In these General Conditions for Sale and Supply the following expressions shall have the meaning as herein after set out:
- ”The Conditions” means these General Conditions for Sale and Supply.
- ”The Supplier” means OKO Saturn Werkstatt-Technik GmbH & Co. KG, with domicile in 72622 Nürtingen, Germany, In den Breitäckern 8.
- ”The Customer” means any person, firm or corporation or legal assignee or successor of such person, firm or corporation.
- ”The Goods” means those items which are specified in the written confirmation of order of the Supplier.
- ”The Contract” means the agreement between the Customer and the Supplier for Sale and Supply of the Goods to the Customer.
1. All performance and deliveries, including all contracts, shall be subject to the following terms and conditions. Deviating provisions shall be ineffective even if the Supplier does not expressly object thereto and does accept the order.
2. These Conditions apply in the Supplier’s relation to the Customer exclusively. They also apply to all future business dealings as well as to all commercial contacting of the Customer, such as the taking up of contract negotiations or the initiation of a contract, even if they are not agreed upon explicitly once more or if they are not specifically pointed out once more. Herewith we explicitly contradict the General Terms and Conditions of the customer.
3. The receiving of the Supplier’s services and deliveries by the Customer constitutes an acceptance of these General Terms and Conditions.
4. Unless otherwise agreed upon, the conclusion of contract takes place with the written order acknowledgement of the Supplier.
5. Unless otherwise agreed upon, the offers of the Supplier are binding for 4 weeks following the submission of bid.
6. The Supplier reserves title and copyrights and/or rights of author in any samples, drawings, estimates of costs and similar information of corporeal and incorporeal nature – also in electronic form. The Customer is not allowed to disclose any such document as aforesaid to any third party without prior written consent of the Supplier. The Supplier commits to disclose information and documentation which the Customer constitutes confidential to any third party only upon approval by the Customer.
III. Prices and Terms of payment
1. Unless otherwise agreed, the Supplier’s prices are net prices and are always calculated “free carrier” (FCA 72622 Nürtingen-Reudern, In den Breitäckern 8, ICC - Incoterms® 2010), but do exclude packing and value added tax. In case of shipping within Germany the statutory value added tax in the amount as from time to time in force will apply.
2. The respective valid and agreed mode of payment will be defined in the proforma invoices (offers) of the Supplier.
3. Any rights of retention of payment based on alleged remedies of the Customer against the Supplier or any other rights of the Customer against the Supplier which do not arise under the specific Contract (i.e. claims under another contract between the Customer and Supplier) are expressly excluded. Any set-off with the Customers claims against the Supplier claims is not allowed except insofar as such claims of the Customer are undisputed or subject of a final and conclusive judgement of a competent court.
IV. Scope of Delivery
1. The scope of delivery or service is determined by the Supplier’s written offer or order acknowledgement. Subsidiary agreements or modifications are to be made in writing. If the Supplier’s offer or order acknowledgement was based on data (specifications, numbers, images, drawings, weights and measurements, etc.) provided by the Customer, the Supplier’s offer is only binding, if those data were correct. If it turns out after the conclusion of the Contract that the order cannot be executed in accordance with the data provided by the Customer, the Supplier is entitled to withdraw from the Contract, if and as far as the Customer is not willing to accept the alternative solution proposed by the Supplier and to pay the actually arising additional costs if necessary.
2. In case that the Supplier is bound by Contract to perform service in advance, the Supplier is entitled to refuse the performance incumbent to him, if it becomes discernible after conclusion of the Contract that his claim to service in return is endangered by the Customer’s inadequate ability to meet financial obligations. In particular this is the case if the service in return to which the Supplier is entitled is endangered due to poor financial circumstances of the Customer or other frustrations of Contract, as for example by export or import bans, by war events, by insolvency of suppliers or absence owing to illness of absolutely needed employees.
3. If not expressly declared to be binding technical data are only approximate data. Weights and measures are given within the allowed tolerances of technical rules or the tolerances of the German Industrial Norms for measures, form and weight. The same applies to all further data and information contained in any other document in particular illustrations, drawings, descriptions, catalogues which intend merely to give a general description of the Goods that the Supplier is able to supply and any person reading them may not rely on anything contained therein as being a representation of fact concerning the Goods sold and delivered by the Supplier or any warranty relating thereto whether as to their condition or otherwise. The Supplier reserves permanent technical alterations of all products by the manufacturers. Therefore, all data is subject to modifications. Any public statements or advertisements are not binding and do in no way constitute an agreement about the quality of the Goods nor a guarantee according to the quality of the Goods or according to the fitness of the Goods for a specific purpose or according to the long-lastingness of the goods. In case the Customer attaches importance to specific data mentioned in such public statements or advertisements including but not limited to leaflets, catalogues, illustrations and drawings, the Customer shall verify the correctness of such data at the moment in time the Contract is concluded. Furthermore, for the quality of the Goods or for their fitness for a specific purpose only the Supplier’s description of the product made in the Supplier’s offer shall be binding between the parties.
