1. Scope of application.
1.1. These General Business Terms and Conditions apply to all our of our deliveries and services. These General Business Terms and Conditions shall also apply to all addendum orders and follow-up orders, contractual addenda, and contractual amendments, unless specific terms and conditions are expressly agreed upon.
1.2. General Business Terms and Conditions of the Purchaser that deviate in content from the following business terms and conditions and/or contain additional provisions, and which we do not expressly acknowledge in writing, shall not be binding upon us, even if we do not expressly object to them. If a contracting party invokes an agreement that is not confirmed in writing by the contractual counter-party and which deviates from these terms and conditions, the contracting party must prove such agreement in the event of dispute.
2.1. Our bids are subject to change and non-binding. The Purchaser shall be bound by its purchase order or, as the case may be, job order for 14 days. Purchase orders or job orders shall require express confirmation by us. The purchase order or job order shall also be deemed to be accepted if we perform the purchase order or job order without reservation within 14 days of our receipt of the purchase order or job order.
2.2. Brochures or the technical documents attached to our bid or order confirmation, such as illustrations, drawings, design proposals, etc., shall only be relevant as approximations, unless individual statements are expressly promised or described as binding. Technical improvements in the design or production method remain reserved.
2.3. Use rights and ownership of bid documents (cost estimates, drawings, etc., for example) shall remain with us, unless the creation of such documents requires separate remuneration by the Purchaser and such remuneration has been paid.
2.4. Bid documents may not be disseminated, published, reproduced, or used for a purpose other than the agreed upon purpose without our approval. If the Purchaser does not accept the bid, the bid documents that belong to us must be returned to us promptly and in their entirety upon request.
3.1. Stated prices shall be deemed to be net prices, plus the applicable value-added tax at the time of delivery, and shall apply to the delivery of unpackaged merchandise ex factory in Sulzberg, Germany or, as the case may be, ex warehouse of our company sales representatives. Transport shall be billed separately as an additional service. Any necessary packaging shall be billed at the cost price and shall not be taken back.
3.2. If there is a period of more than eight weeks between the conclusion of the contract and the agreed upon delivery date, the Purchaser shall be required to pay our specified price that is generally in effect at the time of delivery.
4. Due date and payment terms and conditions/payment default.
4.1. Invoice amounts must be paid within no less than 30 days after delivery and receipt of the invoice. If we do not receive the invoice amount by that point in time, payment default shall occur—if it has not already occurred prior to that—without the need for a warning.
4.2. We shall charge default interest at 8% p.a. above the respective base interest rate according to § 247 BGB (Bürgerliches Gesetzbuch [German Civil Code]). The assertion of greater default damage is not barred.
4.3. The entire amount that is still owed shall become due and payable immediately if installment payments are agreed upon and the Purchaser defaults with respect to payment of an installment.
4.4. All payments are to be sent directly to us.
5. Offset, right of retention, prohibition against assignment.
The Purchaser can only offset or assert a right of retention against our claims if the claim the Purchaser plans to offset or the claim that makes up the subject matter of the right of retention is undisputed or established by legally final judgment or if a judicial dispute conducted in this regard is ripe for decision. If retention is not permissible under the foregoing provision, the rights of retention regulated in §§ 369, 371 HGB (Handelsgesetzbuch [German Commercial Code]) shall also be barred. The Purchaser cannot assign any claims against us.
6. Delivery and transfer of risk.
Delivery shall be made ex warehouse from our plant in Sulzberg, Germany or, as the case may be, ex warehouse of our company sales representatives. The Purchaser shall bear the costs and risk of transport if he desires transport of the merchandise to a destination he indicates. The merchandise shall be sent at the Purchaser's risk even if, in exceptional cases, we undertake freight-free delivery. Prior to dispatch of the merchandise, the Purchaser shall bear the risk of destruction or loss of possession of, or damage to, the purchase property for reasons for which no party is culpable, if, at the Purchaser's request, it is intended that delivery of merchandise that is ready for shipment not be undertaken until a date later than that the planned date. In such case, the risk shall pass to the Purchaser at the end of the planned shipping date. Insurance shall only be obtained at the Purchaser's request and at the Purchaser's expense.
7. Delivery periods.
7.1. The quotation of delivery periods and delivery dates shall be non-binding, unless we expressly otherwise state.
7.2. Delivery periods shall begin to run following our receipt of all of the documents necessary for order processing. Delivery periods shall be extended by the time period in which the Purchaser is in default with respect to fulfillment of his substantial contractual duties or does not send us documents that are necessary to order processing.
7.3. In the event of occurrence of force majeure or any delays for which we are not responsible, the delivery period shall be reasonably extended by the duration of the period in which performance is prevented. This shall apply even if we are already in default or if such circumstances are experienced by our suppliers or their
suppliers. We shall inform the Purchaser of the beginning and end of such delays as soon as possible. If the delay lasts for more than six weeks, the Purchaser can demand a declaration from us with respect to whether we are rescinding the contract. If we do not submit a declaration within four weeks of receipt of the request or adhere to the contract, the Purchaser shall be entitled to rescind the contract if the delay is still ongoing at that point in time.
