General Terms and Conditions of Sale (“GTC”) of SCRAEGG GmbH
§ 1 Application
(1) This English version of our terms and conditions of sale shall apply exclusively to sales by SCRAEGG GmbH, Ludwig-Wagner-Str. 20-26, 69168 Wiesloch (“SCRAEGG”) to all customers located in countries, where German is not an official language (this means all countries other than Germany, Austria, Switzerland, Liechtenstein and Luxembourg). With regards to customers located in Germany, Austria, Switzerland, Liechtenstein and Luxembourg only the German version („Allgemeine Verkaufsbedingungen - AVB“) shall apply. These terms and conditions of sale shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 sub. 1 BGB (German Civil Code).
(2) These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
(3) Our terms and conditions shall apply exclusively. Any deviating terms and conditions of the customer that we do not expressly recognise are not binding for us even if we do not explicitly contradict these or perform deliveries and services without reservation whilst being aware of the different terms and conditions of the customer.
(4) Any agreements reached on an individual basis with the customer (including covenants, supplementary agreements and modifications) take precedence over the present terms and conditions. Subject to evidence to the contrary, such individual agreements find their decisive criteria only in written contracts or in our written confirmation.
(5) Legally relevant declarations and notifications by the customer relating to the contract (e.g. deadline, notice of defect, rescission or reduction) must be made in written or text form (e.g. letter, email, fax). The statutory requirements and other evidence, especially in case of doubt regarding the explanatory person‘s legitimation remain unaffected.
(6) References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without such an clarification insofar as they are not directly changed or explicitly excluded in these terms and conditions.
§ 2 Conclusion of contract
(1) Our offers are non-binding and subject to change. This shall also apply if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations and references to DIN standards), other product references or documents including information in electronic form,in which we reserve ownership and copyright.
(2) The order for the goods placed by the customer shall be deemed a binding offer to enter into a contract. Unless otherwise stated on the order or in other agreements, the order may be accepted by us within 1 week after it’s receipt.
(3) The acceptance can be declared in written or text form (e.g. through an order confirmation) or by delivering the ordered goods to the customer.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or shall be stated by us upon acceptance of the order. If this is not the case, the delivery period is approximately 6 weeks from conclusion of the contract.
(2) In the event that we are unable to observe binding delivery deadlines for reasons not due to any failing on our part (non- availability of performance), we shall notify the customer immediately and inform him of the estimated new delivery period. If the goods or services are not available within the new delivery time, we have the right to withdraw completely or partially from the contract; any consideration that may have already been provided will be reimbursed by us without delay. A case of non-availability of performance within the meaning of this clause is, in particular, our supplier’s failure to supply us in good time if we have a congruent covering transaction, neither we or our supplier is responsible or if we do not have any duty to procure the goods in the individual case.
(3) The occurrence of our delay in delivery is determined according to the statutory provisions. A reminder by the customer shall be required in any case. If we fall in delay of delivery, the customer shall be entitled to demand lump-sum compensation for the occurred default damage. The lump-sum compensation shall be 0,5% of the net price (delivery value) per complete calendar week’s delay, subject to a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has suffered no loss at all or only a substantially smaller loss than the above lump sum.
(4) The rights of the customer according to sec. 8 GTC and our statutory rights, in particular the exclusion of the obligation to perform (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
§ 4 Delivery, passing of risk, approval, default of acceptance
(1) The delivery shall take place ex warehouse and this shall also be the place of performance for the delivery or a possible subsequent fulfilment. At the request and costs of the customer the goods may be shipped (sales shipment). Provided that no alternative arrangements have been made, we are entitled to determine the manner of shipment (in particular the transport company, shipment route, packaging) ourselves.
(2) The risk of accidental destruction and accidental deterioration of the purchased goods shall be transferred at the latest with the handover to the customer. With a purchase by delivery the risk of accidental destruction, accidental deterioration and as well the risk of delay shall be transferred to the customer with the delivery to the forwarding agent or the carrier. If an acceptance procedure has been agreed on, this is authoritative for the passing of risk. The statutory provisions of the law on contracts for services shall apply analogously in other respects to an agreed acceptance. The same applies to the delivery of goods when the customer delays their acceptance.
(3) Should the customer be in delay of acceptance, fails to provide an act of assistance or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to request compensation for the thus arising damages including additional expenses (e.g. storage costs). For this purpose we shall charge a lump sum compensation amounting to 0,5% of the net price (delivery value) per calendar week to a maximum total of 5% of the delivery value in case of a final rejection of the goods, beginning with the delivery period or – in the absence of a delivery period – with the announcement that the goods are ready to dispatch. The proof of a higher damage and our statutory claims (in particular the reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is however to be offset against further monetary claims. The customer reserves the right to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned flat rate.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices current at the time of contract conclusion shall apply ex warehouse plus VAT at the statutory rate.
