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Status: June 2009
General terms and conditions of sale and payment Fördertechnik Satrup GmbH, 24986 Satrup
A. General terms
I. Formation of contract
1. Our deliveries and services are based exclusively on the following conditions. Any terms and conditions of purchase of the purchaser are hereby
excluded.
2. The merchandise that is subject to contract is limited to that of our own production, except where quantities to be bought in for completion are
agreed, or are customary within the trade.
3. Our offers are non-binding.
4. Offers submitted by the purchaser in electronic form are only deemed as accepted when explicitly confirmed by us. Failure to respond to such an
offer does not represent acceptance. The same applies to commercial confirmation documents transmitted in electronic form.
5. All statements by ourselves are only valid in writing.
II. Terms and conditions of payment
1. The purchase price is due at the latest on the 15th day of the month following the month of despatch ex- works or ex- warehouse.
2. Where it has been agreed that the merchandise is to be released for shipment by our customer within a defined period following our notification
that it is for shipment (call-off), then we shall be entitled to invoice the merchandise as of the date it is ready for shipment. In this case, the
purchase price is due 30 days following the invoice date. The rights arising from point A II 5 remain in force.
3. Payment is to be made without deduction of discount in such a manner that we have the sum at our disposal on the due date. The purchaser may
offset claims only where these are undisputed or have been finally determined under law. He shall have rights to withhold only insofar as these
arise out of the same contract relationship.
4. For late payments, interest is due at 4% over the base interest rate.
5. If our entitlement to payment is jeopardised as a result of subsequent circumstances leading to a substantial deterioration in the financial position
of the purchaser, we shall be entitled - irrespective of the term of any bills of exchange accepted as payment – to demand payment.
6. In cases described under paragraph 5 or section A IV 8, we shall be entitled to revoke the authorisation for collection (section A IV 7), and to
demand payment in advance for any outstanding deliveries.
7. The purchaser may avert the legal consequences described in paragraph 5 and in paragraph A IV 8 by submitting a guarantee to the amount of
any jeopardised payment claim.
Should the purchaser fail to make an advance payment or provide a reasonable guarantee within a reasonable period in cases under paragraph 5
or paragraph A IV 8, then we shall be entitled to exercise our right to withdraw, under exclusion of any rights of compensation of the purchaser.
8. Legal provisions relating to overdue payment remain unaffected.
9. In the event of overdue payment, which appears to be due to a deterioration of the financial position of the purchaser, then we shall also be
entitled to withdraw without notice being necessary.
III. Collateral
We are entitled to the usual collateral in terms of type and amount for our entitlements, even insofar as they are conditional or limited in time.
IV. Retention of title
1. All merchandise sold remains our property (merchandise subject to retention) until such time as all our entitlements are settled in full, including
especially those arising from outstanding debit balances due to us arising from the business relationship. This also applies to future and
conditional claims, for example from reserve bills.
2. Any machining or processing of merchandise subject to retention is done for us as manufacturer as defined in Article 950 of the German Civil Code
(BGB), without any obligation on our part. The machined or processed merchandise shall be deemed to be merchandise subject to retention as
defined in paragraph 1.
3. Where the purchaser processes, combines or mixes the merchandise under retention, then we shall have title to the new object in the proportion
of the invoiced value of the merchandise under retention to the other merchandise used. If our ownership is extinguished through such combining
, mixing or processing, then the purchaser shall transfer to us any proprietary or expectant rights he may have in the new stock or article to the
extent of the invoice value of the merchandise subject to retention, in the case of processing in the same proportion as that of the invoice value of
the merchandise subject to retention to the other merchandise used, and shall keep them in safe custody for us at no charge. Our rights of joint
ownership apply as for merchandise subject to retention as defined in paragraph 1.
4. The purchaser may only resell the merchandise subject to retention in the ordinary course of business, and subject to his normal terms and
conditions of business, and as long as he is not in default of payment, provided that he reserves the right of ownership and that any claims that
arise from the resale are assigned to us as stipulated in paragraphs 5 and 6. He is not entitled to make use of the merchandise subject to
retention in any other manner. The use of the merchandise subject to retention to fulfil contracts for work and supply contracts shall also be
deemed as resale as defined in paragraph A IV.
5. Any claims of the purchaser arising from the resale of merchandise under retention are hereby assigned to us. They shall serve as security to the
same extent as the merchandise subject to retention as defined in paragraph 1.
