Terms of Service | SBE GmbH

A. General regulations

Conclusion of contract
1. Our deliveries and services are provided exclusively on the basis of the following terms and conditions. The Buyer's terms and conditions of purchase are hereby rejected.
2. The contractual goods are limited to those from our own production, unless small completion quantities from small completion quantities from purchase are agreed or are not customary in the industry.
3. Our offers are subject to change.
4. Offers of the Buyer shall only be deemed accepted if expressly declared by us. The silence on such an offer does not constitute acceptance. The same shall also apply to offers made in in electronic form, unless the business transaction is subject to the following conditions the electronic form of transmission has been agreed upon by both parties for the business relationship is and the transmission is made to the address expressly designated for the receipt of such declarations.
5. Our declarations relating to the conclusion, amendment or termination of contracts shall shall be made in writing. However, no qualified electronic signature shall be required if the contract is concluded with the unless otherwise agreed with the Buyer.
Terms of payment
1. The purchase price is due at the latest 30 days after delivery ex works or ex warehouse, or after 10 days with 2% discount
2. If it has been agreed that the goods are to be released for shipment by our buyer within a certain period our buyer to release the goods for shipment (call-off), we shall be entitled to invoice the goods from the time the goods from the time of readiness for dispatch. In this case, the purchase price shall be payable as described under A II 1. shall be due for payment.
3. The rights under Section A II 5 are reserved.
4. Payment shall be made without discount in such a way that we can dispose of the amount on the due date. The purchaser may only offset against undisputed claims or claims that have become res judicata. The purchaser shall only be entitled to rights of retention insofar as they are based on the same contractual relationship.
5. In the event of target overruns, interest shall be charged at a rate of 2% above the respective prime rate.
6. Insofar as our claim for payment is at risk as a result of subsequently occurring circumstances which result in a significant deterioration of assets, we shall be entitled to make it due for payment irrespective of the term of bills of exchange accepted on account of payment.
7. In the cases of number 5 as well as section A V 8, we may revoke the collection authorization (section A V 7) and demand advance payments for outstanding deliveries.
8. The Purchaser may avert the legal consequences referred to in No. 5 and in Section A V 8 by providing security in the amount of our endangered claim for payment.
9. If the Buyer fails to make an advance payment or to provide adequate security within a reasonable period of time in the cases set forth in No. 5 or in Section A V 8, we shall be entitled to exercise our right of rescission to the exclusion of any claims for compensation on the part of the Buyer.
10. The statutory provisions on default of payment shall remain unaffected.
11. In the event of default in payment based on a recognizable deterioration of the Buyer's assets, we shall also be entitled to rescind the contract without having to set a corresponding deadline.
Securities
1. We shall be entitled to collateral of the type and scope customary for our claims, also to the extent that such collateral is conditional or limited in time.
Intercompany eliminations
Reservation of ownership
1. All delivered goods shall remain our property (reserved goods) until all claims, in particular also the respective balance claims, to which we are entitled within the scope of the business relationship have been satisfied. This shall also apply to future and conditional claims, e.g. from reverse bills of exchange.
2. Treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of §950 BGB (German Civil Code) without obligating us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of No. 1.
3. In the event of processing, combination and mixing of the reserved goods with other goods by the Buyer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership lapses as a result of combining, mixing or processing, the buyer shall already now transfer to us the ownership or expectant rights to which he is entitled in the new stock or item to the extent of the invoice value of the reserved goods, in the case of processing in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used, and shall store them for us free of charge. Our co-ownership rights shall be deemed to be reserved goods within the meaning of number 1.
4. The Buyer may resell the reserved goods only in the ordinary course of business under his normal terms and conditions of business and as long as he is not in default, provided that he retains title and the claims arising from the resale are transferred to us in accordance with items 5 and 6. He shall not be entitled to dispose of the reserved goods in any other way. The use of the goods subject to retention of title for the performance of contracts for work and services shall also be deemed to be a resale within the meaning of this Section A V.
5. The Buyer's claims arising from the resale of the reserved goods are hereby assigned to us. They shall serve as security to the same extent as the reserved goods within the meaning of Section 1.
6. If the reserved goods are resold by the Buyer together with other goods, the claim from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the event of the resale of goods in which we have co-ownership shares pursuant to No. 3, a part of the claim corresponding to our co-ownership share shall be assigned to us.
7. The Buyer shall be entitled to collect claims arising from the resale unless we revoke the authorization to collect in the cases specified in Sections A II 5 and A V 8. At our request, he shall be obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to provide us with the information and documents required for collection.
8. The buyer is not authorized to assign the claims in any case.
9. If the buyer defaults on payment and if this indicates a risk to the realizability of a not insignificant part of our claim, we shall be entitled to prohibit further processing of the delivered goods, to retrieve the goods and, if necessary, to enter the customer's premises for this purpose. The retrieval shall not constitute a withdrawal from the contract.
10. The buyer must inform us immediately of any seizure or other interference by third parties.
11. If the value of the existing securities exceeds the secured claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the request of the purchaser.

