General terms & conditions
1. Applicability of these terms and conditions, field of application, written form
a) The deliveries, services and offers of Sommer-automatic GmbH (=hereinafter “Supplier”) are made exclusively based on these business terms and conditions. They shall also apply to all future deliveries, even if they are not expressly agreed again. The General Terms and Conditions of Mechanical Engineering for Assemblies in Germany Status 2002 (VDMA assembly terms and conditions) shall apply to assemblies. We shall be pleased to send you the VDMA assembly conditions free of charge upon written request.
b)These terms and conditions shall be accepted by the buyer by placing the order, no later however than with the acceptance of our delivered objects.
c) Counter-confirmations or references of the buyer to his terms of purchase/business or procurement terms and conditions are hereby objected to. Any terms and conditions which deviate from the terms and conditions of the Supplier shall only be deemed as accepted if they are confirmed in writing by the Supplier.
d) Oral agreements, even those concerning collateral agreements or deviations from these terms and conditions shall only be deemed binding for the Supplier with his written confirmation. This written form clause can only be revoked in writing.
2. Offer and conclusion of contract
a) The offers of the Supplier are always without obligation and non-binding. Offers and orders of the buyer shall only be deemed binding for the Supplier insofar as he confirms these in writing or by telephone or satisfies the orders by sending the article of sale.
b) Assurances and warranted qualities shall only exist if they are expressly described as such by the Supplier. References in catalogues, plans, drawings, DIN standards as well as details of weight and dimensions do not in particular represent any warranted qualities. Incidentally, drawings and diagrams, dimensions, details of weight and other performance and conditions – also those contained in catalogues, circulars, advertisements, price lists, offers, order confirmations – of the Supplier are only deemed as approximate information insofar as they are not expressly described as binding.
3. Changes to construction
a) The right is reserved to make changes to construction or form which are a result of the improvement to the technology or to demands of legislation during the delivery term, insofar as the delivered object is not changed substantially and the changes are deemed reasonable for the buyer.
b) The Supplier is however not obliged to also make such changes to already delivered products.
4. Secrecy, documents, property rights of third parties, copyrights
a) The Supplier reserves all property and copyrights to catalogues, drawings, cost estimates and other documents prepared by him. They may not be made accessible to third parties.
b) The buyer is exclusively responsible for the accuracy of the documents to be delivered to the Supplier by the buyer, in particular samples, drawings, etc. Insofar as the Supplier is provided details about dimensions, weights, performance, etc. by the buyer, these must be confirmed in writing by the Supplier.
c) The buyer is exclusively responsible for verifying whether the documents made available by him to the Supplier infringe any rights of third parties, notably industrial property rights and copyrights. Insofar as a claim is made against the Supplier by third parties owing to the exploitation, use or reproduction of the documents and templates made available to the Supplier by the buyer due to an infringement of copyrights or industrial property rights owing to a violation of law against unfair competition, the buyer undertakes to support the Supplier in defending such a claim. Further, he must reimburse the Supplier all thus suffered damages. The latter shall also include lawyers’ fees and costs for proceedings.
5. Prices /calculation
a) In the absence of a separate agreement the prices shall be deemed ex works in Rheinau including loading in the plant, however not including packaging. In addition the respective value added tax applicable in the Federal Republic of Germany shall be invoiced. The additional costs for packaging and transport as well as for postage and if applicable for insurance, customs duties, etc. shall be invoiced by the Supplier at cost price.
b) The prices stated in the catalogues and other sales documents of the Supplier relate to the time when the respective sales documents are handed over. Insofar as they have not expressly become contents of the contract they shall be deemed as non-binding. Therefore, we reserve the right to make changes to prices after the catalogues are handed over and before conclusion of the contract.
c) Orders for which no fixed prices have expressly been agreed, shall be charged at the list prices valid on the day of the delivery (day prices).
d) The prices stated in the Supplier’s offer or his order confirmation are based on the calculation of the Supplier existing at the time when the offer is submitted or the order confirmation. Irrespective of Subclause 5 b) and c) price changes shall be permitted if there are more than four months between conclusion of the contract and an agreed delivery date. If there is an essential change to the calculation between conclusion of the contract and delivery and thus an increase or reduction in the prices of the products of at least 10% owing to a change in the raw material and substance prices, material costs, the wages of the employees, the energy costs, the value added tax as well as customs duties of the Supplier. In this case each contractual partner can request that the price be fixed new by way of negotiations insofar as the aforementioned changes to the stated cost factors are associated with the concrete contract and insofar as the stated cost factors actually have an effect on the price.
a) The goods are principally shipped uninsured and at the account of the buyer. Insofar as the buyer does not request a special type of shipment, we shall respecttively choose the type of shipment which appears the most reasonably priced method.
b) At the buyer’s request and at his costs the consignment shall be insured by us against theft, breakage, transport, fire and water damages as well as other insurable risks.