(2) In the case of sales shipment according to the customer’s instruction (sec. 4 Abs. 1 GTC) the customer shall bear the cost of transport ex warehouse and the cost of any transport insurance requested by the customer. As far as we do not charge the actual transport costs occurred in the individual case, a transport lump sum (excluding transport insurance) amounting to 49 € per device applies as agreed on. Any possible customs duties, fees, taxes and other public charges shall be borne by the customer.
(3) The purchase price is due and payable within 14 days from invoicing and delivery or accepting of the goods. Even in an ongoing business relationship, we shall be entitled to only execute deliveries with advance payment. We shall be obliged to declare such a reservation at latest upon acceptance of the order.
(4) The customer defaults on the expiration of the aforementioned payment deadline. The purchase price shall bear interest at the applicable statutory rate during the period of default. We reserve the enforcement of further default damage. Our claim for the commercial maturity interest (sec. 353 HGB [German Commercial Code]) against merchants remains unaffected.
(5) The customer shall only be entitled to execute offsets or retentions in so far as the respective counterclaim has legal effect or is acknowledged by us. The counter-rights of the customer (in particular sec. 7 Abs. 6 S. 2 GTC) are not affected in case of defects to the delivery.
(6) If there are indications after the conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the customer (e.g. the filing of a petition in insolvency), we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract according to the statutory provisions (sec. 321 BGB [German Civil Code]). In case of contracts for the manufacture of single items (custom-made products) we may withdraw from the contract immediately; the statutory provisions governing the dispensability of the imposition of a deadline remain unaffected.
§ 6 Retention of title
(1) The goods supplied shall remain our property until full payment has been made for all our current and future claims arising from the purchase contract and a current business relationship (secured claims).
(2) The goods subject to the retention of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The customer must notify us in writing immediately if an application for insolvency proceedings was filed or if and when third parties exercise rights over the goods that are our property (e.g. seizures).
(3) In the event of actions in breach of the contract by the customer, in particular delayed payment, we shall be entitled to rescind the contract or/and to demand the return of the goods on the basis of the retention of title. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, we shall be entitled to demand solely the return of the goods and reserve the right to withdraw from the contract. In the event that the customer does not pay the due purchase price, we only assert such rights if we previously have set the customer a reasonable period for payment without result or if the setting of such a period is superfluous according to the provisions of law.
(4) Until further notice according to (c) below, the buyer shall be entitled to sell or to process the goods, which are our property, within the scope of ordinary business activities. In this case the following conditions shall apply in addition.
(a) The retention of title covers the products which are produced by processing, commingling or combination of our goods at their full value whereby we are deemed the manufacturer. Where, after processing, commingling or combination with objects belonging to third parties, said third parties still have a right of retention, we shall become co-owners of the new objects in relation to the invoiced value of the processed, commingled or combined goods. Additionally the provisions for goods delivered under retention of title shall apply equally to the produced products.
(b) The customer hereby assigns to SCRAEGG all claims against third parties arising from the resale of the goods or products in total or equal to the amount of our approximate co-ownership share pursuant to the aforementioned clause of security. We accept this assignment. The obligations of the customer stated in sec. 2 GTC shall also apply to the claims assigned.
(c) The customer shall remain authorized to collect the claims alongside us. We commit ourselves not to collect the claim as long as the customer fulfills his payment obligations, is not in delay of payment or is otherwise affected by deficient performance ability and solvency and if we do not assert the retention of title as a result of exercising any remedy set out in sec. 3 GTC. If one of these cases applies, we may demand that the customer discloses to us the assigned claims and their debtors, provides all data necessary for collecting them, hands over all relating documents to us and notifies the debtors (third parties) of that assignment. In such case we shall also be entitled to withdraw the customer’s right of further sale and processing of the goods delivered under retention of title.
(d) If the realizable value of the securities granted exceeds our claims by more than 10% we shall release securities – at our discretion – at the request of the customer.
§ 7 Customer’s claims for defects
(1) The statutory provisions shall apply to the rights of the customer in cases of defects of quality and title (including false and shortfall of delivery as well as improper assembly or faulty assembly instructions) unless determined otherwise in the following. The special statutory provisions on final delivery of the unprocessed goods to a consumer (supplier recourse according to sec. 478, 479 BGB [German Civil Code]) shall remain unaffected at any time – even if the goods are further processed by the consumer. The claims arising out of the recourse of suppliers shall not apply, if the customer or any other entrepreneur processed the faulty goods (e.g. installation in another product).
(2) The primary basis for our liability of defects shall be the agreement concerning the quality of the goods. All product descriptions that are subject of the individual contract or made public by us (in particular in catalogues or on our homepage) shall be deemed as an agreement concerning the quality of the goods.
(3) Unless agreed otherwise, the statutory provisions shall be applied to assess whether there is a defect or not (sec. 434 sub. 1 sent. 2 and sent. 3 BGB [German Civil Code]). We shall not be held liable for any public statements by the manufacturer or other third parties (e.g. advertising messages).