B. Execution and delivery

Delivery periods, delivery dates
1. Delivery periods shall commence on the date of our order confirmation, but not before full clarification of all details of the order. The same applies to delivery dates.
2. All delivery periods and dates are subject to unforeseeable production disruptions and timely self-supply with required input materials and, insofar as small completion quantities from additional purchases have been agreed or are customary in the industry, subject to the ability to deliver and timely self-supply.
3. If the Buyer fails to fulfill contractual obligations - including cooperation or ancillary obligations - such as opening a letter of credit, providing domestic or foreign certificates, making an advance payment or similar, in a timely manner, we shall be entitled to reasonably postpone our delivery periods and dates - without prejudice to our rights arising from default on the part of the Buyer - in accordance with the needs of our production process.
4. The date of dispatch ex works shall be decisive for compliance with the delivery periods and dates.
5. In cases of force majeure, the contractual obligations of both parties shall be suspended and the dates and deadlines for the performance of contractual obligations shall be postponed accordingly. Cases of force majeure shall also include labor disputes in our own and other companies, transport delays, machine breakdown, sovereign measures and other circumstances for which neither party is responsible. The event of force majeure shall be notified to the other contracting party without delay. Six weeks after receipt of this notification at the earliest, both contracting parties shall be entitled to withdraw from the contract.
6. In the event of non-compliance with delivery deadlines, the Buyer shall only be entitled to the rights under Sections 281, 323 of the German Civil Code (BGB) if he has set us a reasonable deadline for delivery which - in this respect in deviation from Sections 281, 323 of the German Civil Code (BGB) - is combined with the declaration that he will refuse acceptance of the performance after the deadline has expired. After unsuccessful expiry of the deadline, the claim for performance shall be excluded.
7. In the event of delay, we shall be liable in accordance with Section C for the damage caused by the delay as proven by the Buyer.
8. We shall notify the Buyer without delay of the expected duration of the delay in delivery. After becoming aware of the duration of the delay in delivery, the Buyer shall immediately inform us of the amount of the anticipated damage caused by the delay. If the anticipated damage caused by the delay exceeds 20% of the value of the quantity affected by the delay in delivery, the Buyer shall be obliged to make immediate efforts to find a corresponding covering purchase, or, if applicable, to take advantage of covering purchase opportunities proven by us by withdrawing from the contract for the quantity affected by the delay in delivery. We shall reimburse the proven additional costs of the covering purchase and any damage caused by the delay in the meantime.
9. If the Buyer fails to comply with his obligations to mitigate damages under the preceding paragraph, our liability for proven damage caused by delay shall be limited to 50% of the value of the quantity affected.
10. The buyer may withdraw from the contract without setting a deadline if the entire delivery finally becomes impossible for us before the transfer of risk. In addition, the Buyer may withdraw from the contract if, in the case of an order, it becomes impossible to execute part of the delivery and the Buyer has a justified interest in refusing the partial delivery. If this is not the case, the Buyer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of inability on our part. Section C shall apply in all other respects.
Dimension, weight and quality
1. Deviations in dimensions, weight and quality are permissible in accordance with DIN or the applicable practice. The weights are determined on our calibrated scales and are decisive for invoicing. Proof of weight shall be provided by presentation of the weighing record. Unless individual weighing is customary, the total weight of the consignment shall apply in each case. Differences compared to the calculated individual weights shall be distributed proportionately among them.
Shipping, packaging and transfer of risk
1. We shall determine the forwarding agent or carrier.
2. If the loading or transport of the goods is delayed for a reason for which the purchaser is responsible, we shall be entitled to store the goods at the purchaser's expense and risk at our reasonable discretion, to take all measures deemed suitable to preserve the goods and to invoice the goods as delivered.
3. The same shall apply if goods notified as ready for dispatch are not called within four days. The statutory provisions on default of acceptance shall remain unaffected.
4. As far as customary in trade, we deliver the goods packed and protected against rust. The costs shall be borne by the buyer. Packaging, protective and transport aids will not be taken back. Packaging that goes beyond the purpose of transport or other special protection, e.g. for longer-term storage or warehousing, requires an express agreement.
