The supply of goods and services by the Seller and the Seller's quotations are all subject to the following "General Terms and Conditions of Supply and Payment" (GTCSP). Contrary Terms and Conditions, and especially Terms and Conditions of Purchase of the Buyer are herewith rejected.
If the GTCSP are not sent to the Buyer together with the quotation or if they were not provided to the Buyer on another occasion, they shall nevertheless apply within the scope of a continuing business relationship between Businessmen (as defined by German law). The same shall apply if the Buyer was aware of them, or should have been aware of them, due to a previous business transaction, even if the Seller did not expressly point out their general applicability in a specific case.
2. Contract Conclusion
Contracts are only concluded if the Seller confirms contract acceptance in writing. All contrary terms and conditions of the Buyer are ineffective. Contrary terms and conditions of the Buyer are herewith rejected. All quotations of the Seller shall be non-binding until the Seller confirms, in writing, the acceptance of the Buyer's purchase order resulting from the Seller's quotation. Oral and telephone agreements shall not be effective until confirmed in writing by the Seller. Sales agents or field sales employees of the Seller are only intermediaries and not authorised to conclude legally binding contracts.
Designs, blueprints and the like and documents provided by the Seller shall remain the property of the Seller. Such items may only be used for processing the quotations of the Seller and may not be disclosed to a third party. These provisions also apply to all future business with buyers.
The prices applicable on the day of the delivery shall apply.
The agreed prices are net of the applicable statutory VAT. If a VAT exemption is permitted by law, the legal prerequisites for such exemption must be fulfilled at the time of delivery. For such fulfilment, the Buyer is obliged to provide the Seller, immediately after unloading of the delivery goods, with a signed intra-Community entry certificate, showing the name and address of the customer, quantity of the delivered goods with their standard commercial description and the place and date of receipt. The Buyer shall pay the VAT to the Seller, if necessary subsequently, and recompense the Seller for any other incurred costs if the Buyer does not comply with this obligation.
Cost-changing factors like material cost increases, wage increases, etc., entitle the Seller to adjust the prices to cover the cost changes, even in the case of confirmed customer orders. The Seller shall also be entitled to make a price adjustment if the price is obviously incorrect due to a calculation error. All prices are ex works Lüdenscheid/Schalksmühle plus freight and
packaging. We deliver goods with a net value of more than €450.00 without charging for packaging and with carriage paid to customer's address throughout Germany. Export deliveries are ex works Lüdenscheid/Schalksmühle with customs documents.
The delivery will only be made in packaging units.
Freight and packaging in the case of orders for goods with:
ex works, except individual agreements
Please enquire about surcharges for deliveries to Germany's islands.
The goods travel at the cost and risk of the Buyer as soon as they have left the Seller's factory. The delivery is always effected ex works unless specifically agreed otherwise.
5. Withdrawal from the Contract
Strike, lockout, business interruption, force majeure or other production hindrance for which the Seller is not at fault, entitle the Seller to completely or partly withdraw from the contract. This also applies if the Seller cannot obtain the raw material required for the production or cannot purchase such at the prices applicable before the order placement. The Seller is also entitled to withdraw from the supply contract – insofar as it has not yet been fulfilled – and demand cash payments for further deliveries if the Buyer is in default of payment obligations or if the Buyer's bills of exchange are protested or if the Buyer is subject to an attachment order or if there is a significant deterioration in the Buyer's financial situation. In such cases, the Seller is also entitled to immediately withdraw from circulation all bills of exchange and cheques still in circulation. The resulting costs shall be borne by the Buyer. If the Seller obtains information after contract conclusion which makes the granting of a credit line corresponding to the order value appear to be not completely without risk or raises doubts in that respect, the Seller shall be entitled to demand cash payments in advance regardless of prior agreements and withdraw from the contract if the Buyer does not fulfil such demand.
6. Delivery Periods
The quoted delivery periods apply to an ex works delivery. They are only approximate periods. The delivery periods shall be extended by a reasonable period of time if the party placing the order does not fulfil its obligations or if such extension is necessary due to an unforeseeable and blameless event or exceptional event in our factory or at one of our suppliers or at a transport company.
