General terms and conditions of sale
General Terms and Conditions of Delivery and Service of the firm S.K.I. Schlegel & Kremer Industrieautomation GmbH.
I. General Provisions
The following terms and conditions apply to all - also future - sales and deliveries, unless otherwise agreed in writing. Terms and conditions of the customer shall only apply to the extent we agree to them expressly and in writing.
II. Conclusion of Contract
(1) Our offers are not binding. A legally binding contractual relationship with the customer does generally only exist after we have confirmed the order. Usually, the confirmation is only given after our offer has been defined in detail by the customer. The same applies to alterations of or additions to contracts. Scope, type and time of the delivery or performance of service are subject to the content of our confirmation of the order. Design changes remain reserved. Oral statements made by our staff must be confirmed by us in writing to become effective. Written form is also required for an effective exclusion of the requirement of written form.
(2) Information about our goods (technical specifications, illustrations, drawings, weights and dimensions, etc.) are only approximate values, they do not constitute a warranted quality, unless such warranty is expressly declared in writing.
III. Prices and Terms of Payment
(1) The prices are net prices exclusive of costs of packaging, transport and insurance (delivery costs). Value-added tax at the respective legal rate and the delivery costs are charged in addition and stated separately. In case of a time of delivery of more than four months, we charge the prices in force on the day of delivery or service.
(2) Our minimum order value is € 150,00 net.
(3) The amounts of our invoices are immediately due and to be paid within 30 days from receipt of the invoice at the latest. Timeliness of the payment is subject to the respective credit entry on our bank accounts.
(4) Payments are only regarded as made to the amount we can freely dispose of at a bank. We only accept cheques and bills subject to agreement and only on account of performance; discounts and charges are at the customer's expense.
(5) If the customer gets in default in payment, we shall be entitled to charge interest at a rate of 8% above the respective basic interest rate. We reserve the right to prove a higher damage caused by default.
(6) If the customer is in arrears with a due payment as a whole or in part, we shall be entitled to rescind the contract upon unsuccessful expiry of a reasonable period set to the customer. Our right of rescission shall also exist when there become known any circumstances that my decrease the customer's credit standing.
(7) As an alternative to our right of rescission according to Item 5 above, we may also require the customer to provide securities.
(8) The customer can only set our claim off against counter-claims that are undisputed or have become res judicata. The customer is not entitled to retain or reduce the payment of invoice amounts due in case of contested complaints about the goods.
(1) An assignment of any claims against us is only effective with our written approval.
V. Reservation of Title
(1) We reserve title to the goods delivered until the customer has settled all claims resulting from the business relationship with us.
(2) If the reserved goods are commingled with other goods not owned by us, we acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other items processed.
(3) The customer is entitled, until revocation, to dispose of the goods subject to ownership of title in the ordinary course of business as long as he fulfils his obligations from the business relationship with us in due time. However, he must neither pledge the reserved goods nor transfer them by way of security. He must notify us immediately about any attachment by a third party.
(4) In case of resale, the customer hereby assigns to us all claims against the buyers due to him in this connection. The customer is entitled, until revocation, to collect the assigned claims on his own behalf.
(5) The entitlement to collect shall become extinct when the customer gets in default in payment, when an application for the institution of insolvency proceedings has been submitted or when he has ceased to make payments. In such cases, the customer must not process or resell the good either. The customer must make it possible for us to take the reserved goods back. The taking back of the reserved goods shall only constitute a rescission of the contract when that is expressly declared by us.
(6) If it becomes evident after conclusion of the contract that our claim for payment is jeopardized due to a lack of capacity of the customer, we can refuse performance and set the customer a reasonable period during which he shall pay or provide security concurrently with the delivery. In case of refusal on part of the customer or unsuccessful expiry of the period, we shall be entitled to rescind the contract and claim damages.
(7) We are obliged, upon request of the customer, to release the securities due to him according to the above conditions at his choice to the extent the realizable value of the securities exceeds the claims to be secured by more than ten percent.
(8) Title to and industrial property rights in our drawings and documents remain with us in any case. They must not be made accessible to third parties.
VI. Delivery Time
(1) Our delivery times are generally only approximate and without commitment. Any agreements on a binding delivery time diverging from the above must the made expressly and in writing.
