AGB

 

ABL SURSUM Bayerische Elektrozubehör GmbH & Co. KG
General Sales and Delivery Terms and Conditions

 

1.Scope

 

1.1 These General Terms and Conditions form part of the contract between the seller/supplier (ABL SURSUM, "Seller" in the following) and the buyer/recipient ("Buyer" in the following).

1.2 Deviations from these General Terms and Conditions or from special conditions or instructions or changes to drawings, explanations and similar documents are binding upon the Seller only if he or she has accepted them explicitly and in writing.

1.3 These General Terms and Conditions remain in force even when individual parts become invalid for any reason.

1.4 General Terms and Conditions of the Buyer or of third parties that differ from these General Terms and Conditions, or from special conditions, are not binding upon the Seller even if the Buyer refers to them and the Seller has not objected explicitly in each case.

1.5 In the case of ongoing business relationships, these Terms and Conditions also apply to future transactions in which they are not explicitly referred to.

 

2. Offers and Acceptance of Orders 

2.1 Orders are only then binding upon us when they have been confirmed by us.

2.2 The Seller always confirms orders in writing or by fax, unless delivered or invoiced immediately.

2.3 Should the Buyer cancel a contract before manufacture of the goods has been carried out, the Seller has the right to demand a 10% cancellation fee from the Buyer in place of contract fulfillment. However, the Seller still has the right to fulfillment of the contract independently of this clause.

 

3. Prices

3.1 Where in doubt, prices are ex factory and exclude freight, duty, import taxes and fees as well as packaging, and attract VAT at the legislated rate.

3.2 Prices are considered in the currency set out in the respective order confirmation and invoicing documents.

3.3 Unless agreed otherwise, the Seller reserves the right to increase the agreed prices by a proportional amount based on their increased costs if general economic conditions change, especially in case of wage increases, rising commodity and auxiliary goods prices, taxes, transport costs and currency exchange rates.

3.4 In case of new (subsequent) orders, the Seller is not bound to previous prices.

 

4. Commercial Protective, Intellectual Property and Copyrights 

4.1 Sales documentation provided by the Seller such as designs, drawings, clichés and films remain the property of the Seller, even if the Buyer pays for a proportion of their costs.

4.2 The Seller reserves his unrestricted property and copyright to quotations, drawings and other documents ("Documents" in the following).
Documents may only be provided to third parties with the prior permission of the Seller and must be returned immediately on his request in case no order is placed. These two clauses also apply to Documents of the Buyer. Such Documents, however, may be made available to third parties whom the Seller has lawfully charged with carrying out deliveries.

 

5. Delivery 

5.1 Delivery occurs at the Buyer's own risk and is invoiced to the Buyer, even if the Seller carries some or all of the transport costs.

5.2 Delivery periods begin after the receipt of all Documents necessary to fulfill an order, the Buyer's final version of the order and/or the deposit, if one has been agreed upon.

5.3 Delivery periods are approximate.

5.4 In case of order amendments, the Seller is no longer bound by the delivery period originally indicated and confirmed.

5.5 In case of force majeure such as natural disaster, government intervention, reduced availability of commodities, operational faults, transport difficulties, strike, lock-out or other disruptions to operations etc., the Seller reserves the option to extend the delivery period accordingly or to cancel the contract.

5.6 Should the goods not be delivered by the end of the delivery period, including if the Seller is responsible for missing the deadline, the Buyer must, by registered mail, grant the Seller an extension of 20 working days before cancelling the contract.

5.7 No damages may be claimed as a result of missed delivery deadlines.

5.8 Amendments to orders, changes to quantities of goods or deletions can only be accepted as long as no costs have been incurred. In all other cases such costs will be invoiced to the Buyer. 

5.9 On-demand orders must be received within the agreed period. Quantities that have not been accepted by the end of this period will be invoiced and payment will become due.

5.10 In case of on-demand orders without agreed periods, quantities, lot sizes and receiving dates, the Seller has the right to demand agreement on these at the latest three months after order confirmation. Should the Buyer not comply with this requirement within three weeks, the Seller has the right to grant an extension of two weeks and at their expiry to cancel the contract and/or claim damages.

5.11 As long as the Buyer is in arrears, the Seller's obligations to deliver are suspended.

 

6.Packaging 

6.1 Unless otherwise agreed, the Buyer selects packaging, transport means and transport routes.

6.2 Where goods are invoiced by weight, the price is calculated on the gross weight if tissue and wrapping paper are used.

