General Terms and Conditions No.: 01/2017
SK Maschinen-Service GmbH (hereinafter: SK Machinery)
(As per: October 2017)
- The present General Terms and Conditions No.: 01/2017 will apply exclusively to all business relations between SK Machinery and the purchaser, including future business relations. Any other purchase terms or general conditions of the purchaser are rejected and shall not apply. No other terms shall apply. After prior notification, SK Machinery has the right to amend its General Terms and Conditions No.: 01/2017 to apply to all future business relations with the purchaser.
- Where there is a framework agreement between the purchaser and SK Machinery the present General Terms and Conditions shall apply both to the framework agreement and the individual order.
- Conclusion of the Contract
- Offers made by SK Machinery are non-binding. Documents belonging to the offer such as illustrations, drawings as well as weights and measures are only approximate values unless they are explicitly declared by SK Machinery to be binding. Where SK Machinery provides the purchaser with drawings or technical documents on the item purchased, they shall remain the property of SK Machinery.
- Orders placed by the purchaser shall be binding on the purchaser. Where there is no other written confirmation by SK Machinery, the delivery or invoice shall be regarded as the order confirmation.
- If the purchaser is a businessman, only the written confirmation by SK Machinery shall be authoritative for orders and agreements insofar as the purchaser does not immediately object in writing. This applies in particular to orders and agreements placed or made verbally or by telephone. A written objection to SK Machinery shall no longer be regarded as immediate if it is not received by SK Machinery within seven calendar days.
III. Delivery date, Scope of Delivery, Delayed Delivery
- Delivery dates and deadlines are regarded as only approximate unless SK Machinery has given explicit confirmation in writing that they are binding. If all details of the order are not settled in due time by the purchaser or the purchaser does not perform all preliminary work on time, the delivery date will be delayed accordingly. Delivery dates will be regarded as having been complied with upon notification of readiness for dispatch.
- SK Machinery has the right to make partial deliveries provided that this does not fall below a reasonable minimum quantity.
- The purchaser must inspect the delivery note and provide a receipt of delivery. Any objections are to be made immediately in writing to SK Machinery. Otherwise the scope of delivery for which the receipt was issued will be regarded as having been accepted.
- In the case of delayed delivery due to operational breakdown, governmental actions, lack of supplies to SK Machinery or force majeure, the delivery date shall be appropriately extended. There is also a case of force majeure in the event of labour disputes, including strikes and legal lockouts at SK Machinery companies or at SK Machinery suppliers. Claims by the purchaser to damage compensation are excluded in these cases to the extent set out in paragraph VII (General Limitation of Liability).
- Where the purchaser incurred damage as a result of a delivery delay caused by SK Machinery, the purchaser may demand damage compensation, waiving all other claims for damages, to the amount of 0.5% for each full week of delay, but at maximum 5% of the value of the affected part of the total consignment. In the case of delayed delivery, the purchaser may rescind the contract after stipulation of an adequate grace period and with the explicit declaration that after lapse of this period they will not accept performance if performance does not occur within the grace period. Any additional claims in the case of delayed delivery, in particular damage compensation claims, are excluded according to the terms set out in paragraph VII (General Limitation of Liability).
IV. Price, Terms of Payment
- Prices exclude VAT, shipping, customs duties, postage, packaging, insurance and other expenses. The basis for calculating the prices for new machines are the prices valid on the day of delivery. Packaging shall be charged at cost; return of packaging materials is excluded.
- Payment condition: Payment in advance. Unless otherwise agreed, invoices are due for payment immediately without deduction.
- Where the purchaser falls into arrears with payments, SK Machinery has the right to charge default interest of 10% above the base interest rate. Claims on the basis of specific default damage remains reserved.
- The purchaser will only have rights of set-off if his counter claims are legally binding, uncontested or recognized by SK Machinery.
V. Passing of Risk, Acceptance
- Risk shall pass to the purchaser upon commencement of loading or shipment of the delivery item, even where partial deliveries are made or SK Machinery has assumed other services such as shipping costs, delivery and installation or commissioning. In so far as the delivery item is subject to acceptance, the time of said acceptance shall be definitive for the passing of risk. Acceptance must be carried out immediately upon the acceptance date, alternatively following notification by the supplier of readiness for acceptance, and shall not be refused by the purchaser due to the existence of an immaterial defect.
- Where shipment or acceptance is delayed on grounds for which SK Machinery is not liable, the risk shall pass to the purchaser from the date of notification of readiness for shipment or acceptance.
VI. Warranty, Formal Complaints
- To the exclusion of all further claims, SK Machinery shall be liable as follows for delivery defects:
1.1. For new products for private use (Purchase of Consumer Goods, Section 474 German Civil Code), warranty periods are 24 months from passing of risk; for commercial or professional use 12 months.
