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Right of withdrawal

General Terms and Conditions for Deliveries and Works of Sapi Sandstrahl und Anlagenbau GmbH (as of 01/2013)

1. General Provisions
1.1 The following terms and conditions shall apply to all our consultations, offers, sales, deliveries and services and to all present and future legal relations between us and our customer, unless otherwise agreed in writing. Any purchasing conditions of our customer that conflict in whole or in part with our terms or the statutory provisions are hereby expressly rejected. They shall not become part of the contract even if we carry out the delivery or work in knowledge of conflicting conditions.
1.2 In addition, German law shall apply exclusively to the contractual relations. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
1.3 Agreements of any kind made orally, by telephone or by fax shall only become legally binding upon our written confirmation.
1.4 Our offers are always non-binding. Contracts, including those concluded at trade fairs or by our representatives, shall only be concluded in accordance with our written order confirmation.
1.5 The quality of the subject matter of the contract shall be described exclusively in our offers, order confirmations and accompanying documents, without this constituting a guarantee within the meaning of Section 443 of the German Civil Code (BGB).


2. Prices
2.1 Unless expressly agreed otherwise, our prices for deliveries apply ex works, loaded on truck/wagon, excluding value added tax and packaging.
2.2 If, after conclusion of the contract, changes occur in the basis of calculation due to higher labour and material costs, increases in value added tax or other circumstances, in particular technically justified changes in calculation, we shall be entitled to increase the contract price in reasonable proportion to the change in the basis of calculation. This shall also apply to call-off orders. This shall not apply if our customer is a consumer within the meaning of Section 13 BGB and our delivery is made within 4 months of the conclusion of the contract.


3. Deliveries and Delivery Periods
3.1 Delays shall not be at our expense if our customer fails to fulfil his obligations to cooperate in a timely manner, in particular if he is responsible for obtaining official permits, execution plans, documents for the specification of the subject matter of the contract, clarification of all technical details and advance payments, or for making advance payments.
3.2 If, after conclusion of the contract, there are indications that our customer's ability to perform is jeopardised, such as payment delays and cessation of payments, application for the opening of insolvency proceedings, assignment of current assets as security, unfavourable information from banks or credit institutions or credit insurers, we shall be entitled to refuse our performance and, after unsuccessful setting of a deadline for the provision of security in the form of directly enforceable bank guarantees or advance payment, to withdraw from the contract and/or to demand compensation for damages, even if the customer's financial situation was already the same at the time the contract was concluded. The setting of a deadline shall not be required if the jeopardy to our customer's ability to perform is obvious.
3.3 Our confirmed delivery periods are non-binding dispatch dates. In the case of divisible deliveries, we are entitled to make partial deliveries and, with prior notification, also to make early deliveries.
3.4 For call-off orders, a reasonable delivery period shall be deemed agreed, which shall not be less than 6 weeks after call-off. If production and acceptance dates have not been agreed, we may demand a binding determination thereof no later than 3 months after order confirmation. If our customer does not comply with this request within 3 weeks of dispatch of our corresponding letter, we shall be entitled to set a 2-week grace period and, upon its fruitless expiry, to demand compensation for damages and/or to withdraw from the unfulfilled part of the contract. The same shall apply if, after expiry of the delivery period, the subject matter of the contract or parts thereof have not been accepted (see also Clauses 4.3 to 4.5).
3.5 If circumstances beyond our control make the execution of accepted orders more difficult, delayed or impossible, we shall be entitled to postpone the delivery or remaining delivery or partial delivery for the duration of the impediment or to withdraw from the contract in whole or in part, without our customer being entitled to compensation for damages. We shall not be responsible for, e.g., government interventions, operational disruptions, strikes, lockouts, work disruptions caused by political or economic conditions, shortage of necessary raw materials and operating supplies, material shortages, energy supply difficulties, transport delays due to traffic disruptions or unavoidable events occurring at our premises, at our sub-suppliers or at third-party operations on which the maintenance of our own operations depends. The foregoing shall also apply if these events occur at a time when we are already in default.
3.6 Our customer may only set a grace period for delivery if the agreed delivery period has been exceeded by more than 2 weeks. This grace period must be reasonable and amount to at least 3 weeks. After fruitless expiry of the grace period, our customer may withdraw from the contract. Any claim for compensation for damages against us due to breach of duty is excluded, unless we have acted at least with gross negligence or personal injury has occurred.


