Section 1 Scope
- These Terms and Conditions of Business are applicable to companies, legal entities under public law and special funds under public law. These Terms and Conditions of Business shall also be deemed applicable if no specific reference to them is made.
Our deliveries and performances are rendered exclusively on the basis of the conditions set forth below.
The customer’s general terms and conditions of business shall only be deemed valid if we explicitly accept them in writing for the respective specific contract. In the event that the customer confirms the order with conditions that deviate from our General Terms and Conditions of Business, then our general terms and conditions of business shall apply even if we do not explicitly object. Our General Terms and Conditions of Business shall be deemed to be fully acknowledged by the customer at the time our delivery performance is accepted at the latest.
Section 2 General provisions
- Our quotes are subject to change. Orders only become binding based on our order confirmation, unless stipulated otherwise in the contract.
- The information and pictures provided in quotes, price lists, flyers, catalogs, etc. are approximations customary in the industry unless we have explicitly termed them as binding.
- Information provided by telephone and in person shall always be deemed non-binding and has no legal force until explicitly confirmed by us in writing.
Section 3 Long-term and call-off agreements, price adjustment
- In the event of unforeseeable cost increases, we reserve the right to adjust the prices, including in cases where the orders have already been placed.
Section 4 Confidentiality
- Each party agrees to use any materials (these also include samples, models and data) and know-how obtained in connection with the business relationships exclusively for the jointly pursued purposes and to protect them from disclosure to third parties with the same diligence as for its own materials and know-how if the other party has labeled them as confidential or has an obvious interest in their non-disclosure. This duty starts when the materials or know-how are received for the first time and shall continue beyond the termination of the business relationship.
- The duty does not apply to materials and know-how which are generally known or which were already known to the customer at the time they received them, without being bound to secrecy, or which were later transmitted by a third party authorized to disclose them or which are developed by the receiving customer without the utilization of confidential materials or know-how pertaining to the other customer.
Section 5 Drawings and descriptions
- If a party provides the other party with drawings or technical specifications concerning the merchandise to be delivered or its manufacture, they shall remain the property of the providing party.
Section 6 Payment terms
- Unless agreed otherwise, our respective invoice is payable immediately without discount.
- In the event of an undisputed delivery of deficient merchandise on our part, our customer is still obliged to pay for the non-deficient share.
- In all other respects, the customer may only offset counterclaims that have been legally established or are undisputed.
- If the deadline for payment is missed, we are authorized to charge interest at the rate the bank is charging us for current account overdraft starting from the due date, but at least in the amount of 8 percentage points above the respective base rate set by the European Central Bank. We reserve the right to assert more substantial compensation claims. Specifically, we are entitled to charge a processing fee of EUR 20.00 plus applicable sales tax for every reminder.
- If the payment is delayed, we are entitled to suspend the performance of our duties until payment is received provided the customer has been notified hereof in writing.
- Bank drafts are not accepted and checks are only accepted by agreement and as conditional payment. A guarantee for the timely presentation of the check and for raising a check protest is excluded.
- Should it become apparent after the contract has been executed, that our entitlement to payment is at risk because of the customer’s lack of ability to pay, we are entitled to refuse our performance and provide the customer with a reasonable deadline within which they are asked to make payment versus delivery or provide a security. If the customer refuses or if the deadline passes unsuccessfully, we are entitled to withdraw from the contract and request compensation for damages.
Section 7 Delivery
- Unless stipulated otherwise, our deliveries are made “ex works”. Our notification of readiness to ship or collect is decisive for compliance with the delivery date or time.
- The delivery time shall be extended appropriately if the conditions of Section 9 or 14 apply. It shall also be extended accordingly in the event of plant closures, e.g. due to company vacations.
- Partial deliveries are permitted if their scope is reasonable. They are invoiced separately.
- Manufacturing-related excess or short deliveries are permitted within a tolerance of 10 percent of the total order quantity. The total price will be adjusted accordingly.
Section 8 Shipping and transfer of risks
- The customer shall promptly accept merchandise that has been reported ready for shipping. Otherwise, we are entitled to choose to ship it or store it at the customer’s expenses and risk.
- Unless specifically agreed otherwise, we will select the means and route of transportation.
- The risk will be transferred to the customer as soon as the merchandise has been transferred to the carrier or as soon as it is put into storage, but no later than when the merchandise leaves the plant or storage location. This also applies if we are in charge of the delivery and have appointed the carrier.
- Our transport and storage insurance only covers the part of the delivery route for which we are responsible.
- Unloading is always the responsibility of the customer and shall be carried out at their own risk and cost.
Section 9 Delivery delays
- Agreed delivery times shall be extended in accordance with plant closures due to statutory vacations or plant shutdowns.
- In the event that the delivery is delayed for a reason outlined in Section 9 or 14, or because of an action or omission of the customer, an appropriate extension will be granted to the delivery time in accordance with the circumstances.
