutive instalments in full or in part and the amount, with the payment of which it is in default, is at least 1/10 of the purchase price, 2) the buyer, who is entered in the register of companies as a merchant, is in default with an instalment for 14 days, it has suspended its payment or an application has been filed for the opening of composition or insolvency proceedings over its assets.
4.5 If the customer is in default with payments – with the agreement of instalment payments with two consecutive instalments – then we can set the Customer a final deadline of 14 days in writing irrespective of our rights from Subclause 8.8. After the unsuccessful expiry of this final deadline we are entitled to cancel the contract by written declaration. The right to request damages is not excluded by the cancellation.
4.6 Interest on default shall, insofar as the Customer concerns a consumer within the meaning of § 13 BGB [German Civil Code], be charged with 5 percentage points p. a. above the base lending rate, in all other cases with 8 percentage points p. a. above the base lending rate, at least however a total of 9 per cent p.a., respectively plus the value added tax. Sentence 1 2. Alt. shall apply accordingly to maturity interest according to § 353 HGB [German Commercial Code].
4.7 If circumstances become known after conclusion of the contract which are suitable for substantially reducing the creditworthiness of the Customer or which allow our claim for the consideration appear in danger, we are entitled to request immediate payment of all previously provided (partial) deliveries, (partial) services as well as possible other claims. This shall apply irrespective of the term of collected bills of exchange, even if payment had previously been agreed by means of the issue of bills of exchange (cf. Subclause 4.3). We are further entitled to request advance payment or provision of collateral for all still outstanding (partial) deliveries and (partial) services and to render the further satisfaction dependent on the provision of this collateral. If this request is not satisfied within a reasonable deadline set by us, we can cancel the contract without setting a further deadline and request damages.
5. Offsetting – retention
The Customer can only offset against our claims if its counter-claim is undisputed or there is a final and binding title. It can only assert a right of retention insofar as it is based on claims from the same contract.
6. Delivery deadlines – scope of delivery
6.1 Delivery dates or delivery deadlines can be agreed as binding or non-binding. In case of doubt they shall be deemed as agreed non-binding. Delivery deadlines shall begin with the date upon which the contract is concluded, however not before the provision of the documents, objects, etc. which are to be procured by the Customer and not before the receipt of agreed down payments.
6.2 If necessary pre-requisites, in particular for tackle or assembly work, are not created by the Customer in time so that a reasonable deadline remains for the execution then the agreed deadline shall be extended by a reasonable extent. If we are prevented from satisfying our obligations by the occurrence of circumstances which could not be avoided despite showing the care and attention which is necessary according to the circumstances of the case – no matter whether at us, at our suppliers or at our vicarious agents - , then the delivery deadline shall be extended to a corresponding extent insofar as the delivery or service do not become impossible. This shall in particular also apply to force majeure, civil commotion, strike, lock-out and substantial interferences to operation without a fault. A conventional penalty which was possible agreed for the event that the deadline is exceeded shall be deemed as not forfeited under these circumstances.
6.3 The Customer can request us in writing to deliver within a reasonable deadline after the exceeding of a non-binding delivery date or a non-binding delivery deadline by 25 % of the period of time which is to be calculated since the conclusion of the contract (see above 6.1., 6.2.), however by at least 2 weeks. We shall be deemed in default with this reminder. In addition to the delivery the Customer can only request compensation of the damages due to default if we are guilty of wilful intent and gross negligence. In the event of the default the Customer can also set a reasonable final deadline in writing. After the unsuccessful expiry the Customer is entitled to cancel the contract by written declaration. The right to request damages is not excluded by the cancellation. The claim for damages is limited in case of slight negligence to a maximum of 10 % of the agreed consideration. With a Customer according to Subclause 1.3 it shall only be entitled to a claim for damages if we are guilty of wilful intent or gross negligence. The entitlement to delivery or service is excluded in the cases of this paragraph. If the delivery or service becomes impossible for us by chance during the default then we shall nevertheless be liable according to the afore-mentioned paragraphs unless the damages would also have occurred with the timely delivery or service.
6.4 If a binding delivery date or a binding delivery deadline is exceeded we shall be in default already when the delivery date or the delivery service is exceeded. The rights of the Customer are then determined according to Subclause 6.3 Par. 1 Sentence 3, Paragraphs 2, 3.
7. Place of performance – passing of risk
7.1 The risk shall pass to the Customer with the hand-over of the objects, to the third party or transport person named by the Customer, by no later however than when it leaves the plant. This shall also apply if partial deliveries or services are carried out or if we have taken over other services still, e.g. the shipment costs, the transport, the assembly, the putting into operation, etc. of the respective objects.
7.2 If the shipment is delayed as a result of circumstances, for which we are not responsible then the risk shall pass to the Customer from the day of the notification about the readiness for shipment.
7.3 We will only effect insurance for the time of the transport or the storage after the notification of the readiness for shipment at the explicit request of the Customer and at its costs.
7.4 With a shipment by transport persons possible claims against these persons are in any case to be asserted by the Customer itself – if applicable after these claims have been assigned by us.