The Buyer can only withdraw from the contract if the Buyer previously threatened such withdrawal in writing and granted a reasonable grace period and the Seller has not complied with the grace period. The Buyer shall only have further rights, particularly in respect of compensation claims, if we acted intentionally or with gross negligence. The Seller is entitled to make partial deliveries unless otherwise expressly agreed. Call-offs and specification of specific partial deliveries should be made, as far as possible, in equal time periods and quantities and sufficiently timely to allow a proper manufacture and delivery within the contractual delivery period. A period of 3 months shall apply if a time period for the division is not fixed. The Seller shall be entitled to demand compensation for non- fulfilment or withdraw from the contract after a fruitless expiry of the granted grace period if the call-off is not made/ specified or not timely made/specified.
7. Notice of Defects
Visual flaws, for example, die marks, colour deviations, etc., can occur due to process-related conditions. Colour deviations of the anodised coating within a tolerance range defined by the Seller (such can be provided by us on a loan basis in the form of sample panels) do not justify a claim based on defect. Die marks or other visual flaws must be visible at an eye height of approx. 1.60m and a downward viewing distance of approx. 2.00m at normal lighting conditions in order to be a defect. Oblique illumination effects, incident vertical illumination and light refraction effects shall be excluded for the defect assessment. Wood veneer is a natural product that can have colour deviations and growth-related irregularities. Such imperfections are therefore not defects in the case of profiles covered with a wood veneer.
Other defects shall be notified to the Seller in writing immediately and not later than within 8 days after delivery of the goods. Warranty claims shall be excluded if the Buyer has processed or resold the goods after he has noticed, or should have noticed, the defects unless he proves that the processing or resale was necessary to avoid a greater financial loss.
The Seller will take back the goods and deliver a replacement in the case of a justified and properly notified complaint for defect; the Seller shall be entitled to remedy the defect by repair instead at his discretion. The Buyer shall only have a statutory warranty claim if the Seller does not fulfil such obligation. If the Buyer proves that he processed or sold the goods without breaching the notice of defect obligation, he can only demand a reduction in the purchase price for that part of the goods.
Return shipments are only permitted with the express consent of the Seller. Complaints about the weight, quantity, dimensions or quality can only be made if the deviation exceeds 10%, depending on the type of goods. The DIN tolerances shall apply to complaints about dimensions in the case of DIN-standard goods. Further claims, including compensation for consequential loss, due to a product defect shall be excluded. The Buyer shall be responsible for checking that the ordered goods, or the goods proposed by the Seller, are suitable for the Buyer's intended use.
8. Taking Back of Goods
A return of goods always requires our written consent. If the Buyer is to blame for the return of goods, we reserve the right to take back the goods and charge the Buyer a flat rate of € 18.00 for restorage costs and at least an additional 20% take-back cost in the case of a perfect goods return, franco domicile Lüdenscheid. Custom-made products will never be taken back.
9. Order Cancellation
If a purchase order is only cancelled after the production process has already been started, the order must be withdrawn from current production and the goods removed in this way must be put back into storage. Therefore, SGH Metall- und Kunststoff-Technologie GmbH has to charge € 18,- per shipment in case of late order cancellation. Custom-made products are generally excluded from cancellation.
The packaging will be invoiced at cost price and performed according to purpose but without an obligation on our part. Boxes and paper packaging will be taken back by us free of charge. We will issue a credit note for 2/3 of the invoiced value for crates if they are in an undamaged condition and returned carriage paid within 4 weeks.
The selling price is due for payment within 30 days after the invoice date. We grant a 2% early payment discount on the net value of the goods in the case of a payment within 8 days after the invoice date. The payment date is the day on which the Seller can dispose of the money. An early payment discount is not permissible if there are still overdue payments fromearlier invoices. The Seller is not obliged to accept bills of exchange. Default interest at a reasonable interest rate, but at least at a rate of 5 percentage points above the base lending rate, will be charged in the case of a late payment after a fruitless payment reminder.
A liability for timely presentation or protest of cheques is not accepted by us. Both a withholding of payments because of a Buyer's claim that was not acknowledged by the Seller or because of a Buyer's claim for which a court decision is not res judicata and an offsetting with any debt that was not acknowledged by the Seller or for which a court decision is not res judicata shall be excluded. If the Buyer fails to comply with the payment conditions or if the Seller becomes aware of circumstances that reduce the creditworthiness of the Buyer after contract conclusion, all the Seller's invoices issued against the Buyer will be immediately due for payment and the Seller shall be entitled to demand immediate provision of security. We can demand payment in advance for any outstanding parts of an order or cancel our obligations in respect of existing sales contracts.