- The customer is only entitled to withdraw from the contract if we are responsible for non-compliance with the delivery date and they have unsuccessfully set a reasonable grace period for us.
Section 10 Reservation of title
- We reserve the title of all delivered goods until all claims arising from the business relationship with the customer have been fulfilled in full. Even if payments are made for specific performances, our title shall not perish in this respect either.
- The customer is entitled to sell these goods in the ordinary course of business as long as they meet their obligations arising from the business relationship with us in a timely manner. However, they are not entitled to pledge or transfer the goods subject to retention of title as security. They agree to secure our rights in connection with the credited onward sale of the goods subject to retention.
- In the event that the customer violates any duties, in particular in the event of a delay in payment, we are entitled to withdraw from and cancel the contract after a reasonable grace period we set for the customer to render the performance has elapsed; the legal provisions concerning the non-requirement for setting a grace period shall remain unaffected. The customer is obliged to surrender the possession. We are entitled to withdraw from the contract if an application for insolvency proceedings involving the customer’s assets is initiated.
- In the event that the customer treats or processes the goods subject to retention, this shall always be done on our behalf. If the goods subject to retention are processed or inseparably mixed with other objects which do not belong to us, we acquire the co-ownership of the new merchandise at the ratio of the invoice value of the goods subject to retention to the other processed or mixed objects at the time of the processing or mixing.
- In the event that our goods are connected or inseparably mixed with other movable objects to form a uniform object and if the other object is considered the main object, the customer shall transfer co-ownership to us on a pro-rata basis insofar as the main item belongs to them. The customer shall retain the ownership or co-ownership for us at no cost. In addition, the same shall apply to the object created with the processing or connection and mixing as to the goods subject to retention.
- The customer assigns any claims and rights associated with the sale of goods for which we have a right of ownership to us by way of security. We hereby accept the assignation.
- The customer shall promptly notify us of any enforcement procedures by third parties involving the goods subject to retention, the claims assigned to us or other securities, by submitting the documents required for an intervention. The same applies to any other types of damages.
- In the event that the value of the existing securities exceeds the secured claims by more than 20 percent overall, we shall be obliged to release securities at our discretion at the customer’s request.
- Only returns accepted by us in advance are granted with a minimum reduction of the purchase price of 20 percent.
Section 11 Notification of defects/material defects
- The quality of the merchandise is based exclusively on the information contained in our catalogs or in the quotation or on the technical specifications explicitly agreed with the customer in writing. If we are asked to deliver the goods based on drawings, specifications, samples, etc. provided by our customer, they shall bear the risk associated with the suitability of the merchandise for the intended purpose. The time of the transfer of risk pursuant to Section 8 shall be deemed relevant for the contractual status of the merchandise.
- The customer or the purchaser in the case of third-party deliveries agrees to immediately examine our merchandise, including for deliveries based on samples, upon arrival for compliance and suitability and to raise any complaints concerning defective, incorrect or excess/short deliveries immediately and non-obvious defects promptly after they are identified in writing with specification of the exact details. In the event of defective or incorrect deliveries, the processing and treatment as well as onward sale shall be suspended immediately. The merchandise is deemed accepted no later than after two weeks for obvious defects after the merchandise has been received and for non-obvious defects as soon as they have been identified, unless we have received written and detailed notification of defects by that time.
- In the event that a formal acceptance of the merchandise or a first sample inspection has been agreed, any complaints regarding defects that customer would have been able to identify during the careful acceptance or first sample inspection are excluded.
- We do not accept any liability for material defects arising from unsuitable or improper transport, improper storage, use, incorrect assembly or start-up by the customer or third parties, common wear, incorrect or negligent handling or for the consequences of improper modifications or repair work performed by the customer or third parties without our consent. The same applies to defects which only insignificantly reduce the value or suitability of the merchandise.
- Claims for material defects fall under the statute of limitation 12 months after the delivery. This does not apply if longer periods are mandatory according to the law.
- We shall be given the opportunity to determine the reported defect. Merchandise that is the subject of a complaint shall be returned to us promptly upon request; we will cover the transportation costs if the notification of defects is justified. In the event that the customer fails to comply with these duties or modifies the reported merchandise without our consent, they waive any entitlement to compensation for material defects.
- In the event of a justified, timely notification of defects, we will reship the reported merchandise or deliver a new replacement at our discretion.
- If we fail to meet these obligations or fail to meet them within a reasonable period of time according to the contract, the customer is entitled to set a final deadline in writing for us, within which we must meet our obligations. After this deadline has elapsed unsuccessfully, the customer is entitled to request a price reduction, to withdraw from the contract or to perform the necessary remedy or have it performed by a third party at our expense and risk. A refund of costs is excluded insofar as the incurred expenses increase because the merchandise has been transported to a different location after being delivered by us, unless this corresponds to the intended use of the merchandise.
