Gerneral terms and conditions

of Trade of Sobek-Tec GmbH | Finkenweg 3, DE-52146 Würselen | version 04-2016
I. Validity of our General terms and scope of delivery obligation
(1) For all deliveries, services and quotations SOBEK-TEC GMBH General Terms and Conditions shall apply exclusively. As far as it is about a commercial deal for both parties, these General Terms and Conditions shall apply for all future business relations, even though not agreed upon once more. General Terms and Conditions of the recipient of services are explicitly accepted. Such conditions of the recipient of services will not at all be committing for SOBEK-TEC GMBH, even in case they are not rejected explicitly once more.
(2) SOBEK-TEC GMBH reserves the right to reasonable modifications in construction and material.
(3) SOBEK-TEC GMBH reserves property rights and copyright of all documents concerning the quotation. Such documents shall not be made available to third parties and have to be returned to SOBEK-TEC GMBH immediately upon request, as far as they are not explicit subject of the delivery contract.
II. Quotation
(1) As far as the orderer is a salesman and the business is part of the operation of his trade, correct and complete delivery shall expressly reserved. This shall not apply in case SOBEK-TEC GMBH has to take responsibility for non-delivery by the pre-supplier.
(2) Representatives and salesmen of SOBEK-TEC GMBH are not allowed to make oral side agreements exceeding the scope of the written contract.
III. Prices and Conditions of Payment
(1) Prices shall apply according to the order confirmation ex works Aachen excluding packaging. In case of free delivery SOBEK-TEC GMBH only shall anticipate for freight charges.
(2) Payments have to be made without discount ex Hamburg. At payment of the complete sum of invoice within 8 days after the invoice is generated, SOBEK-TEC GMBH shall grant a discount of 2 % on the complete sum. Bills of exchange shall be accepted only after explicit agreement, whereat its acceptance only happens in lieu of performance. Occuring charges of bank discount and bills of exchange shall be paid by the orderer and are due instantaneously. Checks and bills of exchange are deemed as settlement only after payment. Incidentially payment conditions agreed upon in detail shall apply.
(3) In absence of credibility of the orderer and in case claims of SOBEK-TEC GMBH are endangered, and if delivery has not yet been effected, SOBEK-TEC GMBH shall be entitled to demand payment in advance before fulfilment of the contract, even diverging from the afore described or differently confirmed payment conditions, or SOBEK-TEC GMBH shall be entitled to totally withdraw from the contract.
(4) The orderer only has the right to balance counter claims as far as these are indisputable or recognized by declaratory judgement. As far as the contract is part of the operation of the trade of the orderer and he is a salesman, retention or abatement only is justified even if complaints or counter claims are asserted, if the counter claims are recognized by declaratory judgement, are indisputable or ready for decision.
(5) Payments to representatives or salesmen of SOBEK-TEC GMBH shall not be allowed. Such persons are not entitled to receiving payments.
IV. Delivery period
(1) Delivery period shall start on acceptance of the order by sending the order confirmation, however not before delivery of all necessary documents, permits and approvals by the orderer as well as before receipt of a possible payment in advance. Delivery period shall be delayed in case an agreed payment is not effected in due time.
(2) Delivery period shall be deemed complied unless agreed upon otherwise, if the delivery item has left the work or readiness for delivery has been communicated. Cases of force majeure and other unpredictable, extraordinary and unintentional circumstances, such as difficulties in material procurement, industrial disruption, strikes, lockouts, official orders a.s.o. shall be beyond the control of SOBEK-TEC GMBH, even if they occur at a pre-supplier. Such circumstances shall entitle SOBEK-TEC GMBH to extend delivery or service by the period of impediment plus an appropriate period of start-up. Should delivery or service get impossible or unacceptable by the circumstances mentioned, SOBEK-TEC GMBH shall be released from the obligation of delivery. In case delay is more than 2 months, the orderer shall be entitled to withdraw from the contract. If the delivery period is extended by the aforementioned reasons or if therefore SOBEK-TEC GMBH is released from the obligation of delivery, the orderer shall not be in the position to demand any claims for compensation. SOBEK-TEC GMBH shall notify the orderer as soon as possible regarding occurance of such circumstances.