12. Retention of Title
The Seller reserves title to all goods supplied by the Seller to the Buyer until the Buyer has paid all current and future payment claims, including any current account balance, arising from the business relationship. A bill of exchange or cheque given for payment shall not be deemed a payment until it has been cashed. The Buyer may combine or mix the title retention goods in the ordinary course of business with goods not owned by the Seller. In such a case, the Seller shall acquire co-ownership pursuant to Sections 947 and 948 of the German Civil Code (BGB).
a) The Buyer shall also be entitled to process the supplied goods in the ordinary course of business. The processing by the Buyer shall be done on behalf of the Seller but at no cost to the Seller. The Buyer shall not acquire ownership of the title retention goods pursuant to Section 95 if a new item is created. The Buyer shall keep in custody such item for the Seller at no cost to the Seller.
b) If the Buyer processes or combines the title retention goods with goods belonging to a third party, the Seller shall acquire a co-ownership share in the new item at a ratio of the value of the title retention goods to the value of the other processed goods at the time of processing.
c) If the Seller acquires sole ownership of the new item produced by processing, the new item shall also be deemed to be title retention goods pursuant to these provisions. If the Seller acquires co-ownership, the provisions for title retention goods shall apply to the co-ownership share. The Buyer shall also keep in custody such items for the Seller at no cost to the Seller.
d) Subject to the following provisions, the Buyer shall also be entitled to resell the supplied goods (title retention goods) without a further processing or after a further processing to one or several customers in the ordinary course of business. The following shall then apply:
i) If respite for payment of the purchase price is granted to the customer, the Buyer shall retain title to the sold goods against the customer under the same conditions as the Seller reserved ownership of the title retention goods at the time of their delivery.
ii) The Buyer already now assigns to the Seller the purchase price claims that the Buyer has against his customers as a result of the resale, regardless of whether the title retention goods were sold with or without processing or to one or several customers.
iii) If the title retention goods are sold together with other goods not owned by the Seller, the assignment of the claim arising from the resale shall be limited to the value of the retention of title goods at the time of their delivery for the purpose of fulfilling the resale.
iv) If the title retention goods are resold after processing, particularly after mixing with goods not owned by the Seller, the assignment shall be deemed effected at the value of the title retention goods at the time of processing.
v) If the purchase price agreed between the Buyer and the customer is lower than the value of all goods that are part of the subject matter of the contract with the customer, the assignment of the claim arising from the resale to the Seller shall only be at a ratio of the value of the title retention goods to the value of third-party goods at the time of delivery for the purpose of fulfilling the resale.
vi) If the title retention goods are used by the Buyer for the fulfilment of a contract for work and services (German: Werkvertrag) or a contract for work and materials (German: Werklieferungsvertrag), the Buyer already now assigns claims arising from such contracts to the Seller to the same extent as agreed for purchase price claims in ii) to v) above. The provision in i) above shall analogously apply.
vii) The assignment of claims shall be a non-disclosed assignment for the time being, i.e. shall not be disclosed to the customers. The Buyer shall remain authorised to collect claims until further notice but the Buyer shall not be entitled to dispose of the claims in any other way, e.g. by means of assignment. The Seller shall be entitled to cancel the authorisation for claim collection and collect the claims himself. The Seller shall refrain from doing so for as long as the Buyer duly meets Buyer's payment obligations. On the Seller's request, the Buyer shall notify the customers of the assignment. The Buyer shall also be obliged, if requested by the Seller, to disclose the customer names and the amount of the assigned claims to the Seller and to provide the Seller with all information necessary for the assertion of the assigned claims. The Buyer shall only be entitled and authorised to resell the title retention goods if it is guaranteed that the claim based on the contract for sale will pass to the Seller in accordance with the provisions in Section 5. The Buyer shall not be authorised to dispose of the title retention goods in any other way.
The retention of title shall continue to exist in accordance with the above provisions if some of the Seller's claims are credited to a current account, a balance is struck and acknowledged. The Seller's title to the title retention goods and the assigned claims shall pass to the Buyer upon full payment of all the Seller's claims resulting from the business relationship.
The Buyer is obliged to insure the goods against all risks, particularly fire, theft and water hazards and to treat the goods with due care. The Buyer shall also be obliged to immediately notify the Seller in writing of any attachment of the goods or assigned claims by third parties and/or any other claims asserted by third parties in respect of the goods. In the case of attachment of goods, a copy of the record of attachment and a declaration in lieu of an oath stating that the seized goods include those subject to the retention of title agreed hereunder shall be simultaneously sent to the Seller. In the case of attachment of a debt, a declaration in lieu of an oath stating that such debt includes claims based on the sale of title retention goods shall be made to the Seller.