(2) The delivery time commences upon sending our confirmation of the order, but not before clarification of all details of the performance of the order and receipt of the documents and permissions to be provided by the customer as well as of an agreed payment on account. Request of the customer for changes shall extend the delivery time in a reasonable manner.
(3) We are entitled to make reasonable partial deliveries.
(4) If we should get in a delay in delivery for reasons that we are responsible for and the customer has set us a reasonable additional period without success, he can rescind the contract. Within the scope of a lump-sum compensation for delay, our liability in case of delay in delivery is limited to 0.5 % of the value of the delivery for every full week of delay, but not exceeding altogether 5 % of the value of the delivery.
(5) Any unforeseen events beyond our control (such as for example shortage of energy, delays in the delivery of important components and other materials, import difficulties, interruption of operations and traffic, strike, lockout, force majeure), shall reasonably extend the delivery time. If we should still be unable to deliver after a reasonable extension, both, the customer and we shall be entitled to withdraw from the contract. Any claims for damages of the customer are excluded.
(6) Delivery is subject to the approval of German authorities. In case of export of our goods the valid export controls has to be considered.
VII. Shipment and Passing of Risk
(1) Shipment is made ex works or distribution centre and at the customer's expense. Route and type of shipment shall be within our discretion. We are only obliged to effect a transport insurance at the express and written request of the customer; the costs of such insurance is borne by the customer.
(2) The risk passes to the customer as soon as the goods have left our plant or the distribution centre. If we have notified the customer that the goods are ready for shipment and collection, the risk shall pass to the customer when he fails to call or collect the goods and we have set him a reasonable period. In such case, we store the goods at the customer's expense; for storage at the plant, we charge 0.5 % of the invoice amount of the delivery stored per month. After setting a reasonable additional period and its fruitless expiry, we shall be entitled to rescind the contract and claim damages in lieu of performance.
(3) We take transport packaging and old appliances back at the customer's expense, unless the customer waives a taking back. Transport packaging and old devices must be returned in a clean condition, free from foreign substances and sorted according to type. Otherwise, the customer shall bear the additional costs incurred.
VIII. Notification of Defects/Warranty
(1) The customer is obliged to examine the goods delivered. Any obvious defects must be notified to us in writing immediately after delivery. Any defects that only become obvious at a later time must be notified by the customer in writing immediately after their detection. If that is not done, the goods shall be regarded as approved.
(2) Defects in the delivered item are rectified by us upon respective notification by the customer within a period of one year from the delivery. That is done at the deliverer's choice by subsequent improvement or delivery of replacement free of charge. In case of delivery of replacement, the customer is obliged to return the defective item.
(3) If the defect cannot be rectified within a reasonable period or if subsequent improvement is to be regarded as having failed for other reasons, the customer can demand at his choice either reduction of the consideration or - as far as the defect is not inconsiderable - rescind the contract. A failure of subsequent improvement is to be assumed when the supplier was given appropriate opportunity for subsequent improvement of delivery of replacement without the desired success having been achieved.
(1) Our liability for breach of contractual duty as well as in tort is limited to cases of intent and gross negligence as well as to compensation for the typical damage. We are not liable for any damage that has not occurred to the goods as such and for other economic losses of the customer. The above exemption from liability does not apply to personal injury or breach of cardinal duties or to damage caused by the absence of a characteristic warranted by us. The exclusion of a further liability for damages does not apply to claims according to Arts. 1 and 4 Product Liability Act.
(2) In case of modifications of or maintenance work on our products improperly carried our on part of the customer or a third party, we are not liable for any defects or damage resulting therefrom.
(3) If the customer withdraws from the contract without cause or if he does not perform the contract on his part, we can claim damages to an amount of 25 % of the amount of the order. Assertion of provably diverging damages remains reserved to the parties.
(4) We are liable for defects for one year from the passing of risk. This does not apply when the defect was fraudulently concealed.
X. Place of Performance and Place of Jurisdiction
(1) The place of performance shall be Mönchengladbach for both parties.
(2) The place of jurisdiction shall be our seat (Mönchengladbach).
XI. Final Provisions
(1) The contract is exclusively governed by German law. This applies also to deliveries abroad.
(2) If these provisions should be in part legally ineffective or have any gaps, that shall not affect the validity of the other provisions. The ineffective or invalid clause shall be replaced by a regulation that comes as close as possible to the desired regulation.