General Terms and Conditions of SONOTEC GmbH for Sales, Deliveries and Payment
Unless otherwise expressly agreed in writing, the following terms and conditions shall apply for all business transactions with commercial entities concerning all - also future - sales and deliveries. The terms and conditions of the customer shall only apply if we expressly consent to these in writing.
1. Our tenders are non-binding. Contracts shall only come into being once we have issued confirmation of orders or made delivery. Technical data, illustrations, designs and details on weight and dimensions shall only be binding once confirmed in writing. We reserve the right to make design amendments. Information and specifications given in prospectuses and operating instructions are not to be taken as guaranteed qualities. The customer is responsible for verifying the applicability of our products.
2. The delivery period begins at the time of confirmation of order, however not before clarification of all details required for the execution of the order and not before receipt from the customer of all required documentation and permits and of the required deposits/down payments. The beginning of delivery periods specified by us shall be dependent on the prior fulfilment in a prompt and proper manner of all obligations of the customer. The delivery period shall be deemed as having been observed if the goods have been made available for collection from the factory or if the customer has been informed that the goods are ready for delivery before the expiry of the agreed deadline. We are entitled to make partial deliveries. Amendment requests from the customer and unforeseen events that are beyond our control, for example force majeure, strikes, lock-outs, interruptions to operations, difficulties in the obtaining of materials or energy supplies, delays to transport, official measures imposed by the authorities, delivery failures or delays to deliveries etc. shall lead accordingly to the reasonable extension of the delivery period. If such obstructions prove to be not merely temporary, we shall be entitled to rescind the contract. Claims for damages with respect to delayed delivery are excluded.
3. For shipping we shall choose, at our discretion, the safest and most cost-effective method. All risk and cost shall be transferred to the customer ex works. If deliveries are delayed due to circumstances for which the customer is responsible;
- risk shall be transferred at the time of notification being issued to the customer of readiness of the goods for delivery;
- we shall store the goods at the cost of the customer: if storage is at the factory we shall charge a minimum amount per month of 0.5 % of the invoice amount of the stored delivery;
- after the setting of a reasonable period of grace and after the expiry of this period of grace to no effect, we shall be entitled to rescind the contract or demand compensation for damages due to non-fulfilment of contract;
- the customer shall bear in particular the risk and cost arising as a result of his failure to promptly fulfil his obligations with regard to notifications and the execution of all formalities.
4. Our prices do not include the cost of packaging, freight etc. These costs shall be placed separately on the invoice. The legally applicable amount of VAT is also not included in our prices; this shall also be shown separately on the invoice in the amount applicable on the date of the issue of the invoice. Insofar as fixed prices have not been agreed, we reserve the right to make reasonable amendments to prices to take into account changes to wage costs, material costs and operational costs for deliveries that come into effect four months or later after the time of completion of the contract.
5. We reserve ownership of delivered goods until the customer has settled all claims arising from business relations with us. The processing and adaptation of the goods shall be on our behalf as manufacturer, without this leading to any obligations on our behalf. In the event of the reworking and combination of goods with other goods, we shall acquire ownership of the newly created goods in the proportion of the invoice value of the goods subject to retention of title to the other materials. The customer shall only be entitled to sell the goods subject to retention of title during the course of normal business transactions and shall be obliged to notify us immediately of any attachments by third parties. At our request the customer shall be obliged to insure the goods subject to retention of title against loss and damages; the customer hereby assigns his claims and entitlements under the insurance policy to us in advance. The customer hereby assigns to us in advance as security his claims and entitlements from the sale of the goods subject to retention of title and/or the newly created goods resulting from the reworking or combination of the goods subject to retention of title with other goods to the extent of the invoice value of our delivery. The customer shall be entitled to enforce all such claims and entitlements, insofar as he fulfils his payment obligations towards us. If the substantiation of our claims appears to us to be endangered, the customer shall be obliged at our request to enable the recovery of the goods subject to retention of title, to inform his purchaser of the assignment of claims and entitlements and to provide us with all information and documentation required. We shall be entitled to notify his customers of the assignment of claims and entitlements. In the event of the recovery of the goods subject to retention of title, this shall not constitute the rescission of the contract. In the event that value of security provided by the customer exceeds the value of our claims by more than 20 %, at the request of the customer we shall return security of an appropriate value and of our choosing. All rights of ownership and copyrights to our designs, illustrations and other documentation shall remain with us. Such items may not be made accessible to third parties.