6. Where the purchaser resells the merchandise subject to retention together with other merchandise, then any entitlements arising from the resale
are hereby assigned to us at the same proportion as the invoice value of the merchandise subject to retention to the invoice value of the other
merchandise. In the event of resale of merchandise in which we have rights of joint ownership as defined in paragraph 3, a part of the entitlement
corresponding to our share of the joint ownership shall hereby be assigned to us.
7. The purchaser is entitled to collect any entitlements arising from any resale except where we revoke the authorisation for collection in cases as
described in paragraphs A II 5 and A IV 8. At our request, he is obliged to notify his customers immediately of his assignment of entitlement to us
– insofar as we do not do so ourselves – and to pass us the information and documents which are necessary for collection to us. The purchaser shall under no
circumstances be entitled to assign the entitlements to third parties.The purchaser is equally not entitled to enter into any type of factoring
transaction, by reason of our authorisation for collection.
8. Where the purchaser goes into default of payment and where this appears to jeopardise the payment of a not unsubstantial part of our
entitlement, then we shall be entitled to prohibit any further processing of the merchandise supplied, to retrieve the merchandise, where necessary
entering the customer’s facility. Any such retrieval shall not constitute withdrawal from the contract.
9. The purchaser shall inform us immediately of any seizure or other interference by third parties.
10. If the value of any existing collateral exceeds the secured entitlements by more than 10%, then we shall be obliged to release such collateral to
such an extent at the request of the purchaser, and at our discretion.
B. Performance of delivery
I. Delivery periods, delivery dates
1. The periods for delivery shall commence on the date of our order confirmation, however not before complete clarification of all details of the order.
The same applies to delivery dates.
All delivery periods and delivery dates are subject to unforeseen production interruptions and on-time receipt of supplier materials and, insofar as
purchased quantities for completion are agreed or are normal practice, subject to availability and on-time receipt of these quantities.
2. Where the purchaser fails to fulfil in due time any contractual obligations – including associated or secondary obligations, such as opening of a
letter of credit, the procurement of domestic or foreign certificates, the effecting of an advance payment or similar obligations, then we shall be
entitled to defer the delivery period or delivery dates – without prejudice to our rights arising from default on the part of the purchaser – in
accordance with the demands of our production schedule.
3. The date of shipment ex- works shall be authoritative in terms of compliance with delivery periods or dates.
4. In cases of force majeure, our delivery periods and delivery dates will be deferred accordingly. Industrial disputes in our own or other businesses,
transport delays, machine failure, acts of public authorities and other circumstances, for which we are not responsible, shall also be deemed as
force majeure. We will notify the purchaser without delay of any event of force majeure. The purchaser is entitled to withdraw from the contract at
the earliest six weeks after receipt of our notification.
5. On failure to comply with delivery periods, the purchaser’s rights under Articles 281 & 323 of the German Civil Code (BGB) shall only be effective
when he has set us a reasonable period for delivery which – insofar deviating from Articles 281 & 323 BGB – is accompanied by a declaration that
he will refuse to accept the fulfilment after expiry of this period; upon expiry of the period without success, the entitlement for fulfilment is
excluded.
6. In the event of delayed delivery, we shall be liable for damages proven by the purchaser to be a result of the delay with the condition that the
purchaser has informed us of the amount of the expected damage as a result of the delay after being informed of the extent of the delay. Should
the expected damages as a result of the delay exceed 20% of the value of the quantity affected by the delivery delay, the customer is obliged to
make immediate efforts to purchase sufficient quantities to cover his requirements elsewhere or, where applicable, to make use of any
possibilities to purchase merchandise proven by us and to withdraw from the contract for that part of the merchandise affected by the delay. Any
additional costs proven to be for such purchase elsewhere as well as damages proven to be a result of the delay in the interim period will be
reimbursed by us. Otherwise, our liability for damages proven to be the result of delivery delay are restricted to 50% of the value of the quantity
affected.
II. Dimensions, weight and quality
Deviations from dimensions, weights and quality shall be permissible within the limits prescribed by DIN or established practice. Weights will be
established on our calibrated scales and shall be authoritative for invoicing. Weight shall be evidenced by presentation of the weight slip. Where
normal practice does not call for items to be weighed individually, then the total weight of the shipment shall apply in each case. Differences in
comparison to the calculated total of individual weights shall be apportioned among them.
III. Dispatch, packaging and transfer of risk
1. We shall determine the forwarding agent or carrier.
2. Where the loading or transport of the merchandise is delayed for any reason for which the purchaser is responsible, then we shall be entitled, at
the cost and risk of the purchaser, to store the merchandise and to take all measures deemed necessary for the preservation of the merchandise,
and to invoice the merchandise as delivered.
