GTC / Sales Conditions of Smart Power Electronics GmbH & Co. KG
(in the following named “SPE”)
1. General remark -scope
Our sales conditions are valid exclusively. Contradictory or deviating terms of the customer only rate as accepted if they are confirmed in writing as amendment in our conditions of delivery.
All agreements concluded between the customer and us to implement this contract are laid down in this contract in writing.
Our sales- and delivery conditions are only valid for companies within the meaning of §310, par. 1 BGB.
2. Offers and prices
Offers are made principally in writing form. Unless otherwise specified they are valid for 60 days starting from the point of receipting. Does the client execute an offer him/herself within the means of § 145 BGB, we may accept within 14 days.
Our prices are principally net plus valid VAT plus delivery and packing charges as well, unless something else has been put down in writing. Changes and additional services having been stipulated afterwards are to be paid separately.
SPE is able to adjust prices, if the material and commodity prices which SPE has to pay for this specific order will increase by 5% four weeks after contract formation or eight weeks later will increase by 10%. The price adjustment will take place in relation to the actual additional charges for SPE. The customer is indentured to pay the accordingly higher price. He/she cannot withdraw from the contract. Should the volume of orders increase by more than 15% the customer is able to withdraw within 14 days after the point of receipting the message about the increased prices.
If it should emerge after contract formation that SPE needs a special tool for appropriate processing of contracts, the costs for this special tool will be charged to the customer’s debit. Nevertheless the special tool will become the property of SPE.
3. Payment terms
Unless the contract note says something else the buying price falls due to payment without any deduction inside 30 days from date of invoice. Deduction of discount also needs to be set out in writing.
4. Time of delivery
Delivery times are only mandatory if they have been set out in writing particularly on contract formation or if they are confirmed in writing by us subsequently. If the delivery time should be exceeded the customer has the right to set a final deadline of four weeks in writing and to rescind the contract after the deadline has expired.
SPE is able to perform part delivery as well as partial performance in a reasonable way. Even in case of a delivery time having been fixed in writing, this way is appropriate.
In case of default in acceptance caused by the customer, he/she is committed to pay for the normal warehouse charges.
5. Passing of risk
Unless the contract note says something else delivery ex factory is agreed. The risk passes to the costumer when the delivery item is handed over to the person conducting the transport. Conclusion of an insurance will only happen when instructed and paid by the customer. This has to be put down in writing explicitly on contract formation or afterwards.
Claim of defects of the customer requires the fact that he/she has performed his/her duty to inspection and objection in line with § 377HGB properly.
In case of a lack, SPE has to be given the possibility of supplementary performance within six weeks. On failing the customer is able – without prejudice to any damage claims – to rescind the contract or to decrease the payment.
Claims of defects do not exist on only negligible differences from the agreed state, on only negligible impairment of serviceability, on natural wear or damages having occurred after the passing of risk caused by faulty or careless treatment, by excessive stress or due to outside influences which are not assumed by the contract.
If the customer makes modifications to the delivery item, claims of defects do not exist. Claims of material defects for commodities which are subjected to normal attrition during operation are also excluded.
Claims of material defects prescribe within 12 month. The limitation period in case of a delivery recourse after §§ 478, 479 BGB will remain unaffected.
Further claims of damages made by the customer regardless of which legal basis, especially due to infringement of duties from the obligatory relation or claim in tort are excluded. This does not apply if the liability is mandatory, for example according to product liability law, in case of intent or gross negligence, injury to life, body or health, contractual express warranty or violation of fundamental contractual obligations. Fundamental contractual obligations are such basic obligations, whose feasance only enables a proper contract implementation, whose compliance the contract partner may trust in regularly. Indemnity for infringement of material obligations is limited to predictable damages typical for the contract, unless of intent or gross negligence or of being liable for injury to life, body or health or warrant of absence of a defect.
The liability clauses specified before will also hold true for the purchaser’s legal claim of compensation of vain expenses as well as for the personal liability of our staff, employees, associates, representatives and vicarious agents.
Our liability is limited to a lump sum of 3,000,000.00 € for personal and material damages and to a lump sum of 500,000.00 € for financial losses.
In case of data losses SPE only is liable for this if the customer is able to give a proof of having saved his data regularly at least once a day. The liability for data losses is limited to the expenditure of recovery by using a backup copy, unless the data losses have been caused by SPE intentionally or grossly negligent. Otherwise the liability is excluded except for cases of intent or gross negligence.
7. Reservation of title
The object of purchase stays property of SPE until all outstanding accounts of the business connection with the customer are paid. In case of having agreed with the customer on payment of the buying price dept due to banker’s draft, the reservation will also extend over the customer’s discharge of the bill accepted by us and will not expire on credit entry at our place.
In case of garnishment or other interventions of a third party, the customer has to inform us immediately in writing, thus we are able to institute legal proceedings according to § 771 ZPO. If the third party is not able to refund the legal or extrajudicial expenses of an action according to § 771 ZPO, the customer will be liable for our occurred loss.
The customer is entitled to resell the object of purchase in an ordinary transaction. But he assigns to us already now all receivables in the amount of the final invoice incl. VAT which will arise to him from the resale towards his customers or a third party regardless of whether the object of purchase is resold without or after processing at that. The customer will remain authorised to collect his claim even after the assignment. Our warrant to collect the claim ourselves will thereof remain unaffected. But we commit ourselves not to collect the claim whilst the customer meets his payments obligations from the collected proceeds, does not incur in default and especially does not apply for arrangement or bankruptcy proceedings or if stoppage of payments does exist. But if this is the case, we may demand the announcement of the assigned receivables and their debtors from the customer further more that the customer provides all information required for the collection, delivers the relevant data and informs the debtor about the assignment.
Reprocessing or transformation of the object of purchase by the customer is always made for us. If the object of purchase is manufactured together with other items not belonging to us, we will acquire co-property of the new item at the ratio of value of the object of purchase (final invoice incl. VAT) to value of the other manufactured items at time of their processing. Apart from that, for the emerging item being formed by the processing, the same standards will apply as for the object of purchase delivered under reservation.
If the object of purchase is inextricably mingled with other items not belonging to us, we will acquire co-property of the new item at the ratio of value of the object of purchase (final invoice incl. VAT) to value of the other mingled items at time of mingling. If the mingling is performed in such a way that the item of the customer is assumed to be the main part of it, it is agreed that the customer will confer proportionally co-property on us. The customer will store the thus emerged sole property or co-property for us.
To secure our receivables to him the customer also assigns to us those receivables which accrue to a third party from the connection of the object of purchase with a parcel of land.
We commit to release the securities being due to us by customer’s request insofar as the realisable value of our securities exceeds the receivables to be secured by more than 10 %. The selection of the securities to be released is due to us.
8. Final clauses and legal domicile
In case of a clause being void in whole or in part the contract will remain valid apart from that. Both contract parties are committed within an acceptable scope in good faith and trust to replace possibly void clauses by provisions matching in economic success, unless of causing crucial changes to the contents of contract.
The contract is governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods and the German international private law.
For all actual and future claims accruing from the business connection with fully-qualified traders Itzehoe will be legal domicile exclusively. Unless the contract note says something else place of performance is our registered office.
Smart Power Electronics GmbH & Co. KG
Österstraße 15, 25693 St.Michaelisdonn