7. Payment, ban on offsetting
a) Insofar as not otherwise agreed the invoices of the Supplier shall be due when received by the buyer and paid immediately after receipt of the invoice. The payment is to be made free of any transaction costs to the Supplier. In cas of payment within 14 days from invoicing the buyer is entitled to deduct a cash discount of 2% of the net invoice amount.
b) The pre-requisites and legal consequences of default of the buyer are oriented to the applicable statutory provisions.
c) A payment shall only be deemed as made when the Supplier can dispose over the invoice amount. In the event of cheques the payment is deemed as made when the cheque is cashed. Bills of exchange will not be accepted by the Supplier. Cheques are always only accepted as conditional payment by the Supplier.
d) The Supplier reserves the right to only supply new customers against advance payment.
e) Insofar as the buyer is in default of payment – also with regard to former deliveries – or the Supplier becomes aware of circumstances which allow justified doubts about the insolvency or the creditworthiness of the buyer and through which the Supplier’s claims for consideration appear to be in danger, in particular if the buyer suspends his payments, the Supplier shall be entitled to deem the whole residual debt due even if he has accepted cheques. In this case the Supplier is also entitled to demand advance payments or provision of collateral.
f) The Supplier is entitled to initially offset payments against the actual oldest due debt in case of still outstanding invoices from former business connections against the buyer despite contrary payment regulations of the buyer. In this case the Supplier shall inform the buyer about the form of offsetting. If costs and interest have already been incurred, the Supplier is entitled to initially offset the buyer’s payment against the costs, then the interest and finally against the still outstanding principal claim despite contrary regulations by the buyer.
g) If counter-claims by the buyer are not disputed by the Supplier or if these counter-claims have been determined final and absolute or ready for a decision, the buyer can offset these counter-claims against the Supplier’s claims or refuse or withhold his payments. Insofar as the counter-claims are disputed by the Supplier or they have not yet been determined by the court or no decision has yet been made the buyer can-not refuse nor withhold, nor offset with his payments towards the Supplier owing to his counter-claims.
8. Delivery time
a) In the absence of any agreement to the contrary the delivery period can be derived from the date stated in the Supplier’s order confirmation.
b) Delivery times shall be deemed as agreed approximate times.
c) The delivery period shall begin on the date upon which the order confirmation is sent, however not before the provision of the details, documents, permits, releases, etc. to be provided or if applicable procured by the buyer nor before receipt of an if applicable agreed payment on account/advance payment. The delivery period is deemed as observed if the delivered object has left the Supplier’s plant or warehouse by the end of this period or in case of possibility for shipment the buyer has been notified that the goods are ready for shipment.
In case of premature delivery, the earlier date and not the originally agreed time shall be decisive.
d) In case of subsequent amendments to the contract, which may influence the delivery period, the delivery period shall be extended by a reasonable amount of time insofar as no special agreements are reached.
e) The delivery period shall be reasonably extended – also within a delay in delivery of the Supplier – with the occurrence of unforeseen impediments which are beyond the control of the Supplier – no matter whether they occurred in the Supplier’s plant or at his subcontractors – insofar as such impediments have a proveable substantial influence on the completion, shipment/delivery of the delivered objects. Deemed as examples of such impediments are: interferences to operation, official interventions, delay in the delivery of essential raw and building materials, difficulties with the energy supply, mobilisation, war, riot, etc. The same shall also apply in the event of measures within the framework of the industrial disputes, in particular in case of strike and lock-out. The buyer shall be informed by the Supplier as soon as possible of the commencement and end of such impediments in important cases.
f) If the shipment of the delivered object is delayed for a reason for which the buyer is responsible, the Supplier shall be entitled to set the buyer a reasonable deadline and after the unsuccessful expiry of the deadline at his choice to either dispose otherwise of the delivered object or to supply the buyer within a reasonable extended deadline or cancel the contract and demand damages owing to non-performance. In the latter case the Supplier is entitled to demand 10% of the sales price, for the costs incurred through processing the order and for lost profits irrespective of the possibility to assert higher actual damages. The buyer reserves the right to prove lower damages.
g) The observance of the delivery period presumes the satisfaction of the contractual duties of the buyer.
9. Scope of delivery, partial service
a) The scope of delivery is determined by the written order confirmation of the Supplier. Insofar as the Supplier has submitted an offer with a time commitment, which was accepted by the buyer within the deadline, the offer shall be decisive insofar as no timely order confirmation is available. Collateral agreements and changes require written confirmation by the Supplier.
b) Partial deliveries are permitted within the delivery periods stated by us insofar as this does not lead to any disadvantages for the use.
