General Terms and Conditions
Version: March 2019
I. Scope, form:
- These General Terms and Conditions of Sale (GTC) govern all business relationships with our customers ("Buyers"). The GTC apply only to Buyers who are entrepreneurs (Section 14 of the German Civil Code, BGB), a legal entity under public law or a special fund under public law.
- The GTC apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether manufactured by ourselves or purchased by us from suppliers (Sections 433, 651 BGB). Unless otherwise agreed, the GTC apply in the version valid on the date of the Buyer's order or at least in the last version communicated to the Buyer in text form. These GTC constitute a framework agreement and also apply to similar contracts in the future, without us having to reference them again in each individual case.
- Our GTC shall apply exclusively. Deviating, conflicting or supplementary terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly consented to it. This requirement to provide consent applies in all cases, e.g. also if we deliver to the Buyer without reservation and being aware of the terms and conditions of the Buyer.
- Individual agreements with the Buyer (including side agreements, additions and modifications), which may be entered into in specific cases, take precedence over these GTC. The content of such agreements shall in any case—and subject to evidence to the contrary—be valid only if written consent has been provided by us.
- Legally relevant statements and notices of the Buyer in relation to the contract (e.g. the setting of deadlines, issuing a reminder, submitting a notification of defects, withdrawal or price reduction) shall be made in writing, i.e. in written or text form (e.g. by letter, e-mail, fax). Formal statutory requirements and other evidence, in particular in case of doubt regarding the authorisation of the person making the statement, remain unaffected.
- Any references to the application of statutory provisions are for purposes of clarification only. Even without such clarification, the statutory provisions shall apply unless directly amended or expressly excluded in these GTC.
II. Contract conclusion:
- Our offers are non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents—including those provided in electronic form—in which we have reserved property rights and copyrights.
- An order for goods by the Buyer is considered as a binding offer to conclude a contract. Unless otherwise resulting from the order, we are entitled to accept this offer to conclude a contract within four weeks of receipt.
- Acceptance can be confirmed in writing (e.g. by order confirmation) or by delivering the goods to the Buyer.
- Unless otherwise agreed in individual cases, our prices valid at the time of the concluding the contract shall apply. Prices are ex warehouse, plus statutory sales tax.
- In the case of a purchase for shipment to the destination (section V, no. 1), the Buyer shall bear the transport costs ex warehouse and the costs of transport insurance, if requested by the Buyer. Any duties, fees, taxes and other public charges shall be borne by the Buyer.
IV. Delivery Period and Default in Delivery:
- The delivery period is individually agreed or specified by us upon acceptance of the order. Delivery dates and times requested by the customer shall be specified in writing in the order. However, they are only deemed to be bindingly agreed upon if accepted in writing by SAF-HOLLAND and, in this case, the delivery period shall commence on the date of receipt of our order confirmation.
- If we are unable to keep binding delivery dates for reasons for which we are not responsible (unavailability of the goods/services to be delivered), we will inform the Buyer without delay and at the same time notify the Buyer of the expected revised delivery date. If the goods/services are not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer will be reimbursed without delay. A case of non-availability of goods/services to this effect shall be, in particular, if our supplier fails to supply us in time, if we have concluded a congruent hedging transaction and neither we nor our suppliers are at fault or if we are not obliged to deliver in a specific case.
- The occurrence of a default in delivery is determined by the provisions of law. In each case, however, a reminder is required from the Buyer.
- The rights of the Buyer pursuant to section IX of these GTC and our statutory rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the service and/or subsequent performance) remain unaffected.
V. Delivery, Transfer of Risk, Acceptance, Default of Acceptance:
- Delivery is ex warehouse, which is also the place of performance for the delivery and any subsequent performance. Goods may be shipped to another destination (sale by dispatch) at the request and expense of the Buyer. Unless otherwise agreed, we are entitled to choose the type of shipment (in particular transport company, shipping route, and packaging).
- The risk of accidental loss and accidental deterioration of goods passes to the Buyer no later than upon handover. However, in the case of a sale by dispatch, the risk of accidental loss and accidental deterioration of goods as well as the risk of delay shall pass to the forwarder, the carrier or the person or institution otherwise responsible for the dispatch As far as an acceptance must take place, this is relevant for the transfer of risk In addition, the statutory provisions on contracts for works and services ("Werkvertragsrecht") shall apply accordingly if acceptance has been agreed. Default of acceptance by the Customer shall be equivalent to delivery or acceptance.
- If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for resulting damages including additional expenses (e.g. storage costs).