(4) The customer’s claims for defect presume that he has observed his statutory obligations to examine the delivered goods and to give notice of defects (sec. 377, 381 HGB [German Commercial Code]). Should defects be revealed during the delivery, the examination or at a later date they must be reported to us immediately in writing or text form. Obvious defects discovered during this examination must be reported in writing or text form in any case within 5 working days from delivery and non-recognizable defects shall be reported in writing within the same term after their discovery. Should the customer fail to examine the delivered goods properly and/or fail the report of defects, our liability for defects which were not reported or not reported in time shall be excluded.
(5) If the delivered item is faulty, we can initially choose whether we shall provide subsequent performance by removal of the defect (rectification) or delivery of a defect-free item (replacement delivery). Our right to refuse the subsequent performance shall remain unaffected.
(6) We shall be entitled to make the owed subsequent performance dependent on the fact that the customer pays the purchase price. The customer shall be entitled to retain an appropriate part of the purchase price which is reasonable in the ratio to the defect.
(7) The customer shall allow us the necessary time and opportunity for due subsequent performance and shall, in particular, hand over the faulty item for inspection. In the event of a replacement delivery the customer shall return the faulty item according to the statutory provisions. The subsequent performance shall neither comprise the removal of a faulty item nor its reinstallation, if we are not originally to take such actions.
(8) The expenses required for the purpose of testing and subsequent performance, especially transport costs, road charges, labour costs and the costs of material as well as, if applicable, costs of dismantling or installation shall be borne by us or refunded according to the statutory provisions if a defect actually exists. Otherwise, we shall be entitled to claim the costs resulting from the unjustified request to remedy a defect (especially costs for the purpose of testing and transport costs), unless the lack of deficiency was not recognisable for the customer.
(9) In urgent cases (e.g. cases that endanger operational safety or to prevent exceptionally high damages) the customer shall be entitled to remedy the defect himself and to demand compensation for expenses objectively necessary for this. We must be informed about these activities as soon as possible, if procurable prior to the repair. The right of self-remedy shall not apply if, in accordance to statutory provisions, we would be entitled to refuse the subsequent performance.
(10) If the subsequent performance has failed or a reasonable deadline which is to be set by the customer for the subsequent performance has expired unsuccessfully or it is dispensable according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price. The right of withdrawal shall not exist in the case of an insignificant defect.
(11) The customer shall be entitled to claim compensation or reimbursement for expenses incurred in vain only as provided in sec. 8 GTC; otherwise such claims shall be excluded.
§ 8 Other liability
(1) Unless otherwise provided in these General Terms and Conditions including the following provisions we shall be liable according to the statutory provisions in case of a breach of contractual and non-contractual duties.
(2) We shall be liable for damages – regardless of their legal grounds – in case of wrongful intent and gross negligence. In cases of simple negligence we shall be liable – subject to a milder standard of liability (e.g. the diligence we exercise for our own matters) – according to the statutory provisions only
(a) for damages arising from injury to life, body and health,
(b) for damages caused by the breach of a material contractual obligation (an obligation which enables the proper performance of the contract and on which the contractual partner can and does routinely rely); in this instance, however, our liability is limited to the reimbursement of foreseeable damages typically occuring.
(3) The limitations of liability resulting from the aforementioned paragraph shall also apply to breaches of duties on the part of persons whose fault we are responsible for according to the statutory provisions The aforementioned limitations of liability shall not apply in case we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods and to claims of the customer under the German Product Liability Act.
(4) In case of any breach of duty other than relating to defects the customer shall only be entitled to withdraw from the contract or to terminate the contract if the breach occurred due to our fault. A free right of termination of the customer (in particular according to sec. 651, 649 BGB [German Civil Code]) shall be excluded. In other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) By way of derogation from sec. 438 Abs. I Nr. 3 BGB (German Civil Code) the general limitation period for claims arising from material defects or defects of title shall be one year from delivery of goods. If an acceptance has been agreed on, the general limitation period shall begin with the acceptance.
(2) Special statutory provisions for limitation periods shall remain unaffected (in particular sec. 438 sub. 1 no. 1, sub. 3, sec. 444, 445b BGB [German Civil Code]).
(3) The above-mentioned limitation periods shall also apply on contractual and non-contractual claims for damages of the customer, that are based on a defect of the delivered good, unless the application of the ordinary statutory limitation (sec. 195, 199 BGB [German Civil Code]) results in a shorter period of limitation in the individual case. Apart from that other damages claims of the customer according to sec. 8 sub. 2 sent. 1 and sent. 2(a) as well as claims under the German Product Liability Law shall become time-barred exclusively according to the statutory provisions.
§ 10 Choice of law and place of jurisdiction
(1) These General Terms and Conditions and all legal relations between us and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of all international uniform principles of (contract) law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer is a trader as defined in the HGB (German Commercial Code), a legal entity under public law or a separate estate under public law the exclusive – also international – place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship shall be our place of business in Wiesloch. This shall also apply if the customer is an entrepreneur as defined in sec. 14 BGB (German Civil Code). However, we shall also be entitled to file actions against the customer in the place of performance for the delivery commitment according to these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the customer. Prior statutory provisions, in particular exclusive jurisdictions, shall remain unaffected.
GTC SCRAEGG V. 1.0