Condiciones generales de venta y suministro

SW-Paratus GmbH (a partir de agosto de 2020)

§ 1 Scope of application

1. These Sales/Delivery Conditions (hereinafter referred to as Sales Conditions) shall exclusively apply to entrepreneurs, legal persons under public law or special funds under public law pursuant to Section 310 (1) of the German Civil Code (BGB).

2. All deliveries, services and offers of the Seller shall be made exclusively on the basis of these General Sales/Delivery Conditions. These shall be integral parts of all contracts which the Seller concludes with its contractual partners (hereinafter also referred to as “Client”, “Orderer” and/or “Buyer”) regarding the supplies and services it provides. They shall also apply to all future deliveries, services or offers to the Client even if they are not once again separately agreed.

3. We shall not recognize any conditions of the Orderer which deviate from our Sales Conditions, unless we have expressly agreed in writing that they shall apply. Even if the Seller refers to written correspondence which contains or refers to the Terms and Conditions of the Client or third party, this shall not constitute a recognition that these terms and conditions apply.

4. These Sales Conditions shall also apply for all future business transactions with the Orderer.

5. Individual agreements concluded in individual cases (including ancillary agreements, supplementations and amendments) shall in any case have priority over these Sales Conditions. A written contract, respectively our written confirmation shall be authoritative for the content of such agreements, subject to evidence to the contrary.

6. All technical data of our catalogs and other sales documents, lists and technical drawings as well as information on weight, dimension and mixtures are carefully drawn up, and in the case of errors we reserve the right to make subsequent corrections.

7. The Orderer shall be responsible for checking whether the product is suitable for its intended purpose.

§ 2 Offer and Conclusion of Contract

1. All offers of the Seller shall be subject to alteration and non-binding, unless they are expressly designated as binding. The Seller may accept orders or contracts 14 days after receipt.

2. The contract shall be binding for the Seller (conclusion of contract) upon written confirmation or when the order is executed.

3. The order confirmation/the written concluded purchase contract, including these General Sales/Delivery Conditions, shall be solely authoritative for the legal relations between the Seller and the Buyer. This provides complete information about all agreements between the contractual parties regarding the subject of the Agreement. Verbal agreements made by the Seller before conclusion of this contract shall be legally non-binding and verbal agreements of the contractual parties shall be replaced by the written contract, unless such agreements respectively expressly stipulate that they shall continue to apply as binding agreements.

4. Supplementations and amendments of the concluded agreements, including these General Sales Conditions, must be made in writing to be legally effective. For complying with the written form agreed here it shall also be sufficient, amongst other things, to transmit declarations by fax or also telecommunication transmission, in particular by email, insofar as these declarations are confirmed in the same text form by the respective other contractual party.

5. Information of the Seller on the subject of the delivery or service  (e.g. weights, dimension, practical values, load capability, tolerances, technical or other performance data) and the corresponding presentations of the Seller regarding the aforementioned information (e.g. technical drawings, images) shall only be approximately authoritative insofar as they are not designated in writing as binding and/or insofar as the usability for the contractually envisaged purpose does not require a precise compliance with the provided specifications. They are not guaranteed quality features, but rather descriptions or designations of the delivery or service. Customary deviations and deviations due to statutory regulations or which constitute technical improvements, as well as replacements with components of the same quality shall be authorized, insofar as they do not affect the usability for the contractually envisaged purpose.

§ 3 Provided Documents

1. We reserve the rights of ownership and copyrights to all documents provided to the Orderer in connection with placing of orders—including documents in electronic form, such as calculations, technical drawings, etc. These documents are not allowed to be made available to third parties, unless we give our express written approval to the Orderer. Insofar as we do not accept the offer of the Orderer within the period stipulated in § 2, these documents must be immediately returned to us.