1.2. For used products, the warranty period from passing of risk is 12 months (Purchase of Consumer Goods, Section 474 German Civil Code), for commercial or business use the warranty is excluded. Used machines are delivered with the accessories still available and in the condition they are in at the conclusion of the contract. Any liability for obvious or hidden defects is also excluded even if the machine has not been inspected beforehand by the purchaser, unless SK Machinery has deliberately or through gross negligence concealed known defects from the purchaser.
- The terms set out in paragraph 1 shall not apply in the case of warranted properties or in case of culpable breach of cardinal contractual obligations. Such claims made by the purchaser as well as claims due to damages not incurred on the delivery item itself, are treated according to guidelines of Section VII (General Limitation of Liability) and are excluded as far as is permitted within legitimate lawful boundaries. Where subsequent repairs or replacements are made within the scope of the warranty, this shall not initiate a new start date for the warranty period.
- Properties are only warranted where they have been explicitly defined as such in the contract. Verbal statements and statements in SK Machinery’s documents do not contain any warranties. Test specimen, samples, dimensions, DIN regulations, performance specifications and other information on the nature of the delivery item are for specification purposes only and are not warranted properties. Where the materials to be used by SK Machinery are specified in the contract, this only guarantees compliance with the specification and not the suitability of the materials for the contractual purpose. SK Machinery is only obligated to give notice where they are obviously unsuitable.
- Damage caused by external influence, improper installation and handling, improper operation and maintenance, corrosion, or normal wear and tear are excluded from the warranty. In the latter case the warranty expressly does not extend to parts subject to wear and tear. Parts subject to wear are all moving parts, all drive parts and tools. In the case of the sale of a machine, these warranty provisions are based on use in single-shift operation.
- The purchaser must properly inspect the shipment immediately after receipt at their own expense and immediately report any defects, wrong deliveries, obvious unacceptable wrong delivery or shortfalls in writing to SK Machinery. A limitation period of seven days from the receipt of the shipment applies to such notification. Hidden defects are to be reported to SK Machinery in writing immediately after discovery. Otherwise Sections 377, 378 German Commercial Code (HGB) shall remain unaffected by a reciprocal commercial transaction between businessmen.
- Any quality defects in a partial delivery do not entitle the purchaser to reject the rest of the agreed quantity unless the purchaser can prove that acceptance of only part of the shipment would be unacceptable in light of the existing circumstances.
- Where the purchaser detects a defect they may not modify or process the delivery item or provide it to third parties but must give SK Machinery adequate opportunity for verifying the existence of the defect and carry out the required subsequent fulfilment (rectification or replacement delivery); otherwise no claims can be made on the basis of such defects. The purchaser shall have the right to rectify the defect themselves or have third parties rectify it and demand compensation of the expenses incurred from SK Machinery only in urgent cases in which operational safety is compromised or to prevent disproportionately greater damages; SK Machinery must be informed immediately in such cases. Irregardless of the existence of a defect, the warranty claims lapse where the purchaser or a third party carries out modification or repair work without the consent of SK Machinery.
- Transportation damages must be reported immediately to the seller. The purchaser must settle the necessary formalities with the shipping agent, in particular, all necessary evidence for the purpose of recourse action against third parties. In so far as standard commercial breakages, shrinkage or similar occurrences remain within reasonable bounds no complaints can be made.
- In the case of a legitimate complaint, SK Machinery shall choose whether to repair the defective goods or to provide a replacement. Multiple repairs shall be permitted.
- In the case of the repair of a defect, SK Machinery shall be obligated to bear all expenses necessary for defect rectification, including transport, travel, work and material costs provided that the costs do not increase because the purchase item is brought to a place other than the place of performance.
- If SK Machinery fails to observe an adequate grace period given it for subsequent performance within the meaning of Section 439 of the German Civil Code (BGB) without rectifying the defect or providing a replacement or it is unable to carry out a rectification or provide a replacement or the rectification or replacement fails or is otherwise denied by SK Machinery, the purchaser, who is not a consumer, subject to the exclusion of all further claims concerning the delivery item, shall only have the right to rescind the contract or have the purchase price reduced.
VII. General Limitation of Liability
- Where the delivery item cannot be used by the purchaser in accordance with the contractual purpose due to the fault of SK Machinery because of failure to provide advice or faulty advice before or after conclusion of the contract or by breach of other ancillary contractual obligations (e.g. operating or servicing instructions), the terms set out in Sections VI and VII.2 shall apply accordingly, to the exclusion of all further claims by the purchaser.
- SK Machinery shall only be liable for damages not incurred on the delivery item itself, irrespective of the legal grounds, in cases of
- gross negligence on the part of the owners / corporate bodies or executive officers,
- culpable loss of life, injury or adverse effect on health,
- defects maliciously concealed or whose absence was guaranteed,
- defects in the delivery item in so far as liability exists pursuant to the German Product Liability Act for personal injury or property damage to privately used objects.
In the case of culpable breach of essential contractual obligations, SK Machinery shall also be liable for culpable negligence by non-executive employees and in the case of minor negligence; the latter case shall be limited to typical foreseeable damage for the type of contract; all further claims are excluded.
