General terms and conditions of Söll GmbH
I. General, Areas of Application
- The following general terms and conditions exclusively apply to companies as defined by the German Civil Code § 310 Section 1 (BGB)
- Deviating, opposing or supplementary General Terms and Conditions of the customer shall not form part of the contract unless Söll GmbH expressly confirms their validity in writing. Our General Terms and Conditions shall also apply if, despite knowledge of conditions of the customer contrary to or differing from these General Terms and Conditions, the delivery is executed without prejudice.
- Any agreements which are concluded between the customer and Söll GmbH must be set out in writing.
II. Offer and Conclusion of Contract
- Our offers are subject to change and non-binding unless we have expressively stated these as being binding. Documents belonging to the quotations such as illustrations, drawings, and data on weights or dimensions are only approximately authoritative, unless they are explicitly described as being binding in writing.
- An order, which is placed by a customer and qualifies as an offer to conclude a contract, can be accepted by Söll GmbH within two weeks by sending an acknowledgement of order or by forwarding the ordered products within the same period.
- All our prices are, unless specifically agreed in writing, in EURO, ex works or ex warehouse. Freight and packing charges, plus the relevant value-added tax shall be charged separately.
- Should delivery or service, for reasons for which Söll GmbH is not responsible, occur more than 3 months after conclusion of the contract, Söll GmbH has the right to add unforeseen related additional expenses and cost increases, including procurement cost increases, to the agreed price.
- Subsequent reduction of the order quantity or subsequent reduction in the number of units in the case of an agreed partial shipment as well as the reduction in agreed deliveries on demand is not permitted. If in individual cases we agree to alter the contract, we are entitled to increase the unit prices taking into consideration the increase in fixed costs and start-up costs.
- Unless otherwise agreed our invoices are payable in full within 30 days of the date of the invoice. A payment shall only be deemed to have been made when we have disposal over the amount. In the case of cheque payments, payment is only deemed to have been made when the cheque is cleared.
- If, by way of exception, payment terms of more than 30 days are agreed with the customer for the due date of invoices, this prolonged payment period shall also apply to bills of the customer resulting from counter transactions with Söll GmbH.
- Unless otherwise agreed in writing with the customer, cash discounts are not permitted.
- If the customer is in default of payment, we are entitled to charge interest on arrears, from the dates on which they were payable, at eight percent above the prevailing base rate set by the European Central Bank. We reserve ourselves the right of proof of higher damages.
- Should the customer default in payment or should he fail to honour a draft or should we subsequently become aware of circumstances indicating a deterioration in his solvency, our entire accounts receivable by derogation from clause IV 1 shall become due immediately. In this case, we shall only be obliged to continue delivery if the customer offers us payment in advance or security.
- The customer shall only be entitled to rights of set-off or retention if its counterclaims are recognised by declaratory judgement, are undisputed or accepted by Söll GmbH. The customer can only exercise a right to withhold performance or a right of retention if his counterclaim is based on the same contractual relationship.
V. Period of Delivery and Performance
- Delivery deadlines and dates only become binding if they are expressly agreed as being binding in the written agreement.
- In every case, all delivery periods and deadlines shall depend on correct and on-time self-deliveries.
- Events representing force majeure, steps taken in the context of industrial disputes and unpredictable circumstances which make delivery significantly more difficult or impossible (e.g. fire, mechanical defects, raw material or energy shortages, steps taken in the context of currency or trade policy or other steps taken by a sovereign state, transport route blockages etc.), no matter if these hindering circumstances affect us or our suppliers, shall entitle us to correspondingly extend the agreed terms of delivery by the duration of the unforeseen event plus a further period that is reasonable in the specific case.
- We are at all times entitled to make partial deliveries and provide partial services, insofar as this is deemed reasonable for the customer. This entitlement also applies to invoices for partial deliveries.
VI. Shipment, Passing of Risk
- Packaging, mode and means of shipment shall be determined by us, unless otherwise agreed in writing.