2. Products commissioned by the Orderer in accordance with technical drawings or samples shall obligate the Orderer to check for any possible third-party copyrights and to ensure that such rights are not infringed. If this obligation is not complied with and we are consequently forbidden from producing by a third party citing a copyright it owns or if the product may not be used because of the violation of the copyright, we shall be entitled—without checking the legal situation and with the exclusion of all compensation claims of the Orderer, on whatever legal ground—to stop production and delivery until the facts and circumstances have been clarified and to demand compensation from the Orderer, amounting to at least 15 % of the invoice value for the ordered product. The Orderer shall now already indemnify us from damage claims and third-party claims for compensation, in particular from holders of rights, upon first demand. The scope of the damage shall also include costs which we incur though defending against third-party claims.

§ 4 Prices and Payment

1. Insofar as nothing to the contrary has been agreed in writing, our prices shall apply ex works, excluding packaging and plus the statutory value-added tax applicable on the day of the invoice. Costs of packaging shall be invoiced separately.

2. The purchasing price must be paid exclusively onto the account stipulated overleaf. The deduction of a cash discount shall only be authorized in the case of a separate written agreement.

3. Insofar as nothing to the contrary has been agreed, the buying price must be paid within 10 days after delivery. Interest on arrears shall be calculated at 9 percentage points above the respective basic interest rate p.a. We reserve the right to assert greater compensation for damage caused by delay.

4. Insofar as no agreement can be reached for a fixed price, we reserve the right to appropriate price changes because of altered wage, material and distribution costs for deliveries which are made 3 months or later after conclusion of a contract.

§ 5 Industrial Property Rights/Copyrights

1. Generally there are industrial property rights/copyrights of the manufacturer/licensor or the Seller to the products, incl. descriptions and similar documents as well as additional data (drafts, technical drawings, certificates, software and similar) . Insofar as not expressly agreed between Seller and Orderer, even after the conclusion of the contract between the Seller and the Orderer the industrial property rights shall remain with the respective owner of the copyright (manufacturer, licensor, seller) and shall not be transferred. The Orderer shall undertake to ensure compliance with industrial property rights. In particular such property rights on the products, documents and/or other data may not be altered, covered or removed by the Orderer. Furthermore, the Orderer must notify the Buyer regarding the aforementioned copyrights and license conditions of the manufacturer/licensor or the Seller. The Seller expressly reserves the right to assert any claims involved with this.

2. If the Seller receives copyrights and/or industrial property rights through the development and/or implementation of a contract, these shall not be transferred through the sale of the object of delivery. The Seller is insofar also authorized to exploit these copyrights and/or industrial copyrights for orders of third parties.

§ 6 Set-Off/Retention Rights

The Orderer shall only be entitled to set-off rights if its counterclaims have been determined without further legal recourse, are undisputed or have been recognized by us in writing. The Orderer shall only be entitled to a retention right only on the grounds of counterclaims which have been determined, are undisputed and have been recognized by us in writing or if the counterclaims of the Orderer related to the right to refuse payment or retention right are based on the contract.

§ 7 Delivery Period

1. The beginning of the delivery period stipulated by us requires the prompt and proper fulfillment of the Orderer’s obligations, particularly clarification of all technical issues, the documents to be delivered by the Orderer and approvals, particularly of plans, as well as compliance with the agreement payment conditions and fulfillment of other cooperation actions by the Orderer.

2. The right to raise objection to non fulfillment of the agreement is reserved. The compliance with our delivery obligation furthermore requires the timely and proper fulfillment of the Orderer’s obligation as well as proper delivery to us of the raw materials necessary for manufacturing the delivery product. The right to raise objection to non fulfillment of the agreement is reserved.

3. If non-compliance with delivery dates is because of force majeure, e.g. strike, lockout, pandemic, etc., the deadlines shall be appropriately extended. Such an appropriate extension of the delivery dates shall also arise if we are not correctly and punctually supplied (conditional upon correct and punctual delivery by our suppliers).

4. If the Orderer defaults on acceptance or if it culpably violates other cooperation obligations, we shall be entitled to demand compensation for any damage which we might incur, including any possible additional expenses. Further-reaching claims shall remain reserved. Insofar as the aforementioned requirements are fulfilled, the risk of accidental loss or deterioration of the goods shall be transferred to the Orderer at the moment when it defaults on acceptance or payment of its debt.

5. We shall be liable in the case of a delay in delivery not caused by us willfully or through gross negligence for every complete week of delay within the framework of a fixed compensation for delay amounting to 3 % of the delivery value, but with a maximum of not more than 15 % of the delivery value.

