GTC

    General Terms and Conditions

     

    The following are the general terms of sale as translated from the original complete German text (called: Allgemeine Geschäftsbedingungen or AGB) and are for reference only. They make repeated reference to the German civil code (BGB – Bundesgesetzbuch) and the German commercial code (HGB – Handelsgesetzbuch). In case of dispute the original AGB will be used. A copy of which can be sent on request.

    § 1 General Information, Scope

    (1) These General Terms of Sale (in German: AGB) shall apply to all of our business relations with our customers (hereinafter: “Buyer“). They apply only if Buyer is a registered trader (§ 14 BGB), a legal entity under public law or a public special asset.

    (2) The AGB shall apply in particular to contracts concerning the sale and/or the delivery of movable objects (hereinafter also: “Goods“) irrespective of whether we produce the goods ourselves or purchase these from components suppliers. The AGB shall also apply in their respective version as skeleton agreement for future contracts concerning the sale and/or the delivery of movable objects with the same buyer without reiteration.

    (3) Our AGB shall apply exclusively. Deviating, contrary or supplementary General Business Terms of Buyer shall only then and insofar become a part of the contract to the extent that we have explicitly approved their usage. This approval requirement shall apply in all cases, for example also if, with the knowledge of the General Business Terms of Buyer, we carry out the delivery to Buyer without reservation.

    (4) Singular agreements reached in an individual case with Buyer (including collateral agreements, supplements and amendments) shall in all cases have precedence over these AGB. A written contract or our written confirmation shall be decisive for the content of such agreements.

    (5) Legally relevant declarations and notifications, which are to be submitted to us by Buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation or reduction) require the written form in order to be valid.

    (6) References to the validity of statutory regulations shall only have a clarifying significance. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly changed or are explicitly excluded in these AGB.

    § 2 Closing of Contract

    (1) Our offers are without obligation and noncommittal. This shall also apply if we have made available to Buyer catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – , to which we reserve property rights and copyrights.

    (2) The ordering of Goods by Buyer is deemed as a binding contractual offer. Insofar as nothing other results from the order we are entitled to accept this contractual offer within 5 days after its receipt by us.

    (3) Acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of Goods to Buyer.

    § 3 Delivery Time and Delay in Shipment

    (1) The delivery time shall be agreed individually or given by us with the order acceptance.

    (2) Insofar as we are unable to meet the agreed delivery time for reasons out of our control (nonavailability of a service) we shall notify Buyer hereof without delay giving a new anticipated delivery time. If the service is not available within the new delivery time we are entitled to either withdraw from the contract in full or in part; we will reimburse Buyer without delay any already such rendered payments. A case of non-availability of a service deemed to this effect would be in particular late delivery by our suppliers, if we have entered into congruent hedging transaction, in which case the neither party is at fault or in the case where we have no obligation of procurement.

    (3) Occurrence of a delay in shipment is defined by statutory regulations. In such case a reminder from Buyer is necessary. Should such delay occur, Buyer can demand a lump sum as compensation to the value of 0.5% of the nett price (shipment value) for every full week delay limited to 5% of the shipment value of the delayed Goods. We reserve the right to prove that Buyer has had no loss or only a substantially smaller loss than afore mentioned compensation.

    (4) The Buyer’s rights as in §8 of these AGB and our statutory rights, in particular with reference to exclusion of the service obligation (e.g. impossibility of service.

    § 4 Shipment, Risk Transfer, Acceptance, Delay in Acceptance

    (1) The shipment is carried out ex warehouse where the place of fulfillment of shipment or possible subsequent fulfillment is also located. At the request and cost of Buyer Goods shall be sent to another place of destination (contract of sale involving the carriage of goods). Insofar as not otherwise agreed we ourselves are entitled to determine the type of shipment (in particular shipping company, route and packaging).

    (2) The risk of accidental loss and accidental deterioration of Goods shall pass to the Buyer no later than at the time of receipt. With a contract of sale involving the carriage of goods the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall, however, already pass with handover of the goods to the carrier, the freight forwarder or the other person or institution determined to carry out the shipment. Insofar as an acceptance has been agreed, this shall determine the transfer of risk. Furthermore, in the case of agreed acceptance, the statutory provisions governing contracts of labour and services shall also accordingly apply regardless of whether Buyer is in default.

    (3) Should Buyer be in default of acceptance, fails to assist or is responsible for delays in shipment we are entitled to demand compensation for thus arising damages including any additional expenses (e.g. storage costs).

    § 5 Price, Terms of Payment

    (1) Insofar as not otherwise agreed prices apply that are valid at the time of the order contract, ex warehouse plus VAT.

    (2) In the case of a contract of sale involving the carriage of goods (§4.1) Buyer carries the cost of shipment ex warehouse and the costs of an optional transport insurance, if requested. Possible customs and other charges, taxes and other public fees are carried by Buyer.