5. The risk shall pass to the purchaser when the goods are handed over to the forwarding agent or carrier, but at the latest when the goods leave the factory or the stocklist.
Warranty claims
1. The goods are in conformity with the contract if they do not deviate or deviate only insignificantly from the agreed specification at the time of transfer of risk. Conformity with the contract and freedom from defects of our goods shall be measured exclusively in accordance with the express agreements on the quality and quantity of the goods ordered. Liability for a specific purpose or a specific suitability shall only be assumed insofar as this has been expressly agreed. In all other respects, the risk of suitability and use shall be borne exclusively by the purchaser. We shall not be liable for deterioration or destruction or improper handling of the goods after the transfer of risk.
2. Contents of the agreed specification and any expressly agreed purpose of use shall not constitute a warranty. The assumption of a guarantee requires a written agreement.
3. The buyer has to examine received goods immediately after receipt. Claims for defects shall only exist if defects are reported immediately in writing; hidden material defects must be reported immediately after their discovery.
4. After the performance of an agreed acceptance, the notification of defects that can be detected during this acceptance is excluded.
5. In the event of complaints, the Buyer shall immediately give us the opportunity to inspect the goods complained about. Upon request, the rejected goods or a sample thereof shall be made available to us at our expense. In the event of unjustified complaints, we reserve the right to charge the purchaser for freight and handling costs as well as the cost of inspection.
6. In the case of goods sold as declassified material - e.g. so-called II-a material - the purchaser shall not be entitled to any claims for defects with regard to the specified defects and those which he must normally expect.
7. In the event of a material defect, we shall, at our discretion - taking into account the interests of the Buyer - provide subsequent performance either by replacement delivery or by repair.
8. If the subsequent performance by us is not successfully carried out within a reasonable period of time, the Buyer may set us a reasonable deadline for subsequent performance, after the fruitless expiry of which he may either reduce the purchase price or withdraw from the contract. There shall be no further claims. Section C remains unaffected.
9. In the event of a defect of title, we shall be entitled to subsequent performance by remedying the defect of title within two weeks of receipt of the goods. In all other respects, Section 6, Sentence 2 shall apply mutatis mutandis.
10. The limitation period in the case of defective delivery shall end - except in the case of intent - one year after delivery. This shall be without prejudice to the statutory limitation periods for goods which have been used in accordance with their customary use for a building and have caused its defectiveness. Rectification or replacement delivery shall not cause the limitation period to start anew.
11. The Buyer's right of recourse against us pursuant to §478 of the German Civil Code (BGB) shall be limited to the statutory scope of the third-party claims for defects asserted against the Buyer and shall require that the Buyer has complied with its obligation to give notice of defects in relation to us pursuant to §377 of the German Commercial Code (HGB).

C. General limitations on liability

Unless otherwise stipulated in these terms and conditions, we shall only be liable for damages due to breach of contractual or non-contractual obligations or during the initiation of the contract in the event of intent or gross negligence on the part of our legal representatives or vicarious agents and in the event of culpable breach of essential contractual obligations. In the event of culpable breach of material contractual obligations, we shall be liable - except in cases of intent or gross negligence on the part of our legal representatives or vicarious agents - only for the foreseeable damage typical of the contract.
The above limitations of liability shall not apply in the event of injury to life, limb or health.
Claims for personal injury or damage to privately used property under the Product Liability Act remain unaffected.

D. Other

Export certificate
1. If a buyer who is domiciled outside the Federal Republic of Germany or his agent collects goods and transports or dispatches them to the foreign territory, the buyer shall provide us with the export certificate required for tax purposes. If this proof is not provided, the Buyer shall pay the VAT rate applicable to deliveries within the Federal Republic of Germany from the invoice amount.
Governing law
1. The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.
Place of fulfillment and jurisdiction
1. The place of performance and jurisdiction for both parties to the contract is Krefeld. We are also entitled to sue the buyer at his general place of jurisdiction.