The Buyer is obliged to provide the Seller of the title retention goods, at any time on the Seller's request, with information on the whereabouts of the goods delivered subject to the retention of title and also on the claims based on resale. The costs incurred in connection with the assertion of rights vested in the Seller of the title retention goods shall be borne by the Buyer.
13. Implied Warranty
We give a warranty of merchantable quality. Samples are approximate type samples. A full conformity of delivered goods with the samples is not warranted.
Unless otherwise agreed, we shall only be liable for damages based on the violation of contractual and non- contractual obligations in the case of intentional act and gross negligence on the part of our legal representatives or managerial staff or based on culpable breach of material contractual duties. In the case of a culpable breach of material contractual duties, we shall only be liable for the foreseeable damage or loss that is typical for such contract unless we are liable because of an intentional act and gross negligence on the part of our legal representatives or managerial staff. Claims based on personal injury or death or damage to private property under the Product Liability Act shall be unaffected by this provision.
If the Seller's laying and installation instructions are not complied with or if changes are made to the products or if parts are replaced or if consumables that do not conform to the original specifications are used, any liability for defects shall be null and void unless the Buyer can prove that none of the substantiated allegations that one of the aforementioned circumstances brought the defect about is correct. The Buyer undertakes to pass on to end-user consumers the Seller's laying or installation instructions in full and without changes.
The Buyer shall immediately inform the Seller about a consumer's warranty claim. Such information shall include the consumer's name and address, the place where the material supplied by the Supplier is located, a detailed description of the defect complained about by the consumer and the point in time when the risk passed to the consumer (handover/ delivery of the material to the consumer). Such information shall be timely given to allow the Seller to inspect the material complained about for the preservation of evidence before the expiry of a time limit set by the consumer.
15. Limitation of Liability
Buyer's claims for damages and reimbursement of expenses (hereinafter referred to as Claims for Damages), regardless of the legal basis, especially those based on breach of a contractual duty or tort, shall be excluded. That shall not apply in the case of assumption of a warranty or of a procurement risk. That shall also not apply to mandatory statutory liability, particularly under the Product Liability Act or in cases of gross negligence, death, personal injury or damage to health and the breach of material contractual obligations.
Claims for the reimbursement of expenses for removal and installation costs shall be excluded if there is no consumer at the end of the supply chain.
Claims for the reimbursement of expenses for removal and installation costs shall be excluded if the Buyer has waived recourse and received compensation for the waiver.
The claim for damages based on the breach of material contractual duties shall be limited to the foreseeable damage typical for the contract unless gross negligence or liability for death, bodily injury or damage to health applies. A change in the burden of proof to the detriment of the Buyer shall not be associated therewith.
The provision analogously applies to the Buyer.
The Buyer's rights arising from the contract for delivery can only be transferred to a third party with the Seller's consent.
17. Copyright/Industrial Property Rights for Custom-Made Products
If we accept orders for products other than our standard products, the party placing the order warrants that the product or drawing or sample or other information provided by the party placing the order does not infringe a registered patent, utility model, trademark right, etc. The tools/dies manufactured for such products shall remain our intellectual property even if the party placing the order has paid a share in the manufacturing cost. A right of surrender of such tools/dies shall not apply. The duty to keep the tools/dies shall expire if no further purchase orders have been received from the party placing the original order within two years of the last delivery. The warranty for such custom-made products also includes indemnity against third-party rights in respect of our work. The party placing the order shall be liable to the Seller for any damage and lost profit arising therefrom.
18. Place of Performance, Place of Jurisdiction and Applicable Law
The place of performance and the place of jurisdiction for both parties to the contract shall be the Seller's place of business. The Seller shall be entitled to sue the Buyer at the latter's general place of jurisdiction. The laws of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
19. International Matters
All disputes shall be governed by the substantive laws of the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods and the UN Sales Convention shall be excluded.
All prices are in euros unless otherwise expressly specified. The foreign party to the contract explicitly accepts German law as applicable law by placing the order.
Should individual provisions of these General Terms and Conditions of Business be or become ineffective, the effectiveness of the remaining provisions shall not be affected thereby.