Status December 2024
General Terms and Conditions of Sale – Sontheimer
Elektroschaltgeräte GmbH
Art. 1 Scope, form
(1) These General Terms and Conditions of Sale (GTCS) shall apply to all our
business relationships with our customers
("Buyer"). The GTCS
shall only apply if the Buyer is a trader (section 14 German Civil Code
(BGB)), a legal entity under public
law or a special fund under public
law.
(2) The GTCS shall apply in particular to contracts for the sale and/or supply
of movable goods ("Goods"), regardless of
whether we
manufacture the Goods ourselves or purchase them from suppliers (sections 433,
650 German Civil Code (BGB)).
Unless otherwise agreed, the GTCS as
amended at the time of the Buyer’s purchase order or, as applicable,
with the wording
last communicated to the Buyer in text form shall also
apply as a framework contract for equivalent future contracts without
an
obligation on our part to refer to them again in each individual case.
(3) Our GTCS shall apply exclusively. Any different, conflicting or
supplementary General Terms and Conditions of the Buyer
shall only
become an integral part of the contract if and to the extent that we have
expressly consented to their application.
This requirement of consent
applies in any event, for example, even if the Buyer refers to its own GTC as
part of the order
and we do not expressly object to this.
(4) Individual agreements (e.g. framework supply contract, quality assurance
agreements) and specifications in our
acknowledgement of the order shall
have priority over the GTCS. In case of doubt, commercial clauses shall be
interpreted in
accordance with the Incoterms® published by the
International Chamber of Commerce in Paris (ICC) as amended at the time
of conclusion of the contract.
(5) Legally relevant declarations and notifications by the Buyer in relation
to the contract (e.g. setting of time-limits,
notification of defects,
termination or reduction of the purchase price) must be made in writing.
Written form within the
meaning of these GTCS includes written and text
form (e.g. letter, email, fax). Legal formal requirements and further proof,
in particular in the event of doubts about the legitimacy of the
declarant, shall remain unaffected.
(6) References to the applicability of statutory provisions shall only have a
clarifying meaning. Even without such clarification,
the statutory
provisions therefore apply unless they are directly amended or expressly
excluded in these GTCS.
Art. 2 Conclusion of the contract
(1) Our offers are subject to change and non-binding. This shall also apply if
we have provided the Buyer with catalogues,
technical documentation
(e.g. drawings, plans, cost estimates, calculations, references to DIN
standards), other product
descriptions or documents – also in
electronic form – to which we reserve property rights and copyrights.
(2) An order for Goods by the Buyer is deemed a binding offer of contract.
Unless otherwise stated in the order, we are
entitled to accept this
offer of contract within 2 weeks of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by an acknowledgement
of order) or by delivery of the Goods to the
Buyer.
Art. 3 Delivery time and delay in delivery
(1) The delivery time is agreed individually or stated by us upon acceptance
of the order. If this is not the case, the delivery
period is approx. 3
weeks as of conclusion of the contract.
(2) If we are unable to meet any binding delivery time for reasons for which
we are not responsible, cannot comply with (non-
availability of the
service), we will inform the Buyer thereof without delay and will
simultaneously inform the Buyer of the
expected new delivery time. If
the service is still not available within the new delivery period, we are
entitled to terminate
the contract in whole or in part; we shall
immediately refund any consideration already paid by the Buyer.
Non-availability of
the service applies, for example, in the event of
late delivery by our supplier to us, if we have concluded a matching covering
transaction, in the event of other disruptions in the supply chain, for
example due to force majeure, or if we are not obliged
to procure in the
individual case.
(3) The occurrence of a delay in delivery on our part is determined in
accordance with the statutory provisions. In any event,
however, a
reminder by the Buyer is required.
(4) The Buyer’s rights pursuant to Art. 8 of these GTCS and our
statutory rights, particularly in the event of an exclusion of the
obligation to perform (e.g. due to impossibility or unreasonableness of
performance and/or subsequent performance), shall
remain unaffected.
Art. 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex works, which is also the place of performance for the
delivery and any subsequent performance. At
the request and expense of
the Buyer, the Goods are shipped to another destination (sale by delivery to a
place other than
the place of performance). Unless otherwise agreed, we
are entitled to determine the type of shipment (in particular, the
transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the Goods
shall pass to the Buyer at the latest upon delivery.
However, in the
case of sale by delivery to a place other than the place of performance, the
risk of accidental loss and
accidental deterioration of the Goods as
well as the risk of any delay shall pass to the Buyer upon delivery of the
Goods to
the forwarding agent, the carrier or any other person or
institution designated to carry out the shipment. If an acceptance
inspection has been agreed, this shall be relevant for the transfer of
risks. In all other respects, the statutory provisions of the
law on
contracts for work and services shall also apply accordingly in the event of
an agreed acceptance inspection. Delivery
or acceptance is deemed
equivalent if the Buyer is in default of acceptance.