4. Any building work including earth work, brick work and concrete work, the installation, the connection and the commissioning of the Goods as well as the giving of operating instructions to the personnel are not within the Supplier’s scope of delivery.
5. Upon request of the Customer the Supplier shall provide trained installation personnel for the installation, the commissioning and the instruction. The costs for this are borne by the Customer.
6. The Customer is responsible for any safety precautions whatsoever imposed by the plant conditions. The Supplier’s liability in that respect is expressly excluded. The exclusion of liability as aforesaid shall not apply in such cases in which the Supplier shall provide the installation and starting-up according to IV.4 of the Conditions but always provided that the Supplier shall only be liable for grossly negligent or wilful acts.
V. Cooperation of the Customer
1. The Customer has to support the Supplier and his employees in a reasonable conventional scale. If the Supplier has to provide project-related work or service performances through his employees in the establishment of the Customer as support may on demand of the Supplier also count the provision of workrooms and workstations with PCs and telephones the costs of which are born by the Customer.
2. Materials, information and data, which the Supplier needs for the performance of his services have to be provided to him by the Customer. Data and data storage mediums have to be technically in perfect condition. As far as special legal or operational safety regulations apply in the establishment of the Customer, the Customer has to point out those to the Supplier before the performance of his service.
3. Instructions by the Customer to our employees on the concrete carrying out of the performance of services are excluded, if not instructions in connection with safety regulations and internal company regulations in the establishment of the Customer are necessary. Instructions on detailed questions with regard to work or service performances which are to be produced by the Supplier are not to occur towards the employees entrusted by the Supplier with the job but towards the contact person nominated for the project by the Supplier. The Supplier decides always with sole responsibility on the necessary measures within the context of his obligation to perform the Contact.
VI. Terms of delivery
1. The delivery period results from the agreements of the Contract parties. The adherence to the delivery period calls for it that all technical and commercial questions between the Contract parties have been resolved and that the Customer has fulfilled all obligations incumbent upon him, e.g. adduction of all necessary official certifications or licenses or that the Customer has made a deposit. If this is not the case the delivery period shall be extended by an appropriate amount of time.
2. Reservation is made that the Supplier is supplied in a punctual and correct way with the material required to fulfil his obligations to the Customer.
3. The delivery period shall be met if the Goods have left the works of the Supplier within such period or if the Customer has been notified on the readiness for shipment. As far as a customer take-up is to be made, the date of the customer take-up, alternatively the notification of the readiness for customer take-up, is authoritative – except for a legitimate acceptance rejection.
4. In case that the delivery or the customer take-up of the Goods is delayed for reasons for which the Customer is responsible, the Supplier shall be allowed to store the Goods at the Customer’s risk and, beginning one month after notification of the readiness for shipment or customer take-up, to charge him with the costs arising from the storage.
5. In case of non-compliance to the delivery period due to force majeure, industrial disputes or other unforeseen obstacles which are beyond the Supplier’s control, the delivery period shall be extended by an appropriate amount of time. The Supplier shall notify the Customer as soon as possible upon commencement and termination of obstacles as aforesaid.
6. Should the delivery of the Goods be delayed for more than 30 days after notification of readiness for shipment at the request of the Customer or due to non-acceptance on the part of the Customer the Supplier shall be allowed to charge the Customer with the storage charges for every inchoate month.
VII. Reservation of proprietary rights
1. The Supplier reserves ownership of all Goods until full payment of all claims against the Customer.
2. If the Customer works on or uses the delivered Goods the working on or processing occurs for the Supplier in such a way that the Supplier acquires co-ownership of the new object with the share that corresponds with the purchase value of the object in proportion to the total sales value of the new object at the time of the processing. In case of processing by the Customer with other goods not belonging to the Supplier the Supplier is entitled to co-ownership of the produced new object in the proportion of the purchase value of the conditional Goods used for the produced object to the sales value of the new object at the time of the processing.
3. In case that the Goods supplied with reservation of ownership are inseparable joined, blended or mixed with other goods the Supplier acquires the co-ownership to the total quantity in the amount of the value percentage of his consignment, §§ 947, 948 BGB). If the Customer acquires sole ownership through the joining, blending or mixing the Customer confers already at present the co-ownership in the proportion of the value of the conditional Goods to the value of the newly produced goods at the time of the joining, blending or mixing. The Supplier accepts this transfer. In that case the Customer is to keep the goods which are property of the Supplier safe free of charge.
