GENERAL BUSINESS TERMS AND CONDITIONS
ABL SURSUM Bayerische Elektrozubehör GmbH & Co. KG
General Business, Sales and Delivery Terms and Conditions
1 Scope of Validity1.1 These General Business Terms and Conditions shall apply to any and all contracts and agreements with entrepreneurs such as it is defined in and by Section 14 of the German Civil Code.
1.2 These General Business Terms and Conditions shall be and constitute an integral part of the contract or agreement which is and will be concluded between the Seller/Supplier (ABL SURSUM, and hereinafter referred-to as Seller) and the Buyer / Ordering Party) (hereinafter referred-to as Buyer)
1.3 It is by the submission of an offer concerning the conclusion of a Purchase Contract to the Seller that the Buyer declares that it fully and comprehensively agrees to these General Business Terms and Conditions. Any and all general business terms and conditions of either the Buyer or any other third party or parties, which are in any way conflicting with these General Business Terms and Conditions are expressly barred.
1.4 Any and all divergences from these General Business Terms and Conditions or from contractually agreed-upon contents as well as instructions and modifications of drawings, embodiments and similar documentation shall only be binding for the Seller if the same were expressly noted and confirmed in writing.
1.5 These General Business Terms and Conditions shall also be and become an integral basis for future business transactions which are or will be part of the current permanent business relations between the contracting parties, also if no express or specific reference will be had thereto in the case of the respective contracts.
2. Offer and Acceptance of Order2.1 A purchase contract will be brought about by the submission of a binding offer by the Buyer to the Seller and the acceptance thereof by the latter. A contract shall not be binding for the Seller unless and until the latter will confirm and thus accept the Buyer’s offer.
2.2 The Seller shall in all cases confirm the acceptance of any one contract in writing unless the transaction is executed by way of direct delivery and/or accounting.
3. Prices3.1 In so far as no other agreements will have been made between the contracting parties prices shall be valid ex works plus the statutory value-added tax plus costs and fees for freight, customs duties, import-associated charges and packing.
3.2 If the price of the products is calculated on the basis of the weight of the same and if packing and wrapping paper is used for the packing of the products it shall be the gross weight of the products which shall be decisive for the calculation of the price.
3.3 Prices shall, as a matter of principle, be indicated in the currency which was specified in writing in the order-confirming and the invoicing documents.
3.4 In so far as it will not have been otherwise agreed the Seller reserves the right to increase the agreed-upon prices by the pro rata of increased prime costs in the case of all changes of general economic conditions, more particularly in cases of wages or salaries increases, price increases for raw materials and supplies, taxes, transport costs and valuta changes.
3.5 In case of new orders (= follow-up orders) the Seller shall not be bound by preceding price agreements.
3.6 Subsequent changes or modifications of contracts or agreements, of quantities and cancellations shall only be possible if the Seller will not yet have incurred any costs for the fulfilment of the contract. Otherwise the Buyer shall reimburse these costs to the Seller.
4.1 The sales documents, data and material which the Seller provides, such as drafts, blueprints, drawings, clichés and films are the Seller’s property. The Seller shall also retain the ownership title to these documents, data and material if the Buyer will pay any pro rata costs for the same.
4. Industrial Property and Copyrights
4.2 The Seller shall retain its unrestricted ownership rights and titles as well as the copyright exploitation rights to which it is entitled by law as far as costs estimates, drawings and other documents, data and material (hereinafter referred-to as documentation) are concerned. This documentation may not be made accessible for any third party or parties until and unless the Seller will have given its prior consent thereto. Upon the Seller’s request this documentation shall immediately be returned to the Seller if no contract or agreement will be reached between the Buyer and the Seller. Sentences 1, 2, 3 above shall mutatis mutandis also apply for the Buyer’s documentation. The Seller shall, however, be entitled to pass the Buyer’s documentation on to such a third party or parties to whom the Seller has given orders and instructions to render pertinent performance.