VIII. Retention of Title, Collateral Security
- SK Machinery reserves title to the delivery item until receipt of all payments from the contract. In the case of a breach of contract by the purchaser, in particular in the event of default in payment and in the case where a petition is filed for the commencement of insolvency proceedings, SK Machinery is entitled to take back the delivery item following demand for payment and the purchaser shall be obligated to release said item. In case of attachments or other interference by third parties, the purchaser shall immediately notify SK Machinery in writing.
- SK Machinery is entitled to insure the delivery item at the purchaser's cost against theft, breakage, fire, water and other damage, if the purchaser has demonstrably failed to take out insurance themselves.
- The purchaser is entitled to resell the delivery item in the ordinary course of business. However, the purchaser herewith assigns to SK Machinery all claims accruing to them from the buyer or from third parties by reason of the resale, irrespective of whether the goods subject to retention of title are being resold in unprocessed or processed form. The purchaser is also authorized to collect these claims even after assignment. The power of SK Machinery to collect the claims itself remains unaffected; however, SK Machinery is committed not to collect the debts as long as the purchaser properly fulfils their payment obligations. SK Machinery may demand that the purchaser disclose the assigned claims and their debtors, provide all necessary information for collection, hand over the associated documents and notify the debtors of the assignment. Where the delivery item is resold together with other goods not belonging to SK Machinery the purchaser’s claim against the buyer to the amount of the delivery price agreed on between SK Machinery and the purchaser is deemed to be assigned.
- The processing or transformation of goods subject to retention of title shall always be carried out by the purchaser on behalf of SK Machinery. Where the item subject to the retention of title is processed or inseparably mixed with other items not belonging to SK Machinery, SK Machinery shall acquire co-ownership of the new item on the basis of the ratio of the value of the item subject to the retention of title to the other processed or mixed items at the time of processing or intermixing. If SK Machinery’s goods are combined or inseparably intermixed with other movable objects to form a uniform item and if the other item is to be regarded as the principal item, it is deemed to be agreed that the purchaser shall transfer to SK Machinery on a proportional basis co-ownership in so far as the principal item belongs to the purchaser. The purchaser shall safeguard the ownership or co-ownership for SK Machinery. The same provisions shall apply to the item produced as a result of the processing, transformation or combination and intermixing as to the goods subject to retention of title.
- SK Machinery is entitled to demand appropriate collateral security to insure the proper discharge of the purchaser’s obligations. SK Machinery shall be obligated to release the collateral security to which it is entitled to the extent that the realizable value exceeds the claims to be secured by more than 20% insofar as they have not yet been settled.
- Obligation of Performance, Infeasibility and Non-performance
- SK Machinery's delivery obligation and delivery deadline are subject to the proviso of proper, complete and timely delivery on the part of our suppliers.
- If SK Machinery is unable to perform the entire contract prior to the passing of risk due to a circumstance for which it is liable, the purchaser may rescind the contract.
In the event of partial impossibility of performance or partial inability to perform, the above provision shall apply only to the respective part. In this case the purchaser may only rescind the contract if they can prove a legitimate interest in the rejection of the partial delivery.
Further claims by the purchaser, in particular claims for damages are excluded in accordance with the provisions contained in Sections VI and VII.
- If the impossibility of performance occurs during the delayed acceptance or due to the fault of the purchaser, the latter remains obliged to render performance.
- After SK Machinery rescinds the contract or after stipulation of a grace period under penalty of non-delivery SK Machinery is entitled to freely utilise the goods re-acquired.
- Place of Performance, Place of Jurisdiction, Applicable Law
- Unless otherwise contractually agreed, SK Machinery's place of business is the place of performance for payment and delivery of goods.
- If the purchaser is a businessman, a legal entity under public law or a public special fund under public law, the registered office of SK Machinery is the place of jurisdiction for all disputes, including proceedings involving bills of exchange or cheques; actions against SK Machinery may only be initiated at this place of jurisdiction.
- The laws of the Federal Republic of Germany shall apply exclusively, to the exclusion of international civil law, standardised international law and of the UN Convention on the International Sale of Goods.
XI. Legal Validity, Data Protection
- Should one of the provisions of these General Terms and Conditions be or become ineffective this shall not affect the general validity of the contract. The statutory provision shall apply in its stead. Under no circumstances shall the relevant provision in these General Terms and Conditions be replaced by the General Terms and Conditions of the purchaser.
- Any amendments of or additions to the present contract must be confirmed in writing by SK Machinery in order to be valid; this also applies to a waiver of the contractual requirement for the written form.
- Legally relevant declarations of intent such as notices of termination, notices of rescission, demands for a purchase price reduction or damage compensation shall only be valid if made in writing.
- SK Machinery is entitled to process and store the data obtained about the purchaser in connection with the business relationship - even if this originates from third parties - within the meaning of the Federal Data Protection Act and to have it processed and stored by third parties authorised by SK Machinery.