General sales and delivery conditions of SUSPA GmbH

1. Scope

1.1 All of our offers, deliveries and services are exclusively subject to these general terms and conditions. They apply to all future business relations, even if not expressly agreed again. We hereby expressly object to deviating conditions of the contractual partner. These are ineffective insofar as they contradict our conditions.

1.2 Deviations to these business conditions are only effective if we confirm them in writing. They only apply to the contract to which the confirmation refers.

1.3 The documents, such as illustrations, drawings, weight and dimensional specifications, that belong to our offers are then only binding if they are expressly designated as binding. We reserve our property rights and copyrights to cost proposals, drawings and other documents. They may not be made accessible to third parties.

 

2. Offer, Order

2.1 Our offers are non-binding. This also applies to supplements, changes or ancillary agreements. The purchaser is bound to an order given to us two weeks after we receive said order.

2.2 Orders given to us are then legally binding once we have confirmed them in writing. This also applies to orders that were issued through representatives. An order then comes into effect with the content that results from our written order confirmation and these general terms and conditions as well as any existing written additional agreements. Ancillary agreements and changes require our written confirmation.

2.3 If after the conclusion of the contract we become aware of a material deterioration in the purchaser's assets, we are entitled to withdraw from the contract in whole or in part. Compensation claims on our part are excluded in this case. The same applies if the delivery capacity, pricing or qualities of deliveries or other services of third parties on which the proper execution of the order we issued depends change significantly, or if after the contract conclusion circumstances arise for which we are not responsible, especially cases of force majeure, operational disruptions, sovereign measures, provided this makes a contract fulfillment unreasonable for us, such as in the specific case of exchange rate changes of more than 5% compared to the time of the contract conclusion. Our contractual partner's right to terminate or withdraw remains unaffected in cases of force majeure.

 

3. Time of delivery and performance

3.1 Delivery dates and deadlines require our written declaration to be binding. Delivery deadlines begin to run from the day of receipt of our order confirmation by the purchaser, but not prior to the production of the documents, approvals and to be procured by the purchaser in each case after the specific order as well as before the receipt of any agreed down payment. Insofar as the purchaser is required to cooperate in the execution of the order, the proper and timely fulfillment of the order shall be a prerequisite for compliance with our delivery deadlines, which may otherwise be extended in an appropriate manner.

3.2 Delivery and performance delays due to force majeure or due to incalculable events, which make a timely delivery impossible for us, extend the deadlines stipulated by us accordingly. These include in particular strikes or legal lockouts, mobilization, war, administrative orders as well as the late arrival of supplies of material or services. In such cases, we shall be entitled to postpone the deliveries or services for the duration of the obstruction plus an appropriate preparatory period or - in the case of more than just temporary impediments to performance - to withdraw from the still unfulfilled part of the contract or the contract in whole, provided such obstacles are proven to have a significant effect on the completion or delivery of the contractual object. This also applies if the circumstances occur at the sub-contractor's location. The aforementioned circumstances shall not be attributable to us even if they arise during an already existing delay. We shall inform the purchaser in writing of the beginning and the end of such obstacles as soon as possible. This shall not affect the statutory right of termination or withdrawal of the contractual partner.

3.2 We are entitled at any time to make partial deliveries and render partial services to a reasonable extent. The delivery of slightly larger or smaller quantities compared to the order is permissible.

3.4 If a delivery is delayed as a result of a purchaser's request and if we agree to this in individual cases, the goods declared ready for dispatch shall then be stored at the purchaser's expense. In the company warehouse, 1% of the invoice amount will be charged at a flat rate per started month, whereby the storage fee is limited to 5% of the value of the delivery that is ready for dispatch. We reserve the right to charge additional costs if evidenced. The purchaser reserves the right to prove that we have incurred less or no costs. The obligation to pay pursuant to § 6 remains unaffected by this. In addition, we are authorized to dispose of the delivery item after the setting and fruitless expiration of a reasonable period and to supply the purchaser with a reasonable, extended deadline.

