General Terms and Conditions
of the Synwer GmbH, Status: October 2020
I. General/exclusive validity
Our following General Terms and Conditions (GTC) apply exclusively to companies, legal entities under public law and special funds under public law.
- The following conditions apply to all contracts concluded between the purchaser and us. They shall also apply to all future business relations, even if they are not expressly agreed again. Our terms and conditions shall be deemed accepted at the latest upon acceptance or receipt of the service. Deviating terms and conditions of the purchaser which we do not expressly recognise are not binding for us, even if we do not expressly object to them. The following terms and conditions shall also apply if we execute the customer’s order without reservation in the knowledge of conflicting or deviating terms and conditions of the purchaser.
- Changes to the scope of deliveries and services, prices and delivery times are only valid with our written confirmation. All previous agreements not contained in the order confirmation are invalid. Supplementary agreements require our written consent.
II. Conclusion of contract
- Our offers are subject to change and non-binding unless we have expressly designated them as binding. Should we expressly submit a binding offer in individual cases, these shall be valid for a maximum of 30 days. Contracts are concluded by the order of the purchaser and our written order confirmation or by execution of the order.
- We can accept an order from the purchaser, which is to be qualified as an offer to conclude a contract, within two weeks by sending an order confirmation.
- Technical and design deviations from descriptions and information in brochures, offers and written documents as well as changes in performance, construction and material in the course of technical progress are reserved, without the purchaser being able to derive any rights from this. Information about our products (technical data, dimensions, etc.) are only approximate and approximate; they are not a guaranteed quality, unless the guarantee is made explicitly and in writing.
- We reserve our property rights, copyrights and other industrial property rights to all samples, drawings, calculations and other documents – including those in electronic form. They may not be made accessible to third parties without written consent and must be returned immediately on request.
III. Terms of payment
- In the absence of a special agreement, the price agreed in the contract is an all-inclusive price. It is based on the costs for material, wages, etc. applicable at the time of conclusion of the contract. If there is a period of more than four months between conclusion of the contract and delivery and if the applicable prices of our suppliers or other costs based on our services change significantly, we are entitled to adjust the agreed remuneration accordingly without delay at our reasonable discretion. This also applies if the customer has already made a down payment. Increases in one type of cost may only be used for a price increase to the extent that there is no compensation for declining costs in other areas. In the event of cost reductions, the prices are to be reduced to the extent that these cost reductions are not fully or partially offset by increases in other areas. According to § 315 para. 3 p. 1 BGB (German Civil Code), the price determination made by us is only binding if it corresponds to fairness.
- Value added tax at the respective statutory rate is added to the prices. Any official inspection and approval fees shall be borne by the purchaser.
- A discount deduction is only permitted in the case of a special written agreement between us and the purchaser. Payment is due without deduction immediately upon receipt of the invoice by the purchaser unless a different payment date is specified in the order confirmation. A payment is only considered to have been made when we can dispose of the amount. In the case of payments by cheque, payment is only deemed to have been made when the cheque is cashed in the normal course of business.
- If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardised by the purchaser’s lack of ability to pay, we shall be entitled to the rights under § 321 BGB (German Civil Code), including for all other outstanding services from the business relationship with the purchaser. If the purchaser fails to effect performance or fails to provide security within a reasonable period of time, we shall also be entitled to demand payment of all claims from the current business relationship that are not statute-barred.
- If the purchaser defaults on a payment, the statutory regulations shall apply.
- In the cases of No. 4 and No. 5, we can demand advance payment for outstanding deliveries.
- The purchaser is only entitled to offsetting if the counterclaims originate from the same contractual relationship or if the counterclaims have been legally established, recognised by us or are undisputed. The purchaser is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
IV. Retention of title
The delivered goods (goods subject to retention of title) remain our property until all claims, including all balance claims from current account, to which we are entitled against the purchaser now or in the future, have been settled. If the purchaser does not perform a due service (e.g. a payment) or does not perform it in accordance with the contract, we have the right to withdraw from the contract and take back the goods subject to retention of title after having set a reasonable deadline. If we take back the goods subject to retention of title, this constitutes a withdrawal from the contract. If we seize the goods subject to retention of title, this is a withdrawal from the contract. We are entitled to use the goods subject to retention of title after taking them back. After deducting a reasonable amount for the costs of realisation, the proceeds of realisation shall be offset against the amounts owed to us by the purchaser.
