General terms and conditions of business, delivery and assembly between Sumcab Specialcable GmbH and companies
(as of 2012)
1 GENERAL / AREA OF APPLICABILITY
1.1 The following general terms and conditions of business apply to business transactions with companies. The latter is referred to as the principal.
1.2 These terms and conditions of sale apply to all contracts concluded between the principal and ourselves concerning the delivery of goods and assembly services. These also apply to all future business relationships, even if these are not expressly agreed once again in the future. Deviating terms and conditions of the principal which have not been expressly acknowledged by us are non-binding on ourselves, even if we do not expressly object to these. The terms and conditions of business below shall also apply if we perform the order of the principal without reservation in the knowledge of conflicting or deviating terms and conditions of the principal.
2 OFFER AND CONCLUSION OF THE CONTRACT
2.1 Our offers are non-binding and subject to confirmation. By means of placing the order for the goods, the principal is making a binding declaration that it wishes to purchase the items. We are entitled to accept the contractual offer contained in the order within two weeks of receipt by us. The acceptance can be declared either in writing or by delivering the goods to the principal.
2.2 Should the customer order the goods by email, we will confirm receipt of the order immediately. The confirmation of receipt does not yet represent a binding acceptance of the order. The confirmation of receipt can take place at the same time as the declaration of acceptance. In case of orders placed electronically, the contractual text will be saved by us and sent to the customer on request by email together with these general terms and conditions of business.
2.3 The qualities stated in our offers and order confirmations set out the properties of the object of delivery comprehensively and conclusively. These also include the relevant documents, such as images, drawings, weight and measurements. A guarantee, in particular concerning the durability or quality of the object of delivery will not be provided by us.
2.4 All agreements which are concluded between the principal and ourselves in order to perform the contracts are set out in writing in the contracts. We reserve the right to carry out alterations and improvements in relation to the type of construction and performance.
2.5 We reserve our ownership rights, copyright and other property rights in relation to all images, calculations, drawings and other documents. The principal may only pass these on to third parties with our written agreement, regardless of whether we have designated these as confidential or not.
2.6 Should software be contained in the delivery, this is being handed over for use with the intended delivery object. Use of the software on multiple systems is prohibited. The customer shall be obliged not to remove manufacturer information or to alter this without prior written agreement. All other rights in relation to the software and the documentation, including the copies, shall remain with us and the software supplier. The issuing of sub-licenses is not permitted.
3 DELIVERY TIME
3.1 The commencement of the delivery time stated by us is subject to clarification of all technical queries.
3.2 Compliance with our delivery obligation is also subject to the proper and timely fulfilment of the contractual obligations on the part of the principal. The plea of non-fulfilment of the contract shall remain reserved.
3.3 Partial deliveries and partial services are permitted and possible at all times, provided that this is reasonable for the principal.
3.4 Should the principal enter acceptance default or should it culpably breach other co-operation obligations, we are entitled to request reimbursement of the resulting losses, including any additional expenses. Should the principal not accept the agreed service, we are entitled to choose between insisting on acceptance or requesting 15% of the remuneration as fixed damages and compensation for expenses. Further claims or rights remain reserved.
3.5 Should the requirements of Paragraph 4 be met, the risk of possible loss or deterioration of the object of purchase shall be transferred to the customer at the time when it entered into acceptance or debtor’s default.
3.6 We incur liability in accordance with the statutory provisions, should the relevant sales agreement be a fixed transaction in accordance with § 286 Paragraph 2 Number 4 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB).
3.7 We also incur liability in accordance with the statutory provisions should the delivery delay be due to an intentional or grossly negligent breach of contract for which we are responsible; we are responsible for fault on the part of our representatives or vicarious agents. Should the delivery delay be due to a grossly negligent breach of contract for which we are responsible, our liability to pay damages shall be limited to losses which are foreseeable and occur typically.
3.8 We also incur liability in accordance with the statutory provisions should the delivery delay for which we are responsible be due to a culpable breach of an essential contractual obligation; however in such a case, our liability to pay damages shall be limited to losses which are foreseeable and occur typically.