3. The same shall apply when merchandise notified as ready for shipment is not called for within four days. The statutory provisions concerning
default of acceptance shall remain unaffected.
4. Insofar as it is normal practice, we shall deliver the merchandise packed and protected against rust; the costs are to be borne by the purchaser.
Packaging, protective materials and transport aids shall not be returnable. Any packaging going beyond that deemed to be necessary for
transport, e.g. for long-term storage or warehousing, requires an explicit agreement.
5. In the event of any transport damage, the purchaser must immediately arrange for the facts to be established by the appropriate bodies.
6. Risk shall be transferred to the purchaser when the merchandise is handed over to the forwarding agent or the carrier, at the latest however,
when it leaves the works or the warehouse.
IV. Claims for defects
1. The merchandise shall be deemed to comply with the contract when, at the point of transfer of risk, it does not, or not substantially, deviate from
the agreed specification; the compliance to contract and absence of defects of our merchandise are to be measured against the explicit
agreements on quality and quantity for the merchandise ordered. Any warranty for a certain use or suitability is only then assumed insofar as this
has been explicitly agreed; otherwise, the risk of suitability and application is exclusively for the purchaser. We shall not be liable for deterioration,
loss or inappropriate handling of the merchandise after transfer of risk.
2. Contents of agreed specifications and any explicit agreement on use shall not be deemed to constitute a guarantee; the assumption of any
guarantee must be in written form.
3. The customer shall inspect merchandise immediately upon receipt. Claims for defects shall only apply where these defects have been notified in
writing without delay; concealed defects must be notified in writing without delay following their discovery. After performance of any agreed
acceptance procedure, any claims for defects, which could have been detected during this acceptance, are precluded.
4. In the event of complaints, the purchaser shall give us an immediate opportunity to inspect the merchandise objected to, or make a sample of this
merchandise available to us at our cost. In the event of unjustified claims, we reserve the right to charge the purchaser for any freight or
warehousing costs and for the costs of inspection.
5. For any merchandise that has been sold as downgraded material – e.g. so-called II-a material -, the purchaser shall have no rights of warranty for
defects indicated and such defects as he could normally expect.
6. In cases of material defects, we shall, at our discretion – with due consideration for the purchaser’s interests – replace or repair the merchandise.
If we fail to make the repair or replacement within a reasonable period of time, the purchaser may set us a reasonable deadline for the repair or
replacement, after which, if not complied with, he may either reduce the purchase price or withdraw from the contract; no further rights exist.
7. In the event of a legal defect, we shall be entitled to fulfil by eliminating the legal defect within two
weeks of receipt of the merchandise. Otherwise Paragraph 6, 2nd sentence, shall apply accordingly.
8. The warranty period in the event of defective deliveries ends after one year following delivery. The statutory provisions for warranties on
merchandise used as is customary for a building, and which has caused its defective condition, shall remain unaffected.
9. Claims for recourse on the part of the purchaser per Article 478 of the German Civil Code (BGB) are limited to the legal scope of claims for
defects made against the purchaser by third parties, and are conditional on the fact that the purchaser has met his obligations towards us for the
notification of defects as per Article 377 of the German Commercial Code (HGB).
C. General limitation of liability
1. Except where otherwise provided for in these terms and conditions, we shall be liable for compensatory damages arising from breach of
contractual or extra-contractual obligations, or during preparation for the contract only in the case of intent or gross negligence of our legal
representative or his employee as well as for breach of significant contractual obligations. In the event of breach of significant contractual
obligations, we shall be liable – except in cases of intent or gross negligence of our legal representative or his employee – only for foreseeable
damages typical to the type of contract.
2. The above liability limitations shall not apply in cases of death, physical injury or damage to health.
3. Claims relating to personal injury or damage to privately used objects under the product liability act remain unaffected.
D. Miscellaneous
I. Export certificate
Where a purchaser based outside the Federal Republic of Germany (extra-territorial purchaser), or his representative, collects any merchandise
and forwards or ships it to a foreign country, the purchaser must provide us with the export certificate required for tax purposes. If this certificate is
not produced, the purchaser shall pay the turnover tax applying to the invoice amount for deliveries within the Federal Republic of Germany.
II. Applicable law
The law of the Federal Republic of Germany shall apply, under exclusion of the “Uniform Law of the United Nations on the International Sales of
Merchandise of 11th April 1980”.
III. Place of fulfilment and jurisdiction
Place of fulfilment and jurisdiction for both contract parties shall be Flensburg. We shall also be entitled to institute legal proceedings against the
purchaser at his general place of jurisdiction.
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