(3) 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 are entitled to demand compensation for the resulting damage
including additional expenses (e.g. storage
costs). For this purpose, we
charge a fixed compensation of EUR 5.00 per pallet and week, starting with the
delivery time or
– in the absence of a delivery time – with
the notification that the Goods are ready for dispatch.
The right to prove a higher loss and our statutory claims (in particular,
compensation for additional expenses, reasonable
compensation,
termination) shall remain unaffected; however, the fixed amount shall be
offset against further monetary
claims. The Buyer will remain entitled
to prove that we have not incurred any loss at all, or that the loss incurred
by us is
significantly lower than the aforesaid fixed amount.
Art. 5 Prices and terms of payment
(1) Unless otherwise agreed in the individual case, our prices as applicable
at the time of conclusion of the contract shall
apply, ex works, plus
statutory value added tax.
(2) In the case of sale by delivery to a place other than the place of
performance (Art. 4 (1), the Buyer shall bear the transport
costs ex
works and the costs of any transport insurance requested by the Buyer, if
applicable. If we do not invoice the
transport costs actually incurred
in the individual case, a fixed fee for transport costs (excluding transport
insurance) applies
in accordance with our list of transport and shipping
costs, the list can be requested from the sales department. Any customs
duties, fees, taxes and other public charges shall be paid by the Buyer.
(3) The purchase price shall be due and payable within 14 days of invoicing
and delivery or, as applicable, acceptance of the
Goods. However, we are
entitled at any time, also as part of an ongoing business relationship, to
make a delivery in whole or
in part only against advance payment. We
shall state such a proviso no later than upon acknowledgement of the order.
(4) Upon expiry of the above time for payment, the Buyer shall be in default.
During the period of default, interest is charged
on the purchase price
at the applicable statutory default interest rate. We reserve the right to
assert further damage caused
by default. Towards merchants, our claim
for the commercial interest charged after the payment’s due date
(section 353
German Commercial Code (HGB)) shall remain unaffected.
(5) The Buyer is only entitled to set-off or retention to the extent that its
claim has been established to be final and non-
appealable or is
undisputed. In the event of any defects in the delivery, the Buyer’s
reciprocal rights shall remain unaffected,
in particular under Art. 7
(5) sentence 2 of these GTCS.
(6) If it becomes apparent after the conclusion of the contract (e.g. by
filing for insolvency proceedings) that our claim to the
purchase price
is jeopardised by the Buyer's inability to pay, we are entitled to refuse
performance in accordance with the
statutory provisions and - after
setting a deadline, if appropriate - to terminate the contract (section 321
Civil Code (BGB)). In
the case of contracts for the manufacture of
non-fungible items (customised products), we may declare termination
immediately; the statutory regulations on the dispensability of setting
a deadline remain unaffected.
Art. 6 Retention of title
(1) We retain title to the Goods sold until full payment of all our current
and future claims arising from the purchase contract
and an ongoing
business relationship (secured claims).
(2) The Goods subject to retention of title may neither be pledged to third
parties nor assigned as security before full payment
of the secured
claims. The Buyer must inform us immediately in writing if an application is
made to open insolvency
proceedings or if third parties (e.g. seizures)
gain access to the Goods belonging to us.
(3) In the event of any conduct by the Buyer in breach of contract, in
particular, if the Buyer fails to pay the purchase price
due, we are
entitled to terminate the contract in accordance with the statutory provisions
or/and to demand that the Goods
be returned on the basis of the
retention of title. The demand for return shall not at the same time include
the declaration
of termination; rather, we are entitled to demand only
the return of the Goods and to reserve the right of termination. If the
Buyer does not pay the purchase price due, we may only assert these
rights if we have previously set the Buyer a reasonable
deadline for
payment without success or if setting such a deadline is dispensable pursuant
to the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer is authorised to
resell and/or process the Goods subject to retention
of title in the
ordinary course of business. In this case, the following provisions shall
apply in addition.
(a) The retention of title extends to the products resulting from any
processing, mixing or combining of our Goods at their full
value, with
us being deemed to be the manufacturer. If, in the event of processing, mixing
or combining with Goods of third
parties, their right of ownership is
maintained, we shall acquire co-ownership in proportion to the invoice values
of the
processed, mixed or combined Goods. In all other respects, the
same applies to the resulting product as to the Goods
delivered under
retention of title.
(b) The Buyer hereby assigns to us as security the claims against third
parties arising from the resale of the Goods or the
product in total or,
as applicable, in the amount of our potential co-ownership share in accordance
with the above paragraph.
We accept the assignment. The obligations of
the Buyer referred to in paragraph 2 shall also apply with regard to the
assigned
claims.