- The purchaser must treat the reserved goods with care and insure them at his own expense against theft, breakage, fire, water and other damage at replacement value. The purchaser hereby assigns to us all claims against the insurance company; we hereby accept the assignment. Any maintenance and inspection work that becomes necessary shall be carried out by the purchaser at his own expense and in good time.
- The purchaser is entitled to sell and/or use the reserved goods in the ordinary course of business as long as he is not in default of payment. Pledging or transfer by way of security is not permitted. By way of security, the purchaser hereby assigns to us in full all claims arising from resale or on any other legal grounds (insurance, tort) in respect of the goods subject to retention of title (including all balance claims from current account); we hereby accept the assignment. We revocably authorise the purchaser to collect the claims assigned to us for his account in his own name. The direct debit authorization can be revoked at any time if the purchaser does not properly meet his payment obligations. The purchaser is also not authorised to assign this claim for the purpose of collecting the claim by way of factoring, unless the obligation of the factor is established at the same time to effect the consideration in the amount of the claims directly to us for as long as we still have claims against the purchaser.
- Any processing or transformation of the reserved goods by the purchaser shall in any case be carried out for us. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. The same applies to the new object created by processing as to the goods subject to retention of title. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If, as a result of the mixing, the purchaser’s item is to be regarded as the main item, the purchaser and we agree that the purchaser transfers proportional co-ownership of this item to us; we hereby accept this transfer. The purchaser shall hold in safekeeping for us our sole or co-ownership of an item thus created.
- In the event of access by third parties to the goods subject to retention of title, in particular seizures, the purchaser shall draw attention to our ownership and inform us immediately so that we can enforce our ownership rights. If the third party is not able to reimburse us for the court or out-of-court costs incurred in this connection, the purchaser shall be liable for them.
- We are obliged to release the securities to which we are entitled insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %, the choice of the securities to be released being at our discretion. The value of the goods subject to retention of title shall be the net invoice amount of the goods delivered by us less a security discount of 1/3.
- The delivery time stated by us does not commence until the purchaser has duly fulfilled all obligations incumbent upon him, such as the provision of any necessary official permits or down payments.
- Our delivery time is deemed to have been met if our product has left the factory by the end of this period or if we have notified readiness for collection.
- If we cannot deliver on time, we shall inform the purchaser immediately.
- If we are not responsible for the delay, such as in the event of a shortage of energy, import difficulties, operational and traffic disruptions, industrial action, force majeure or delays on the part of our suppliers, the performance period shall be extended accordingly. If we are still unable to perform after a reasonable extension, both the purchaser and we shall be entitled to withdraw from the contract. Claims for damages by the purchaser due to delays for which we are not responsible are excluded.
- In the event of a possible claim for damages by the purchaser due to a delay for which we are responsible, clause IX shall apply.
- Any further liability for a delay in delivery for which we are responsible is excluded unless unlimited liability is applicable according to clause IX or an essential contractual obligation (with the consequences according to clause IX) is violated. The further legal claims and rights of the purchaser, which he is entitled to in addition to the claim for damages due to a delay in delivery for which we are responsible, also remain unaffected.
- We are entitled to partial deliveries and partial services at any time, provided this is reasonable for the purchaser.
- If the purchaser is in default of acceptance, we shall be entitled to demand compensation for the resulting damage and any additional expenditure. The same shall apply if the purchaser culpably breaches his obligations to cooperate. Upon the occurrence of default of acceptance or debtor’s delay, the risk of accidental deterioration and accidental loss shall pass to the purchaser.
- Loading and dispatch are carried out uninsured at the risk of the purchaser. At the request and expense of the purchaser, we will insure the delivery with a transport insurance. We shall endeavour to take the wishes and interests of the purchaser into account with regard to the type of dispatch and dispatch route; any additional costs incurred as a result – even if carriage paid delivery has been agreed – shall be borne by the purchaser.
- We do not take back transport packaging and all other packaging in accordance with the packaging law, with the exception of pallets. If dispatch is delayed at the request or through the fault of the purchaser, we shall store the goods at the purchaser’s expense and risk. In this case, notification of readiness for dispatch shall be equivalent to dispatch.