6.3 Special, non-customary packaging will be invoiced separately.

6.4 The goods will be insured against risks named by the Buyer, at the Buyer's written request and at the Buyer's cost.

 

 

7.Conditions of Transport 

7.1 Transport and loading are always at own risk, i.e. uninsured and at the risk of the Buyer, unless otherwise agreed.

7.2 Delivery Arrangements We will endeavor to consider the Buyer's requests regarding means of transport and transport route. Any additional costs so incurred - even in cases where delivery is included in the price - are to be paid by the Buyer.

7.3 No delivery details may be passed on to unauthorized third parties.

 

8.Quality Guidelines for Manufacture and Delivery 

8.1 TolerancesWe manufacture using quality assurance processes that comply with or exceed ISO 9001 requirements. We manufacture on the basis of current testing and assessment guidelines including the tolerances for deviations in weight, size and quantity indicated therein.

8.2 Raw Materials

8.2.1 In the absence of any special instructions from the Buyer, orders will be filled using the raw materials and manufacturing processes usually employed in the industry. The Buyer must indicate requirements that exceed usual trade quality standards explicitly and at the time an order is placed. If such quality requirements have not been indicated to us at the time of writing the quotation, this may lead to adjustments in price.

8.2.2 For this reason, the Buyer may not make claims for faulty products in relation to reactions between packaging materials and goods if he/she has not explicitly indicated any special properties of the goods which may result and has not provided the Seller with an opportunity to comment.

8.3 Production Process
The Seller reserves the right to change the production process unless the Buyer demands restrictions to such changes or obligations to provide information about them.

8.4 Quantity Tolerances
The Seller reserves the right to a delivery tolerance of 10% over- or undersupply in relation to the quantity ordered.
The Buyer cannot demand additional delivery in case of undersupply or return of goods in case of oversupply.

 

9.Reservation of Ownership 

9.1 Goods delivered remain the sole property of the Seller until the Buyer has satisfied all of the Seller’s entitlements, even if the purchase price has been paid for specifically named goods or services. The reserved ownership of delivered goods that are the subject of current invoices (reserved goods) represents the Seller’s security for the outstanding amount. If a bill of exchange is drawn up in relation to payment of the purchase price, then the reservation of ownership does not expire before payment of the bill of exchange by the Buyer.

9.2 Processing or transformation of goods by the Buyer occurs on behalf of the Seller and under exclusion of Acquisition of Ownership according to section 950 of the German Civil Code. The Seller becomes co-owner of the resulting goods according to the ratio of the net value of his goods to the net value of the transformed or processed goods. The resulting goods represent the Seller’s security for his contractual entitlements described in 9.1.

9.3 In case of processing (combination/intermixture) of goods by the Buyer, using other goods not belonging to the Seller, sections 947 and 948 of the German Civil Code apply. It follows that the Seller’s co-owned portion of the goods now represents the goods under reservation of ownership according to these Terms and Conditions.

9.4 The Buyer may on-sell such reserved goods only in ordinary business transactions and under the condition that he/she also agrees to a reservation of ownership clause according to 9.1 – 9.3 with his customers. The Buyer has no right to exercise ownership of reserved goods in other ways, particularly as pledges or securities.

9.5 In case of onward sale, the Buyer hereby immediately transfers to the Seller, until all his contractual obligations to the Seller are fulfilled, the receivables and any other legal entitlements due to him from his customers as a result of the onward sale. On the Seller’s request, the Buyer is obliged to provide the Seller promptly with all information and documentation necessary for the Seller to claim the entitlements due to him from the Buyer’s customers.

9.6 If the reserved goods, after processing or transformation according to 9.2 and/or 9.3, are sold on by the buyer together with other goods not belonging to the Seller, then the transfer of receivables according to 9.5 only refers to the amount invoiced for the Seller’s reserved goods.

9.7 Should the value of the Seller’s existing securities be more that 10% higher than the Seller’s total receivables, the Seller must, at the request of the Buyer, release securities of the Buyer‘s choice accordingly.

9.8 The Seller must be informed immediately of any garnishment or seizure of reserved goods by third parties. All resulting costs of intervention, unless carried by third parties, will be carried by the Buyer.

9.9 Should the Seller make use of his reservation of ownership rights resulting from the Terms and Conditions above by taking back reserved goods, he has the right to freely sell or auction such goods. Reserved goods are returned at the sales or auction result achieved, but no more than at the agreed delivery prices. The right to make further claims for damages, especially for lost profit, is reserved.

 

10.Faulty Goods Claims 

10.1 Claims regarding faulty goods must be made immediately and one week after receipt of the goods at the delivery destination at the latest, and in writing, citing the reason for the claim and submitting examples as well as a specific identification of the batch using the delivery note or invoice number.