5. Delivery / Delivery Period5.1 In so far as the Contracting Parties have not or will not have otherwise agreed the Buyer shall at all times and in all cases have the obligation to fetch the products from Seller’s place of performance. Deliveries will be made at the Buyer’s risk. This shall also apply if and when the Seller will pay the transport costs either in whole or in part. The Buyer shall as a matter of principle pay delivery costs unless it is or will have been otherwise agreed-upon.
5.2 Delivery periods shall begin after receipt of the entirety of the documentation and data which the Seller will need to have in order to be able to perform and fulfil the contract, as well as of the Buyer’s definite order and/or payment on account or advance payment if such an advance payment was contractually agreed upon.
5.3 Specified delivery periods shall be but approximate guidelines and shall be deemed to have been agreed upon approximately only.
5.4 In the event where any orders will subsequently be altered the Seller shall no longer be obliged to meet the originally specified and confirmed delivery deadline.
5.5 In cases of force majeure such as, for instance, natural disasters, measures imposed by public authorities, materials shortage, operational disturbances, traffic accidents, strike, lock-out and other operational interruptions the Seller shall have the option to either adequately extend the agreed-upon delivery period or to rescind the contract.
5.6 If the Seller will fail fo perform within the agreed-upon time period the Buyer shall grant the Seller an additional period of time of 20 working days in writing. It shall only be after the end of this 20-day period that the Buyer shall be entitled to rescind the contract. The same shall also apply in the case where the Seller will exceed the agreed-upon time limit due to the Seller’s fault.
5.7 In the case of orders which are delivered on call the Buyer shall be obliged to accept the same within the agreed-upon time period. Once this time period will have expired any and all parts of any one order which were not yet accepted will nevertheless be invoiced to the Buyer and shall be due to be paid. In the case of default in taking and accepting delivery the Buyer shall reimburse the Seller for the costs which were incurred by the Seller in cases of delayed aceptance.
5.8 In the case of call orders for which no duration, no production lots and no acceptance dates or deadlines will have been agreed upon the Seller may, at the latest three months after the confirmation of the order, ask the Buyer to submit a binding agreement for the same. If the Buyer will not respond and comply with this request of the Seller within three weeks after the communication of this request, the Seller shall be entitled to fix a two-week extension and to rescind the contract and/or claim damages once these two weeks will have expired.
5.9 The Seller shall be entitled to refuse to perform as long as the Buyer will be in default with the payment of any one liability.
6. Packing/Shipping Terms and Conditions6.1 Unless it will have been otherwise agreed the Seller shall select the packing, the type of shipment and shipping route of a consignment. In selecting the type and the route for a shipment the Seller shall try to take account of the Buyer’s wishes and interests. Any and all additional or extra costs which will thereby be incurred shall be at the Buyer’s expense – also in the case where carriage-paid delivery was agreed-upon.
6.2 If the Buyer wishes a special, non-customary type of packing, the Seller shall be entitled to invoice the costs for this packing to the Buyer.
6.3 Shipment and loading of the products shall in all cases be carriage unpaid, non-insured and at the Buyer’s risk, unless it will have been otherwise agreed upon.
6.4 Upon the Buyer’s request the products shall be insured at the Buyer’s expense against the risks which the Buyer will specify.
6.5 Any and all data which relate to and are relevant for any one consignment shall not be passed on to any non-authorized third party or parties.
7. Production- and Delivery-Governing Quality Standards7.1 Tolerances
As far as the production is concerned the Seller shall as a matter of principle use quality assurance methods and procedures which meet at least the ISO 9002 standard requirements, taking due account of validly applicable test and valuation guidelines as well as of the tolerances for weight, measuring and quantity divergences which are specified in these latter.
7.2 Raw materials
7.2.1 The execution of the orders shall be implemented with materials which are customary in this sector and according to known production methods and procedures, unless it will have been otherwise agreed upon. If the Buyer has any special production-related wishes or requirements which exceed the customary quality standards the Buyer shall explicitly specify the same in its order. The implementation of these production requirements, which is required by the Buyer may lead to an increase of the product price, if the Seller was not aware of these quality requirements already at the time of the submission of the order. This price increase will be invoiced to the Buyer by the Seller.