3.5 In the event that export and / or import permits are required for our products to be dispatched abroad, it is incumbent upon the purchaser to take care of this. We shall not bear the consequences for delays
that result from such approvals, etc. not being available.

 

4. Transfer of risk, dispatch and receipt

4.1 The risk shall pass over to the purchaser as soon as we provide the shipment for dispatch from the factory. If the shipment occurs in partial deliveries, then the risk shall transfer with the provision of the corresponding part. This also applies if we have taken over other services, such as shipment, delivery or installation costs.

4.2 The shipment occurs in proper packaging. A liability on our part is ruled out for breakage, theft and the like if they were not present during the transfer of risk. This also applies if a carriage paid delivery has been agreed upon.

4.3 At the request of the purchaser, we are ready to conclude transport, theft, fire and water damage insurance at the purchaser's request. The conditions of the insurance company are decisive for any compensation.

 

5. Price

5.1 Unless agreed otherwise, our prices are ex works, excluding packaging, shipping charges, insurance and other applicable statutory value-added tax. Any customs clearance is incumbent upon the recipient. Disposable and reusable packaging will be charged at cost. Disposable packaging is non-returnable. Reimbursement occurs in the case of freight-paid return of reusable packaging in usable condition.

5.2 If the purchaser wishes to partially or wholly cancel an issued order, this requires our approval. In the case of a partial cancellation, we are entitled to make a retro-calculation on the basis of the higher part price that applies for smaller unit quantities. This also in particular applies to call orders. In addition, we reserve the right to charge cancellation fees and to calculate already procured materials.

 

6. Payment

6.1 In the absence of another agreement, the payment of our invoice is to be made within two weeks from the invoice date with a 2% discount on the invoice value or within 30 days from the invoice date without a discount. In the case of a material deterioration of the customer's financial circumstances, SUSPA is entitled with respect to all open orders that have not yet been invoiced to reduce the payment due dates through written notification to the customer, naming the new payment due date. The same applies to a significant reduction of the insurance limit for commodity credit insurance. In return, the customer receives reasonable compensation for the interest loss resulting from the shortened payment due dates.

6.2 If the purchaser exceeds the payment deadline, we are authorized to demand interest on arrears in the legal amount (8% above the base interest rate for entrepreneurs, 5% above the base interest rate for consumers within the sense of § 13 BGB [German Civil Code]). The right to assert further damage is preserved.

6.3 In the event of a delay in payment or if we are aware of any significant deterioration in the purchaser's financial circumstances, we are entitled to demand our receivables and to only make deliveries against prepayment. We are also entitled to withdraw from the contract in whole or in part after the deadline.

6.4 The purchaser is only entitled to compensation from us or retainment of goods, even if defect claims or counterclaims are asserted, if the respective counterclaims are legally established or not disputed.

6.5 Our agents, travelers or vendors are not authorized to accept payments without special authorization.

6.6 In the export business, the submission of the payment documents is a prerequisite for delivery, unless otherwise agreed in writing.

 

7. Retention of title

7.1 All deliveries shall be subject to the extended and enhanced retention of title until the settlement of all payment claims, which we have against the purchaser.  SUSPA thus remains the owner after processing the deliveries (extended retention of title) or has a claim for restoration of the resale proceeds (enhanced retention of title).

7.2 Handling and other processing of the reserved goods always takes place for us as the manufacturer, but without an obligation for us. If the (co)ownership expires as a result of a connection, it is already agreed that we shall be entitled to co-ownership of the unitary item according to our share of the invoice value.

7.3 The purchaser is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in arrears with payment. Pledging or security surrender
of the reserved goods are prohibited. The purchaser already cedes the claims resulting from the resale of the reserved goods to us in full as a security, including all balance claims due from current account. The collection of these assigned claims by the purchaser takes place in a revocable manner. We may disclose this cession if the purchaser does not properly fulfill its payment obligations. We undertake to release securities and claims at the request of the purchaser if these exceed 20% compared to our claims from the business relationship with the purchaser.