10. Passing of risk
Insofar as the goods are sent to the buyer at his request the risk of accidental loss or deterioration to the delivered object shall pass to the buyer when they are handed over to the person carrying out the transport, no later however than when they leave the plant/warehouse of the Supplier irrespective of whether the shipment is made from the place of performance and who bears the freight costs. This shall also apply for the event that the shipment is carried out by the company-own vehicles or the Supplier’s personnel. Moreover, this shall also apply if partial deliveries are made. If the object is ready for shipment and the buyer has been informed that the goods are ready for shipment and if the shipment or the acceptance is delayed for reasons for which the Supplier is not responsible, for example owing to the fault of the buyer then the risk shall pass to the buyer with the receipt of the notification that the goods are ready for shipment. Delivered objects are to be accepted by the buyer, even if they feature insignificant defects. His rights according to Subclause 11 shall remain unaffected thereby.
11. Liability of the Supplier, warranty
1. The buyer undertakes to inspect our delivered objects for defects immediately after receipt of the delivery. Corresponding random tests are also to be carried out within the framework of this inspection.
2. Complaints owing to incomplete or incorrect deliveries or owing to visible defects are to be reported to us immediately in writing and the relevant defective parts to be returned to us at our request. Hidden defects, which cannot be seen through random tests either, are to be reported to us immediately after they are discovered. In case of a late notification about complaints or defects the delivery shall be deemed as approved with the exclusion of claims owing to incomplete, incorrect and faulty delivery.
3. The duty for inspection and complaint shall also cover operating instructions and the delivery of a surplus amount or shortfall in amount.
4. If the delivered objects are faulty or if warranted qualities are missing or if they become faulty within the statute of limitations in case of warranty claims of 12 months (with the exception of parts subject to wear and tear) beginning from the date of delivery, then we must – at our choice – and with the exclusion of further rights of the buyer in case of defects deliver a replacement or subsequently improve the goods.
5. If we allow a reasonable final deadline set to us to pass without having delivered a replacement or remedying the defect or if the remedy of the defect fails, the buyer shall at his choice be entitled to cancel the contract or to a reduction.
6. Expenses for the delivery of a faultless object shall be borne by us in full. The expenses for a faultless object to the extent that the faultless object is delivered to the registered seat of the buyer as agreed in the delivery contract. Costs incurred due to the fact that the delivered objects were taken to another location shall be borne by the buyer.
7. No claims for defects of the buyer exist: - in case of damages which are caused due to improper handling or the overloading by the buyer or his end customer; - if statutory regulations or installation and handling regulations issued by us are not complied with by the buyer or his end customer, unless the defect is not a result of this non-compliance; - if the delivered object was produced based on stipulations of the buyer, in particular according to drawings handed over by him and the defect to the delivered object is a result of these stipulations/drawings. – with the solution of a construction task stipulated by the buyer which corresponded with state-of-the-art technology at the time when it was realised.
8. If the buyer has asserted claims against us owing to rights in case of defects and if it turns out that either there is no defect or the asserted defect is due to a circumstance which does not obligate us to warranty, the buyer shall reimburse us all thus incurred costs.
12. Other liability
The seller’s liability is exclusively oriented to the agreements reached in the above subclauses. All rights not expressly granted therein, e.g. for delivery of a faultless object, cancellation from the contract or reduction as well as for reimbursement of damages of all kinds also of those damages which were not suffered to the delivered object itself, and no matter for what legal grounds, are excluded. This liability exclusion shall not apply in case of wilful intent and gross negligence of legal representatives or vicarious agents and in case of culpable breach of essential contractual duties (cardinal duties). The liability exclusion shall further not apply in the absence of features which are expressly warranted if the purpose of the warranty was to secure the buyer against damages, which were not suffered to the delivered object itself and if the damages are due to a circumstance for which we assumed a guarantee. The same shall apply if a procurement risk is realised for which we expressly assumed responsibility. Finally the liability exclusion shall not apply in those cases in which an obligation for damages exists according to the respective applicable national law, which cannot be excluded as per contract, in particular for product liability. The liability exclusion further ceases to apply in case of injuries to life, body and health. With the exception of injuries to life, body and health and for wilful intent and gross negligence of legal representatives and vicarious agents the extent of the damages to be reimbursed is limited however to typical, foreseeable damages.