7.5 Delivered objects are to be accepted by the Customer, even if they should feature defects, irrespective of possible rights according to Subclause 9.
7.6 Partial deliveries or services are permitted and shall be deemed as selection samples. Therefore, they are to be examined immediately, possible obvious defects are to be reported immediately according to Subclause 9.
7.7 If we carry out any work outside of our plant – in particular on board ships – the Customers and owners have to ensure sufficient security service and insurance of the objects which are to be processed and which are necessary for our execution. Claims against the security party and the insurer shall be assigned to us in advance in the amount of the claims for compensation to which we are entitled with the conclusion of the respective contract.
8. Reservation of title
8.1 The delivered objects shall remain our property until the full payment of all claims from this contract (reserved goods). The reservation of title shall also continue to exist for old claims, which we acquire subsequently against the Customer in connection with the object of delivery e.g. owing to repairs or deliveries of spare parts as well as other services. With a customer according to Subclause 1.3 the reservation of title shall also apply to the claim, which we have against the Customer from a regular business relationship. At the request of the Customer we are obliged to waive the reservation of title if the Customer has satisfied all claims associated with the object of delivery and reasonable security exists for the other claims from the regular business relationship. The reservation of title shall also continue to exist if individual claims are included in a current invoice by us, the balance is drawn and has been recognised.
8.2 We are entitled to insure the reserved goods against risks of all kinds at the costs of the Customer insofar as it does not prove the conclusion of such insurance after a corresponding request by us. Claims from this insurance shall be assigned to us in advance in the amount of the claims to which we are entitled with the conclusion of the respective contract. We are entitled to report this assignment to the insurer.
8.3 The Customer is entitled to resale and to processing, mixing or connection as well as the subsequent sale within the framework of the extended reservations of title (cf. Subclauses 8.4 and 8.5) if and insofar as this is carried out in the proper business transactions. Not permitted is in particular a pledge or an assignment of collateral of the reserved goods. We reserve the right to the revocation of these sale, processing and other authorizations for the event that the Customer does not satisfy its payment obligations or not in time or there is any other important reason. By the processing of the goods the Customer explicitly does not acquire any ownership to the objects produced in full or in part. The processing is carried out free of charge exclusively for us. Should nevertheless the reservation of title lapse by any circumstances it is hereby agreed now already that the ownership to the objects passes to us with the processing (agreement). The Customer remains hereby the safekeeping party free of charge. With the processing of goods still owned by a third party we shall acquire the co-ownership to the new objects. The scope of this co-ownership can be derived from the ratio of the invoice value of the goods delivered by us to the invoice value of the other goods. The Customer hereby undertakes to hand over all information available to it to us at first request in order to determine the co-ownership share.
8.4 The claims of customers from the resale of reserved goods shall be assigned to us in advance irrespective of whether the reserved goods are resold without or with processing, etc. and whether they are resold to one or several buyers. For the event that the reserved goods are sold by the Customer together with other goods, which do not belong to us, albeit without, albeit after processing, the claims shall be assigned to us in the ratio which corresponds with the value relationship of our property or with co-ownership to the reserved goods existing at the time of the sale to the other goods and to the co-ownership rights of others to the newly created object. If a real or an unreal current account relationship exists between the Customer and the third party debtor, that the claims established by the resale of the non-processed or processed goods is to be suspended the Customer hereby additionally assigns us the claims for termination of the current account relationship, for determination of the balances as well as the claims from drawn balances and those which are to be drawn in future. The Customer assures that it has not agreed or will agree either individually or by way of forms with third parties global assignments or other assignments, which impair the afore-mentioned assignment of future claims to us in any manner. The Customer is authorized to collect the claims from the resale despite the assignment, however it has to remit the amounts drawn by us from the third party buyer immediately to us in the amount of the claims to which we are entitled. Our collection authorization remains unaffected by the direct debit mandate of the Customer. We will however not collect the claims ourselves as long as the Customer satisfies its payment obligations properly and there is no other important reason for this (cf. e.g. 4.7). At our request the Customer has to inform us of the debtors of the assigned claims and report the assignment to the debtor as well as provide us all other information and documents, which are necessary for asserting the assigned claim.
8.5 If all claims, for the collateralisation of which the reservation of title exists according to the afore-mentioned sections, have been paid in full, the ownership to the reserved goods shall automatically pass to the Customer. At the same time it is entitled to the assigned claims again.
8.6 If the value of the collateral provided to us exceeds our claims then we are obliged at the request of the Customer to re-assign the excessive collateral items insofar as this is necessary according to the principles of goods faith with consideration for the mutual interests. The seller undertakes at the request of the buyer to release the collateral to which it is entitled according to the above conditions at its choice insofar as the realisable value of the collateral items exceeds the claims which are to be secured by more than 10 %.