7.4 In the case of access by third parties to the reserved goods, the purchaser must immediately notify us of our reserved ownership and notify us without delay.

7.5 In the event of a breach of contract by the purchaser, especially in the event of delayed payment, we are entitled to take back the reserved goods or to demand the cession of the claims for restitution of the purchaser against a third party. The purchaser is obliged to surrender or to cede the goods. The withdrawal of the reservation or the demand for cession of the claims for restitution by us at the same time represents a withdrawal from the contract according to § 449 paragraph 2 BGB.

 

8. Warranty

8.1 Unless stipulated otherwise in the following, we we shall guarantee all deliveries and services within 12 months from the transfer of risk. Claims for damages shall fall under the statute of limitations in the respective relevant statutory period of limitation.

8.2 All deliveries and services are to be immediately checked by the purchaser after acceptance or delivery. All recognizable defects must be communicated to us in writing within eight days after receipt of the goods. In the event of concealed defects, this period shall be valid from discovery.

8.3 In the event of a timely and justified notice of defect, we reserve the right to subsequent improvement or replacement delivery (supplementary performance). After setting a reasonable deadline, if the replacement delivery does not occur or if the improvement is unsuccessful twice, the purchaser is entitled to reduce the purchase price (reduction) or to withdraw from the contract and claim any damages in accordance with the legal regulations. If the contractual partner has a claim to compensation instead of performance, our liability is limited to the replacement of the foreseeable typically incurred damage.

8.4 In the case of crucial third-party products, our liability is initially limited to the cession of claims to restitution to which we are entitled against the supplier of the third-party product. We are only liable according to the conditions named under section 8 if a realization of the claims against the supplier remains fruitless.

8.5 No liability is accepted for damage resulting from unsuitable or improper use, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, replacement materials, defective installation work or chemical, electrochemical or electrical influences, provided the damage is not based on an intentional or grossly negligent behavior on our part or the part of our fulfillment agents.

8.6 By agreement, the purchaser shall give us the required time and opportunity to make all necessary improvements and replacement deliveries that seem necessary at our reasonable discretion. Only in urgent cases of endangerment of the operational safety and to the prevention of disproportionately large amounts of damage, whereby we are immediately to be informed, or if we are in default with the rectification of the defect, does the purchaser have the right to rectify the defect itself or have it rectified by a third party and to charge us for the reimbursement of the necessary costs.

8.7 The regulations above include a final regulation of the warranty obligation on our part.

9. Liability

9.1 We shall be liable in accordance with the statutory provisions, provided the contractual partner asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents.

9.2 We shall be liable in accordance with the statutory provisions, provided we culpably breach an essential contractual obligation. In this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage in case of simple negligence.

9.3 The liability for culpable injury to life, body or health shall remain unaffected. This also applies to the mandatory liability according to the Product Liability Act.

9.4 Liability is excluded insofar as nothing deviates from the aforementioned.

9.5 Insofar as the liability for damages is excluded or restricted for us, this also applies to the personal liability for damages of our employees, staff, representatives and vicarious agents.

 

10. Final provisions

10.1 For contracts entered into with us, only German law shall be applied with the exception of the provisions of the International Private Law (IPR) and the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG), provided no other legal provisions from this contract state otherwise.

10.2 Altdorf or the court responsible for Altdorf shall be the place of fulfillment and court of jurisdiction as agreed, provided statutory provisions of this agreement do not state otherwise. However, every party is authorized to file suit against the other party at its registered office.

10.3 If individual provisions should be ineffective or become ineffective, this shall not affect the validity of the other provisions.

10.4 The aforementioned provisions apply to entrepreneurs, legal persons governed by public law and special assets subject to public law. The legal regulations apply to consumers.



As of: 10/2009

General sales and delivery conditions

SUSPA GmbH
Mühlweg 33
90518 Altdorf