§ 1 Scope of validity
- These general terms of delivery and business apply to all types of deliveries and performance (current and future business relationships) rendered by SOMACK Fertigungstechnik GmbH ("contractor") and their customers ("principal").
- Modifications of these terms must be in writing. Exceptions to the written form are not accepted. Any other terms and conditions of the principal become a component of the contract only upon written confirmation by the contractor.
§ 2 Contract conclusion
- Our quotations are always subject to confirmation and non-binding unless otherwise agreed upon in writing. Declarations of intent and oral or written collateral agreements shall be valid only upon written confirmation by the contractor. The commitment period for a quotation is 14 days, unless stipulated otherwise in the quotation. Non-response by the contractor does on no account constitute agreement. Any samples, documents, information or data, submitted to the principal as part of a quotation, are the intellectual property of the contractor and exclusively intended to promote the conclusion of a contract. Any further use or disclosure to third parties are prohibited or require prior written approval by the contractor.
- Obvious mistakes, printing, calculation or clerical errors are not binding for the contractor and constitute no claim for fulfilment.
- The principal assumes full liability for any documents such as drawings, gauges, models or similar to be provided to him. Oral information require a subsequent written confirmation by the contractor.
- Inasmuch as a performance is to be delivered abroad, quotations and contract conclusions are made exclusively under the condition that any required export permits have been granted by the relevant authorities.
- The contract conclusion shall be valid subject to the timely and correct delivery by the contractor's suppliers, provided that the non-delivery is not the fault of the contractor. The principal shall be notified immediately in the event of a non-delivery.
§ 3 Intellectual property and patents
- In the event that industrial property rights arise from the contract, they shall become the property of the contract party whose employees or supplier have made the relevant invention. Both contract parties shall notify the other party of intended registration of industrial property rights.
- Inasmuch designs for providing the performance and the design of the performance itself have been provided by the contractor, they will remain the intellectual property of the contractor and may not be copied, reproduced or provided by way of disclosure to third parties within express approval by the contractor.
- If the performance contains software, the principal is granted a non-exclusive right to use the same exclusively for the performance provided. The use on more than one system or the systems of third parties is prohibited.
- Software may be duplicated or edited to the extent allowed by law. The principal is prohibited to remove and/or modify manufacturer information and copyright notices in particular. The issuance of sub-licenses by the principal is not permitted.
§ 4 Resources
- Any resources, tools, models or similar manufactured or procured by the contractor to perform the order are not a component of the order and remain the property of the contractor.
- Any resources, tools, models and similar provided by the principal remain their property. Upon delivery of the performance, the contractor will retain these items for three months. Upon expiry of this period, these items will be disposed unless different agreements have been made within the contract.
§ 5 Pricing, payment terms
- Prices are valid ex factory, exclusively of all ancillary costs (packaging, freight, insurance, custom duties, taxes, etc.). If not agreed upon otherwise in the contract, payment without deductions is due immediately upon conclusion of the contract. In the event of open principal demands from previous orders by the principal, payments received will first be applied to these demands. This also applies to any open ancillary demands such as interest, reminder fees and others.
- If more than three months pass between contract conclusion and delivery, the contractor is entitled to reasonably increase the agreed upon price for the performance (main and ancillary performances) according to any cost increases.
- As a rule, the principal is not entitled to offset claims, unless the issue is a defect of the delivery acknowledged by the contractor and in the event of claims that have been established in a court of law.
- In the event of a delay in payment, the principal is entitled to claim 5 Euro for every reminder, interest on arrears of 5 % above the currently applicable base interest rate and any further verifiable damage.
- If, after contract conclusion, significant doubts arise about the solvency of the principal, the contractor is entitled to demand instalment payments, advance payment or the provision of suitable collateral. If the principal does not comply, the contractor is entitled to retain the performance or to terminate the contract.
- If the agreed upon payment is stopped or the principal becomes insolvent, payment to the amount of the agreed upon gross price becomes due immediately. Any agreed upon discounts, rebates or bonuses will be forfeited.
§ 6 Reservation of title
- Any performances, regardless of their nature, that are provided by the contractor will remain their property until all demands from the business relationship have been settled.
- If the provided performance is processed or worked on, the reservation of title extends on the new item at the fraction of the total open demands from the business relationship plus a security surcharge to the amount of 20 % of the entire demands.
- In the event of a access by third parties, seizures in particular, the principal is required to inform these parties of the reservation of title by the contractor and to immediately notify the contractor. In the event of a justified sale within the framework of a proper business transaction, the principal will assign to the contractor his claims to the amount of the open demands by the contractor plus a security surcharge to the amount of 20 % of the demands.
- In the event of a conduct contrary to the terms of the contract, in particular, delay in payment, opening of insolvency proceedings, dismissal of a petition in insolvency for lack of assets, the principal is obliged to surrender the performances and/or reserved performances upon request by the contractor.
§ 7 Acceptance
- If an acceptance by the principal is required, it must be provided, without undue delay, in written format (acceptance protocol). If the acceptance is not completed without 14 days upon notification of completion of the work or if defects found during acceptance are not reported in writing, the performance shall be deemed to have been provided free of defects. This also applies to independent partial performance or deliveries. If not otherwise agreed upon in the contract, the acceptance shall be conducted in the business premises of the contractor.
§ 8 Transfer of risk, place of performance
- The risk of loss is transferred from the contractor to the principal with the surrender of the performance to a freight forwarder or authorised third parties for transporting or the notification of completion and provision according to the contract. This also applies for delivery free of transport costs or free to a place defined in the contract.