7.2.2 If the situation of No. 7.2.1 sentence 2 applies the Buyer shall inform the Seller of the special qualities and other characteristics or features of the desired materials, production methods and procedures.The Buyer cannot bring up any complaints for defects or deficiencies concerning the behavior of the packing materials in relation to the product charge and vice versa, if the Buyer has not expressly and specifically drawn the Seller’s attention to the special characteristics of the product charge and has not given the Seller an opportunity to comment.
7.3 Production Methods and Procedures
The Seller reserves the right to modify the production method or proceedings in so far as the Buyer will not demand any pertinent restrictions or specific information.
8. Retention of Title8.1 Delivered items shall continue to be the Seller’s property until all of the claims or titles which the Seller has in relation to the Buyer on the grounds of the respective contractual relationship will have been fully and completely met, and this shall also apply if the sales price for explicitly specified claims will have been paid. In the case of current accounts the reserved specific ownership title in and to the delivered items (products or items under retained ownership title) shall be deemed to constitute a security for the Seller’s collective invoice. If a liability under a draft will be founded with regard to the payment of the sales price the retention of the ownership title shall not lapse until the bill will have been honored by the Buyer as a drawee.
8.2 Any and all types of working, treatment or processing by the Buyer of the goods which are subject to this retention of title shall be deemed to be
by order of the Seller, with the provisions of Section 950 of the German Civil Code being precluded .The Seller shall become a co-owner of the thus created item at the ratio of the invoice value of the sold products which were delivered subject to a retention of ownership title to the objective material value of the other or processed goods, which shall, in turn and at this ratio, serve as products or items delivered under a retained ownership title to thus safeguard the Seller’s claims under paragraph 1 above.
8.3 In the case of combination/mixture or blending by the Buyer with other goods which do not belong to the Seller it shall be the provisions of Sections 947, 948 of the German Civil Code which shall apply, with the consequence that the Seller’s co-ownership portion in and to the new product or item shall from that point on serve as products or items which were delivered subject to a retention of ownership title such as it is provided under paragraph 1 above.
8.4 Further sale of the products which were delivered subject to a retention of ownership title shall be permitted to the Buyer in the ordinary course of its business only and only subject to the condition that the Buyer shall equally stipulate a retention of title clause according to paragraphs 1 to 3 above with its customers. The Buyer shall not be entitled to otherwise dispose of the products which were delivered subject to a retention of ownership title, more particularly by way of pledging and security transfer of title of the same.
8.5 In the case of further sale of the products which were delivered subject to a retention of ownership title the Buyer shall by these presents and as of now and up to the point of fulfilment of all of the Seller’s claims ensueing from the contractual relationship, cede and assign its claims to the Seller to which it will be entitled on account of this further sale and its other justified claims which it has against its customers along with all ancillary rights resulting from the claims which will be arising for it on account of such further sale in relation to its customers.
Upon the Seller’s request the Buyer shall be obliged to immediately let the Seller have any and all information and all documentation which will be required for the purpose of asserting the Seller’s rights and titles in relation to the Buyer’s customers.
8.6 If the products which were delivered subject to a retention of ownership title are or will be further sold by the Buyer following their processing, bonding or mixing according to paragraphs 2 and/or 3 above with other goods or materials which are not the Seller’s property, the cession and assignment of the purchase price claim specified in paragraph 5 shall only be applicable with respect to the amount of the invoice value of the Seller’s products which the latter sold subject to its retention of ownership title.
8.7 In the event where the value of the securities which exist for the Seller will exceed the Seller’s overall claims against the Buyer by more than 10%, the Seller shall, upon the Buyer’s request, in so far be obliged to release securities according to the Seller’s option.
8.8 Any and all attachments or seizures of the products which the Seller delivered subject to the retention of an ownership title by any third party or parties shall immediately be communicated to the Seller. The Buyer shall refund and reimburse the Seller any and all of the Seller’s consequently resulting judicial and extra-judicial costs.