VI. Payment Terms:
- Unless otherwise agreed, the purchase price shall be due and payable within 10 days with a discount of 2% or within 30 days net, from the date of receipt of the invoice or from the date of delivery/acceptance, whichever occurs later. No cash discount is granted in case of payment by bill of exchange. No discount is granted if the Buyer is in default with the payment of previous deliveries and services.
- Even in the context of an ongoing business relationship, we shall be entitled, at any time, to demand advance payment of all or part of the total amount for a delivery. A reservation in this regard will be stated at the latest when the order is confirmed.
- The Buyer is in default after expiry of the 30-day payment period. The purchase price is subject to the statutory default interest rate during the default period. We reserve the right to assert further claims for damages caused by default. Our entitlement to claim the commercial interest on maturity (Section 353 German Commercial Code [Handelsgesetzbuch - HGB]) vis-à-vis merchants shall remain unaffected.
- The Buyer is entitled to set-off or to exercise rights of retention only if his claim is legally established or undisputed. In case of defects regarding the delivery, the rights of the Buyer in accordance with Section VIII (6), sentence 2 of these GTC shall remain unaffected.
- If bills of exchange or checks are given in lieu of payment, the debt will only be redeemed upon their redemption. Any discount charges based on private bank rates and extrajudicial and/or judicial costs associated with the collection of bills of exchange and checks shall be borne by the Buyer.
- If, after the conclusion of the contract, it becomes recognizable (e.g. application for the opening of insolvency proceedings) that our claim to receive the purchase price may be jeopardized by a lack of solvency on the part of the Buyer, we are entitled to refuse service and—after setting a deadline, as necessary—cancel the contract (Section 321 BGB). In the case of contracts for the manufacture of specific items (making to specification) we may withdraw immediately. The statutory regulations concerning the dispensability of the fixing of a time-limit shall remain unaffected.
VII. Reservation of Title:
- Goods sold by us remain our property until full payment of all current and future claims arising from the purchase agreement and from an ongoing business relationship (secured claims).
- Goods subject to reservation of title may not be pledged to third parties or transferred as collateral prior to the full payment of the secured claims. The Buyer shall notify us without delay and in writing if an application for the opening of insolvency proceedings is made or if goods owned by us may be affected by third-party access (e.g. seizure).
- If the Buyer breaches the contract, in particular in case of non-payment of the purchase price due, we are entitled to withdraw from the contract according to the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; instead, we are entitled to claim return of the goods and reserve the right of withdrawal. If the Buyer does not pay the purchase price by the due date, we may only assert these rights if we have unsuccessfully given the Buyer a reasonable respite period for making the payment or if such respite period is dispensable according to the law.
- Until further notice, and in accordance with section (c) below, the Buyer may resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, and we shall be deemed to be the manufacturer. If third-party property rights apply in the context of processing, mixing or combination with the goods of third parties, we shall acquire co-ownership in proportion to the invoiced value of the processed, mixed or connected goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under a reservation of title.
(b) The Buyer hereby assigns to us his claims against third parties resulting from the resale of the goods or products as collateral in the total amount or in the pro-rata amount of our potential co-ownership share as specified in the paragraph above. We accept the assignment. The Buyer’s obligations specified in clause 2 also apply with regard to the assigned claims.
(c) The Buyer remains authorized to collect the claim in addition to us. We undertake not to collect the receivables, as long as the Buyer meets his payment obligations to us, no application is made for the opening of insolvency proceedings and a reservation of title by exercising a right according to no. 3 is not actually exercised. If this is the case however, we may request the customer to disclose to us the assigned claims and their debtors, provide all information necessary to collect the claims, hand over the relevant documents and notify his debtors (third parties) of the assignment. In this case we are also entitled to revoke the Buyer's authority to resell and process the goods subject to retention of title.
(d) Should the value of the collateral exceed our claims by more than 10%, we shall, at the request of the Buyer, release collateral of our choice.
VIII. Buyer’s Warranty Claims:
- The statutory provisions shall apply to the rights of the Buyer in case of defects of quality and title (including incorrect delivery and shortfall, incorrect or inadequate assembly instructions), unless otherwise stated below. The statutory special provisions on supplier recourse (Sections 454a, 454b, 478, 479 BGB) shall remain unaffected in any case.
- The basis of our liability for defects is mainly the agreement on the quality of the goods. Any product specifications of contractual items that are made publicly available by us (in particular in catalogues or on our website) are considered as specification of the quality of the goods.
- In the absence of a quality agreement, the existence or non-existence of a defect shall be assessed based on statutory provisions, as to whether or not a defect applies (Section 434 (1) p. 2 and 3 BGB). However, we accept no liability for public statements made by third parties.