4. Dispatch and Transfer of Risk
4.1 The subject matter of the contract shall be dispatched by us from the manufacturer's or supplier's works at the risk of our customer, even if freight and other costs are borne by us. Unless otherwise agreed, we are free to choose the method of dispatch. Loading and transport shall be carried out on the basis of the general terms of the forwarders and/or carriers applicable to the respective loading or transport. The subject matter of the contract shall only be insured by us against transport damage upon express written instruction and at the expense of our customer.
4.2 If collection has been agreed and does not take place within 8 days of the agreed date, we may arrange dispatch by a method of dispatch that appears favourable to us at the expense of our customer.
4.3 The risk shall pass to our customer upon handover of the subject matter of the contract to our customer, the first carrier or forwarder. This shall also apply to individual partial deliveries and if we have assumed the shipping costs.
4.4 If dispatch is delayed at the request of our customer or if there is a delay in acceptance, the risk shall pass upon notification of readiness for dispatch. Storage of the subject matter of the contract shall then be in the name and at the expense of our customer. In such cases, the provisions of Clause 7.3 shall apply accordingly.


5. Retention of Title
5.1 The subject matter of the contract shall remain our property until full payment of all our claims, including future claims, against our customer. This shall also apply in the case of payments designated for specific claims until settlement of any current account balance. 5.2 The reserved goods shall be stored properly and separately from other items at the expense of our customer, marked separately upon our request, and insured against damage, loss and disappearance. The corresponding policy shall be submitted to us by our customer upon request. Our customer hereby assigns in advance his claims under the insurance contracts to us in the amount of the value of the reserved property and consents to payment to us. We shall be entitled to take back the reserved property and, if necessary, to have our authorised representatives enter the business premises and rooms of our customer for this purpose. Printing, stamping or embossing pieces and special devices that we manufacture shall remain our property.
5.3 Our customer shall be entitled, always revocably and as long as he duly meets his obligations towards us, to sell our reserved property in the ordinary course of business. In such case or upon delivery of the reserved property to a third party, regardless of the value or condition, or upon installation, the customer hereby assigns to us, until full payment of all our claims from these deliveries, the claims arising from the resale, delivery or installation against his buyer, with all ancillary rights including any claims for damages arising therefrom, in the amount of the invoice value of our deliveries. We hereby accept this assignment. Our customer is obliged to provide us upon request with the names and service addresses of the third-party debtors, the amounts of the claims, their dates and due dates, etc.
5.4 If our reserved property is processed, mixed, combined or transformed, such processing, mixing, combining or transformation shall be carried out on our behalf, but without any warranty. In the event of processing with other items not belonging to us by the customer, we shall have co-ownership of the new item in proportion to the value of our reserved property to the other processed items at the time of processing. If our reserved property is mixed or combined with other items, we shall acquire co-ownership in the ratio of the value of the reserved property at the time of combination.
5.5 In the event of a prohibition of assignment upon resale, upon installation or in the event of payment default, our customer is obliged to notify his third-party buyer of the advance assignment. If the reserved goods delivered by us are sold together with other items to a third party, our customer is obliged to separate the invoice items accordingly. If no separate invoice has been issued, the portion of the total price claim corresponding to the invoice value of our delivery shall be deemed assigned to us. The foregoing retention of title shall remain in effect even if individual claims of our customer against his third-party buyer are incorporated into a current account. In such case, our customer hereby assigns to us the balance existing in his favour. In the event of payment default by the customer, we shall be entitled to collect the assigned claim directly from the third-party debtor.

