General terms and conditions SB – Brutschin GmbH
The following conditions are valid for all present and future proposals and deliveries submitted by us. The general terms and conditions of the purchaser go entirely unrecognized.
1 General
1.1 A contract is being achieved with our written order confirmation or delivery. For the content of the contract, especially the specifications our order confirmation is authoritative. Opposite to the images, descriptions, technical drawings, weight- and measurement-statements from our documents, price lists, spare parts catalogue and our proposal, we reserve to changes as far as the delivery item is not changed essentially or its quality will be upgraded and the changes are appropriate to the customer.
1.2 Different conditions of the customer which we do not acknowledge explicitely by writing, are not valid, even though we do not disagree explicitely.
1.3 To do subcontracting, the components to work on are fundamentally to be provided by the customer. There is no incoming goods inspection of these provided components, because we assume drawing consistent unmachined parts und components.
2 Proposals, prices and terms of payment
2.1 Our proposals are non-binding. A order placed with us is not accepted until it is confirmed by letter. The same holds true for agreements arranged with us concerning additions, alterations and subsidiary agreements.
2.2 Our prices ground on staff costs and material expenses at the point of time of the deal. We can rise the prices agreed upon goods and services thus far, as our staff costs and material expenses, plus costs for energy and operation supplies increased from conclusion of the contract to delivery day.
2.3 The machines, devices, constructions, drawings, tools and models manufactured within fulfilment of the contract stay in our property.
2.4 The customer is fully liable for the documents submitted such as photos, drawings, model data or similar, that the use is not infringing on third-party rights. For our models, suggested changes, project proposals, and other documents, specifications, images, drawings, weight- and measurement-statements and also calculations, we reserve the copyright. They are just roughly decisive, insofar as they are not denoted as explicit and in writing obligatory and may not be accessible to third parties.
2.5 If we have to consider our demands to be threatend by the economic circumstances of the purchaser, we are justified to resign from the contract. If the purchaser is in default of payment, we are eligible to set our total claim to due immediately. In those mentioned cases we are furthermore justified, to hinge our work on all comissions of the customer on a prepayment or a surety.
2.6 The purchaser may charge up against our demands solely with undoubted or established legally valid counterclaims. A right of retention from former or other business of the current business relation is explicitely impossible. Excluded thereof is the right of retention concerning undoubted or established legally valid claims.
3 Delivery
3.1 The delivery time is deemed to be agreed only approximately. Explicitely agreed binding delivery-dates or -deadlines have to be handed in by letter.
Delivery-deadlines start at signing of the contract, however not before the comprehensive clarification of the order and not before supplying the documents, possibly materials, components which shall be mounted, the authorisations and approvals are done by the purchaser and not before the agreed prepayment has arrived. All supply by the purchaser has to be delivered at no charge. If the scope of performance is changed or supplemented after signing of the contract, the specified delivery-dates and -deadlines become obsolete. They extend reasonable, if no special agreements are made.
3.2 The delivery time is satisfied, if the delivery items have left the factory or warehouse until the delivery time ran out, or they have been denoted to be ready for delivery.
3.3 Binding and nonbinding stipulated delivery-dates and -deadlines extend reasonable if unpredictable barriers appear, which are lying beyond our opportunities to influence, such as labor disputes, traffic congestion, operating trouble, delay in delivery of primary material, authority sanctions plus difficulties in obtaining authorizations, especially import- and export-licences, irrespective of whether, these barriers occur to us or our subcontractors. If the interference is not of temporary nature, both contractual partners are justified to resignation after an appropriate extra time. The customer has no claim for compensation in case of such a resignation.
3.4 If there was delivery delay, our liability in case of ordinary negligence is limited to a reimbursement of 0,5% per completed week, maximum 5% of the dalayed order value. The claim for compensation instead of the accomplishment according to number 7 is not affected.