- Warranty claims of the Buyer require that the Buyer has complied with his statutory obligations to examine the goods and give notice of defects (Sections 377, 381 HGB). If a defect is identified at the time of delivery or examination or on any later date, this shall be communicated to us in writing and without delay. In any case, obvious defects shall be reported in writing within five working days of delivery and any defects not identifiable upon inspection, within the same period from the date of their discovery. If the Buyer fails to properly examine the goods and/or report a defect, our liability for a defect not reported to us or not reported in a timely or proper manner is excluded in accordance with the statutory provisions.
- If the delivered item has a defect, we can initially choose, at our discretion, whether to remedy the defect (subsequent performance) or to deliver a defect-free item (replacement). Our right to refuse subsequent performance subject to statutory provisions remains unaffected.
- We are entitled to make the owed subsequent performance dependent on the Buyer paying the due purchase price. The Buyer is, however, entitled to retain a portion of the purchase price which is reasonable in relation to the defect.
- The Buyer is required to give us the time and opportunity to carry out the owed subsequent performance and, in particular, hand over the rejected goods for examination purposes. In the case of replacement, the Buyer shall return the defective item in accordance with the statutory regulations.
- We shall bear the expenses for testing and subsequent performance, in particular transport, travel and labour costs, if an actual defect is found. In such case, we will also replace the expenses required for the removal of the defective item(s) and the installation of the repaired or delivered non-defective goods. Otherwise, we may demand compensation from the Buyer for the costs arising from an unjustified request for the repair of an alleged defect (in particular inspection and transportation costs), unless the lack of defect was not recognizable for the Buyer.
- If subsequent performance has failed or if an adequate deadline period set by the Buyer has expired unsuccessfully or is dispensable according to the law, the Buyer shall be entitled to withdraw from the purchase contract or reduce the purchase price. However, the Buyer may not withdraw from the contract in the case of a minor defect.
- Any entitlement of the Buyer to claim damages or compensation for wasted expenses shall apply only as stipulated in section IX and shall otherwise be excluded.
IX. Other Liabilities:
- Unless otherwise specified in these GTC including the provisions below, we shall be liable in the event of a breach of contractual and non-contractual obligations as required by law.
- We are liable to compensate for damages—for whatever legal reason—in the context of fault-based liability in case of intent and gross negligence. In the case of simple negligence, our liability is limited, subject to a narrower scope of liability, to the extent required by law (e.g. for diligence as applied to our own affairs) only
- a) for damage resulting from injury to life, limb or health,
- b) for damages arising from a not insignificant breach of a material contractual obligation (i.e. an obligation the proper fulfilment of which constitutes a condition sine qua non and on the fulfilment of which a customer relies and may regularly rely upon); in this case, however, our liability is limited to compensation for foreseeable, typical damage.
- The liability limitations of no. 2 also apply to breaches of duty by or for the benefit of persons whose actions we are responsible for according to the law. They do not apply if we fraudulently have concealed a defect or assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
- The Buyer can only withdraw from or terminate the contract on the grounds of a breach of duty which is not a defect, if we are responsible for such breach of duty. A general right of termination of the Buyer (in particular according to sections 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
X. Limitation of Claims for Defects:
- Notwithstanding Section 438 (1) no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from the date of delivery. Insofar as acceptance has been agreed, the period of limitation starts on the date of acceptance. However, this does not apply to claims for damages arising from material and legal defects; the provision in Section 3 applies in this regard.
- However, if the goods relate to a building or a thing that has been used for a building in accordance with the normal way it is used and has resulted in the defectiveness of the building (building material), the limitation period is 5 years from the date of delivery as provided by law (Section 438 (1) No. 2 BGB). Other statutory special regulations regarding the limitation period remain unaffected (in particular, Section 438 (1) no. 1, (3), Sections 444, 479 BGB).
- The above-specified limitation periods of the sale-of-goods law also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the normal statutory limitation period (Section 195, 199 BGB) would result in a shorter limitation period in a specific case. However, claims for damages of the Buyer pursuant to Section IX (2) sentence 1 and sentence 2 (a) as well as pursuant to the Product Liability Act expire only in accordance with the statutory limitation periods.
XI. Confidentiality, Choice of Law and Jurisdiction:
- Buyers are required to keep confidential any technical and commercial details not available in the public domain that they become aware of through the business relationship.
- All contracts between the parties and their execution shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction and also the international place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship is the place of jurisdiction for our registered offices in Bessenbach. The same applies if the Buyer is an entrepreneur within the meaning of Section 14 BGB. However, we are in any case also choose to file a claim at the place of performance in accordance with these GTS or a priority individual agreement or at the general place of jurisdiction of the Buyer. Priority laws, especially regarding exclusive jurisdiction, remain unaffected.