(c) In addition to ourselves, the Buyer also remains authorised to collect the
claim. We undertake not to collect the claim as
long as the Buyer meets
its payment obligations towards us, does not lack the ability to pay and we do
not assert the retention
of title by exercising a right pursuant to
para. 3. If this is the case, however, we may demand that the Buyer informs us
of the
assigned claims and their debtors, provides all information
required for collection, hands over any relevant documents and
informs
the debtors (third parties) of the assignment. Furthermore, in this case we
are entitled to revoke the Buyer's right to
further sell and process the
Goods subject to retention of title.
(d) If the realisable value of the security exceeds our claims by more than
10%, we shall release security of our choice at the
Buyer's request.
Art. 7 Claims for defects of the Buyer
(1) The statutory provisions shall apply to the rights of the Buyer in the
event of defects of quality and defects of title (including
wrong and
short delivery as well as improper assembly/installation or incorrect
instructions), unless otherwise stipulated
below. In all cases, the
statutory provisions on the sale of consumer goods (sections 474 et seq Civil
Code (BGB)) and the
rights of the Buyer arising from any warranty given
separately, in particular on the part of the manufacturer, shall remain
unaffected.
(2) The basis of our liability for defects is primarily the agreement made on
the condition and the presumed use of the Goods
(including accessories
and instructions). All product descriptions and manufacturer's specifications
which are the subject of
the individual contract or which have been
publicly stated by us (in particular in catalogues or on our website) at the
time of
the conclusion of the contract are deemed to be an agreement on
condition within this meaning. If such condition has not
been agreed, it
must be assessed pursuant to the statutory provision whether a defect exists
or not (section 434 (3) Civil Code
(BGB)). Any public statements made by
the manufacturer or on its behalf, in particular in advertising or on the
labels of the
Goods, take priority over statements made by other third
parties.
(3) As a matter of principle, we shall not be liable for defects of which the
Buyer is aware at the time of conclusion of the
contract or is not aware
due to gross negligence (section 442 Civil Code (BGB)). Furthermore, the
Buyer’s claims for defects
are subject to the Buyer having
complied with its statutory duties of inspection and notification (sections
377, 381 German
Commercial Code (HGB)). In the case of building
materials and other goods intended for installation or other further
processing, an inspection must be carried out immediately before
processing in any event. If a defect becomes apparent upon
delivery, inspection or at any later time, we must be notified thereof in
writing without delay. In any case, apparent defects
must be notified to
us in writing within 7 working days of delivery, and defects which are not
apparent on inspection must be
notified to us within the same period of
time from discovery. If the Buyer fails to carry out the proper inspection
and/or give
notice of defects, our liability for the defect not reported
or not reported in time or not reported properly is excluded in
accordance with the statutory provisions. In the case of Goods intended
for installation, affixing or assembly, this shall also
apply if the
defect only became apparent after processing for this purpose as a result of
the breach of any of these obligations;
in this case in particular, the
Buyer shall not be entitled to reimbursement of the related costs
("removal and installation
costs").
(4) If the delivered item is defective, we may initially choose whether to
provide subsequent performance by remedying the
defect (rectification)
or by delivering a defect-free item (replacement). If the type of subsequent
performance chosen by us
is unreasonable for the Buyer in the individual
case, they may reject it. Our right to refuse subsequent performance under
the statutory conditions remains unaffected.
(5) We are entitled to make the subsequent performance owed conditional on the
Buyer paying the purchase price due.
However, the Buyer is entitled to
retain a part of the purchase price which is appropriate in relation to the
defect.
(6) The Buyer shall give us the time and opportunity required for the
subsequent performance owed, in particular to hand
over the Goods which
are the subject of the objections for inspection purposes. In the event of a
replacement delivery, the
Buyer shall return the defective item to us at
our request in accordance with the statutory provisions; however, the Buyer
shall not have a claim for return. Subsequent performance shall not
include the dismantling, removal or disassembly of the
defective item
nor the installation, affixing or assembly of a defect-free item if we were
not originally obliged to perform
these activities; claims of the Buyer
for reimbursement of related costs ("dismantling and installation
costs") shall remain
unaffected.
(7) We pay or reimburse the expenses required for the purpose of inspection
and subsequent performance, in particular
transport, travel, labour and
material costs and, if applicable, dismantling and installation costs, in
accordance with the
statutory provisions and these GTCS if a defect
actually exists. Otherwise, we may demand reimbursement from the Buyer of
the costs arising from the unjustified request to remedy the defect if
the Buyer knew or could have known that there was
actually no defect.
