Conditions of sale and delivery
General Terms And Conditions Of Sale And Delivery
dated 06.01.2020, SUR-TECH Surface Technology GmbH - user, contractor
§ 1 Area Of Application
The following sales and delivery conditions apply to all current and future contracts, deliveries and other services. Deviating, conflicting or supplementary general terms and conditions of the customer, even if they are known, will not form part of the contract, unless their validity has been expressly approved by the contractor in writing.
§ 2 Offer And Conclusion Of Contract
1. Our offer is subject to change until the contract is awarded. 2. By ordering a work, the client makes a binding declaration that he wants to place the order. The contractor is entitled to accept the contract offer contained in the order within two weeks of receipt. Acceptance is declared in writing or by handing over the work to the client. 3. In the order letter or in a confirmation letter, the services to be performed are specified and the expected completion date is given. The specifications attached to the offers are their essential components, the specification on which the order confirmation is based is part of the contract. The reference to technical standards serves to describe the service. 4. Additions to the contract must be in writing. 5. The contract is concluded subject to the correct and timely delivery by the supplier to the contractor. This only applies in the event that the non-delivery is not the responsibility of the contractor, especially when a congruent hedging transaction is concluded with a supplier. The client will be informed immediately about the unavailability of the service. The consideration will be refunded immediately.
§ 3 Material Deliveries Of The Customer
1. If the customer undertakes to deliver materials for the production to the contractor, the delivery will be made at his own expense and risk with an appropriate quantity surcharge in good time and in perfect condition. 2. The contractor carries out random material tests and notifies the client of any material defects immediately, at the latest within one week. 3. If the customer does not deliver the materials on time or if the materials are defective, the delivery time will be extended accordingly. The client bears the resulting costs.
§ 4 Prices
1. The prices apply net ex works excluding freight, customs, import taxes and packaging. 2. If the decisive cost factors increase after submission of the offer or after order confirmation until delivery. B. the material costs for production by more than 3%, the contractor has the right to request an adjustment of the final prices and the cost shares for molds. As far as the client can prove the alleged cost increase, the client is obliged to agree to the price adjustment. 3. If the dependency of the price on the part weight has been agreed, the final price results from the weight of the released failure samples. 4. The client is not bound to previous prices when placing new orders (follow-up orders).
§ 5 Terms Of Payment
1. Unless otherwise agreed, the contractually agreed price for deliveries or other services is payable within 14 days after creation (the invoice date counts) with a 2% discount, payable without deduction within 30 days after the invoice has been issued. A discount is only granted on condition that all previous due, undisputed invoices have been settled by the client. A discount is not granted for payments with bills of exchange. 2. We reserve the right to refuse checks or bills of exchange. Checks and rediscountable bills of exchange are only accepted on account of performance, all associated costs are borne by the customer. 3. Offsetting against any counterclaims on the part of the client is only permitted if these are undisputed or legally established claims. 4. As soon as the client defaults on his obligations towards the contractor, a settlement or insolvency procedure is opened or his financial situation deteriorates significantly, the contractor is entitled to discontinue its services. Rediscountable bills of exchange and checks are only accepted on account of performance. All associated costs are borne by the client.
§ 6 Forms
1. The price for molds also includes the costs for one-off sampling, but not the costs for testing and processing devices or for changes initiated by the customer. Costs for further sampling, for which the contractor is responsible, are at your expense. 2. Unless otherwise agreed, the contractor remains the owner of the molds produced for the client by the contractor himself or by a third party commissioned by him. Shapes are only used for orders of the customer as long as the customer fulfills his payment and acceptance obligations. The contractor is only obliged to replace these forms free of charge if they are necessary to fulfill an output quantity guaranteed to the client. The contractor's obligation to store the data expires two years after the last delivery of parts from the form and prior notification to the client. 3. If the client is to become the owner of the molds as agreed, ownership is transferred to the customer after payment of the purchase price for these molds. The transfer of the forms to the client is replaced by the contractor's obligation to keep them. Irrespective of the client's legal right to surrender and the lifespan of the molds, the contractor is entitled to exclusive possession until a minimum number of items to be agreed has been accepted and / or until a certain period has elapsed. The contractor must mark the forms as third-party property and offset them at the request of the client at his expense. 4. For forms owned by the client acc. Paragraph 3 and / or forms provided by the client on loan are limited by the contractor's liability with regard to storage and care to the care as in his own affairs. The customer bears the costs for maintenance and insurance. The obligations of the contractor expire if, after completion of the order and a corresponding request, the client does not pick up the molds within a reasonable period. As long as the client has not fully met his contractual obligations, the contractor is in any case entitled to a right of retention on the molds.