5.6 Extraordinary dispositions by our customer, such as pledging, assignment as security and transfer of ownership of our reserved property, are not permitted. Our customer is obliged to notify us immediately if third parties access the goods and claims belonging to us, such as seizures and any other impairment of our property. He shall bear the costs of any intervention proceedings if the access is attributable to him. 

5.7 If the value of the total security given to us from the business relationship exceeds our claims by more than 20%, we shall be obliged to retransfer such excess upon our customer's request. The selection of the securities to be retransferred shall be made by us.

6. Payments
6.1 Unless otherwise agreed, invoices are payable in the agreed currency within 14 days of the invoice date without deduction. Cash discounts shall only be granted by special agreement and shall be calculated from the invoice value ex works.
6.2 Payments shall only be deemed made when we have final disposal of the amount. Bills of exchange and cheque payments shall only be accepted on account of performance and by special agreement. Discount and bill charges shall in any event be borne by our customer. If payment by bill of exchange is agreed, the maturity of the bills shall not exceed 90 days calculated from the invoice date. 6.3 Incoming payments shall be applied at our discretion to offset the oldest or the least secured liabilities.
6.4 Partial deliveries shall be invoiced immediately and each shall be payable individually, regardless of the completion of the overall delivery. Advance payments upon conclusion shall, in the absence of other written agreement, be credited against the oldest partial deliveries in each case.
6.5 Set-off against counterclaims shall only be permissible if such counterclaims have been established by a final court decision, are ready for decision, or have been acknowledged by us. The same shall apply to the assertion of rights of retention in respect of the amounts stated in our invoices.


7. Damages and Withdrawal
7.1 If the agreed payment dates or the payment period pursuant to Clause 6.1 are not observed by the customer, we shall be entitled to the rights under Section 288 BGB (assertion of default interest). The outstanding amounts shall bear interest after the due date at 5% above the respective rate for current account credits of our bank. Further claims for damages shall be reserved. In addition, we shall be entitled to renegotiate payment terms for future services.
7.2 If our customer is in default with the acceptance of the delivery or service or is in payment default, we shall also be entitled, after setting a reasonable grace period, to withdraw from the contract in whole or in part and/or to demand compensation for damages in the amount of 20% of the purchase price, subject to proof of a more specifically higher damage, in particular the costs of taking back the goods, unless the customer proves a lower damage to us. Setting a grace period shall not be required if, after conclusion of the contract, there are indications of jeopardy to our customer's ability to perform within the meaning of Clause 3.2.
7.3 In the event of delay in acceptance pursuant to Clause 7.2, we shall be entitled, without prejudice to the rights under Clauses 7.1 and 7.2, to demand as further liquidated damages a storage fee of EUR 10.00 per pallet per day. The customer shall pay default interest on the value of the goods in accordance with Sections 286 to 288 BGB.