(8) In urgent cases, e.g. if operational safety is endangered or to prevent
disproportionate damage, the Buyer is entitled to
remedy the defect
itself and to demand reimbursement from us of the expenses objectively
required therefor. We must be
informed without delay of any such
performance by the Buyer itself, if possible, in advance. The right of
self-performance
does not apply if we would be entitled to refuse a
corresponding subsequent performance in accordance with the statutory
provisions.
(9) If a reasonable period to be set by the Buyer for subsequent performance
has expired unsuccessfully or is dispensable
under the statutory
provisions, the Buyer may terminate the purchase contract or reduce the
purchase price in accordance
with the statutory provisions. In the case
of a minor defect, however, there is no right of termination.
(10) Claims of the Buyer for reimbursement of expenses pursuant to section
445a (1) Civil Code (BGB) are excluded, unless
the last contract in the
supply chain is a consumer purchase (sections 478, 474 Civil Code (BGB)) or a
consumer contract on
the supply of digital products (sections 445c
sentence 2, 327 (5), 327u Civil Code (BGB)). Claims of the Buyer for damages
or
reimbursement of futile expenses (section 284 Civil Code (BGB)) shall
also exist in the event of defects of the Goods only in
accordance with
the following Art. 8 and 9.
(11) If we are not obliged to take back Goods, they will only be taken back as
a gesture of goodwill with the consent of our
sales team and under no
circumstances free of charge. The costs incurred will be notified to you in
advance by our sales team
and are usually 40% of the value of the Goods,
but at least EUR 25.00 per transaction.
Art. 8 Other liability
(1) Except as otherwise stipulated in these GTCS including the following
provisions, we shall be liable in accordance with the
statutory
provisions in the event of a breach of contractual and non-contractual
obligations.
(2) We shall be liable for damages – regardless of the legal grounds
– within the scope of liability based on fault in the event
of
intent and gross negligence. In the event of simple negligence, we shall only
be liable, subject to statutory limitations of
liability (e.g. care in
own affairs; minor breach of duty), in the following cases,
a) for damage resulting from injury to life, body or health,
b) for damage resulting from the breach of an essential contractual obligation
(obligation without whose fulfilment the proper
performance of the
contract would not be possible and on the observance of which the contracting
party normally relies and
may rely); in this case, however, our
liability is limited to the compensation of the foreseeable, typically
occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to
third parties as well as to breaches of duty by persons
(also in their
favour) for whose fault we are responsible in accordance with statutory
provisions. They do not apply if a defect
has been fraudulently
concealed or a guarantee for the condition of the Goods has been assumed and
for claims of the Buyer
under the German Product Liability Act
(Produkthaftungsgesetz).
(4) Due to a breach of duty which does not constitute a defect, the Buyer may
only withdraw or terminate if we are responsible
for the breach of duty.
A free right of termination of the Buyer (in particular pursuant to sections
650, 648 Civil Code (BGB))
is excluded. In all other respects, the
statutory requirements and legal consequences shall apply.
Art. 9 Limitation
(1) Notwithstanding Section 438 (1) no. 3 Civil Code (BGB), the general
limitation period for claims arising from defects of
quality and defects
of title shall be one year from delivery. If acceptance has been agreed, the
limitation period shall
commence upon acceptance.
(2) If the Goods consist in a building or an object which has been used for a
building in accordance with its customary use and
has caused its
defectiveness (building material), the limitation period shall be 5 years from
delivery in accordance with the
statutory provision (section 438 (1) no.
2 Civil Code (BGB)). Other statutory provisions on the limitation period (in
particular
section 438 (1) no. 1, (3), sections 444, 445b Civil Code
(BGB)) shall also remain unaffected.
(3) The above limitation periods of the law on sales also apply to contractual
and non-contractual claims for damages made
by the Buyer based on any
defect of the Goods, unless the application of the regular statutory
limitation period (sections 195,
199 Civil Code (BGB)) would lead to a
shorter limitation period in individual cases. Claims for damages by the Buyer
under
Art. 8 (2) sentence 1 and sentence 2 (a) as well as under the
German Product Liability Act shall become time-barred exclusively
in
accordance with the statutory limitation periods.
Art. 10 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTCS and
the contractual relationship between us and
the Buyer to the exclusion
of international uniform law, in particular the UN Convention on Contracts for
the International
Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial
Code (Handelsgesetzbuch), a legal entity under
public law or a special
fund under public law, the exclusive – also international – place
of jurisdiction for all disputes arising
directly or indirectly from the
contractual relationship shall be the place of our registered office in
Schwabach. The same shall
apply if the Buyer is a trader within the
meaning of section 14 Civil Code (BGB). However, we are also entitled in all
cases to
bring an action at the place of performance of the delivery
obligation in accordance with these GTCS or any individually agreed
terms which take priority or at the general place of jurisdiction of the
Buyer. Any overriding statutory provisions, in particular
on exclusive
jurisdiction, shall remain unaffected.