General Terms & Conditions of SWR engineering Messtechnik GmbH
§ 1 General, validity period
- Our general terms and conditions apply for all present and in future business relationships. Our deliveries and services take place exclusively on the basis of the following general business conditions. Individual contractual clauses have priority. To this extent, the general terms and conditions apply in addition.
- Any deviating, contradictory or supplementary general terms and conditions of the customers are not an integral part of the contract, even if we provide our products or services in full knowledge of such general terms and conditions, unless we have agreed to their applicability expressly in writing.
§ 2 Conclusion of contract, period of commitment, technical changes etc., documents
- Our offers and quotes are subject to change. Technical changes as well as changes in form, colour, design, material and/or weight are reserved as far as the quality and functionality of the subject of the contract is not significantly changed by this and the change is a reasonable one for the customer to accept.
- By ordering the goods (in the following also referred to as supplied product), the customer makes a binding declaration of wanting to acquire the ordered goods. The customer is bound to his order for 2 weeks after the order is received by us. Within this period, we are entitled to accept the contractual offer by the customer that is contained in the order. The acceptance can be declared to the customer either in writing or by delivering the goods.
If the acceptance takes place by a confirmation of the order, the customer is obligated to immediately verify the acceptance for any deviations from the order and to make an immediate complaint about such deviations to us. Otherwise, the contract is deemed as valid in accordance with the order confirmation.
- We reserve all rights regarding property and copyright to any images, diagrams, calculation and any other documents transmitted by us. Any forwarding or distribution of these documents to third parties is only permitted with our express prior approval in writing. Any diagrams and other documents included with the offer must be immediately returned to us if the contract is not awarded to us.
§ 3 Prices
- The purchase price is the price named by or, if this was not provided separately, the price listed in our applicable price list at the time of the order. The legally applicable value-added tax (VAT) at the time of delivery will be added to the price.
- The prices are understood to be ex works and excluding packaging. The delivery is made freight collect. On written request of the customer, the goods will be insured by us at the cost of the customer. § 7 remains unaffected.
§ 4 Payment, delay, defence of uncertainty, offsetting
- Payment is to be made without deductions within 30 days from the invoice date. All bank charges are to be borne by the customer.
- We are entitled to demand advance payments and to only provide deliveries and services against payment up front.
- If the payment by the customer is delayed, then we are entitled to charge legal default interest in the amount of 8 percentage points above the base lending rate. This does not affect our right to claim damages of higher amounts.
- We are entitled to charge reminder charges in the amount of 5.00 Euro for every reminder and at least no less than compensation for the actual expenses.
- If it only becomes apparent after conclusion of the contract that our entitlement to receive payment is at risk due to the inability to pay on the part of the other contractual party, then we are entitled to refuse our deliveries or services if any advance performance obligations come into existence, until such a time as payment or security has been provided for such deliveries or services. If the customer, after the expiration of a reasonable deadline set by us, is neither prepared to pay step-by-step nor to provide any security, then we are entitled to terminate the contract and to claim compensation for damages.
- Offsetting any claims against claims on the part of the customer is only permissible to the extent that these are recognised as existing and valid by us or their validity is determined based on legal cause.
- The customer is only entitled to a right of retention to the extent that the customer's counterclaim is based on the same contractual relationship.
§ 5 Delivery periods and deadlines, partial deliveries
- Delivery dates are only legally binding if they have been expressly confirmed by us as binding in the order confirmation.
- Delivery dates agreed in writing begin on the day of our order confirmation, though not before clarifying all technical and commercial details, as well as the presentation of any authorisations that may be required. Any changes in the execution of the delivery or the supplied product made by the customer before the delivery date will set back the delivery deadline to a reasonable extent.
- In case of any unforeseen events and force majeure (which can include material supply bottlenecks, strikes etc.), we are entitled to push back the delivery for the duration of the cause of the delay and a reasonable start-up time. The same applies in case of any non-delivery or late delivery on the part of an upstream supplier that is not our fault
- If our delivery is delayed, the customer is entitled to set us a reasonable delivery deadline in writing. If we have not delivered the goods in question by this new deadline, then the customer is entitled to withdraw from the respective parts of the contract.
- If the customer incurs any damage as a result of the delayed delivery, then our liability is limited according to the regulations in § 10.
- We are entitled to make partial deliveries.
§ 6 Exclusion of right to termination / Non-approval of the supplied product
- The possibility of an orderly termination of the contract by the customer is excluded.
a) If after the expiration of a reasonable respite period the customer refuses the approval or an express declaration not to want to approve the product, we can withdraw from the contract and demand compensation for damages. The compensation for damages that can be claimed can be a flat amount of 50 % of the gross value of the contract. It is up to the customer to demonstrate that we have incurred no or significantly less damage. In case we have incurred any greater damage, we are entitled to claim this instead of the flat amount.
b) If the conditions of para. 2 a) are met and we do not withdraw from the contract, then we are entitled to demand reasonable and typical compensation for the storage of the goods.
§ 7 Place of performance, risk transfer
- The place of performance for our delivery obligation is our business premises in 79418 Schliengen. The shipping of the supplied product takes place on request of the customer. We can choose the shipping route and method unless agreed otherwise.
- The shipping of the supplied product takes place at the risk of the customer. The risk is transferred to the customer on delivery of the goods to the freight forwarder, the shipper or the entity entrusted with the shipping of the goods. If the shipping is delayed due to an action of the customer, then the risk is already transferred to the customer at the time the customer is notified that the goods are ready for delivery.
§ 8 Reservation of proprietary rights, extended and expanded reservation of proprietary rights
- Delivered goods remain our property until all payments accrued as a result of the on-going business relationship have been received.