4. The reservation of ownership is extended to all claims of the Customer which the Customer acquires from the resale of the delivered Goods or from the resale of the newly produced goods. The claims shall be transferred in the amount of the outstanding balance due to the Supplier. The Customer transfers these claims as a precaution at the time of their formation. The Supplier accepts this transfer. The Customer is only entitled to the resale of the conditional Goods or the newly produced goods with the proviso that the Customers sales or works wage claim is transferred to the Supplier according to the aforementioned stipulations. The Customers is not entitled to other acts of disposal.
5. For the duration of the reservation of ownership the Supplier is entitled to insure the Goods against theft, breakages, fire, damaged caused by water or other losses at the expense of the Customer, unless the Customer himself has verifiable procured insurance.
6. As long as the ownership has not been transferred the Customer may neither give the Goods in mortgage nor assign the Goods as security. The Customer is under obligation to immediately notify the Supplier in written form if the delivered Goods are seized or are otherwise exposed to the interferences by other parties. As far as the third party is not able to reimburse us the judicial and extrajudicial expenses as per § 771 ZPO, the Customer will be liable for our incurred losses.
7. The charging liens of the Supplier do not prevent the Customer from disposing of the Goods in the regular course of business. A regular course of business is no longer given if the Customer falls behind with the financial commitments to the Supplier one month after occurrence of default, the Customers’ bills of exchange are protested, the suspension of payments occurs or the Customer files for insolvency. In that case on the Supplier’s demand the Customer is obliged to notify his purchasers of the assignments of claim, to refrain from collecting the outstanding accounts and to allow the collection of the outstanding amounts by the Supplier. By request of the Supplier the Customer is further obligated to disclose to the Supplier the addresses of the Customer’s purchasers on first demand.
8. If regular course of business is no longer given the Supplier is entitled to take back the Goods at the expense of the Customer and to withdraw from the Contract.
VIII. Passing of risk and Acceptance of Delivery
1. The risk shall pass to the Customer no later than at the time of despatch from our works and this shall also apply when partial deliveries are effected or the Supplier has accepted additional obligations such as transportation costs, the transport, the installation or the assembly of the Goods. As far as a customer take-up is to occur it will be authoritative for the passing of risk. It has to be effected immediately upon the date of take-up, alternatively after the notification of readiness for the take-up issued by the Supplier.
2. The Customer is under the obligation to accept delivery of the Goods irrespective of the Goods’ showing defect without prejudice of the Customer’s rights arising from the defects.
3. Should despatch or customer take-up be delayed or omitted in consequence of circumstances which are not attributed to the Supplier the risk of loss and deterioration of the Goods shall pass to the Customer at the date of notification of readiness of the Goods for dispatch or take-up by the Supplier to the Customer. The supplier undertakes to effect all insurances which are asked for by the Customer at the expense of the Customer.
IX. Commercial Terms
The Incoterms 2010 version are applicable subject to the specific provisions of these Conditions or the Contract which shall prevail.
X. Notification of defects
1. Written notice of apparent defects or any other complaints, including but not limited to failure to comply with any particular agreement or guarantee as to the fitness of the Goods for a specific purpose, failure as to the quantity of the Goods, must be given without delay at the latest 14 days from the receipt of the Goods. Written notice of hidden defects must be given without delay at the latest 14 days from the discovery of such defects but not later than 12 months from the receipt of the Goods. To meet the deadline, timely mailing shall suffice. It is entirely up to the Customer to provide evidence that his claim is justified, in particular for the defect itself, for the point in time of discovery of the defect and for the timeliness of the notification of defects.
2. Should the Supplier not be notified of the defects or any other complaints within the delays as set out in VII. 1. of these Conditions, the Supplier shall be discharged from all liability arising from defects of the Goods or any other complaints and any rights of the Customer of whatsoever nature are excluded.
1. Is the Customer a trader the Supplier’s liability shall according to the Supplier’s choice in the first instance be limited to either replace or repair such defective Goods. Of the expenses resulting directly from the repair or replacement – provided the claim is justified – the Supplier shall be the costs of the replacement including shipment as well as the appropriate costs for the assembly and dismounting. The Customer shall bear the expenses for the rest.
2. The Supplier is always to be given opportunity for supplementary performance within an adequate period of time. Claims for recourse remain unaffected by the aforementioned regulation without reservation.
3. The warranty period shall run for 12 months commencing upon the actual delivery of the goods. This will not apply if the Customer did not notify the Supplier of the defect in time (clause VII. 2. of these Conditions). The Supplier shall not be liable for defects of used or second-hand goods.
