General Terms and Conditions of Delivery and Payment of SDN Präzisionstechnik GmbH, Siemensstraße 2, 78588 Denkingen, Germany
1-Applicability of the terms and conditions
Our deliveries, services and offers are exclusively based on these terms and conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed to have been accepted at the latest when the order is placed or when the goods or services are accepted. Counter-confirmations of the purchaser with reference to his business or purchasing conditions are hereby contradicted.
2) Deviations from our terms and conditions shall only be effective if we confirm them in writing. The same shall apply with regard to other special agreements.
2 -Offer and conclusion of contract
1) Our offers are subject to change and non-binding. Declarations of acceptance and all orders must be confirmed by us in writing or by telex in order to be legally effective. The same shall apply to supplements, amendments or subsidiary agreements. All technical information given by us has been calculated and checked to the best of our ability, but no guarantee is given for its correctness.
2) Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing. We expressly reserve the right to make technical innovations and improvements in design, dimensions, weight, material and form.
3) We reserve all industrial property rights and copyrights for the materials, products, designs, forms, samples, services, illustrations and other documents provided by us.
3 -Prices
1) Unless otherwise stated, we shall be bound by the prices contained in our offers for 30 days from the date thereof. The prices stated in our order confirmation for delivery ex works Denkingen plus the respective statutory value added tax, freight and packaging shall be decisive. Additional deliveries and services will be charged separately.
2) Insofar as the Purchaser requires our delivery goods for special purposes, he shall be obliged to verify the special suitability himself. The purchaser shall notify us in writing of this special purpose and inform us of the result of the special suitability test.
4 -Packaging
1) Unless otherwise offered in writing, the external packaging of the ordered goods will be invoiced at cost price.
2) The packaging ordinance in the respective valid version is binding for both parties.
5 -Insurance
Unless otherwise expressly agreed in writing, the goods shipped shall be insured by us at the purchaser’s expense at the most favorable rate. In case of parcel shipment the goods are insured up to max. 500,-€ per parcel.
6 -Shipping, risk
The dispatch of the ordered goods takes place in each case on calculation and danger of the orderer. The risk shall pass to the customer when the goods are handed over to the carrier, at the latest when the goods leave our factory or when the customer does not immediately accept the goods after being notified of our readiness to ship. This shall also apply if carriage paid delivery has been agreed.
7 -Delivery, Delivery Dates
1) Delivery dates, delivery periods and delivery times are understood to be ex our works. They are non-binding unless otherwise expressly agreed in writing.
2) A delivery time or delivery period agreed in writing shall only begin to run after receipt of all complete execution documents to be provided by the Purchaser and after clarification of the order and shall end when the delivery is dispatched. Agreed or scheduled delivery dates or delivery periods shall apply only by way of approximation.
3) We shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us, including difficulties in procuring materials that occur subsequently, operational disruptions, strikes, lockouts, shortages of personnel, shortages of means of transport, official directives, etc., even if they occur at our suppliers or their sub-suppliers, even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service for the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.
4) If the impediment lasts longer than 3 months, the Buyer shall be entitled, after setting a reasonable grace period in writing, to withdraw from the contract with respect to the part not yet performed.
5 -Insurance
Unless otherwise expressly agreed in writing, the goods shipped shall be insured by us at the purchaser’s expense at the most favorable rate. In case of parcel shipment the goods are insured up to max. 500,-€ per parcel.
6 -Shipping, risk
The dispatch of the ordered goods takes place in each case on calculation and danger of the orderer. The risk shall pass to the customer when the goods are handed over to the carrier, at the latest when the goods leave our factory or when the customer does not immediately accept the goods after being notified of our readiness to ship. This shall also apply if carriage paid delivery has been agreed.
7 -Delivery, Delivery Dates
1) Delivery dates, delivery periods and delivery times are understood to be ex our works. They are non-binding unless otherwise expressly agreed in writing.
2) A delivery time or delivery period agreed in writing shall only begin to run after receipt of all complete execution documents to be provided by the Purchaser and after clarification of the order and shall end when the delivery is dispatched. Agreed or scheduled delivery dates or delivery periods shall apply only by way of approximation.
3) We shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us, including difficulties in procuring materials that occur subsequently, operational disruptions, strikes, lockouts, shortages of personnel, shortages of means of transport, official directives, etc., even if they occur at our suppliers or their sub-suppliers, even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service for the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.
4) If the impediment lasts longer than 3 months, the Buyer shall be entitled, after setting a reasonable grace period in writing, to withdraw from the contract with respect to the part not yet performed.
5) Our default shall in any case require a written reminder from the Purchaser after the due date, even in the case of firmly agreed delivery dates. If the customer sets us a reasonable period of grace in the event of default, he may withdraw from the contract if this period expires without results. A period of at least 4 weeks shall be deemed reasonable. The grace period must be set in writing.
6) The customer shall only be entitled to compensation for damage caused by delay if we or our employees have caused the delay intentionally or by gross negligence. Our liability shall be limited to compensation for the damage foreseeable at the time of conclusion of the contract, but in total to a maximum of 5% of the invoice value of the deliveries and services affected by the delay. Any further claims, in particular claims for damages of any kind, are excluded.
7) We shall be entitled to make partial deliveries and render partial services at any time.
8) We reserve the right to over- or under-deliver by 5% of the order quantity.
8 -Warranty
1) The purchaser may only invoke written warranties with regard to properties if we have expressly given such warranties to him in writing. Information in advertising literature is non-binding and does not constitute a warranty of quality.
2) We warrant that the goods and models are free from manufacturing and material defects; the warranty period for mechanical parts of the goods is one year.