- In case of any action on the part of the customer that is in violation of the contract, in particular in case of delayed payment, we are entitled to take back the delivered goods. After taking back the goods, we are entitled to use them for other purposes. Any revenue received from this will be offset against the obligations of the customers – minus reasonable handling costs –.
a) the customer is entitled to sell the delivered goods in the ordinary course of his business; however, he already cedes to us all claims that may result for him against his purchaser or third parties from the sale. We hereby accept the relinquishing of such claims. The ceding of the claims takes place irrespective of whether the delivered goods have been sold without or after any additional processing. However, the customer also remains entitled to recover the ceded claims even after the claims have been ceded. This does not affect our authorisation to recover the claims ourselves; however, we undertake not to recover the claims as long as the customer meets his payment obligations.
b) If the customer does not meet his payment obligations to us, is he is in default, if there is an application for the opening of insolvency proceedings with regard to his assets or if he ceases to make payments, then the customer is obligated on our request to immediately provide information about the ceded claims and their debtors, to provide all information necessary for the collection, to provide the accompanying documents and to inform the debtors about the ceded claim.
- In case of repossessions or other interventions by third parties, the customer must immediately notify us in writing so that we can exercise our rights.
- We undertake to release any securities to which we have claim on request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10 %. We are entitled to select the securities to be released.
§ 9 Liability for defects, notice of defects, burden of proof
- The customer must examine the supplied product immediately on receipt with the due care appropriate to the circumstances and to give notice of any complaints immediately in writing. If any defect is detected later that could not have been detected sooner, then notice must be given of the defect in writing as soon as it is discovered. If the buyer gives no notice of any complaint, then the delivery is deemed to be approved. The burden of proof for the defect itself, the time of the discovery of the defect and the timeliness of the notice of the defect lies with the customer.
- To the extent that there is a deficit, we are entitled to decide whether to eliminate the defect or replace the product in question. The regulations regarding the delivery date (§ 5) apply accordingly.
- If the attempt to eliminate the defect fails, which is the case after a failed second attempt due to special circumstances, if we refuse to eliminate the defect or if this is unreasonable for the customer, then the customer can elect to reduce the compensation or withdraw from the contract. In case of a minor contractual violation, in particular in case of only minor defects, the customer is not entitled to a right of withdrawal.
- If, due to a technical defect or a defect of title, the customer chooses to withdraw from the contract after we have failed to deliver despite a respite period and second deadline, then he is not entitled to any claim for damages resulting from the defect.
- If it is necessary in case of a defect to return the goods to us, then this can only occur with our prior agreement and by using the specified shipping route and method. Any return shipments that were shipped without our previous approval do not need to be accepted by us. In such a case, the customer bears the costs for the return shipment.
a) Regarding the properties and condition of the product, the product description of the manufacture counts as agreed. Public statements, praise or advertising by the manufacturer do not represent any contractually agreed property of the product(s). We are only responsible for public statements, in particular in advertising, if we initiated these statements.
b) There is only an obligation to meet claims if the advertising has actually influenced the purchase decision of the customer. The burden of proof for this lies with the customer.
- We do not provide warranties in the legal sense to the customer unless explicitly agreed otherwise. A reference to standards or other legal product specifications serves only to describe the product and does not represent a warranty.
- The statutory period of limitation for warranty claims amounts to 12 months. The statutory period of limitation in case of a delivery regress acc. to §§ 478, 479 of the German Civil Code remains unaffected.
- In the restrictions included in the preceding clauses, the liability for defects does not apply in the cases of § 10 para. 7.
§ 10 Liability limitations, burden of proof
- We are not liable for slightly negligent breaches of non-material contractual obligations.
- Apart from that, our liability in cases of light negligence is limited to the immediate, contractually typical damage that can be anticipated given the type of goods. In particular, we are not liable for any loss of profits or other financial damages.
- In cases of normal negligence, we are not liable for damages that did not occur on the supplied product itself. In particular, we are not liable for any loss of profits or other financial damages on the part of the customer.
- Damage claims against us in the cases of clauses 1.-3. are limited to the amount of the purchase price for the affected (individual) delivery.
- In other cases of damages caused by negligence, the limitation applies according to the preceding clause 4.
- The preceding liability limitations also apply in cases of neglect of duty by our legal representative or auxiliary persons.
a) The preceding liability exclusions/liability limitations do not apply for damages arising from personal injury or death resulting from negligence on the part of SWR or an intentional or negligent dereliction of duty on the part of a legal representative or auxiliary person of SWR. They also do not apply for other damages based on a grossly negligent dereliction of duty of SWR or an intentional or grossly negligent dereliction of duty of a legal representative or auxiliary person of SWR.
b) The same applies for the non-presence of warranted properties; however, damage claims can only be claimed to the extent that the assurance of the property includes the risk of resulting damages and the damage that occurred is the result of the lacking property.
c) Damage claims according to the Product Liability Act remain unaffected.
§ 11 Severability of interest
Should one or more clauses of these General Terms & Conditions be or become ineffective, the effectiveness of the remaining clauses remains unaffected. The wholly or partially ineffective clause is to be replaced by a clause that comes as close as possible to the economic outcome of the ineffective clause.
§ 11a Ancillary agreements, changes, written form
- To be effective, ancillary agreements and changes to a contract must be made in writing. This requirement itself can only be altered in writing.
- Faxes and e-mails meet the requirement and are deemed to be in writing.
§ 12 Legal venue, applicable law
- If the customer is a merchant, a legal person under public law or a legal separate estate the exclusive legal venue for all disputes arising from this contract is Freiburg im Breisgau, Germany. However, we are entitled to also take the customer to court in the legal jurisdiction of his place of residence or business premises.
- German law applies exclusively. The application of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.