General Terms of Delivery and Sale for
Standard Aggregatebau Evers GmbH & Co. KG and S.A.B. Standard Aggregatebau Vertriebs GmbH
Version as per 01.01.2016
1. General Provisions
All deliveries and services shall be performed exclusively under the contract terms printed hereinafter. Terms and conditions contradicting, or deviating from, our contractual terms will not be acknowledged by ourselves. Our contractual terms also apply should we carry out deliveries without reservation, while aware of a contracting partner’s terms contradicting, or deviating from, our terms. Deviating agreements must be in writing. By accepting the delivered products, the contracting partner expresses his approval of our contract terms.
Our offers are non-binding. Orders are only binding for us once they have been confirmed by us in writing or have been performed by delivery.
3. Performance data
Images, measures, weights and other performance data are binding only if they have been expressly confirmed in writing. Specifications in brochures, advertising material or other sources of information are non-binding and do not constitute representations under warranty laws on the products’ properties.
4. Obligations of delivery and acceptance
The contracting partner is obliged to present all necessary plans, drawings, approvals and other documents in due time, and to effect any contractually agreed advance payments as stipulated in the contract. Should these prerequisites not be fulfilled or not be fulfilled as stipulated in the contract, the delivery time shall be extended by an adequate period.
Claims for damages due to delayed delivery are excluded. This does not apply for cases of intent or gross negligence or for damages caused by injury to life, body or health of human beings. Claims for restitution of default damages are limited to 0.5% of the invoice value of the deliveries affected by the default for each complete calendar week of default, however, limited to a total of 5% of the invoice value. Any further claims are excluded.
In cases of force majeure, the delivery time will be extended adequately. Should delivery become impossible due to force majeure, we shall be released from our duty of delivery. In cases of an extension of the delivery time or of an impossibility of performance due to force majeure, warranty claims and claims for damages by the contracting partner are excluded.
The contracting partner’s withdrawals from the contract or his refusal of acceptance due to delays in delivery are excluded as soon as production of the products ordered by him has been initiated.
Should delivery be delayed due to circumstances within the contracting partner’s scope of responsibility, we shall be entitled, after a prior written request to the contracting partner to accept the products under stipulation of an adequate time limit, to dispose of the products in another way and to effect delivery to the contracting partner at a later date, while the contracting partner’s claims for damages or his right to withdraw from the contract are excluded. Any modifications of prices by our suppliers taking place during the time of the contracting partner’s default shall entitle us to forward such price increases to the contracting partner.
The contracting partner shall be liable under the statutory provisions for damages caused by the default in acceptance.
Should delivery ex works have been agreed in the contract, the delivery time shall be deemed to have been met at the time of receipt by the contracting partner of a written notification of readiness for dispatch. Should delivery including installation of the product have been agreed in the contract, the delivery time shall be deemed to have been met at the time the installation at the contractually agreed location of delivery has been completed.
5. Payment terms and prices
Unless expressly agreed otherwise, all prices are net plus value added tax. Should delivery ex works have been agreed in the contract, the prices are exclusive of packing and shipping. In cases of contractually agreed delivery including installation of the product, the contracting partner shall additionally in particular bear the costs for transport, packing, travel costs and all other necessary expenses. In cases of contractually agreed delivery outside of the Federal Republic of Germany, FOB Hamburg including sea-freight packing shall apply additionally.
Amounts receivable from invoices shall be due for payment without deduction at the time of receipt of the invoice by the contracting partner. Payments will only have the effect of releasing the contracting partner from his obligations if they are effected to us or to third parties against presentation of a written authority to collect. Down payments will not bear interest. The statutory provisions apply for default on payments.
6. Retention and set-offs
The contracting partner is only entitled to set-offs, retention or price reductions, even if he asserts the existence of defects or counter-claims, with our approval or in case of the counter-claims having been determined in a non-appealable way.
7. Reservation of title
All delivered products remain our property until the time that complete payment has been effected of all claims against the contracting partner from the entire business relationship, including claims from effected deliveries which have not yet fallen due.
Should the contracting partner behave contrary to the contract, in particular in cases of default on payment, we shall be entitled to request restitution of the delivered products. The claim for restitution does not include a withdrawal from the contract, in as far as such a withdrawal has not been expressly declared in writing. After restitution we shall be entitled to utilise the products in another way. The proceeds from this utilisation shall be set off against the contracting partner’s liabilities, while we are entitled to deduct an adequate amount, in particular for the utilisation costs, for storage and transport. Furthermore, we shall be entitled to charge a lump-sum for administrative costs.