VI. Transfer of risk
- The risk is transferred to the purchaser as soon as the delivery parts have left our factory or warehouse. This also applies if we assume further services, such as in particular shipping costs or delivery. Insofar as acceptance is required, the risk is transferred upon acceptance. In case of partial deliveries, this applies to the delivered part.
- If dispatch or acceptance is delayed or does not take place due to circumstances for which the purchaser is responsible, the risk shall pass to the purchaser as soon as we have notified him of readiness for dispatch or acceptance.
- At the purchaser’s request and expense, we will insure the consignment against theft, breakage, transport, fire and water damage.
- Claims for defects on the part of the purchaser shall only exist if he fulfils his duties of inspection and notification of defects in good time in accordance with § 377 HGB (German Commercial Code).
- No warranty is given for damage caused for the following reasons: unsuitable or improper use, faulty installation by the purchaser or third parties, deviation from our installation instructions, natural wear and tear, faulty or negligent handling, in particular excessive strain, defective construction work, chemical, electronic or electrical influences, unless they are attributable to a fault on our part.
- If material defects only become apparent during processing, complaints can only be considered if the processing of these defective items is stopped immediately.
- If the notification of defects is justified and made in due time, we may initially, at our discretion, either remedy the defect or deliver a defect-free item (subsequent performance).
- If subsequent performance by us fails or is refused, the purchaser may reduce the purchase price or withdraw from the contract after setting and unsuccessful expiry of a reasonable deadline, provided the defect is not insignificant or the goods have already been sold, processed or redesigned.
- The Purchaser shall be entitled to claim damages in accordance with the provisions of clause IX.
- We shall not reimburse expenses incurred by taking the goods to a place other than the place of performance unless this is in accordance with their contractual use.
- Claims of the purchaser due to material defects become time-barred one year after delivery to the purchaser or – if acceptance is to take place – after acceptance by the purchaser unless there is a case of § 438 para. 1 no. 2 BGB or § 634a para. 1 no. 2 BGB.
- In cases of subsequent performance, the period of limitation shall not begin to run again.
- Clause IX. shall remain unaffected by the above provisions.
VIII. Force majeure
- In cases of force majeure we are released from our obligation to perform. Claims for damages are excluded in this respect.
- Force majeure is any unforeseeable event beyond the control of the respective contracting party which prevents us from fulfilling its obligations in whole or in part, including fire damage, floods, strikes and lawful lockouts as well as operational disruptions of any kind, Difficulties in the procurement of materials or energy, transport delays, strikes, lawful lock-outs, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver, incorrectly deliver or deliver on time. Supply difficulties and other disruptions in performance on the part of the Seller’s upstream suppliers shall only be deemed to be force majeure if the upstream supplier, for its part, is prevented by an event of force majeure from providing the service for which it is responsible.
- We shall notify the Purchaser without delay of the occurrence or cessation of the force majeure and shall use our best efforts to remedy the force majeure and limit its effects as far as possible.
- In the event of hindrances of a merely temporary nature, the delivery or service deadlines shall be extended, or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
- Irrespective of the limitations of liability in this section, we are liable in accordance with the statutory provisions for
- damage to life, body and health resulting from a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents,
- damage caused intentionally or through gross negligence by us, our legal representatives or our vicarious agents,
- damages which are covered by liability under the Product Liability Act,
- fraudulently concealed defects,
- the fulfilment of guarantees.
- In the case of property damage and financial losses caused by simple negligence, we and our vicarious agents shall only be liable in the event of a breach of an essential contractual obligation, i.e. in the event of a breach of a contractual obligation the fulfilment of which makes the proper execution of the contract possible in the first place, the breach of which endangers the achievement of the purpose of the contract and on the observance of which the purchaser regularly relies and may rely. However, this liability is limited to the amount of damages foreseeable and typical for the contract at the time of conclusion of the contract.
- We shall only be liable for damage which is based on the absence of the guaranteed quality or durability, but which does not directly affect the goods, if the risk of such damage is obviously covered by the guarantee of quality and durability.
- Any further liability is excluded regardless of the legal nature of the claim asserted. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
X. Final provisions
- The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes arising between us and the purchaser from contracts concluded between us and the purchaser is our registered office. However, we are also entitled to sue the purchaser at his place of residence and/or business
- The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods as well as the referral norms of private international law are excluded.