§ 7 Delivery And Performance
1. The delivery conditions are to be specified in the contract and are always unloaded. Partial deliveries are permitted, as are reasonable deviations from the order quantities up to +/- 10%. The contractor undertakes to manufacture and deliver the items ordered from her in accordance with the agreed specification and the state of the art. 2. Delivery times begin after receipt of all documents, materials and the deposit required for the execution of the order. 3. If the contractor is unlikely to be able to meet the agreed delivery deadline, it is obliged to inform the client immediately, stating the reasons. The delivery and service periods are extended in the event of force majeure and all other obstacles for which the contractor is responsible, which have a considerable influence on the delivery and service periods, in particular in the event of a strike or lockout at the contractor, its supplier or its sub-suppliers. If such obstacles occur, both partners are entitled to withdraw from the contract, whereby the client grants the contractor a period of two weeks, starting with the knowledge of the obstacles, within which the client must declare whether a subsequent delivery will be made within a reasonable grace period will. The contractor is obliged to keep the customer's impairments as low as possible, if necessary by surrendering the forms for the duration of the delay. 4. In the case of call orders without agreement on terms, production sizes and acceptance dates, the contractor can request a binding stipulation at the latest three months after the order confirmation. If the client does not comply with this request within three weeks, the contractor is entitled to set a two-week grace period and, after its expiry, to withdraw from the contract or to refuse delivery and to demand compensation. If, contrary to his contractual obligation, the customer does not accept the goods, the contractor is entitled to sell the delivery item privately after prior notification to the customer. 6. Redemptions of delivery items by the contractor in goodwill presuppose a flawless condition, the presence of the original packaging and a freight-free delivery by the customer after making an appointment. The client has to reimburse the costs incurred by the contractor for the return.
§ 8 Packaging / Dispatch
Unless otherwise agreed, the contractor will choose the packaging, type of dispatch and dispatch route at its discretion.
§ 9 Passing Of Risk
1. If the customer is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods is transferred to the customer when the goods are handed over, in the case of a mail order purchase, when the goods are delivered to the freight forwarder, the carrier or the person or institution intended to carry out the shipment. This also applies if partial deliveries, freight-free or other deliveries have been agreed. 2. The handover is the same if the client is in default of acceptance. 3. If the shipment is delayed due to the fault of the customer, the risk passes to the customer from the day of readiness for dispatch. 4. Transport insurance and other insurance policies are only taken out on written request and at the expense of the client.
§ 10 Retention Of Title
1. The contractor reserves ownership of the goods until all claims from an ongoing business relationship have been paid in full. 2. If an alternate liability of the contractor is justified in connection with the payment of the order, the retention of title does not expire before the customer has honored the change as the drawee. 3. The customer is obliged to treat the goods with care. If maintenance and inspection work is to be carried out, the customer must carry this out regularly at his own expense. 4. The customer is obliged to immediately notify the contractor of third-party access to the goods, for example in the event of a seizure, as well as any damage or destruction of the goods. The client must immediately notify a change of ownership of the goods as well as a change of residence. 5. The contractor is entitled to withdraw from the contract in the event of behavior contrary to the contract, in particular in the event of a delay in payment or in the event of a breach of an obligation under sections 3 and 4 of this provision, and to demand the return of the goods. The client is entitled to resell the goods in the ordinary course of business. He now assigns to the contractor all claims in the amount of the invoice amount that accrue to him from the resale against a third party. The contractor accepts this assignment. After the assignment, the client is authorized to collect the claim. The contractor reserves the right to collect the claim itself as soon as the client does not properly meet his payment obligations and is in default of payment. At the request of the contractor, the client is obliged to provide the contractor with all information and to hand over documents that are necessary to assert the rights of the contractor against third parties. 7. The processing and processing of the goods by the customer always takes place in the name and on behalf of the contractor. If processing is carried out with objects not belonging to the contractor, it shall acquire co-ownership of the new object in relation to the value of the object delivered by it to the other processed objects. The same applies if the goods are mixed with other objects not belonging to the contractor. 8. Attempts to seize or confiscate the reserved goods from a third party must be reported to the contractor immediately. Costs incurred by the contractor from securing their rights in such a case are to be borne by the client, unless they are borne by the third party. 9. As far as the contractor makes use of its retention of title by taking back the reserved goods in accordance with the above provisions, it is entitled to sell the goods privately or to have them auctioned. The goods subject to retention of title will be taken back at the proceeds achieved, but at most at the agreed delivery prices. The contractor reserves the right to further claims for damages, in particular loss of profit.
