General Conditions of Sale
General Terms conditions of Saperatec GmbH, as of Juni 2014
1. Scope of application
1.1 These General Terms and Conditions of Sale (“T&C”) shall apply to all contracts between saperatec GmbH (“Seller”) and its customers (“Buyer”) for the sale and/or delivery of movable goods (“Goods”). The T&C shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code – BGB), a legal person under public law or a special fund under public law.
1.2 Unless otherwise agreed, the T&C in the version valid at the time of the Buyer’s order or in any case in the version last communicated to the Buyer in text form shall also apply as a framework agreement for similar future contracts without the Seller having to refer to them again in each individual case.
1.3 These T&C shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that the Seller has expressly agreed to their application. These T&C shall also apply exclusively if the Seller makes delivery to the Buyer without reservation being aware of deviating, conflicting or supplementary terms and conditions of the Buyer.
2. Offers, orders
2.1 Offers made by the Seller are subject to change and non-binding. The order of the Goods by the Buyer shall be deemed to be a binding offer to contract. The Seller is entitled to accept this offer within two weeks of its receipt.
2.2 Acceptance can be declared either by order confirmation in text form or by delivery of the Goods to the Buyer.
3. Prices, terms of payment
3.1 Unless otherwise agreed in individual cases, the current prices at the time the contract is concluded shall apply, “ex works”, plus statutory VAT.
3.2 The purchase price is due and payable within 14 days of invoicing and delivery of the Goods. However, the Seller is entitled at any time, including in the course of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. The Seller may declare such a reservation at the latest with the order confirmation.
3.3 Upon expiry of the aforementioned payment period, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The Seller reserves the right to claim further damages caused by default.
3.4 The Buyer is only entitled to rights of set-off or retention to the extent that its claim has been determined by a legally binding judgement, is undisputed or has been acknowledged by the Seller. In the event of defects of the delivery, the Buyer’s rights remain unaffected.
3.5 If, after the conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that the claim to the purchase price is at risk due to the Buyer’s lack of financial capacity, the Seller is entitled to refuse performance in accordance with the statutory provisions and, if necessary after setting a deadline, to rescind the contract (Section 321 BGB).
4. Delivery, transfer of risk, default of acceptance, partial deliveries
4.1 Delivery shall be ex works, which shall also be the place of fulfilment for the delivery and any subsequent fulfilment.
4.2 The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer upon delivery. If the Buyer is in default of acceptance, this shall be deemed equivalent to delivery.
4.3 If the Buyer is in default of acceptance or culpably violates other obligations to co-operate, the Seller is entitled to demand compensation for the resulting damages including additional expenses (e.g. storage costs). Further claims or rights of the Seller remain reserved.
4.4 The Seller is entitled to make partial deliveries if (i) the partial delivery can be used by the Buyer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered Goods is ensured and (iii) the Buyer does not incur any significant additional work or costs as a result (unless the Seller agrees to bear these costs).
4.5 If partial deliveries are agreed in the purchase contract (call-off orders), the Buyer shall be in default of
acceptance upon expiry of the respective call-off period without the need for a separate reminder. If the Buyer fails to meet at least two consecutive call-off deadlines, the Seller may withdraw from the purchase contract insofar as it has not yet been fulfilled. Further claims and rights of the Seller (in particular the right to claim damages in lieu of performance) shall remain unaffected.
5. Delivery times
5.1 Delivery periods and dates indicated by the Seller are non-binding, unless a fixed period or a fixed date has been expressly confirmed or agreed.
5.2 The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in obtaining materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the non-delivery, incorrect or untimely delivery by suppliers despite a congruent purchase transaction concluded by the Seller) for which the Seller is not responsible. If such events significantly impede or prevent delivery or performance by the Seller and the impediment is not merely temporary, the Seller shall be entitled to rescind the contract. In the case of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance. If, as a result of the delay, the Buyer cannot reasonably be expected to accept the delivery or service, the Buyer may rescind the contract without undue delay by written notice to the Seller.
5.3 If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller’s liability for damages shall be limited in accordance with Clause 8 of these T&C
6. Retention of titl
6.1 The delivered Goods (“Reserved Goods”) shall remain the property of the Seller until all claims to which the Seller is entitled against the Buyer have been fulfilled. If the Buyer is in breach of contract (in particular if the Buyer is in default with the payment of a claim for payment), the Seller is entitled to rescind the contract after having set the Buyer a reasonable deadline for performance. The Buyer shall treat the Reserved Goods with due care. The Buyer shall insure them adequately at its own expense against fire, water and theft at their replacement value.