- If the delivery is delayed for reasons not attributable to the contractor, the transfer of risk shall be deemed to have taken place with the notification of readiness for delivery.
- The place of performance is the place at which the product is being picked up, otherwise the place at which the transport begins.
§ 9 Packaging and delivery
- If not otherwise agreed upon in the contract, the principal bears all costs for product-appropriate packaging. Packaging will become the property of the principal with the transfer of risk pursuant to § 8. The provisions of § 6 are not affected.
- The contractor is not obliged to take back the packaging, any disposal and arising costs are borne by the principal.
- Place of delivery is the place of performance pursuant to § 8. The delivery is deemed to be made at the time of pick up and transfer to the principal and, in the case of freight forwarders or authorised third parties, with the transfer to the same.
- The delivery is made at cost and risk of the principal to the place specified in the contract. Deliveries free destination do not contain the costs for unloading.
- Binding delivery dates and the resulting rights and duties of the principal and/or contractor must be in writing. The principal will be notified if a significant delay in delivery arises.
- If the principal causes the delay of delivery, the contractor is entitled, two weeks after the notification of readiness for delivery, to charge storage fees to the amount of 0.5 % of the invoiced amount or the actual storage costs per month.
- The contractor is entitled to insure the delivery at the expense of the principal. An obligation for insurance by the contractor does not exist.
§ 10 Material defects, warranty, wear
- The contractual agreements between principal and contractor are deemed to be the product descriptions. Public statements, promotions and other advertising do not constitute contractually guaranteed characteristics of the performance.
- If products that are subject to wear, for example, at a use of 40 hours per week or in a two-shift operation, exhibit defects after six or three months, it assumed that this is normal wear and is not subject to any guarantee by the contractor.
- A defect is not present in the event of improper, non-specified or unsuitable use, incorrect installation or commissioning, repair by the principal or third parties, natural wear, incorrect maintenance, excess use, incorrect operating materials and penetration by foreign bodies, and a liability by the contractor is excluded.
- For performances by the contractor's suppliers, a liability is only to the extent that the contractor assumes liability towards the principal.
- Warranty claims are no longer valid when the principal or third parties undertakes, without authorisation, repair, installation or commissioning.
- In the event of justified claims for defects by the principal, the contractor will decide on the type of rework or replacement delivery. If a second attempt to rework fails or if a replacement delivery is not possible, the principal can request, at his discretion, a reasonable lowering of the price or unravelling of the contract. The principal is not entitled to withdraw from the contract in the event of minor defects or lack of conformity.
- Defects are not present in only insignificant deviations from the agreed upon characteristics, in negligible limitations of the usability and in the case of non-reproducible software errors.
- Any entitlement for warranty claims expires if the performance provided by the contractor is modified, processed, changed, mixed or sold under the name of the principal.
- If the principal has bindingly specified the design, a warranty claim arising from design errors, is excluded.
- Obvious defects must be reported to the contractor within five business days otherwise, the claim for liability arising from the defect will expire. This period also applies to hidden defects after their detection. The notification of existing defects does not affect the statute of limitation of the warranty.
- Any claims for defects by the principal will be statute-barred 12 months after the delivery and acceptance of the performance.
- After the principal has notified the contractor of a defect, any use, processing, mixing, etc. of the performance by the principal is prohibited.
- In the event of justified complaints, the contractor will bear the costs for rework or replacement delivery as well as the costs for a replacement part from the point of the transfer of risk. Any other costs, installation and travel expenses in particular, are borne by the principal.
- A warranty must be in writing and be expressly contained in the contract as a further warranty with term, scope and validity.
§ 11 Compensation
- Claims for compensation by the principal are excluded, regardless of the legal reasons applied.
- This does not apply to claims pursuant to the product liability act or in cases of gross negligence and when health damage, injury or death has occurred. The claim for compensation from the violation of essential contractual obligations is limited to the damage foreseeable at the contract conclusion, if neither intent, gross negligence and health damage, injury or death have occurred.
- Compensation for damage due to data loss is excluded if this could not have happened with proper and customary data backup.
§ 12 Data protection
- The contractor is entitled to store all data relevant to the business relationship. Any disclosure to third parties not necessary for the fulfilment of the contractual performance is permitted only upon prior approval by the principal.
- The principal agrees that, for a credit assessment, data are transmitted to credit agencies and commercial credit insurance companies.
§ 13 Cancellation costs
- If the principal withdraws, without justification, from a contract, the contractor may claim any costs arising from processing the order and loss of profits.
§ 14 Applicable law
- The law of the Federal Republic of Germany shall apply to the exclusion of tthe United Nations Convention on Contracts for the International Sales of Goods (CISG) and the conflict rules of international private law.
- INCOTERMS 2010 shall apply the standard commercial terms.
- The principal bears any import fees and customs duties applicable at the destination of the performance, and all fees, taxes and costs due with the contract conclusion.
§15 Final clauses
- The place of performance for the delivery of payment pursuant to § 7 is 35325 Mücke, Germany.
- Court of jurisdiction for disputes arising from the performance and/or the contract, is the court having jurisdiction for the head office of the principal.
- In the event that individual clauses of these business and delivery terms be or become invalid, the legal effectiveness of the remaining (partial) clauses is not affected. Invalid clauses shall be replaced by the principal and the contractor by clauses being closest to the intended purpose of the invalid clause.
- The contract language is German.
General business and delivery terms of SOMACK Fertigungstechnik GmbH, Mücke, Germany, for commercial or self-employed contract partners.