3.9 Otherwise we shall incur liability to a maximum of 15% of the value of delivery in case of delivery delay.
3.10 Further statutory claims and rights of the customer shall remain reserved.
4 FITTING AND ASSEMBLY
4.1 The customer is responsible for the following at its own expense and must carry this out in a timely manner:
- the necessary equipment and materials, such as scaffolding, lifting devices and other facilities, combustibles and lubricants
- energy and water at the place of use, including the connections, heating and lighting
- sufficiently large, dry and lockable rooms for the storage of the machine parts, apparatus, materials, work tools etc and reasonable working space and break rooms for the assembly personnel, including reasonable sanitary facilities in accordance with the circumstances
- protective clothing and protective equipment which are necessary due to the specific position at the assembly location.
4.2 Prior to the start of the assembly work, the principal must provide the necessary information concerning the location of hidden electricity, gas and water pipes or similar facilities, as well as the necessary information relating to statics, without the need for a request to be issued.
4.3 Should the fitting, assembly or putting into operation be delayed due to circumstances for which we are not responsible, the principal must bear the costs for waiting time and necessary additional travel on our part to a reasonable extent.
4.4 Should we request acceptance of the delivery following completion, the principal must do so within two weeks. Should this not take place, the acceptance shall be deemed to have taken place.
5 RESERVATION OF OWNERSHIP
5.1 We reserve ownership of the delivered goods and services until full payment of all existing claims and future claims against the principal under the business relationship, regardless of type and the legal reason. In case of behaviour on the part of the principal which is in breach of contract, for example payment default, then following the prior setting of a reasonable deadline, we have the right to rescind the contract and to retake possession of the goods that are subject to reservation of ownership at the expense of the principal. We are entitled to dispose of the goods subject to reservation of ownership after we have retaken possession. Following the deduction of a reasonable sum for the disposal costs, the revenues from the disposal will be set off against the sums owed to us by the principal.
5.2 The principal must treat the goods subject to reservation of ownership carefully and must insure these at its own expense against fire and water damage and theft to the replacement value. Maintenance and inspection work which becomes necessary must be carried out by the principal in good time at its own expense.
5.3 The principal is entitled to sell the goods subject to reservation of ownership in a proper manner in the course of business dealings, provided that it is not in payment default. It is not permitted to pledge the goods subject to reservation of ownership or to provide these as security. The principal is hereby now assigning to us the claims connected to the resale or other legal reasons in relation to the goods subject to reservation of ownership in full by means of security. We hereby accept the assignment. We hereby authorise the principal in a revocable manner to collect the claims assigned to us on its own account in its own name. The collection authorisation can be revoked at any time, should the principal not properly comply with its payment obligations.
5.4 In case of third party attacks against the goods subject to reservation of ownership, in particular attachments, the principal shall refer to our ownership and inform us immediately.
5.5 We are obliged to release the claims to which we are entitled, should the realisable value of our securities exceed the claims to be secured by more than 10%. In such a case, we are obliged to select the securities to be released.
5.6 Processing or alteration of the goods subject to reservation of ownership by the principal shall always be carried out for us. Should the goods subject to reservation of ownership be processed with other objects which do not belong to us, we shall acquire co-ownership in the new item to the value of the goods subject to reservation of ownership (final invoice sum inclusive of value added tax) to the other processed objects at the time of processing. The same shall apply to the new object created by the processing as applies to the goods subject to reservation of ownership. In case of inseparable mixing with other objects which do not belong to us, we shall acquire co-ownership in the new item to the value of the goods subject to reservation of ownership (final invoice sum inclusive of value added tax) to the other mixed objects at the time of mixing. Should the property of the principal be considered to be the main object due to the mixing, we hereby agree that the principal will assign us co-ownership in relation to the said object; we hereby accept the assignment. The principal shall store our sole ownership or co-ownership which was acquired in such a way for us.
6 TRANSFER OF RISK / SHIPPING
6.1 The type of shipping, the delivery route and the engaged transportation company can be determined by us at our discretion. We will endeavour to take the requests and interests of the principal into account.
6.2 Loading and shipping take place at the risk of the principal without insurance.
6.3 In order to be able to bring claims, the principal must immediately notify observed obvious damage during transportation to the delivery or shipping company and must immediately inform us of such in writing following receipt of the goods.
6.4 Following a request by the principal and at its expense, we will insure the delivery with transportation insurance. We will not retake possession of transportation and all other packaging in accordance with the German Packaging Ordinance (Verpackungsverordnung); pallets are excluded from this provision. The principal must dispose of the packaging at its own expense.
7 PAYMENT TERMS / PRICES
7.1 The price which is offered is binding. All prices are subject to the statutory value added tax and shipping costs, unless an agreement to the contrary has been concluded in writing. Additional services, such as extra deliveries, assembly or maintenance are not contained in the prices.