10.2 The Seller’s guarantee of the delivered goods takes the form of either repair or free replacement, as chosen by the Buyer. In such cases the faulty items are to be returned to the Seller.

10.3 The Buyer must give the Seller the opportunity to inspect goods claimed to be faulty in situ.

10.4 Faulty goods forming part of a batch do not confer the right to replacement of the whole batch.

10.5 Compensation can in no case exceed the value of the goods delivered.

10.6 Compensation for consequential losses is excluded.

10.7 In fully automated production processes, items are counted mechanically. In such cases the Seller has right to use these automated counts for deliveries and invoicing.

10.8 The Buyer must store the delivered goods appropriately, i.e. in a dry place and protected from humidity, direct sunlight and extreme temperature changes. Inappropriate storage results in the exclusion of any damage claims or warranties.

10.9 Any unauthorized amelioration or inappropriate handling results in the exclusion of all faulty goods claims. Only in case of a risk of disproportionate damage or delays in the repair or replacement by the Seller, may the Buyer, after informing the Seller, ameliorate goods and claim any reasonable costs resulting.

10.10 Recourse rights according to sections 478 and 479 of the German Civil Code only apply where their use by the consumer was lawful and then only to the extent of the law, but not in relation to flexibility clauses not agreed with the Seller. Recourse rights require compliance with the stated duties of the person seeking recourse, in particular those regarding faulty goods.

 

11. Payment 

11.1 All payments are in Euro and are to be paid to the Seller only.

11.2 Unless agreed otherwise, the purchase price for goods and/or services is due without deductions within 30 days from the invoicing date.

11.3 If this period is exceeded, the Buyer is considered in arrears without payment reminder. Irrespective of other rights, the Seller may charge interest on arrears at a rate 5% above the current basic interest rate of the European Central Bank.

11.4 Offsetting and retention rights are excluded.

11.5 Bills of exchange and checks are only accepted in order to settle claims. Payment by bill of exchange or check requires special agreement. The buyer is responsible for interest and other costs arising from discounting or the inclusion of bills of exchange or checks, and must pay them in cash immediately.

 

11.6 Non-compliance with the Terms and Conditions of payment that indicates a diminished credit rating on the part of the Buyer, and which are only revealed to the Seller after the signing of the contract, result in all payments, even those having been deferred, becoming due immediately. Should bills of exchange not yet have been cashed in such cases, the Seller is nevertheless entitled to immediate cash payment.

 

12. Cancellation 

Events that significantly - whether entirely or partly - alter the business principles underpinning the sales contract, whether they affect the Buyer or the Seller, or one of the Seller’s suppliers, result in the Seller’s right to amend the contract wholly or in parts according to such changed circumstances.

 

13.Export Regulations

Goods offered for sale by ABL SURSUM Bayerische Elektrozubehör GmbH & Co. KG may be subject to European/German export regulations or US export regulations.
All exports subject to such regulations require the approval of the relevant authorities.

 

14. Other

DSD (Duales System Deutschland – “Green Dot”) fees: the seller does in principle not pay any DSD license fees unless individual special agreements are in force.

 

15. General Disclaimer 

In all cases where the Seller, by derogation from the above Terms and Conditions, may be under obligation to pay damages on the basis of a contract or law, he is liable only as far as he, his management personnel or persons assisting him in fulfilling contractual obligations are responsible for intentional or reckless conduct or for injury to life, body or health. The liability independent of guilt according to product liability law and the liability to comply with product integrity remain unencumbered. The liability in relation to being responsible for breaching essential contractual obligations also remains unencumbered.
The Terms and Conditions above do not imply shifts in the burden of proof to the Buyer’s disadvantage.

 

16. Jurisdiction and Governing Law

 

16.1 By placing an order, the Buyer fully agrees to comply with the above Terms and Conditions. Contrary Terms and Conditions of the Buyer are invalid, even if we do not object to them. Other, verbal agreements are only valid if confirmed by us in writing. 

16.2 Jurisdiction is solely determined by the location of company headquarters or the Seller’s seat of management.
However, the Seller also reserves the right to choose to file court cases at his branch locations or the Buyer’s place of residence. 

16.3 German law applies exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention on the Sale of Goods) dated 11/04/1980 (German Legislative Gazette 1989, page 586) for the Federal Republic of Germany (German Legislative Gazette 1990, page 1477) is excluded. 

Current as at March 2012

The publication of this catalogue renders all previous catalogues invalid.

Technical alterations and errors reserved.