8. Reservation of title.
8.1. The delivery item shall remain our property until all of our monetary claims arising from the business relationship with the Purchaser, including ancillary claims and compensatory damage claims, are satisfied in their entirety.
8.2. The Purchaser shall be entitled to dispose of the merchandise that is subject to reservation of title in the ordinary course of business as long as he properly fulfills his obligations to us. The Purchaser hereby assigns to us all claims resulting from the resale of delivery items that are covered by the reservation of title, along with all ancillary rights and security interests, including draft and check claims, in advance as security for all payment obligations arising from the business relationship.
8.3. If the value of the security to which we are entitled exceeds the claim against the Purchaser that is being secured by more than 20%, we shall be obligated pursuant to the Purchaser's request to release security to the extent that, as a whole, it exceeds the claim being secured by more than 20%.
8.4. We shall be authorized to rescind the contract and demand the surrender of the merchandise in the event of contractually violative conduct by the Purchaser, particularly payment default.
9. Claims in the event of defects.
9.1. The Purchaser shall have a claim for remedial performance if the service we render or the item we deliver is defective. Remedial performance shall be carried out, at our election, by means of rectification or re-delivery. If remedial performance fails, the Purchaser can, at his election, either demand a reduction of the purchase price commensurate to the defect (reduction) or rescind the contract.
9.2. The Purchaser shall be obligated to examine the merchandise and give notice of any defects in accordance with § 377 HGB. Claims for rectification, re-delivery or, as the case may be, rescission or for reduction due to obvious defects or defects that are recognizable within the meaning of § 377 II HGB shall be barred, unless the Purchaser gives notice of them in writing within ten days of receipt of the merchandise.
9.3. Any agreement on quality and condition by our representatives must be in written form. The Purchaser is aware that manifestations of corrosion might occur on the purchased property as a result of contact with aggressive media (slurry or biogas substrates, for example); this shall not establish a defect on the part of the product. We assume no warranty or liability for damage that has arisen for the following reasons: Unsuitable or improper use, natural wear and tear, wear and tear resulting from a greater than average level of stress, defective assembly or startup by the customer or third parties, defective or negligent handling, and unsuitable operating equipment.
9.4. Defect claims shall become time-barred at the end of one year after delivery of the property.
9.5. Compensatory damage claims and expense reimbursement claims with respect to defects shall remain unaffected hereby, except to the extent that they are barred in accordance with section 10.
Our liability shall be limited to the foreseeable, contractually typical average damage in the case of breaches of duty by us or our servants resulting from simple negligence. We shall not be liable in the case of simply negligent breaches of contractually insubstantial duties whose breach does not endanger the performance of the contract. The foregoing liability restrictions shall not relate to claims by the Purchaser arising from product liability or in the case of malicious deception. In addition, the liability restrictions shall not apply in the case of damage to life, limb, or health that is not imputable to us.
11. Product monitoring, assistance with recalls, duty to notify.
The Purchaser shall be obligated to monitor the merchandise and assist us with the fulfillment of any production monitoring duties. The Purchaser shall be obligated to assist us and the law enforcement authorities in the course of any necessary recall actions. In this regard, it shall be necessary, in particular, that all documents be retained and made available that enable tracking of products to the respective end customer/setup location. The Purchaser shall be required to promptly notify us as soon as he has evidence that a product purchased from or manufactured by us and distributed or used by him is unsafe.
12. Place of performance.
The place of performance for all obligations shall be Sulzberg, Germany.
13. Applicable law and place of judicial jurisdiction.
13.1. The law of the Federal Republic of Germany shall be applicable. The United Nations Convention on Contracts for the International Sale of Goods (CIGS) shall not apply.
13.2. The exclusive place of judicial jurisdiction for all disputes arising from the business relationship and this agreement shall be Kempten (Allgäu), Germany.
14. Partial invalidity.
If individual provisions of these terms and conditions are invalid in whole or in part, this shall not affect the validity of the rest of the agreements. The parties shall be required to replace any invalid provision with a provision that is valid and comes as close as possible to the economic purpose of the invalid provision.
In the event of any ambiguities of any provision in this English language version, the German language version of these terms and conditions, which can be made available upon request, shall control and apply.
SUMA Rührtechnik GmbH • Martinszeller Str. 21 • D-87477 Sulzberg
Telephone: +49 8376 / 92131-0 • E-mail: email@example.com • Internet: www.suma.de
General Manager: Paul Thürwächter, Dipl. Ing. (FH) [grad. eng., techn. univ.]
Domicile Sulzberg • Reg. Court Kempten HRB 3815 • VAT ID no.: DE 128 799 882