8.9. If the Seller will take the products back, which the Seller delivered subject to a retention of ownership title on the grounds of its retention of title which it has in line with the foregoing provisions the Seller shall be entitled to either sell the products or to have the products sold by way of sale in the open market. The products which the Seller delivered subject to a retention of ownership title, which will thus have been taken back, shall pay off the valid claim which the Seller has against the Buyer in the amount of the proceeds which were obtained for the products by this sale or auction. The Buyer shall not be entitled to claim payment from the Seller in so far as the proceeds obtained by the sale/auction sale of the products which the Seller delivered subject to a retention of ownership title will exceed the Seller’s claim. The Seller reserves the right to assert yet further claims, for instance claims for damages, more particularly lost profits.
9. Claims for Defects or Deficiencies9.1 In line with the provisions of Section 377 of the German Commercial Code the Buyer shall be obliged to inspect and examine the products immediately after receipt thereof and to notify the Seller immediately, at the latest, however, one week after receipt of the products at their point of destination, if a defect or deficiency will have been detected, communicating the same in writing and specifying its grounds for such complaint, submitting pertinent test specimens as well as a clear definition of the delivery lot by indication of the delivery note or invoice number.
9.2 Governing law shall be the German warranty laws. In addition and in divergence therefrom the Seller may, in case of submission of evidence of any such defect or deficiency by the Buyer and at Sellerl’s option, either remedy the defect or deficiency or provide for replacement thereof by way of delivery of a non-defective or non-deficient product or item as remedy or replacement. In that case the defective or deficient product or item shall be returned to the Seller.
9.3 The Seller shall be given an opportunity to itself inspect and survey the objected-to defect or deficiency at the location of the disapproved product.
9.4 Defects or deficiencies which are detected in a portion of the total consignment shall not entitle the Buyer to complain and object to the entirety of the consignment.
9.5 In the case of a fully automated production the products will automatically be counted. In that case the Seller shall be entitled to use these counted numbers as a basis for the delivery of its products and for their invoicing.
9.6 The Buyer shall be obliged to appropriately store the thus delivered items/products, i.e. at a dry place, protected against humidity, direct radiation of sun light and extreme temperature variations. A defect or deficiency which was caused by a non-appropriate storage by the Buyer shall not constitute a defect or deficiency as defined by statutory warranty law and shall thus preclude the Buyer’s warranty claims. The same shall also apply for improper handling of the items/products by the Buyer.
9.7 The Buyer shall not be entitled to any unauthorized remedy, rework or replacement of the defect or deficient items or products. It shall exclusively be for the purposes of warding off a disproportionate damage or in case of delayed remedy, rework or replacement by the Seller that the Buyer shall be entitled to remedy, rework or replacement after it will previously have notified the Seller, and to then demand reimbursement of the costs which were so incurred.
9.8 Quantity Variances
An excess or short delivery of up to 10% of the ordered quantity shall not constitute a defect or deficiency within the meaning of warranty law. In the case of short delivery the Buyer cannot demand to subsequently be furnished the lacking quantity. The Buyer shall, however, be entitled to reduce the purchase price at the corresponding ratio. In the case of excess delivery the Buyer may not demand that the Seller take the excess quantity back. In that case the Seller cannot invoice the products which it has delivered in excess.
9.9 The period of limitation for warranty rights is one year and it begins with the receipt of the delivered items/products. This shall not apply for claims for damages in the case of damages which are caused by injury or affection of the life, limb, body or health of any one person or persons, which are due to a negligently committed failure of the Seller to comply with its duties or to a wilfully or negligently committed failure of a legal representative or a vicarious agent of the Seller to comply with its duties, and in the case of other damages which are due to a grossly negligent failure of the Seller to comply with its duties or to a wilfully committed or grossly negligent failure of a legal representative or precarious agent of the Seller to comply with its duties, and in the case of damages which were caused by slight negligence by non-fulfilment of essential contractual duties or obligations, i.e. such duties or obligations the fulfilment of which allows for the proper fulfilment of the contract and on the compliance with which the contracting partner may regularly rely (cardinal duties and obligations).