Upon delivery of the products, the contracting partner shall bear the risk of loss, incidental destruction or incidental deterioration for the delivered products in our ownership, until the time he obtains complete ownership of these products. The contracting partner is obliged to insure the products sufficiently against the usual dangers. Claims resulting from a damage event, in particular claims against insurance companies or the originator of the damage, are hereby assigned to us by the contracting partner, up to the total amount of our claims.
We are to be immediately notified in writing by the contracting partner of seizures of, or other third-party interference to, our property or the claims and rights assigned to us. The contracting partner shall be liable for all damages caused by omitted or delayed notification. Such measures of securing our claims and rights which bear no delay, must be taken by the contracting partner himself.
In the case of a union of our products with real estate property or with other movable property of the contracting partner, the contracting partner hereby agrees to return our products in case of an exercise of our rights of reservation of title.
The contracting partner may only sell delivered products in an orderly course of business. He is prohibited from pledging the goods or assigning them as security. The contracting partner hereby assigns to us any and all claims or rights, including any claims for damages against a credit insurance, which he obtains from the sale or other disposal against his customers or against third parties. Upon request, the contracting partner shall notify the third party debtor of the assignment and shall provide us with the information or documents necessary for the assertion of our claims against the third party debtor.
We hereby authorise the contracting partner, subject to revocation, to collect for us the claims assigned to us. The contracting partner is to forward received sums to us, in as far as our claim has become due for payment; in other cases, the contracting partner shall hold the sums in trust for us until they fall due.
Should the contracting partner receive bills of exchange or cheques from his customers for the re-sale, he hereby assigns to us the claims from the bills of exchange or cheques existing against his customers. This assignment shall be effected to the sum of the assigned claims from the re-sale or processing. Ownership of the documents for the bills of exchange or cheques is hereby assigned to us by the contracting partner. He shall hold the documents in trust for us.
For the purpose of the inspection of the products under reservation of title, the contracting partner shall grant us the right to enter his business premises and storage spaces and to remove our products from there, should the prerequisites for this be fulfilled.
We undertake to release securities we are entitled to, upon the contracting partner’s request, in as far as the value of our securities exceeds the value of the claims secured by more than 20%. We shall be free to choose which securities to release.
Delivered products are to be inspected immediately after receipt. Any defects are to be reported to us in writing immediately after receipt of the products. Defective products are to be kept ready for inspection by ourselves, in the condition they were in at the time the defect was detected, and shall be stored in a proper way until the complaint has been clarified. Violations of these obligations result in the loss of all warranty claims. Should the obligation to inspect the products and to report defects be infringed upon, the delivered products shall be deemed to have been approved.
In cases of justified defects which have been reported in due time, we first of all shall have the right of subsequent performance. The contracting partner shall only have a claim to withdraw from the contract or to a reduction of the agreed price, after two attempts of subsequent performance have been unsuccessful, or if we have definitely refused subsequent performance.
Claims for damages or reimbursement of expenses, independent of their legal basis, are excluded. This does not apply for cases of intent or gross negligence, for damages caused due to injury to of a material obligation under the contract and for damages caused by injury to life, body or health of human beings. The total sum of claims for damages or reimbursement of expenses shall in each case be limited to the insured sum of the existing third party liability insurance. The contracting partner may request information on the contractually agreed insured sums.
The contracting partner’s warranty claims for new products are subject to a limitation period of two years. For used products, this period of limitation shall be one year, unless the claims are based on damages due to intent or gross negligence or the claims are based on damages due to injury to life, body or health of human beings.
9. Privacy statement
We hereby declare that we shall store the contracting partner’s business-related data, and affirm that the data will be used exclusively for the existing business relationship – and only in as far as this is legally admissible.
10. Copyrights, confidentiality
The contracting partner is to observe any copyrights and other property rights which might exist to the provided design drawings, circuit diagrams and other documents which might be subject to property rights, and is to treat as confidential all documents, offers, parts of offers, any price information and all other documents provided to him. The contracting partner undertakes to only forward such documents to third parties after obtaining our prior written approval, and to return them to us upon request. The contracting partner shall not have a right of retention to these documents.
11. Applicable law, place of jurisdiction
The law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The place of jurisdiction shall be Hamburg-Mitte. We shall, upon our choice, also be entitled to file action at the place of our contracting partner’s registered office.