- The customer only has legal rights of recourse against us insofar as the customer has not made any agreements with their buyer which go beyond the statutory warranty claims. With respect to the scope of the rights of recourse, Section 8, last sentence applies accordingly.
Section 12 Other entitlements, liability
- Unless otherwise stipulated below, any other and further claims of the customer against us are excluded. This applies in particular to claims for compensation due to the violation of duties arising from the contractual relationship and tort. Therefore, we are not liable for damages which are do not involve the supplied merchandise itself. Specifically, we are not liable for lost profit or other financial losses of the customer.
- The liability limitations above do not apply in case of intent, gross negligence of our legal representatives or senior executives as well as in the case culpable violation of essential contractual duties. In the event of culpable violation of essential contractual duties, we are only liable for the typical contractual and reasonably foreseeable damage, except in cases of intent or gross negligence of our legal representatives or senior executives.
- In addition, the liability limitation does not apply to cases in which the liability according to the Product Liability Act applies to defects to the delivered merchandise for personal and material damages involving privately used objects. It also does not apply either to the impairment of life, limb or health and to the absence of promised properties if and to the extent that the purpose of the promise was to protect the customer from damages that do not involve the delivered merchandise itself.
- We do not accept any liability for verbal information and in particular information provided by telephone, because this information is always deemed non-binding and without legal force. With respect to planning, consulting, processing and other instructions, we only and exclusively accept any kind of liability if we have provided the customer with binding proposals concerning a specific project known to us in response to the customer’s written inquiry. Nevertheless, the customer is obliged to examine or appoint a competent specialist with the examination of our proposals to ensure the suitability of our products for the specific purpose intended by the customer.
- To the extent our liability is excluded or limited, this also applies to the personal liability of our officers, employees, co-workers, legal representatives and assistants.
- The statutory regulations governing the burden of proof remain unaffected.
Section 13 Statute of limitation
- All claims arising from the delivery and performance fall under the statute of limitation 12 months after the invoice date.
Section 14 Force majeure
- Epidemics and pandemics with global or national impact, force majeure, labor disputes, riots, official measures, absent deliveries from our external providers and other unforeseeable, unavoidable and serious events shall release us from our duty to perform for the duration of the interference and to the extent of its effect. The same applies if these events occur at a time in which we are in default, unless we intentionally and gross negligently caused the default. We agree to provide the necessary information promptly within a reasonable scope and to adjust the mutual duties to the changed circumstances in good faith.
Section 15 Industrial property rights/intellectual property
- SABEU holds industrial property rights as well as rights of use and exploitation involving copyrights at home and abroad (hereinafter referred to as “industrial property rights”) which relate to product characteristics (hereinafter referred to as “contractual objects”).
- With respect to the contractual objects, SABEU grants the customer the non-exclusive right to utilize industrial property rights in Germany for the identification of contractual objects, which can be revoked freely any time.
- The granting of sub-licenses to third parties as well as the transfer of the granting of rights (licenses) to third parties is prohibited.
- The customer shall exclusively promote original SABEU products covered by industrial property rights. They shall automatically and promptly demonstrate to SABEU by presenting suitable documents that the contractual objects they promote and sell are original SABEU goods.
- SABEU warrants that industrial property rights are entered in the respective industrial property registry, specifically in the trademark registry at the time of contract conclusion and that SABEU is the owner of the rights of use and exploitation with respect to the copyrights for illustrations.
- SABEU does not guarantee that no third-party rights are being violated by the entry and/or utilization of the industrial property rights or the copyrights. At the time of contract conclusion, SABEU has no knowledge of any third-party rights opposing the entry and/or utilization of industrial property rights and copyrights. The customer indemnifies SABEU against any third-party claims asserted against the customer in connection with contractual objects and industrial property rights, irrespective of the legal grounds, unless they are associated with intent or gross negligence.
- The customer shall not challenge industrial property rights personally or support third-party challenges. This provision does not apply in countries in which it violates the applicable law.
Section 16 Place of performance and jurisdiction and applicable law
- Unless stated otherwise in the order confirmation, our business location is agreed as the place of performance.
- For all legal disputes arising from the contractual relationship, including proceedings for documentary evidence, the exclusive place of jurisdiction shall be the registered office of SABEU, providing that the customer is a merchant as defined in the German Commercial Code, a legal entity under public law or a special fund under public law. However, SABEU is also entitled to take legal action at the customer’s place of jurisdiction.
- The contractual relationship is governed exclusively by the laws of the Federal Republic of Germany.
- The application of the United Nations Treaty governing contracts for the sale of goods dated April 11, 1980 (CISG – “Vienna Convention on Contracts for the International Sale of Goods”) is excluded.
Section 17 Severability clause
- The agreements made in this contract correspond to the understanding of both parties. If a provision contradicts existing law, it is hereby agreed that it shall be replaced by one that comes closest to the intended meaning and meets the applicable legal requirements.
SABEU document no. = SABEU GTC | Rev. 4