10. Payment Terms and Conditions10.1 All payments shall be made exclusively to the Seller and in EURO only.
10.2 Unless it will have been otherwise agreed upon payment of the sales price for deliveries or other services and performances shall be due without any deductions within 30 days after the date of the invoice for the same.
10.3 Any and all setoff and retention rights shall be barred and precluded.
10.4 Bills of exchange/drafts and checks will be accepted on account of performance only. Payment by way of drafts shall be allowed subject to special agreement only. Interest and discounting or collecting costs for the collection of drafts and checks shall be paid by the Buyer and shall be due for immediate payment in cash.
10.5 Any non-compliance with these payment terms and conditions on the grounds of circumstances which suggest a reduced credit standing on the part of the Buyer and of which the Seller will not become aware until after the conclusion of the contract, shall result in that all of the Seller’s claims shall immediately be due for payment (also in cases where a respite has been granted). If bills of exchange/drafts were in this case not yet honored the Seller shall nevertheless be immediately entitled to payment of the claim by the Buyer.
11. Right of RescissionIf the Buyer will declare its rescission of the contract before the production of the objects of the sale will have started the Seller shall be entitled to demand 10 % of the order value as a cancelling or reversal fee from the Buyer in stead of its right to performance.
12. Export Regulations
The products which are produced and/or sold by ABL SURSUM Bayerische Elektrozubehör & Co. KG may be subject to European and/or US export regulations. Every export which is subject to the granting of an export license will therefore require the consent of the competent authorities.
13. Other Provisions
DSD Fees: It is a matter of principle that the Seller will not pay any DSD license fees to the DSD system, unless special individual agreements are or will be aplicable and governing.
14.1 The Seller shall only be liable for damages which are caused by injury or affection of the life, limb, body or health of any one person or persons, which are due to a negligently committed failure of the Seller to comply with its duties or to a wilfully or negligently committed failure of a legal representative or a vicarious agent of the Seller to comply with its duties and in the case of other damages which are due to a grossly negligent failure of the Seller to comply with its duties or to a wilfully committed or grossly negligent failure of a legal representative or precarious agent of the Seller to comply with its duties.
14.2 In the case of slight negligence the Seller shall only be liable in the case of non-compliance with essential contractual duties and obligations, that is to say such duties and obligations the compliance with wich will allow for the proper execution of the contract and on the compliance with which the contracting partner may regularly rely (cardinal duties and obligations).
14.3 Any and all claims for damages on the grounds of consequential damages shall be barred and precluded.
14.4 Any and all further liabilities on the Seller’s part which go beyond that shall be barred and precluded.
14.5 The Seller shall be at liberty to raise an objection on account of contributory fault.
15. Place of Performance, Venue, Applicable Law, Final Provision
15.1 The place of performance and the exclusive jurisdiction and venue for any and all disputes or controversies resulting from and in connection or in a context with this contract shall be the place of the Seller’s head office. The Seller shall, however, be at liberty to, at its option, file an action and sue at the place of any one of its branch offices or at the Buyer’s residence or place of business.
15.2 German law shall exclusively be governing. The application of the UN Convention on the International Sale of Goods shall be barred and precluded.
In case of doubt the German version of these Terms and Conditions shall be governing.
15.3 Both the conclusion of this contract as well as any and all subsequent modifications of and amendments to this contract must be made in writing in order to be valid. This shall also apply for any alteration of the written form requirement. Oral collateral agreements were not made. Every annex thereto must be signed by both contracting parties in order to be valid and effective.
15.4 If any one specific provision of these General Business Terms and Conditions will be or become invalid or impracticable this shall not affect the validity and the effectiveness of the other remaining provisions. Instead of the invalid or impracticable provision the parties shall agree on a valid and practicable provision which shall take reasonable account of the parties’ mutual economic interests. The same shall, mutatis mutandis, also apply in the case of a gap. The applicability of Section 313 of the German Civil Code shall remain unaffected.
Current as at November 2017
The publication of this catalogue renders all previous catalogues invalid.
Technical alterations and errors reserved.