6.2 The Buyer may use and resell the Reserved Goods in the ordinary course of business as long as it is not in default of payment. However, the Buyer may not pledge or transfer by way of security the Reserved Goods. The Buyer hereby assigns to the Seller by way of security all claims of the Buyer against its customers arising from the resale of the Reserved Goods. The Seller accepts this assignment.
6.3 The Buyer may collect the assigned claims for its account in its own name on behalf of the Seller as long as this authorisation is not revoked. This shall not affect the Seller’s right to collect these claims itself. However, the Seller shall not assert the claims itself and shall not revoke the authorisation to collect payment as long as the Buyer duly meets its payment obligations.
6.4 Any processing or transformation of the Reserved Goods by the Buyer shall always be done on behalf of the Seller. If the Reserved Goods are inseparably intermixed or mingled with other items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in proportion to the value of the Reserved Goods to the other intermixed or mingled items at the time of intermixture.
6.5 In the event of seizure of the Reserved Goods by third parties or other interventions by third parties, the Buyer shall draw attention to the Seller’s ownership and notify the Seller immediately in text form.
7. Warranty, material defects
7.1 The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery), unless otherwise specified below.
7.2 The basis of the Seller’s liability for defects is primarily the agreement reached on the quality and intended use of the Goods. If the quality has not been agreed, the statutory provisions shall apply to determine whether or not a defect exists (Section 434 para. 3 BGB).
7.3 In principle, the Seller shall not be liable for defects of which the Buyer is aware or grossly negligently unaware at the time of conclusion of the contract (Section 442 BGB). Furthermore, the Buyer’s claims for defects require that it has complied with its statutory obligations to inspect and give notice of defects (Sections 377, 381 of the German Commercial Code – HGB). If the Goods are intended for further processing, an inspection must always be carried out immediately prior to processing. If a defect is discovered at the time of delivery, inspection or at a later date, the Seller must be notified in writing without delay. In any event, obvious defects must be notified in writing within five working days of delivery and defects not apparent on inspection within the same period of their discovery. If the Buyer fails to properly inspect and/or notify defects, the Seller’s liability for the defect not notified, not notified in time or not properly notified shall be excluded in accordance with the statutory provisions.
7.4 If the delivered item is defective, the Seller may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by the Seller is unreasonable for the Buyer in the individual case, the Buyer may refuse it. The Seller’s right to refuse performance under the statutory conditions remains unaffected.
7.5 The Buyer shall give the Seller the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected Goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to the Seller at the Seller’s request in accordance with the statutory provisions; however, the Buyer shall not be entitled to return the item.
7.6 The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, shall be borne or reimbursed by the Seller in accordance with the statutory provisions and these T&C if a defect actually exists. Otherwise, the Seller may demand compensation from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect if the Buyer knew or could have recognised that there was in fact no defect.
7.7 If a reasonable period of time to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may rescind the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, there is no right of rescission in the case of an insignificant defect.
8. Further liability
8.1 Unless otherwise provided for in these T&C, including the following provisions, the Seller shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2 The Seller shall be liable for damages – irrespective of the legal basis – in cases of intent and gross negligence within the terms of liability based on fault. In the event of simple negligence, the Seller shall only be liable, subject to the statutory limitations of liability (e.g. care in its own affairs; insignificant breach of duty),
a) for damages resulting from injury to life, limb or health,
b) for damages arising from the breach of an material contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, the liability of the Seller is limited to compensation for the foreseeable, typically occurring damage.
8.3 The limitations of liability set out in Clause 8.2 shall also apply to third parties and to breaches of duty by persons (including in their favour) whose fault the Seller is responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed and for claims of the Buyer under the German Product Liability Act – ProdHaftG.
9. Statute of limitations
9.1 Deviating from Section 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery.
9.2 The above limitation period of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the Buyer according to Clause 8.2 sentence 1 and sentence 2 a) as well as under the ProdHaftG shall become time-barred exclusively in accordance with the statutory limitation periods.
10. Place of jurisdiction and applicable law
10.1 These T&C and the contractual relationship between the Seller and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
10.2 If the Buyer is a merchant within the meaning of the HGB, a legal person under public law or a special
fund under public law or an entrepreneur within the meaning of Section 14 BGB, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Seller’s place of business (currently in Dessau-Roßlau). However, the Seller is also entitled in all cases to bring an action at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.