6. Payments shall only be deemed as having been made to the extent that we are able to freely dispose of such monies via a bank. We only accept cheques and bills of exchange on account of payment; bank discounts and charges shall be charged to the customer. In the event of late payments, we shall charge default interest as of the due date for payment at a rate of eight percent above the base rate; a prior written reminder shall not be required. In the event of a significant deterioration of the financial position of the customer and if this leads to our claims being endangered, in particular if an application is submitted for the initiation of insolvency proceedings against the assets of the customer, we shall be entitled at our discretion either to rescind the part of the contract not yet fulfilled, to demand the payment of security or to demand advance payment concurrently to delivery. The customer shall only be entitled to offset against our claims counterclaims that have been legally established by a court of law or that are not in dispute. In the event of disputed complaints concerning the delivered goods, the customer shall not be entitled to withhold payment of due invoiced amounts, nor shall he be entitled to reduce such amounts. The customer shall only be entitled to exercise rights of retention insofar as his counterclaims pertain to the same contractual relationship.
7. The customer's rights under warranty shall only be valid if the customer observes his obligations under section 377 of German Commercial Code (Handelsgesetzbuch, HGB) concerning the inspection of goods and submission of notice of defects. We are to be given written notification of obvious defects to delivered goods at the latest within 14 calendar days of receipt of the goods; in the case of non-obvious defects written notification is to be given immediately upon discovery of defects. If these notification periods are not observed, all claims arising from defects shall lapse. This shall also apply accordingly if delivered goods are handled, treated or processed improperly. In the event of defects to purchased goods, we shall at our discretion either subsequently improve the delivered goods in order to eliminate defects or make delivery of a new batch of defect-free goods. If attempts to subsequently improve delivered goods are without success, the customer shall be entitled at his discretion to either rescind the contract or demand a reduction in the invoice amount. The limitation period for claims arising from defects is 12 months, starting at the time of the transfer of risk. If the customer first operates or makes use of the goods at a later point in time, this shall not lead to an extension of this limitation period for claims. No claims under warranty shall exist for consumable items such as disposable or rechargeable batteries.
8. Claims to compensation for damages - irrespective of type of claim - against us shall be excluded, insofar as we, our legal representatives or vicarious agents have merely acted with simple negligence. In the event of claims to compensation for damages resulting from the gross negligence or deliberate acts of our legal representatives or vicarious agents, we shall be liable to the extent stipulated in the applicable legislative provisions. The same shall apply in cases of breaches of material contractual obligations. For this purpose the term 'material contractual obligation' shall be defined as an obligation whose infringement seriously jeopardises the purpose of the contract, e.g. in the case of significant delays, in the case of not insignificant breaches of duties to provide information or cooperate or in the case of significant breaches of duties that make or break the contract. However, except in cases of intentional acts, our liability shall be restricted to damages that could typically have been foreseen taking into account the nature of the contract. This shall not affect liability for the culpable loss of life or injury to health or person. This shall also apply for mandatory liability pursuant to the Product Liability Act (Produkthaftungsgesetz, ProdHG). Insofar as the enforcement of claims against us on grounds of liability for damages is excluded or restricted, this shall also apply in respect of the personal liability of our employees, staff members, representatives and vicarious agents.
9. We will accept returned transport packaging at the cost of the customer, insofar as the customer has not waived the return of packaging. Waste electrical and electronic equipment is disposed of pursuant to EAR (Elektro-Altgeräte Register) guidelines (WEEE).
10. This contract and all legal relations between the parties are subject to the law of the Federal Republic of Germany under the express exclusion of the UN Convention on the International Sale of Goods (CISG). The place of performance and exclusive place of jurisdiction for all disputes arising from the underlying contracts shall be Halle (Saale), insofar as permitted by law and unless not otherwise agreed in the confirmation of order. All agreements between the parties for the purpose of the execution of this contract are documented in writing in this contract.
If one of the provisions of these terms and conditions is or becomes wholly or partially ineffective or if one of the provisions were to be found inadequate, this shall not affect the other provisions contained herein.