§11 Warranty
1. The contractor initially provides warranty for defects in the goods, either by rectification or new manufacture, at its option. 2. The client must notify the contractor of obvious defects in writing within a period of two weeks from receipt of the goods, otherwise the assertion of the warranty claim is excluded. Deadline is sufficient for the timely dispatch. The client bears the full burden of proof for all requirements for claims, in particular the defect itself, the time of detection of the defect and the timeliness of the notice of defect. 3. Decisive for the quality and execution of the products are the failure samples, which the contractor can request from the contractor for inspection. The assurance for certain properties of the delivery item and for the performance of forms requires the written form in the order confirmation. The assurance does not include the risk of consequential damage, provided that the contractor, its executives or vicarious agents do not act deliberately or through gross negligence. The reference to technical standards only serves to describe the service. 4. If the contractor seriously and finally refuses to fulfill the contract, refuses to remedy the defect and supplementary performance because of disproportionate costs, the supplementary performance fails or it is unreasonable for the customer, the customer can only choose to reduce the remuneration (reduction) or cancel the contract ( Withdrawal) and compensation in the context of the limitation of liability (see § 12) instead of the service. In the event of a minor breach of contract, in particular in the case of only minor defects, the client has no right of withdrawal. If the contractor is not responsible for the breach of duty due to a defect, the client is not entitled to withdraw from the contract. 5. Rights of the client due to defects that do not relate to a building or a work that consists in the provision of planning and monitoring services for such, expire one year after acceptance of the work. The short limitation period does not apply if the contractor can be blamed for gross negligence, in the case of physical and health damage attributable to the contractor or in the event of loss of the client's life. The contractor remains liable according to the Product Liability Act. 6. In the event of fraudulent concealment of defects or the assumption of a guarantee for the quality, further claims of the client remain unaffected. 7. The client does not receive any guarantees in the legal sense from the contractor. 8. Unauthorized reworking and improper handling of the delivery items by the customer result in the loss of all claims for defects. Only in order to avert damage, the remedy of which cannot be done by the contractor in good time or in the event of delay in remedying the defect by the contractor, the client is entitled to repair after prior notification of the contractor and to demand compensation for the reasonable costs.
§ 12 Statute Of Limitations
The contractor's claims for wages expire in five years.
§ 13 Limitation Of Liability
1. In the case of slightly negligent breaches of duty, the contractor's liability is limited to the direct average damage that is foreseeable and typical for the type of work. This also applies to slightly negligent breaches of duty by the legal representatives of the contractor or their vicarious agents. The contractor is not liable for slightly negligent violation of immaterial contractual obligations. 2. The above limitations of liability do not affect the customer's claims arising from product liability. Furthermore, the liability restrictions do not apply to physical and health damage attributable to the contractor or loss of life attributable to the contractor.
§ 14 Final Provisions
1. The law of the Federal Republic of Germany applies.2. If the client is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is the business location of the contractor. The same applies if the client is not aware of any general place of jurisdiction in Germany or the place of residence or habitual residence at the time the action is filed. 3. The fulfillment status is the headquarters of the supplier. 4. Should individual provisions of the contract, including these general terms and conditions, be or become ineffective in whole or in part, this does not affect the validity of the remaining provisions. All or part of the ineffective regulation should be replaced by a regulation whose economic success comes as close as possible to the ineffective one.