8. Warranty
8.1 The agreed quality of the subject matter of the contract owed by us shall be determined exclusively by the contractual agreements with our customer and not by any other advertising statements, brochures, advice and the like. The assumption of a guarantee, e.g. within the meaning of Section 443 BGB, is not associated therewith.
8.2 We provide advice to the best of our knowledge based on our experience, but excluding any liability, except in cases of intent or gross negligence. Information and advice on the suitability and application or use of the subject matter of the contract shall be non-binding unless they expressly constitute an agreed quality within the meaning of Clause 8.1. They do not release the customer from conducting his own inspections. 8.3 Furthermore, we shall be liable for defects to the exclusion of further claims as follows:
a) Our customer is obliged to inspect the subject matter of the contract carefully and without delay upon receipt and, if necessary, to carry out random checks. Obvious defects must be reported in writing and in detail immediately upon arrival and before use of the subject matter of the contract, but no later than within 8 days of receipt of the goods. Even in the event of a complaint, the customer is obliged to accept the subject matter of the contract. It shall be stored properly and returned only at our express request.
b) Defects that are not initially detectable even upon thorough inspection must be reported to us immediately upon discovery in the same manner. In the case of a complaint not made in due form and/or not made in due time, the subject matter of the contract shall be deemed approved.
c) Our customer must give our representatives the opportunity to inspect and examine the complained-of subject matter of the contract. Otherwise, all warranty claims shall be void.
d) Unless otherwise agreed in writing, we shall provide a warranty of 1 year from delivery for faultless material and professional manufacture (for single-shift operation (8 hours/day)), unless a mandatory longer statutory warranty period applies.
e) We provide no warranty for improper use and treatment of the subject matter of the contract. Warranty claims shall also lapse in the event of damage to or destruction of the subject matter of the contract due to improper treatment or storage after the transfer of risk. If the instructions or guidelines made by us, in particular the transport, storage and assembly guidelines contained in our product compendia and product package inserts, are not observed, all warranty claims of any kind against us shall be void.
f) Deviations in dimensions and material that are customary in the trade and/or necessitated by manufacturing processes shall not entitle the customer to complain about the subject matter of the contract. For tolerances, DIN standards or our factory standards shall apply where available.
g) In the case of defects, we shall be entitled to subsequent performance. Our customer must allow us reasonable time and opportunity for rectification of defects. If this is refused, all warranty claims of any kind against us shall be void. If subsequent performance fails repeatedly, our customer may also withdraw from the contract or demand a reduction in price. Further claims against us or our representatives, regardless of the legal basis, are excluded, unless we have acted at least with gross negligence or personal injury occurs. Section 439(2) BGB shall remain unaffected.
h) No warranty shall exist for special products manufactured according to our customer's specifications, calculations or construction documents, insofar as defects are attributable thereto.


9. Intellectual Property Rights
9.1 Drawings, tools, printing, stamping or embossing pieces and special devices that we manufacture shall remain our property.
9.2 If we are required to deliver according to specifications, drawings, models, samples or using parts supplied by our customer, the customer shall be liable for ensuring that third-party intellectual property rights are not infringed thereby. We will, where applicable, inform our customer of any rights known to us. Our customer shall indemnify us against all third-party claims and compensate us for any damage incurred. Any costs incurred by us up to that point shall be borne by our customer. If a third party prohibits us from manufacturing or delivering by invoking an intellectual property right belonging to that third party, we shall be entitled to cease work without examining the legal situation. Our customer shall bear the costs of any legal proceedings.
9.3 Drawings and samples provided to us that did not lead to an order shall, upon request, be returned at the expense of our customer; otherwise, we shall be entitled to destroy them 3 months after submission of our offer.
9.4 The copyright and, where applicable, industrial property rights to models, moulds and devices, designs and drawings created by us or by a third party on our behalf shall belong to us, even if our customer has borne the costs thereof.


10. Miscellaneous Provisions
10.1 We shall be entitled to process the data received from our customer on the basis of the business relationship in accordance with the provisions of the Federal Data Protection Act, in particular to transmit to the credit insurer the data required for credit insurance.
10.2 The assignment of claims to which our customer is entitled from the business relationship against us is excluded.
10.3 Should any of the foregoing conditions be legally invalid, the validity of the remaining provisions and the contract shall not be affected thereby. Invalid or provisions becoming invalid shall be replaced by provisions that aim to achieve the same economic result. Insofar as provisions have not become part of the contract, the content of the contract shall be governed by the statutory provisions in that respect.
10.4 The place of performance for delivery and payment is Moettingen.
10.5 The place of jurisdiction in all cases, including for all future claims arising from the transaction, including those arising from bills of exchange, cheques and other documents, shall be the court having jurisdiction over our registered office in Moettingen.