General Terms and Conditions of Sale and Delivery of SUTO iTEC GmbH, 79423 Heitersheim
I. Scope of Application
1. The following terms and conditions of sale apply to all contracts concluded between us and businesses (within the meaning of art 14 German Civil Code (BGB)), legal entities governed by public law or special funds under public law (hereinafter referred to as “Buyer”) for the supply of goods as well as our offers in this regard. They also apply to all future business relationships with the Buyer, even if they are not expressly agreed again. Deviating conditions of the Buyer not expressly acknowledged by us are non-binding for us, even if we do not expressly object to them. The following terms and conditions of sale shall also apply if we execute the Buyer’s order without reservation in the knowledge of conflicting or deviating conditions of the Buyer.
2. All agreements made between the Buyer and us for the execution of the sales contracts are laid down in writing in the contracts.
II. Offer and Conclusion of Contract
1. We may accept any order from the Buyer which is to be qualified as an offer to conclude a sales contract within two weeks by sending an order confirmation or by shipment of the ordered products within the same period.
2. Our offers are subject to change and are non-binding, unless we have expressly designated them as binding.
3. We reserve our ownership, copyright and other proprietary rights in all illustrations, calculations, drawings and other documents created by us or on our behalf by third parties. The Buyer may only disclose the same to third parties with our written consent, regardless of whether or not we have marked them as confidential.
III. Terms of Payment
1. Our prices are based on delivery ex works without packaging unless otherwise specified in the order confirmation. Our prices do not include VAT. VAT in the statutory amount applicable on the day of invoicing will be shown separately on the invoice.
2. A deduction of any discount is only permitted in the event of a special written agreement between us and the Buyer. The purchase price is payable net (without deduction) immediately upon receipt of the invoice by the Buyer, unless otherwise specified in the order confirmation. A payment is deemed to have been made only when we can dispose of the amount. In the case of cheque payments, payment shall not be deemed to have been made until the cheque is redeemed.
3. If the Buyer is in default („Verzug“) with a payment, the statutory provisions shall apply.
4. The Buyer is only entitled to offset any amount, even if complaints of defects or counterclaims are asserted, if the counterclaims have been legally established by final judgement, have been recognized by us or are undisputed or are reciprocal to our claims. The Buyer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
IV. Time of Delivery and Performance
1. Delivery dates or deadlines are subject to our timely receipt of all documents to be supplied by the Buyer, necessary authorizations and approvals, in particular plans, as well as compliance of the Buyer with the agreed payment terms and other obligations. If these conditions are not met in time, the time limits shall be extended appropriately. Delivery dates and deadlines which have not been expressly stated or agreed by us as binding are exclusively non-binding information. The delivery time specified by us shall only begin when the necessary technical questions have been clarified and the Buyer has fulfilled in due time all obligations incumbent upon the Buyer at that point in time.
2. We are entitled to make partial deliveries and partial services at any time, to the extent this is reasonably acceptable for the Buyer, because the partial delivery is usable for the Buyer within the scope of the contractual purpose, the delivery of the remaining goods ordered is ensured and the Buyer does not have significant additional efforts or additional costs.
3. If the Buyer is in default („Verzug“) with the acceptance of the goods („Abnahme“), we are entitled to compensation for the resulting loss and any additional expenses we may have. The same applies if the Buyer culpably violates obligations to cooperate. Upon the occurrence of default in acceptance („Annahmeverzug“) or default („Verzug“) with the duty to acceptance, the risk of accidental deterioration and accidental loss passes to the Buyer. If a re-calibration is required due to the default („Verzug“) of the Buyer with the acceptance („Abnahme“), we are entitled to charge a calibration fee of EUR 35.00 net per device, which is to be credited to the compensation of our additional expenses.
V. Transfer of Risk – Shipping/Packaging
1. Loading and shipping shall be carried out uninsured at the risk of the Buyer. We shall endeavour to take into account the wishes and interests of the Buyer regarding the method of dispatch and route of dispatch; additional costs resulting from this – even in the case of agreed freight-paid delivery – shall be borne by the Buyer.
2. With the exception of pallets, we do not take back transport or any other packaging in accordance with the German Packaging Ordinance. The Buyer shall take care of the disposal of the packaging at the Buyer‘s own expense.
3. If shipment is delayed on request or due to fault of the Buyer, we store the goods at the expense and risk of the Buyer. In such case, the declaration of readiness for dispatch shall have the same effect as the dispatch.