3) The warranty period begins on the date of delivery.
4) The Purchaser shall inspect the delivered goods for defects immediately upon receipt within the scope of due commercial care and shall notify us in writing of any defects discovered within 8 working days of receipt. Defects which cannot be discovered within this period even after careful inspection shall be notified to us in writing immediately after discovery.
5) In the event that the Purchaser notifies us that the products do not conform to the warranty, we shall demand, at our option, that:
a) the defective product be sent to us with prepaid freight;
b) the Purchaser keeps the defective Product ready to be taken back, if possible, by our factory truck, or forwarding agent.
6) Our warranty obligation shall not apply if the Purchaser has carried out rectification work without our consent; we shall not be obliged to rectify defects as long as the Purchaser fails to meet his payment obligations. Any costs incurred by us as a result of unjustified notices of defects shall be borne by the customer.
7) Only the direct purchaser shall be entitled to warranty claims against us and such claims shall not be assignable.
8) The above paragraphs contain conclusively the warranty for our products and exclude other warranty claims of any kind
9 -Recovery of goods
1) The return of goods requires our written consent. In the case of a return of goods free of charge and approved in writing, a credit note will be issued after receipt of the goods with deduction of any refreshment costs and storage costs incurred.
2) Custom-made products cannot be returned under any circumstances.
10 -Reservation of title
1) We are granted the following securities until all claims (including balance claims) to which we are entitled against the purchaser for any legal reason now or in the future have been fulfilled.
2) The goods remain our property. Processing or transformation shall always be carried out on our behalf as manufacturer, but without any obligation on our part. If our ownership lapses as a result of combination, it is hereby agreed that the purchaser’s ownership of the combined item shall pass to us on a pro rata basis (invoice value). The customer shall keep our property in safe custody free of charge. Goods to which we are entitled to ownership are hereinafter referred to as reserved goods.
3) The purchaser is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted. The Purchaser hereby assigns to us by way of security all claims arising from the resale or any other legal reason (insurance, tort) in respect of the goods subject to retention of title to the full extent. We revocably authorize the customer to collect the claims assigned to us for our account in his own name. Upon our request, the customer shall disclose the assignment and provide us with the necessary information and documents.
4) In the event of access by third parties to the goods subject to retention of title, the purchaser shall draw attention to our ownership and shall notify us without delay. Costs and damages shall be borne by the purchaser.
5) In the event of a breach of contract by the customer, in particular default in payment, we shall be entitled to take back the reserved goods at the customer’s expense or, if necessary, to demand assignment of the customer’s claims for return against third parties. The repossession or seizure of the goods subject to retention of title by us shall not constitute a rescission of the contract unless the German Installment Purchase Act applies.
11 -Payment
1) Unless otherwise agreed, our invoices are payable within 10 days of the invoice date less 2% discount or within 30 days of the invoice date without any deductions.
2) We shall be entitled, despite any provisions of the Purchaser to the contrary, to set off payments first against the Purchaser’s older debt. If costs and interest have already been incurred, we shall be entitled to credit the payment first to the costs, then to the interest and finally to the main performance.
3) A payment shall only be deemed to have been made when we can dispose of the amount. In the case of checks, payment shall only be deemed to have been made when the check is cashed. Otherwise, checks and bills of exchange will only be accepted on account of payment; the costs of discounting and collection shall be borne by the customer.
4) If the Purchaser defaults on payment, we shall be entitled to charge interest from the relevant date at the rate charged by commercial banks for open overdrafts, but at least 5% above the respective discount rate of the Deutsche Bundesbank plus the statutory value added tax.
5) If the customer does not meet his payment obligations, in particular if he does not honor a check or stops his payments, or if we become aware of other circumstances that call into question the creditworthiness of the customer, we shall be entitled to call in the entire remaining debt even if we have accepted checks. In this case we shall also be entitled to demand advance payments or the provision of security.
6) The Purchaser shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if we have expressly agreed in writing or if the counterclaims have been legally established. The purchaser agrees to the offsetting of his claims and liabilities against our two undertakings.
12 -Rescission of contract
If the orderer withdraws from the contract without us having given justified cause for doing so, we shall be entitled to demand lump-sum damages amounting to 15% of the order value. Unless the customer proves to us that we have suffered no or less damage. Irrespective of this, we reserve the right to prove and claim a correspondingly higher compensation.
13 -Changes in design
We reserve the right to make design changes at any time. We shall not be obliged to make such changes to products already delivered.
14 -Share of tool costs
1) Payment of tooling or model cost shares incurred in connection with the manufacture of goods or models does not give the customer any right to the tools or models, which in any case remain our property.
15 -Special productions
1) Special production is the manufacture of goods which deviate from the goods listed in our catalogs and brochures in terms of design, dimensions and weights.
2) In the case of custom-made products ordered by the customer, we shall not be obliged to check whether the design infringes any third-party industrial property rights; the customer shall bear sole responsibility with regard to the manufacturing and distribution rights.
3) Goods cannot be taken back for invoice credit in any case.
16 -Limitation of liability
1) Claims for damages arising from impossibility of performance, from positive breach of contract, from culpa in contrahendo and from tort are excluded both against us and against our vicarious agents or assistants, except in the case of intentional or grossly negligent conduct.2) If our products are modified, improperly handled or processed by the buyer, then all claims for damages against us are excluded.
17 -Applicable law, place of jurisdiction, partial invalidity
1) The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between us and the purchaser.
2) It is agreed that the sole place of jurisdiction, also for actions on bills of exchange and checks, shall be the Local Court of Spaichingen or the Regional Court of Rottweil.
3) Should a provision in these terms and conditions or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.