13. Reservation of title
a) Until the full payment of all receivables from the business relationship between the Supplier and the buyer, the delivered object (hereinafter “Reserved Goods”) shall remain the property of the Supplier.
b) The suspension of individual receivables in a current account as well as the balance collection and its recognition shall have no effect on the reservation of title.
c) The payment is deemed as made when the counter value is received by the Supplier.
d) The buyer is entitled to resell the Reserved Goods in normal business transactions. Pledges, assignment as collateral or security assignments are however only permitted with the Supplier’s approval.
e) The buyer undertakes to secure the rights of the reservation seller for credit with the resale of reserved goods. The Supplier is entitled to insure the delivered object at the costs of the buyer against theft, breakage, fire, water and other damages insofar as the buyer has not personally demonstrably taken out the insurance.
f) The buyer hereby now assigns all receivables in the amount of the purchase price (including VAT) agreedbetween the Supplier and the buyer to the Supplier to which the buyer is entitled from the resale irrespective of whether the delivered objects/Reserved Goods are resold without or after processing. The Supplier hereby accepts this assignment. The buyer is authorized to collect these receivables after their assignment. The Supplier’s authorization to collect the receivables itself remains unaffected thereby, however the Supplier undertakes not to collect the receivables as long as the buyer properly satisfies his payment obligations or is not in default of payment or does not suffer from deterioration of assets. However, should the afore-mentioned be the case the Supplier can demand that the buyer informs the Supplier of the assigned receivables and their debtors. Upon request of the Supplier he must provide him the details concerning the assigned receivables which are necessary for the collection as well as hand over the relevant documents and inform the debtors (third parties) of the assignment. In this case he is in particular obliged to inform the Supplier of the names and addresses of the debtors as well as the amount of the receivable including the date of the invoice. The Supplier is also authorized to inform the debtors of the assignment.
g) The buyer shall undertake any processing of the Reserved Goods on behalf of the Supplier without this resulting in any obligations for the Supplier. In case the Reserved Goods are processed, connected, combined or mixed with other goods not belonging to the Supplier the Supplier shall be entitled to the thus incurred co-ownership share to the new object as a ratio of the invoice value of the Reserved Goods to the other processed goods at the time of processing, connection, combination or mixing. If the buyer acquires the sole property to the new object then it is hereby agreed now already that the buyer grants the Supplier the co-ownership to the new object as a ratio of the invoice value of the processed or connected, combined or mixed Reserved Goods and keeps this in safekeeping free of charge on behalf of the Supplier.
h) If the Reserved Goods are resold together with other goods, no matter whether without or after processing, connection, combination or mixing, the advance assignment agreed above shall only apply in the amount of the invoice value of the Reserved Goods, which are resold together with the other goods.
14. Additional contractual terms for assembly
The following special contractual terms and conditions shall apply in addition to the VDMA assembly terms and conditions (1.2) and the additional contractual terms and conditions for all services (II.) – in case of doubt they shall have precedence – for assembly work – also insofar as it is performed together with deliveries.
1. Assembly price
a) The assembly work is principally settled according to required time and other work at our clearing rates for assembly services applicable when the order is placed, which we shall be pleased to send you free of charge upon written request insofar as these are not enclosed.
b) The materials required for the assembly shall be settled in
line with the actually required quantity at the respective
prices applicable when the assembly work is carried out.
2. Settlement and payment
a) The assembly services shall principally be settled after acceptance. We are, however, entitled to demand reasonable instalment payments in line with the assembly progress weekly or monthly. If the assembly is interrupted for a significant period of time as arranged by the buyer, we can settle the assembly services provided until this date.
b) The invoices shall be due and payable without any deduction immediately upon receipt.
c) It is not permitted to retain payments or offset against possible counter claims of the buyer which are disputed by us.
3. Proof of service
a) The buyer must certify the provided services on the activity reports at the request of our fitters at least once a week, no later however than after completion of the assembly work.
b) Certificates of service signed by the buyer are principally non-contestable bases for settlement.
15. Information according to § 33 BDSG:
We are entitled to save and process inhouse customer data within the framework of the statutory provisions, in particular of the Federal Data Protection Act [BDSG].
16. Applicable law, place of performance and place of jurisdiction
The place of performance for all obligations from the contractual relationship is the registered seat of Sommer-automatic GmbH in 77866 Rheinau. The place of jurisdiction for all lawsuits ensuing from the contractual relationship as well as concerning its establishment and validity is, if the buyer is a full merchant, a legal entity under public law or investment fund under public law, determined by the registered seat of the Supplier. The Supplier is, however, also entitled to file action against the buyer at his registered seat. These terms and conditions of sale and delivery as well as the legal relations between the Supplier and the buyer ensuing from the contract are exclusively subject to the law of the Federal Republic of Germany under the exclusion of the uniform UN law on purchases (CISG) and under the exclusion of the uniform law governing the international sale of movable objects (EKG).
17. Partial nullity
Should one provision of these business terms and conditions or one provision within the framework of other agreements be or become invalid this shall have no effect on the validity of all other provisions or agreements.
Managing Directo: Günther Zimmer, Martin Zimmer HRA 370768 Court Freiburg in Breisgau Registered Office: 77866 Rheinau Pers. General Partner: Sommer-automatic Verwaltungs GmbH HRB 371950 Court Freiburg in Breisgau Managing Directo: Günther Zimmer, Martin Zimmer