3.5 We are eligible to reasonable partial delivery.
3.6 The danger is also on side of the purchaser if carriage free delivery was agreed, when the delivery item has been given to the person in charge of the delivery, however at the latest by leaving the factory or warehouse. If the customer is liable for the delivery delay the danger passes over with the access to the notification of delivery preparedness.
3.7 We choose delivery and packaging to the best of our judgement.
3.8 All deliveries take place ex works or depot. The danger of coincidental demise and coincidential decline of the subject of agreement develop upon the purchaser once the goods are given to delivery. If the purchaser is in default of acceptance, the danger already demises with the message of delivery preparedness. This is valid regardless of whether the delivery takes place at the place of delivery and who is bearing the cost of carriage.
3.9 In case the customer does not accept the delivery, we are justified, after fixing a appropriate extra time and its vain expiration, to resign from the contract or to claim compensation instead of the effort. In the latter case we are entitled to our choice, either to demand refund of the actual occured damage or the payment of a penalty equivalent to 10% of the agreed price. The customer has the right reserved to prove us no or little damage.
3.10 If the supplier assumes the assembly of the delivered items in addition, the general conditions of assembly and repairs of the supplierer are therefor valid, which shall be requested if required.
4 Payment
4.1 Prices shall apply ex works excluding packaging, potentially insurance and delivery. Statutory value added tax applies in addition. Unless otherwise agreed the payment is due in 30 days of issuing of the invoice, the due date is printed on the invoice. We will allow 2% discount for payments received within 10 days.
4.2 We are justified, to demand default interest of 8% above the base rate, but at least 10%, insofar as the customer does not pay within 30 days after invoice delivery.
4.3 If reasonable doubt arises regarding the solvency of the purchaser, such as slow payment, delay in payment, bill or check protest, we have the right to require colleteral or cash payment for contemporaneous performance. If the customer does not meet this demands within a appropriate deadline, we may resign from the not yet fulfilled part of the delivery contract. There is no necessity for a deadline, if the customer is recognisably incapable of a bail, as an example if insolvency proceedings against the assets of the customer hast been requested.
4.4 The retention of payments or the balancing with counter claims is only permissible, insofar as the counter claims are undisputed or have been stated legally binding.
4.5 The cession of entitlements arising from contracts made between our company and the customer to us shall be excluded without our express written consent. This is not valid for claims for money. We may pay to the customer with liberating impact.
5 Title retention
5.1 The goods delivered by us shall remain our property until the customer has settled all of our claims from the business relation. Should an open account relationship with the customer exist, retention of title applies to the acknoleged balance.
5.2 Processing and manufacturing of the reserved goods follow for us as producer without obligations. If the reserved goods are combined with other goods, we shall acquire joint ownership of the new product at the ratio of the invoice value of the reserved goods to the other materials.
5.3 The customer may sell the goods subject to reservation only within the ordinary course of buisness. The pledging and cession as security of goods subject to reservation throught the customer is unauthorized. The customer has to inform us immediately possible grips of third parties. At our request he shall insure the conditional commodity at his own cost against loss and damage, he shall herewith assign his claims arising from the insurance policies to us.
5.4 The customer relinquishes hereby all claims of the resale respective to the ratio of the reserved goods to the invoice value in advance. The customer is authorised to collect the claims, whilst he follows his liabilities to pay towards us. If the value of the securities exceeds our claims more than 10%, we release our securities on request of the customer on our choice to this extent.
5.5 If the customer is in default of payment or there are justified doubts concerning his ability to pay, the customer has to enable us to withdraw the reserved goods or to communicate the assignment of claim to his customers and to give us all necessary information and documents. In taking the reserved goods back there is no resignation from the contract. If we declare the resignation, we are justified to sell the items in the open market.
6 Defects, warranty claims
6.1 If the delivery item is deficient at delivery, we will at our choice supply carriage free replacement or improve the item. If we allow a justified extra time set for us to elapse, without having delivered replacement, or having eradicated the flaw, or the amendment fails, the customer may want a decrease of the price. In case of a significant flaw, he may return the defective goods for refund of the price or claim compensation instead of the performance in accordance with number 7.