6. Additional statutory claims and rights of the Orderer because of a delay in delivery shall remain unaffected.

7. We shall be entitled to a reasonable scope of partial deliveries. Deviations with regard to dimensions, weight, technical design, manufacturing and the scope of the goods to be delivered shall be permitted within the usual product-typical tolerances. Furthermore, amendments which serve the technical improvement of our products shall be deemed as authorized by the Orderer.

§ 8 Transfer of Risk

1. Insofar as nothing to the contrary is stipulated in the order confirmation, delivery shall be agreed “ex works”.

2. If the goods are dispatched to the Orderer, once they are sent to the Orderer, at the latest when they leave the works/warehouse the risk of accidental loss or accidental deterioration of the goods shall be transferred to the Orderer. This shall apply irrespective of whether the goods are dispatched from the place of fulfillment or who bears the freight costs.

3. Insofar as the Orderer requires this, we shall provide insurance cover for transport; the Orderer shall insofar bear the incurred costs.

§ 9 Retention of Title/Right of Withdrawal

1. We reserve the ownership of the object of sale until complete payment of all receivables on the basis of the business relationship with the Orderer. The reservation of ownership shall also include products made through processing. In the case of processing, combining or mixing our goods with other material we shall receive co-ownership to the product created in this way in the ratio of the value of our goods to the other material. Instead of the transfer of ownership, the Orderer shall be responsible for storing the goods free of charge on behalf of us with the prudence of a diligent businessperson.

2. As long as the ownership is not transferred to the Orderer, the Orderer shall be obligated to carefully handle the object of sale. In particular the Orderer shall undertake to insure the purchased item adequately at new value at its own cost against theft, fire and water damage. If maintenance and inspection works have to be performed, the Orderer must perform these in good time at its own costs. As long as the ownership has not yet been transferred, the Orderer must immediately notify us in writing if the supplied object is seized or subjected to other interventions by third parties. Insofar as the third party is not able to reimburse us for the court costs and extrajudicial costs of a court case pursuant to Section 771 of the Code of Civil Procedure (ZPO), the Orderer shall be liable for the financial loss incurred by us.

3. The Orderer shall be entitled to resell the goods subject to retention of title in normal business transactions. The Orderer shall already assign to us the claims vis-à-vis the buyer from the resale of the goods subject to retention of title in the amount of the final invoice sum agreed with us (including value-added tax). This assignment shall apply whether the object of sale was resold without processing or after processing. The Orderer shall also remain entitled to collect the receivable even after the assignment. Our authorization to collect the receivable ourselves shall remain unaffected by this. However, we shall not collect the receivable insofar as the Orderer fulfills its payment obligations from the collected earnings, is not in arrears on payments and in particular no application has been made to open insolvency proceedings or for a cessation of payments.

4. The treatment and processing or reshaping of the object of sale by the Orderer shall always be made in our name and on behalf of us. In this case the expectant right of the Orderer to the object of sale on the redesigned good shall continue. Insofar as the object of sale can be processed together with objects that do not belong to it, we shall acquire co-ownership to the object in the ratio of the objective value of our object of sale to the other processed objects at the time of the processing. The same shall apply in the case of the mixing. Insofar as the mixing is performed in such a way that the object of the Orderer is regarded as the main object, it shall be deemed as agreed that the Orderer transfers co-ownership to us and holds the sole ownership or co-ownership arising in this way in safe custody on behalf of us. For securing our claims vis-à-vis the Orderer, the Orderer shall also assign such claims to us which emerge vis-à-vis a third party through the combination of the goods subject to retention of title with a plot of land; we already now accept this assignment.

5. We hereby undertake to release such securities upon request by the Orderer, insofar as their value exceeds the claims to be secured by more than 20 %.

6. If the Orderer violates its contractual obligation or is in arrears on payment, we may withdraw from the contract if it does not fulfill its obligation after an appropriate deadline is set or if continuing the contract also cannot be expected without a reminder. We may also declare our withdrawal through taking back the object of sale. After taking back the object of sale we shall be entitled to exploit it, and the earnings shall be set off against the liabilities of the Orderer—minus appropriate exploitation costs. This shall also apply for all future deliveries, also if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the Orderer acts in violation of the contract.