4. At the request and cost of the Buyer, we will effect transport insurance cover for the delivery.
1. If our deliveries or services prove to be defective, we shall first be obliged to rectify the defects at our discretion by eliminating the defect or replacement delivery. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions. We shall bear the necessary expenses of supplementary performance within the scope of the statutory provisions, to the extent the same are not higher due to the fact that the object of the contract is located in a different place than the place of intended use. If the supplementary performance has failed, the Buyer may demand a reduction in the purchase price („Minderung“) or declare withdrawal from the contract at the Buyer‘s discretion. The supplementary performance shall be deemed to have failed with the second attempt in vain, unless further attempts to repair are reasonably acceptable for the Buyer taking into account the subject matter of the contract.
The right of the Buyer to assert claims for damages in accordance with Section VI (4) to Section VI (9) hereunder remains unaffected.
2. We are entitled to make the supplementary performance due dependent on the Buyer having paid the due purchase price. However, the Buyer is entitled to retain a portion of the purchase price reasonably proportionate to the defect.
3. Claims for defects by the Buyer shall become time-barred one year from delivery of the goods to the Buyer or, if acceptance is required, from acceptance, unless we have fraudulently concealed the defect; in this case the statutory provisions shall apply. This does not affect the provisions of Section VI (9) and the statutory provisions on the purchase of consumer goods.
4. For a culpable breach of our material contractual obligations, we shall be liable in accordance with the statutory provisions. Material contractual obligations are obligations that characterize the typical purpose of the contract, the fulfilment of which enables the proper execution of the contract in the first place and on which the contractual partner may regularly rely. To the extent we are not responsible for grossly negligent or intentional conduct, however, we shall only be liable for the typically foreseeable damage.
5. In all other cases, we shall be liable if damage has been caused intentionally or grossly negligently by one of our legal representatives or by a vicarious agent. In the event of a guarantee („Garantie“) as well as for damages resulting from injury to life, limb or health, we shall be liable in accordance with the statutory provisions.
6. To the extent to which we have provided a guarantee („Garantie“) of quality and/or durability with respect to the goods or parts thereof, we shall also be liable within the scope of such guarantee in accordance with the respective terms and conditions of the guarantee. However, we shall only be liable for damage based on the lack of guaranteed quality or durability which does not occur directly to the goods, if the risk of such damage is clearly covered by the guarantee of quality and durability.
7. Any further liability is excluded irrespective of the legal basis of the asserted claim, this also applies in particular to claims in tort or claims for reimbursement of futile expenses instead of performance; this shall not affect our liability in accordance with the provisions of the German Product Liability Act. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and vicarious agents.
8. Claims for damages by the Buyer pursuant to Section IV (5) to Section IV (8) shall become time-barred within the statutory deadlines.
9. Claims for damages due to breach of the obligation to supplementary performance pursuant to art. 437 No. 1, 439 German Civil Code (BGB) only exist if during the one-year limitation period in accordance with Section IV (4) both a) the Buyer has requested supplementary performance, and b) we have violated our obligation to perform supplementary performance.
VII. Reservation of Title
1. We reserve title to goods delivered by us (hereinafter: „Reserved Goods“) until payment has been made in full. Goods that the Buyer has not already paid in full before delivery remain our property until the fulfillment of all claims, including all balance claims arising from current account, which we are entitled to against the Buyer now or in the future. In the event of any breach of contract by the Buyer , including but not limited to a default („Verzug“) of payment, we have the right to take back the Reserved Goods after setting a reasonable deadline. If we take back the Reserved Goods, this constitutes a withdrawal from the contract. If we seize the Reserved Goods, this is a withdrawal from the contract. We are entitled to use the Reserved Goods after taking them back. After deduction of a reasonable amount for the recovery costs, the proceeds of use shall be offset against the amounts owed to us by the Buyer.
2. The Buyer must treat the Reserved Goods with care and insure them sufficiently at the Buyer‘s own expense against damage from fire, water and theft at the replacement value. Maintenance and inspection work that becomes neccessary must be carried out in time by and at the cost of the Buyer.