8.7 If the Customer is in default with the payment, if we become aware of circumstances concerning the asset relationships of the Customer according to Subclause 4.7 or there is any other important reason we are entitled to demand that the reserved goods are returned immediately or picked up at the Customer and to take possession of these again. The taking back of the goods shall only be seen as a cancellation with partial payment transactions of a customer not entered in the register of companies as a merchant; in this case the provisions of the payment law shall apply. This claim for return shall also remain without influence on the expiry of the existing contractual relationship. Irrespective of the payment obligations of the Customer we can decide at our reasonable discretion about the manner of the sale and then threaten the Customer with this by setting a waiting deadline of 10 days and by stating the time, place and type of the sale; we can always sell reserved goods which have been taken back together with accessories on the free market. The proceeds from the sale after deduction of the costs will be credited to the Customer. A possible surplus will be paid out to it.
8.8 If reserved goods are pledged at the Customer then it has to notify the attachment officer of our reservation of title and to inform us immediately by registered letter by enclosing the attachment protocol and an affidavit of the contents that the attached goods are identical with the delivered reserved goods.
8.9 In case of insolvency or over-indebtedness the Customer undertakes to sort out the delivered reserved goods still in its warehouse as well as the claims assigned to us immediately and to allow us to inspect an exact list of the existing reserved goods as well as the assigned claims – by stating their amount and address of the corresponding debtors – as well as the associated documents.
9.1 The Customer is entitled to the remedy of faults and damages, which were caused to other parts of the delivery goods by these faults (subsequent improvement). The following shall apply to the processing:
9.1.1 Reports of defects and other complaints of all kinds must be submitted directly to us in writing within eight days after the receipt of the goods – with hidden defects within an exclusion deadline of eight days after they are determined.
9.1.2 Insofar as there is a defect to the contractual goods we are, at our choice, also entitled to substitute or spare part delivery instead of the subsequent improvement.
9.1.3 In case of failure of the subsequent satisfaction according to Subclause 9.1.2 the Customer is entitled after the prior written notification with the setting of a reasonable deadline to request reduction of the remuneration (reduction) or cancellation of the contract.
9.1.4 Insofar as we are entitled to warranty claims against third parties owing to the reported defects, we can assign these to the Customer as conditional payment. The Customer can only assert warranty claims against us if the third party refuses or unreasonably delays the warranty or is not in the position to do this. A Customer according to Subclause 1.3 can request from us warranty after the assertion of a claim in court by the third party unless this is deemed unreasonable for the Customer.
9.1.5 The afore-mentioned claims for defects shall become statute-barred in one year since the delivery of the contractual goods.
9.1.6 Warranty claims are excluded insofar as the faults are due to changes or repairs without our written consent or to improper handling, service, etc. We are further entitled to refuse the warranty as long as the Customer does not comply with the agreed mode of payment to a substantial extent; a possible right of retention of the Customer remains unaffected.
9.2 We shall be liable according to the following provisions for damages, which were not suffered to the object of delivery, – no matter for what legal grounds – if we, our legal representatives or our vicarious agent caused these culpably.
9.2.1 With wilful intent or gross negligence we shall be liable towards the Customer to an unlimited extent.
9.2.2 The liability for slight negligence is excluded; with culpable injury to life, the body or the health and with the culpable breach of essential contractual duties we shall however be liable for each negligence.
9.2.3 With a customer according to Subclause 1.3 the liability shall only be limited in any case to foreseeable damages which are typical for the contract; this shall however not apply with damages according to Subclause 9.2.2 Sentence 2 Alt.1.
9.2.4 The own liability of our legal representatives, vicarious agents and members of the company towards the Customer is – except in the cases of wilful intent and gross negligence – excluded. Subclause 9.2.2 shall apply accordingly.
9.2.5 The afore-mentioned claims shall become statute-barred in one year since the delivery; claims from the culpable injury to life, body or the health shall become statute-barred within the statutes-of-limitations.
9.3 We shall further be liable for damages according to the Product Liability Act as well as with damages, which have been caused by malicious conduct, within the statutes-of-limitations.
9.4 We will not reimburse test and trial costs, which are incurred by the introduction of new work equipment, technical aids, etc.
10. Patents/other property rights
10.1 We reserve the property rights and copyrights to all documents, etc. At the request these documents are to be returned to us immediately. Without our consent we may not use these otherwise at all, in particular reproduce these or make these accessible to third parties in any form.
10.2 Liability owing to possibly existing patents or property rights of third parties and their infringement is not assumed for objects delivered or services provided by us. The examination of such rights is exclusively the responsibility of the Customer.
11. Place of jurisdiction and choice of law
11.1 The court of the town of Bremen have exclusively jurisdiction for all current and future claims from the business relationship with full merchants including bill of exchange and check claims.
11.2 The same place of jurisdiction applies if the Customer relocates its general or customary place of abode from overseas or its place of residence or customary place of abode is not known at the time when the action is filed. Incidentally with our claims towards the Customer its place of residence shall apply as the place of jurisdiction.
11.3 The respective applicable law of the Federal Republic of Germany shall apply the contract. The application of the standard law governing the international purchase of movable objects is excluded.