- Shipment and transport shall be made at the customer's risk, unless otherwise agreed in writing. Risk shall be transferred to the customer as soon as the consignment has been handed over to the person responsible for carriage.
- If a shipment is delayed for reasons attributable to the customer, the risk of accidental deterioration of the goods and of accidental loss shall pass to the customer upon notification of readiness for shipping. The customer shall bear all storage costs incurred as from the time of transfer of risk. All other claims shall remain unaffected.
- Should the customer be in default of acceptance, Söll GmbH shall be entitled to claim refund of any expenditure associated therewith. The risk of accidental loss shall pass to the customer upon the commencement of default in acceptance.
VII. On-demand orders
- In the case of contracts of orders for continual delivery, we are to be notified of calls for delivery and special deliveries for monthly delivery quantities of approximate equal amounts. Otherwise we are entitled to determine delivery at our own reasonably exercised discretion.
- For the purpose of handling each call, a reasonable period of time for execution is to be permitted. If the goods are not called within 30 days of expiry of the agreed call date, Söll GmbH shall be entitled, at its discretion, to invoice the goods immediately and to store such goods at the cost of the customer or to withdraw from the contract or to claim damages instead of delivery or both.
VIII. Retention of Title
- The supplied products (reserved goods) remain our property until settlement of all accounts receivable owed by the customer to Söll GmbH at present or in future. We are entitled to take back the delivered goods if the customer is in breach of the contractual agreement.
- Should the reserved goods be processed, blended or mixed with other goods by the customer, we shall acquire joint title to the new item in the ratio of the invoiced value of the reserved goods to the combined material entity. Where our co-ownership becomes null and void due to processing, blending or mixing with other goods, the customer shall immediately assign to us those of his rights of ownership in the new stock or product to the amount of the value of the reserved goods. The ensuing rights of co-ownership are deemed to be reserved goods as defined under clause VIII 1.
- Any processing, blending or mixing of reserved goods shall always be carried out for us as producers without thereby incurring any liability for us.
- The customer shall be entitled to resell, process, blend or mix the retained goods with other goods only within the scope of a proper course of business and as long as he is not in default. Any other disposal of reserved goods is not permitted.
- The customer shall immediately assign to us all claims to the amount of the final invoice owed by himself to third parties for sale of reserved goods. If the reserved goods are sold following processing, blending or mixing assignment of the claim arising from resale shall apply only to the extent of the value of the reserved goods in our invoice to the customer. This shall also apply if the reserved goods are resold together with other goods which similarly do not belong to the customer. We hereby accept the assignment of claim.
- After assignment, the customer shall be entitled to collect accounts receivable. However, we reserve the right to collect these receivables ourselves as soon as our customer does not meet his payment obligations to us or defaults in payments. In this case, the customer is obligated to disclose the assignment to his contractual partners. Furthermore, the customer shall provide us with the information necessary to enforce any claims assigned to us; this includes handing over all documentation immediately upon request.
- If the value of existing securities provided to us exceeds our receivables by more than 20% overall, we shall release the securities due to us at the request of the customer.
- The customer shall immediately advise us of any attachments made by third parties, or other access to the reserved goods. All costs for intervention to defend against third-party measures shall be borne by the customer insofar as they cannot be collected from the third party.
IX. Ban of repackaging and resale of repackaged goods
- The customer is not permitted to repackage goods supplied by us for purposes of resale or to sell the goods on to third parties. Goods may only be resold in our original packaging and only in the packaging units delivered by us.
- If a customer, in breach of clause IX 1, sells the goods to third parties, he shall be liable to pay damages. In this case, the customer shall be obligated to pay to us liquidated damages amounting to EUR 5,000.00. We reserve the right to claim higher damages.
- If a customer, in breach of clause IX 1, resells goods, he shall immediately assign to us all claims - for means of us securing our receivables against the customer - in a lump-sum compensation to the amount of the final invoice owed by himself to third parties for the sale. We hereby accept the assignment. After assignment, we shall be entitled to enforce the claims ourselves. In this case, the customer is obligated to disclose the assignment to his contractual partners. Furthermore, the customer shall provide us with the information necessary to enforce any claims assigned to us; this includes handing over all documentation immediately upon request.