    (3) The purchase price is due and payable within 10 days with 2% cash discount or 30 days netto from the date of invoice and shipment or receipt of Goods. Nevertheless we are, at any time, entitled to make a shipment in whole or in part only upon advance payment, even in the course of an ongoing business relationship. This would be announced at the latest with the order confirmation.

    (4) Buyer shall be in default once the afore-mentioned payment deadline has been reached. Overdue payments are liable for an interest charge at the statutory rate. We reserve the right to claim further damages on default. Our entitlement to commercial maturity interest (§ 353 HGB) from trading merchants remains unaffected.

    (5) Buyer is only entitled to set-off rights or rights of retention to the extent that entitlement has been legally established or is undisputed. In case of any shortcomings in shipment the counter rights of Buyer according to § 7.4 remain unaffected.

    (6) Should, after entering a contract, it become apparent that our entitlement to the purchase price is at risk through insufficient funding of Buyer (e.g. by a petition for opening of insolvency proceedings) then, according to the statutory provisions, we are entitled to refuse services and – if need be after setting a deadline – to cancel the contract completely (§ 321 BGB). In case of contracts for the production of special products (custom products) we may cancel immediately; the statutory provisions concerning the dispensability of setting a deadline remain unaffected.

    § 6 Reservation of Title

    (1) We reserve the right to the property of the sold Goods until payment of all our present and future claims from the sales contract and a current business relationship (secured claims) has been received in full.

    (2) Goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral until full payment of the secured claims has been received. Buyer must notify us immediately in writing if a petition for opening of insolvency proceedings happens or if third parties have access to Goods belonging to us (e.g. by pledging).

    (3) If Buyer is in breach of the contract, in particular non-payment, we are entitled to cancel the sales contract according to statutory provisions and to demand that Goods are returned to us as rightful owner. If Buyer does not settle the account we may only reserve the right to the cancellation if we have set Buyer a reasonable new deadline for payment to no avail.

    (4) Buyer is entitled to resell and/or process Goods which are subject to reservation of title in an orderly business transaction. In such case the following provisions shall additionally apply.

    a. The reservation of title extends in full to commodities that are produced by processing, mixing or combining our goods with others in which we are named as manufacturer. If the rightful ownership is shared by third parties whose goods are also processed, mixed or combined with our Goods then we acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. The same shall apply to the produced commodities as to Goods originally delivered under reservation of title.

    b. Buyer hereby relinquishes to us any receivables to third parties resulting from the resale of Goods in total or to the amount resulting from a possible co-ownership, as in the clause above, as security. We hereby accept the assignment. The obligations of Buyer as stated in clause 2 above shall also apply in view of the assigned claims.

    c. In addition to us, Buyer shall remain authorised to collect receivables. We pledge not to collect receivables provided Buyer meets all payment obligations towards us, no financial impairment exists and we are not required to act on reserving our title as laid out in clause 3 above. However, should this happen we can request that Buyer discloses the relinquished receivables and respective debtors, provides us with all the information necessary for the collection thereof, hands over all relevant documents and informs the debtors (third parties) of the assignment.

    d. If the realisable value of the collateral items exceeds our claims by more than 10% we shall, upon request of Buyer, release collateral of our choosing.

    § 7 Warranty Claims

    (1) Insofar as not otherwise specified below, statutory regulations shall apply to the Buyer’s rights in the event of product quality and contractual claims (including wrong shipment and shortfall in delivery as well as improper assembly or incorrect assembly instructions).

    (2) Any warranty claim is based on the agreed product specifications. Agreed product specifications include product descriptions (also those from the manufacturer) made available to Buyer before ordering or those incorporated in a sales contract in a similar fashion to these AGB.

    (3) Insofar as the specifications have not been agreed a warranty claim shall be decided in accordance with statutory regulations (§ 434.1 pages 2 and 3 BGB). Public statements made by manufacturers or other third parties (e.g. in advertising) lie outside of our responsibility for which we cannot be made liable.

    (4) Buyer’s warranty claims follow only after Buyer has satisfied all legal obligations to examine and report any deficiencies (§§ 377, 381 HGB). If a deficiency has been determined during the examination or subsequently, then this must be reported to us in writing without delay. The report is deemed as immediate if it is made within two weeks whereby the timely dispatch of the report is sufficient in order to safeguard the deadline. Irrespective of this obligation for inspection and reporting of complaints the Buyer must report obvious defects (including wrong shipment and shortfall in delivery) within two weeks from delivery in writing, whereby the timely dispatch of the report is sufficient safeguard to keep the deadline. Independent of Buyer’s legal obligations to examine and report any deficiencies Buyer’s must report in writing any obvious deficiencies (including wrong shipments and shortfall in delivery) within two weeks of shipment. Also for this the timely dispatch of the report is sufficient safeguard to keep the deadline. Should Buyer fail to carry out the proper examination and/or reporting of deficiencies our liability for warranty claims is exempted.

    (5) If the delivered item is faulty it can, at Buyer’s discretion, be remedied (rectification) or be replaced (replacement delivery). Should Buyer not choose to make a decision within a reasonable period of time set by us we are entitled to then take the decision.