3. The Buyer shall be entitled to sell and/or use the Reserved Goods in the ordinary course of business as long as the Buyer is not in default („Verzug“) of payment. Pledges or transfers of security are not permitted. The Buyer hereby assigns all claims arising from the resale or any other legal reason (insurance, tort) concerning the Reserved Goods (including all balance claims arising from current account) to us in full by way of security; we hereby accept the assignment. We hereby authorize the Buyer to collect the claims assigned to us for the Buyer‘s account in the Buyer‘s own name. The aforementioned authorisation to collect the claims may be revoked at any time if the Buyer fails to fulfil any payment obligations properly. Upon our request, the Buyer shall disclose the assignment and provide us with the information and documents necessary for the collection of the claim. The Buyer is not entitled to assign such claims for the purpose of the collection of claims by means of factoring, unless at the same time the factor is obliged to effect the consideration in the amount of the receivables directly to us as long as there are still claims by us against the Buyer.
4. Processing or transformation of the Reserved Goods by the Buyer shall in any case be carried out for us without obligating us. If the Reserved Goods are processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the Reserved Goods (total invoice amount including VAT) to the other processed items at the time of processing. For the new item resulting from processing the same provisions as for the Reserved Goods apply. In the event of the combination or inseparable mixing of the Reserved Goods with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the Reserved Goods (total invoice amount including VAT) to the other connected or mixed items at the time of the combination or mixing. In the event that the Buyer’s item is subsequently regarded as the main object („Hauptsache“), the Buyer and we hereby agree that the Buyer will transfer us co-ownership of this item in proportion; we hereby accept the transfer.| The Buyer shall take custody of our sole or co-ownership of an item free of charge for us. If the Reserved Goods are resold as part of the new item, the advance assignment agreed in Section VII (3) hereof shall only apply to the amount of the invoiced value of the Reserved Goods.
5. In the event of third-party access to the Reserved Goods, in particular in case of any attachments, the Buyer shall point out our property and notify us immediately so that we can enforce our property rights. Insofar as the third party does not reimburse us for the judicial or extrajudicial costs incurred in this context, the Buyer shall be liable for this.
6. We are obliged to release the securities to which we are entitled to insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%. In this case, we may select the securities to be released at our discretion.
7. If the law of the country in which the delivery item is located does not allow the agreement of a reservation of title or only does so in a limited form, we may reserve other rights in the delivery item. The Buyer is obliged to cooperate in all necessary measures (e.g. registrations) to achieve the retention of title or the other rights that replace the retention of title and to protect these rights.
VIII. Force Majeure
1. If we cannot comply with the agreed delivery date due to impediments for which we are not accountable (in particular, but not limited to operational disruptions, strikes, lockout, official orders, energy supply difficulties, delayed or lack of self-delivery), we will inform the Buyer without undue delay. In such a case, the Buyer is not entitled to withdraw from the contract.
2. However, if it cannot be foreseen that we will be able to perform our services within a reasonable period of time, but at the latest within four months, we and the Buyer may withdraw from the contract. The same applies if the reasons for impediment still exist after four months from our notification. Should the impediment be recognizable already at the time of conclusion of the contract, we are not entitled to withdrawal.
IX. Drawings, Constructions, Documents, Advice
1. Drawings, constructions, calculations and other documents, such as samples and models provided by us or made according to our specifications, remain and become our property. They may not be disclosed to third parties or used for any other purpose without our written consent. They must be returned to us after completion of the order or upon request.
2. If we deliver goods according to drawings, models or instructions provided by the Buyer, the Buyer shall indemnify us from any and all third-party claims based on infringement of intellectual property. In the event of breach of contract by the Buyer, any Buyer‘s intellectual property rights shall not preclude us from the exploitation of the goods.
3. If we provide any advice or recommendations, these are non-binding and with the exclusion of any liability, unless we have expressly and in writing committed to providing advice and recommendations. The Buyer must examine in the Buyer‘s own test series whether a product is suitable for the specific use cases of the Buyer. Our advice and information do not constitute a warranty with regard to the quality of our products.
X. Place of Performance, Place of Jurisdiction, Applicable Law
1. Place of performance for deliveries and payments is our registered office
2. The place of jurisdiction for any disputes between us and the Buyer arising from the sales contracts concluded between us and the Buyer shall be our registered office, insofar as the Buyer is a merchant, legal entity under public law or special fund under public law or does not have a general place of jurisdiction in Germany. However, we are in addition entitled to sue the Buyer at the Buyer‘s general place of jurisdiction.
3. The relations between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
As of July 17, 2020