4. Should the Customer’s notification of defects be unjustified, the Supplier will be entitled to claim for all costs that arise from such unjustified notice of defects.
5. Is the Customer a trader basically only the product specifications of the manufacturer will be regarded as agreed upon. Public statements, extolling or advertisement of the manufacturer do not constitute as contractual product specifications.
6. In case the Customer notifies the Supplier of an existing defect of the instruction for the installation of the Goods the Supplier’s liability shall be limited to the providing of an instruction for the installation without any defects, but only provided that the defect of the instruction for installation made it in fact impossible for the Customer to duly install the Goods.
7. Warranties in a legal meaning are not given by the Supplier. Manufacturer’s warranties remain unaffected hereof.
8. We reserve the right to any changes in material, workmanship and design without notice.
9. Without limiting its liability for defects the Supplier expressly excludes any liability arising in particular on the following grounds: irrelevant deviation from the agreed quality of the Goods and irrelevant reduction according to the usability as well as inappropriate or improper use of the goods, defective installation or starting-up by the Customer or third parties, usual wear and tear, improper or negligent handling in particular excessive work load, inappropriate working material, substitute working material, insufficient construction work, inappropriate building ground, chemical or electrical influences as long as these are not caused by a grossly negligent or wilful act of the Supplier.
10.Should the Customer transfer the goods to another place than the place where the Customer has ordered the goods and should the costs for repair or replacement delivery, including but not limited to costs for transport, work and material, therefore increase, the Customer shall only be entitled to claim for the costs that would also have arisen in case the goods still had been at the place to which they were delivered, unless the transfer of the goods corresponds with the normal use of such goods.
1. Should the Customer be unable to use the Goods in accordance with the Contract through fault of the Supplier as a result of defaulted or defective execution of before or after the conclusion of the Contract occurred proposals or consultations or through the breach of other contractual secondary obligations – in particular instruction for operation and maintenance of the Goods – the rules of the paragraphs X. and XI. 2. will apply excluding all further claims of the Customer.
2. For damages which are not which are not caused to the Goods themselves the Supplier will only be liable – for whatever legal grounds – in case of
- wilful intent,
- gross negligence of the proprietor / the company bodies or executive employees,
- culpable harm of life, body and health,
- deficiencies which the Supplier concealed fraudulently or whose absence the Supplier guaranteed,
- deficiencies of the Goods as far as liability according to the Product Liability Act for the injuries to persons and material damages to privately used goods goes
In case of culpable breaches to essential contractual obligations the Supplier will be also liable for gross negligence of non-executive employees and ordinary negligence, in the latter instance limited to losses typical for this type of contract reasonably foreseeable. The Supplier will be exempt from the liability until the Customer has made the agreed upon payments. Further claims are excluded.
XIII. Limitation of claims
All claims of the Customer – for whatever legal grounds – come under the statute of limitations after 12 months’ time. To wilful or fraudulent behaviour as well as to claims in accordance with the Product Liability Act statutory periods apply. They also apply to deficiencies of a building or to goods which are used for a building appropriate to their customary way of application and have caused its defectiveness.
XIV. Software use
As far as software is included in delivery the Customer is granted a non-exclusive and non-transferable right of use of the supplied software inclusive its documentation. The software is let have for the use on the therefor specified Goods. The use of the software on more than one system is prohibited. The Customer may only duplicate, adapt, translate or convert from the object code to the source code within the statutorily permitted extent (§§ 69 a ff. UrhG). The Customer obligates himself to not remove manufacturer’s data – in particular copyright or trademark notations – or modify them without prior explicit agreement of the Supplier. All other rights to the software and to the documentation including the copies remain with the Supplier or rather the software supplier. The granting of sublicenses is inadmissible.
XV. Applicable law
1. These Conditions and any legal relations between the Supplier and the Customer shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The United Nation Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded.
2. Place of performance and exclusive place of jurisdiction for all disputes arising from these Conditions is the business location of the Supplier, provided that nothing else results from the order acknowledgement. The Supplier is, however, entitled to bring suit at the business location of the Customer.
XVI. Final provisions
1. All agreements between the Supplier and the Customer, which are made for the purpose of the execution of these Conditions, are put into writing in these Conditions.
2. The headings of the above provisions are for convenience only and have no importance for the interpretation of the Conditions.
3. Should any of these provisions be invalid or become invalid for whatsoever reason the remaining provisions shall be unaffected. In such case statutory regulations shall be applicable in addition.
4. Where appropriate in these Conditions the singular shall include the plural and vice versa and where there are two or more persons, firms or companies comprised in the definition of the Customer then the obligations imposed on them shall be joint and several obligations.