    (6) We are entitled to make the warranty claim dependant on Buyer settling due payment. Buyer is, however, entitled to retain a reasonable part of the purchase price relative to the severity of the deficiency.

    (7) Buyer must allow us adequate time and opportunity for a remedy, especially to return the rejected items for examination by us. In the event of the replacement delivery Buyer is, according to the statutory provisions, required to return the rejected item/s. Unless initially agreed, we are not obliged to remove or reinstall any of our items.

    (8) Should a warranty claim prove to be justified any expenses necessary for the examination and subsequent remedy such as transport, road, labour and material costs (but not item removal and reinstallation cost) shall be borne by us. However, if the claim is unjustified we can demand from Buyer reimbursement of the costs (such as examination and transport costs) we incurred, unless the lack of deficiency was not apparent to Buyer.

    (9) In urgent cases, such as in operational danger or to avoid disproportionate damage, Buyer has the right to remedy the deficiency and request reimbursement of unavoidable costs. Such self-repair must be reported to us without delay, if possible even before occurrence. Self-repair is not possible if we were legally entitled to refuse a remedy.

    (10) If the subsequent remedy failed or a reasonable deadline set by Buyer expired or, according to the statutory regulations, it is superfluous Buyer may cancel the purchase contract or adjust the purchase price. There is no right to cancellation if the deficiency is negligible.

    (11) Claims by Buyer for damages from or reimbursement of expenses for futile expenditure shall only be given as specified in § 8. Otherwise they are excluded.

    § 8 Other Liabilities

    (1) In case of breach of contractual and non-contractual obligations other than as specified in these AGB, including the following provisions, we shall be liable in accordance with the relevant statutory regulations.

    (2) We shall be liable for damages – irrespective of the legal grounds – in such case of willful intent and gross negligence. Liabilities from simple negligence are limited to a milder level of liability according to statutory provisions (such as diligence in own matters) only for damages from

    a. injury to life, body or health,

    b. a significant breach of an essential contractual obligation (a commitment where fulfillment is essential for the proper execution of a contract and on which the contractual partner constantly relies and is entitled to rely on); however, in this case our liability is limited to the reimbursement of foreseeable and typically occurring damages.

    (3) The liability restrictions specified in clause 2 above also apply to a breach of obligations by people or in favour of people whose failure we are obliged to respect according to statutory regulations. They do not apply if we have fraudently withheld deficiencies or we have assumed a guarantee for the product specifications. The same shall apply to claims of Buyer according to the Product Liability Act.

    (4) Buyer can cancel or terminate the contract due to a breach of obligations that does not result from a deficiency only if we are responsible for the breach. An unrestricted right of termination by Buyer (such as according to §§ 651, 649 BGB) is ruled out. Otherwise the statutory pre-requisites and legal consequences shall apply.

    § 9 Statute of Limitations

    (1) Notwithstanding § 438 Par. 1.3 BGB the general statute of limitations for claims from product and contractual deficiencies is one year from delivery. Insofar as the receipt of Goods has been agreed the statute of limitations shall begin with the receipt.

    (2) Should the product be a structure or an object that can be usually be applied to a structure which then could cause a defect (building material) then, according to statutory regulations, the statute of limitations will be 5 years as from shipment (§ 438 Par. 1.2 BGB). Irrespective of this, other special statutory regulations may apply (such as § 438. Par. 1.1.3, § 444 and § 479 BGB).

    (3) The afore-mentioned statute of limitations from trading regulations shall also apply to contractual and non-contractual claims for damages from Buyer resulting from defective Goods, unless the regular legal statute of limitations (§§ 195, 199 BGB) would, in an individual case, lead to a shorter time span. Warranty claims from Buyer, according to § 8 clause.2.1 and 2.2(a) as well as the product liability regulations, lapse solely according to statutory regulations.

    § 10 Governing Law and Place of Jurisdiction

    (1) For all contractual agreements between us and Buyer (including these AGB) the law of the Federal Republic of Germany shall apply, excluding all international and supranational (contractual) legal regulations, such as the UN Convention on the International Sale of Goods.

    (2) If Buyer is a registered trader as defined in the German commercial code (HGB), a legal entity under public law or a public special asset our sole registered office and the international place of jurisdiction for all disputes arising directly and indirectly from a contractual arrangement is to be in Fuerth, Odenwald, Germany. We are also entitled in all cases to file legal action at the place of performance of shipment according to these AGB or at an overriding place of preference or at the general place of jurisdiction of Buyer. Overriding statutory regulations, such as referring to exclusive jurisdiction remain unaffected.

    06/2017

    Address

    Skarke Ventilsysteme

    Auf der Rut 4
    64668 Rimbach-Mitlechtern
    Germany


    Phone: +49 (0)6253-8062-0
    Fax: +49 (0)6253-8062-22


    E-Mail: info@skarke.de
    Web: www.skarke.de