- In the case of justified complaints within the prescribed period, according to the German Commercial Code (§ 377 HGB), we shall take remedial action by way of subsequent performance, at our discretion, by rectifying the defect or supplying non-defective goods.
- We shall be entitled to reject subsequent performance in accordance with statutory provisions. Subsequent performance can also be refused if the customer does not send us the rejected goods upon our request.
- The customer shall be entitled to request withdrawal from the contract or reduction in the contract price in accordance with statutory rights; however, this shall be admissible at the earliest after fruitless expiry of two adequately determined time limits by the customer for subsequent performance unless setting of such a period to remedy defects is dispensable. In the case of termination the customer bears responsibility for the deterioration, perishing and the loss of derived benefits that may result not only under reasonable care but also from every negligent and deliberate form of damage.
- In the case of fraudulent concealment of a defect or in the case of the acceptance of a warranty for the condition according to the German Civil Code (§ 444 BGB ) the customer's rights are solely in accordance with legal regulations.
- The customer shall not have rights in respect of defective goods if changes or modifications are made to the goods without our approval, unless the customer proves that the defects are not the result of such changes or modifications.
- All claims by the customer for damages and compensation of expenses are subject to the provisions of clause XI.
- Unless otherwise specifically agreed in writing, all information and illustrations contained in our order confirmations, brochures and other documents as well as the provision of samples and statements that are product-related only serve the purpose of general product description. Guarantees of properties and condition according to the German Civil Code (§ 443 BGB) are to be expressly marked as such and confirmed by us in writing.
- Liability for defects is excluded if the defect is due to inappropriate use, and / or improper treatment / use of the goods, use of inappropriate accessories and / or non-observance of operating and maintenance instructions or the defect is due to subsequent, improper modification of the product.
- Warranty claims arising from contracts of purchase for movable objects expire one year after delivery of the object. If the customer of the delivered goods is an intermediary and the end user of the goods is a consumer, the statutory provisions shall apply regarding the limitation period for any action of recourse by the customer against us.
XI. Limitations of Liability
- In the cases of a breach of contractual obligations, of defective deliveries or of tortuous acts, we shall only be obliged to compensate damages or expenses to our vicarious agents if we acted intentionally or with gross negligence, or we acted with minor negligence in the case of essential contractual obligation (a duty the breach of which puts the fulfilment of the purpose of the contract at risk), in other words, an obligation which is necessary for the satisfactory delivery of the order or contract and on which compliance the customer may trustfully rely regularly. If we are not held liable for intentional breach of contract, then the liability for damages is limited to typical contractual and foreseeable damages.
- Our liability for losses caused by late delivery due to minor negligence shall be limited to 10% of the agreed purchase price of the contract concerned.
- The aforementioned limitations of liability shall not apply to claims for damage to life, body or health, for claims under the German Product Liability Act (Produkthaftungsgesetz), for fraudulent concealment of a defect or for warranty assumption by Söll GmbH.
XII. Governing Law, Jurisdiction, Place of Performance et al.
- The relations between the parties are governed solely by the applicable laws of the Federal Republic of Germany. The application of the United Nations Convention for the International Sale of Goods is excluded.
- If the customer is a merchant, a legal entity under public law or public-law special funds, then the place of performance and exclusive place of jurisdiction for any disputes under this contract shall be the city in which our registered office is located - 95030 Hof, Germany. We shall also be entitled to take legal action against the buyer in the municipality of his place of residence and / or in the municipality where his registered office is located.
- Should separate provisions of this agreement or of these general business terms and conditions be ineffective or become ineffective in full or in part, or are declared ineffective, the validity of the remaining provisions of this agreement or these conditions are not affected thereby. Fully or partly ineffective regulation shall be replaced by a provision whose economic purpose comes as close as possible to that of the ineffective provision.