(3) As far as SOBEK-TEC GMBH is responsible for noncompliance of binding terms or dates or is in delay, any claim of the orderer for compensation of a possible damage caused by delay shall be limited to at last 5 % of the total sum of invoice. Exceeding claims shall be excluded unless the delay is caused by gross negligence or deliberate intention of SOBEK-TEC GMBH.
(4) SOBEK-TEC GMBH is entitled to part delivery unless part delivery is unacceptable for the orderer.
(5) Should delivery be extended at the request of the orderer or for other reasons the orderer is responsible for, SOBEK-TEC GMBH is entitled to charge storage costs when storage is effected at its site, at a minimum rate however of 1 % of the total sum of invoice for each month that is started. After reminder and expiration of a reasonable deadline, SOBEK-TEC GMBH shall be entitled to otherwise dispose of the delivery item and to carry out delivery to the orderer in an acceptable extended term. Statutory rights of SOBEK-TEC GMBH shall not be affected hereof.
(6) If SOBEK-TEC GMBH is entitled to compensation claims against the orderer due to noncompliance, the amount of the claim shall represent 25 % of the net sum of invoice subject to prove of greater loss. The orderer shall reserve the right to prove a lower level of loss.
V. Transfer of risk
(1) The risk is transferred to the orderer at the moment of handover of the shipment or parts of it to the person carrying out transport or when leaving the site of SOBEK-TEC GMBH for reasons of shipment. This regulation shall also apply in case the shipment of goods is effected in vehicles of SOBEK-TEC GMBH, in case SOBEK-TEC GMBH is bearing the costs of shipment or in case the goods are shipped within the same town. For choice of correct means of transport or transport routes SOBEK-TEC GMBH shall be liable only in case of gross negligence or deliberate intention. If the items under contract are ready for transport and shipment is delayed due to circumstances beyond the control of SOBEK-TEC GMBH, risk shall be transferred to the orderer at the moment of notification of readiness for shipment.
(2) On demand of the orderer SOBEK-TEC GMBH shall ensure goods against breakage and fire, water and transport damages. Insurance expenses will be charged for net cost.
VI. Retention of title
(1) Goods shall remain the property of SOBEK-TEC GMBH until full settlement of the purchase price, in case of payment by check or bill of exchange until settlement. As far as the contract is part of the operation of the trade of the orderer and he is a salesman, the goods also remain property of SOBEK-TEC GMBH until settlement of all demands by the latter against the orderer due to this business relation.
(2) Goods on which SOBEK-TEC GMBH shall retain ownership are in the following called goods
subject to retention of title. Processing of the goods subject to retention of title shall always be carried out by the orderer / salesman in the name of and on behalf of SOBEK-TEC GMBH as producer, however without obligation for SOBEK-TEC GMBH. SOBEK-TEC GMBH shall acquire (co-)ownership of the new products in the proportion of the value of goods subject to retention of title to that of the processed goods at the time of processing. If the right of (co-)ownership of SOBEK-TEC GMBH expires through connection, it is here and now agreed that (co-)ownership to the single commodity of the deliverer shall pass to SOBEK-TEC GMBH in proportion to the invoice value. The orderer shall keep safe without charge the (co-) ownership of SOBEK-TEC GMBH.
(3) The orderer shall be entitled to sell the goods subject to retention of title in the regular course of business, as far as he is not in delay with his payment. Pledge or assignment as security shall be excluded. Claims arising from purchase of the goods subject to retention of title or whichever legal reason (such as insurance proceeds or tort claims) shall be assigned by way of security here and now to the full extent to SOBEK-TEC GMBH which hereby accepts the transfer.
(4) Should the value of the securities existing for SOBEK-TEC GMBH exceed its claims by more than 20 %, SOBEK-TEC GMBH is obliged to release such securities at its own choice.
(5) At access of third parties to the goods subject to retention of title the orderer shall point to the fact of SOBEK-TEC GMBH’s ownership and instantaneously give notice.