7.2 Invoices are due immediately on delivery or acceptance and are payable without any deductions. Following the expiry of ten days following the due date, the principal will enter payment default. Payment will not be deemed to have been made until we have the sum at our disposal.
7.3 In case of payment default, we are entitled to charge default interest to the sum of eight percentage points above the respective base rate of interest.
7.4 The principal is only entitled to set off if the counterclaims have been recognised by a court or by us or are undisputed, even if defect claims or counterclaims are brought. The principal is only entitled to exercise a right of retention if its counterclaim refers to the same contractual relationship.
7.5 We are bound by offer prices which are not fixed prices for a period of four months following conclusion of the contract. Should the delivery or service be provided more than four months following conclusion of the contract, we are entitled to request negotiations concerning a price adjustment in case of wage or material cost increases following submission of the offer, should the delivery of service delay be the fault of the principal.
8 LIABILITY FOR DEFECTS
8.1 Defect claims of the principal are subject to it having properly complied with its inspection and complaint obligations in accordance with § 377 of the German Commercial Code (HGB). Obvious defects must be notified in writing immediately, however at the latest within ten working days of receipt of the service.
8.2 Should the object of purchase demonstrate a defect, we are entitled to choose between providing supplementary performance in the form of correction of the defect or to deliver a defect-free item. In case of supplementary performance, we are obliged to bear all necessary expenses for the purpose of the defect correction, in particular transportation, travel, work and material costs, should these not be increased due to the object of purchase having been moved to a location other than the place of performance. The expenses are limited to the sum of the purchase price.
8.3 Should the supplementary performance fail, the customer is entitled to choose between rescinding the contract or requesting a reduction to the purchase price.
8.4 We incur liability in accordance with the statutory provisions, should the principal bring damages claims which are due to intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless an intentional breach of contract can be established on our part, the liability to pay damages is limited to losses which are foreseeable and occur typically.
8.5 We incur liability in accordance with the statutory provisions should we culpably breach an essential contractual obligation; however in such a case, our liability to pay damages shall be limited to losses which are foreseeable and occur typically. An essential contractual obligation is present if the breach of obligation relates to such an undertaking on whose fulfilment the principal has relied and on whose fulfilment it may rely.
8.6 Should the principal be entitled to damages in lieu of performance, our liability shall also be limited to reimbursement of losses which are foreseeable and occur typically, as in paragraph 3.
8.7 Liability due to culpable injury to life, body or health shall remain unaffected; this also applies to mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
8.8 Unless stated otherwise above, liability shall be excluded.
8.9 The limitation period for defect claims is 12 months from the time of transfer of risk / acceptance.
8.10 The limitation period in case of supplier recourse in accordance with §§ 478, 479 of the German Civil Code (BGB) shall remain unaffected; this is for five years, calculated from the time of delivery of the defective object.
8.11 As a rule, only our product description is agreed to represent the qualities and properties of the goods. Public statements, instructions or advertising also do not represent any contractual qualities and properties of the goods. The principal will not receive guarantees in a legal sense from us.
9 OVERALL LIABILITY
9,1 Further liability to pay damages which goes beyond that provided in Number III and Number VII is excluded, regardless of the legal nature of the claim being brought. This applies in particular to damages claims due to fault at the time of conclusion of the contract, due to other breaches of obligations or due to claims in tort due to property damage in accordance with § 823 of the German Civil Code (BGB).
9.2 The limitation of liability in accordance with Paragraph 1 also applies should the principal claim the reimbursement of fruitless expenses instead of a claim to damages in lieu of performance.
9.3 Should our liability to pay damages be excluded or restricted, this also applies in relation to the personal liability to pay damages of our employees, workers, colleagues, representatives and vicarious agents.
10 CLOSING PROVISIONS
10.1 The place of performance and place of jurisdiction for deliveries and payments (including cheque and bill of exchange lawsuits), as well as for all disputes between ourselves and the principal in connection with the contracts concluded between us, is our place of business.
10.2 Amendments and additions to this contract require written form. This also applies to the provisions in this section.
10.3 Should one of the provisions of this section or one of the provisions of this contract be ineffective, the remaining clauses shall remain unaffected and shall continue to be valid. German law shall apply to all services, including those of an international nature, to the exclusion of the United Nations Convention governing the International Sale of Goods.
©Joachim, Neuenstadt a.K, lawyer As of 2012