§ 10 Warranty and Notice of Defects and Recourse/Manufacturer Recourse

1. Warranty rights of the Orderer require that the Orderer has properly complied with its obligations to inspect the goods and to give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).

2. Claims for defects shall become statute-barred 12 months after transfer of the risk for the goods to the Orderer. The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, limb and health which are based on an intentional or negligent breach of duty by the user. Insofar as statutory legislation stipulates mandatory longer periods in accordance with Section 438 (1), no. 2 of the German Civil Code (BGB) (buildings and items for buildings), Section 445 b of the German Civil Code (BGB) (right of recourse) and Section 634a (1) of the German Civil Code (BGB) (construction defects), these periods shall apply. Our consent must be obtained before any goods are returned.

3. If, despite all due care, the delivered goods have a defect which already existed at the time of the transfer of risk, we shall, according to our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always have the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction

4. If the supplementary performance fails, the Orderer may withdraw from the contract or reduce the remuneration, irrespective of any claims for damages.

5. Claims for defects shall not be deemed legitimate in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive loads, unsuitable operating materials, defective construction work, unsuitable building ground or due to particular external influences which are not intended under the contract. If the Orderer or third parties perform improper repair work or modifications, no claims for defects for these and the resulting consequences shall apply.

6. Claims of the Orderer because of the expenses required for subsequent performance—in particular transportation, traveling, labor and material costs shall be ruled out—insofar as the expenses increase because the goods delivered by us have subsequently been brought to another location rather than the branch of the Orderer, unless the shipment is in accordance with the intended use.

7. The Orderer’s right of recourse against us shall only exist insofar as the Orderer has not entered into any agreements with its customer that go beyond the statutory mandatory claims for defects. Furthermore, sub-section 6 shall apply accordingly to the scope of the Orderer’s right of recourse against the supplier.

8. We shall be liable pursuant to statutory regulations, insofar as the Orderer asserts claims for damages which are based on willful intent or gross negligence, including willful intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional contractual violation, liability to pay compensation for damage shall be restricted to the foreseeable, typically occurring damage.

9. We shall be liable pursuant to statutory regulations, insofar as we violate a material contractual obligation; however, in this case liability for compensation for damage shall also be restricted to the foreseeable, typically occurring damage. A material contractual obligation shall be deemed to exist if the violation of the obligation relates to an obligation which the Client had trusted would be fulfilled and should be able to assume would be fulfilled.

10. The liability on the basis of injury to life, limb and health shall remain unaffected; this shall also apply to mandatory liability pursuant to the Product Liability Act.

11. Insofar as nothing to the contrary is regulated above, liability shall be ruled out.

§ 11 Data Processing Permission

The Seller shall be entitled to process all data related to the Buyer received in connection with the business relationship within the framework of the respective applicable statutory regulations.

§ 12 Miscellaneous

1. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

2. Our registered office shall be the place of performance and exclusive place of jurisdiction for all disputes arising from this contract, unless otherwise stated in the order confirmation (note:  the use of the clause is not permitted if at least one of the parties is a company not entered in the commercial register).

3. These General Sales Conditions shall also remain valid if individual provisions should prove to be invalid. The invalid provision shall be supplemented or reinterpreted by the parties in such a way that the economic purpose intended by the invalid provision is achieved as far as possible. The same approach should be adopted if a legal loophole requiring a supplementary provision is discovered during implementation of the contractual relationship. If the invalidity is related to a service or time provision, this shall be replaced by one which complies with statutory regulations. Should a provision of these General Sales Conditions be invalid in relation to mandatory foreign law, upon request the Orderer shall agree with us the contractual supplementations and provide declarations to third-parties or official authorities which ensure that the affected provision remains valid and, if this is not possible, its economic content remains guaranteed pursuant to foreign law.

4. The German version of the General Sales Conditions shall be the definitive version. It shall have priority over the English translation and is designed pursuant to German jurisprudence.