(6) In case of the orderer’s behaviour contrary to contract, especially in case of delay in payment, SOBEK-TEC GMBH shall be entitled to take back the goods after reminder. In commercial relationship moreover, SOBEK-TEC GMBH shall be entitled to possibly demand release of the claims of the orderer to third parties. Taking back as well as assignment of goods subject to retention of title means no withdrawal from the contract unless the Customer Credit Act is applied.
(7) On request of SOBEK-TEC GMBH, the orderer shall provide all necessary information on its assets of goods subject to retention of title and on assigned receivables as well as inform its debtors of the assignment.
VII. Warranty
(1) Should the item of delivery be insufficient or show a lack of committed qualities, SOBEK-TEC GMBH shall deliver additionally or effect remedial work. Multiple remedial attempts shall be allowed.
(2) Claims for indemnity connected to warranty claims shall be excluded unless SOBEK-TEC GMBH acted gross negligently or intentionally. Also claims for indemnity resulting from acceptance of a guarantee remain unaffected. For all other claims for indemnity except warranty claims section IX. shall be valid.
(3) In case the contract means a commercial deal for both parties, the orderer has to control the goods after delivery by the supplier and in case a defect shows, he shall instantaneously give written notice to SOBEK-TEC GMBH. If a later defect shows, notification shall be effected immediately after statement. If the orderer is not a salesman, apparent defects must be communicated in writing instantaneously, but at latest within two weeks after receipt of delivery. For keeping the deadlines an in-time mailing of the notification will be sufficient in all cases. An infringement against the aforementioned obligations shall exclude any claim for indemnity against SOBEK-TEC GMBH.
(4) Should remedial work fail within an acceptable period, the orderer shall be entitled to choose between a price reduction or withdrawal from the contract.
(5) If processing or maintenance instructions of SOBEK-TEC GMBH are not followed, product changements are effected or parts are replaced, any warranty shall be omitted. This applies in case the orderer does not refute a corresponding substantial statement that only occurance of one of those circumstances produced the defect.
(6) Warranty claims against SOBEK-TEC GMBH exclusively belong directly to the orderer and shall not be assigned.
(7) If the orderer is an entrepreneur, the period of limitation for warranty claims of material damages is one year after delivery.
VIII. Installation and Maintenance
If beside delivery also installation or current maintenance of the goods are commissioned to SOBEK-TEC GMBH, these actions shall be effected in the scope of our Installation and Maintenance Conditions or according to a made agreement.
IX. Liability
(1) Liability of SOBEK-TEC GMBH is exclusively given – on whatever legal grounds – if a damage
(a) has been caused by culpable breach of a contractually essential obligation (material contractual obligation) in a way endangering the achievement of the purpose of contract or by delay in performance or by rendering impossible the performance by SOBEK-TEC GMBH or
(b) could be attributed to gross negligence or intent of SOBEK-TEC GMBH.
(2) In case SOBEK-TEC GMBH is liable according to § 1) a) in breach of an essential contractual obligation, delay in performance or rendering impossible the performance in absence of gross negligence or intent, liability shall be limited to such extent that, at signing the contract, SOBEK-TEC GMBH might be typically anticipated at the moment of occurance due to the circumstances known. Regarding liability in case of delay in performance aberrantly hereof section IV. § 3) shall apply.
(3) In case of § 2) SOBEK-TEC GMBH shall not be liable for direct damages, secondary damages or loss of profit.
(4) Limitations in liability according to § 1) to § 4) shall also apply analogously to colleagues, agents and other assistants of SOBEK-TEC GMBH.
(5) A possible liabilily of SOBEK-TEC GMBH concerning assured qualities shall remain unaffected.
X. Applicable Law
The contract signed with the orderer as well as these General Terms and Conditions of Trade and all resulting rights and duties are subject to German Law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980 shall not apply.
XI. Place of Jurisdiction
As far as the orderer is a salesman in the sense of the Commercial Code, a legal entity under public law or a special fund to public law, Aachen shall apply as exclusive place of jurisdiction for all conflicts resulting directly or indirectly from the contractual relation. Additionally, SOBEK-TEC GMBH shall be entitled to take legal action at the orderer's principal place of business.
XII. Severability
Invalidity of an individual provision of these General Terms and Conditions of Trade or of a provision in the scope of any other agreement, does not affect the effectiveness of the remaining provisions.
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