6.2 The finding of flaws has to be communicated immediately by writing; recognizable flaws at the latest within 10 days after acceptance, non recognizable flaws at the latest 3 days after their discovery. Complaints about manufactured products are to prove by corresponding product samples. If they match the control templates, which were submitted by the customer and explicitely or tacitly authorized, then there is no deficiency. The costs of nevertheless requested extra work are at customers charge.
6.3 The warranty period amounts to 12 months, computed since transfer of risks at immediate delivery or at completed scope of delivery at readiness for dispatch.
6.4 Regarding third party products our warranty is limited to the transfer of the warranty claims we got against the supplier of the third party product, unless the satisfaction of the assigned right should fail or be unenforceable for any other reasons. Special warrants of suppliers are passed on by us in its entirely.
6.5 We do not take any warrant for materials supplied by the customer. They merely get checked the way it is usually done by us. The customer is liable for their impeccable quality and has to compensate all damage done including consequential damage.
6.6 We are not responsible for defects which are caused by the properties of the material sent for contract processing or provided components of the purchaser. If sent in parts become waste through material defects or other flaws during processing, thus we are eligible for claims from § 645 BGB for compensation of accomplished work plus replacement for further expenses. Further legal claims stay untouched.
6.7 If workpieces become waste through circumstances, which we neither deliberate nor grossly negligent have culpability for, then we take the costs for manufacturing similar replacements. The replacements have to be sent without any costs for us by the purchaser for the processing of the replacements. Further claims of the purchaser are not valid.
6.8 Excluded are, insofar as legally legitimate, all other even continuing claims of the purchaser, especially claims for replacement of damages of any kind, including such damages, which are not triggered by material submitted by the purchaser or components manufactured from them.
7 Compensation
7.1 Compensation claims no matter of which legal basis are impossible, if we, our legal representative or agent have caused the damage through ordinary negligence. This exclusion of liability is not valid for bodily injury, in those cases in which guaranteed characteristics are absent or in those cases in which important contractual obligations have been violated in a way that endangers the fulfillemnt of the contract. Our liability however is limited to the scope of the guarantee, and in case of negligence to the contract typical and predictable damage. Claims according to the product liability law remain untouched.
7.2 Force Majeure in the operations of our enterprise or our suppliers, for instance strikes, lockouts, insufficient raw material supply, entitle us to postpone the delivery date, without any claims of compensation arising on the part of the purchaser.
8 Copyright
8.1 For deliveries according to drawings, models or data of the purchaser, the orderer shall release the seller from all claims of thirds parties concerning right of protection. In case of violation of the contract on side of the purchaser, his trade mark rights are not opposed to our usage of the goods.
8.2 We are justified to sell self-designed constuctions anytime to third parties as well, provided that there were no agreements regarding exclusivness made between the contract partners. Constructions of the purchaser are treated intimate and not given to third parties. The purchaser has to check whether the documents transmitted to us are trademarked or not. In this respect we do not take any responsibility.
8.3 The purchaser is only justified to pass the submitted drawings, blueprints, pictures, calculations, models, technical documents and the left know-how on to third parties or publish it, if we agree by letter. We particulary reserve eventual copyrights to ourselves.
9 Place of fulfilment, Venue, applicable law
9.1 The place of fulfilment for all commitments and charges of both contracting parties is eimeldingen, Venue for all affairs in regard with this contract is the for eimeldingen concerned court. We, however are justified to assert our claims in the court concerned at the seat of the customer.
9.2 This contract is liable to german law. Thereof exempt, meaning inapplicable is the UN convention of contracts for the international sale of goods.
9.3 The invalidity of single terms in this contract lets the efficacy of the rest terms and the existence of the contract untouched. The place of the invalid term is substituted by a provision, which in its economic content comes the closesest to the invalid term. The same is valid in case of a gap.
SB Brutschin GmbH (As at September 2013)