General terms of sale and delivery EXMAR GmbH and SERTO Group
1. General and Scope of Validity
The General Terms and Conditions shall apply to all companies within the SERTO Group (SERTO AG, SERTO GmbH, SERTO S.A.R.L., EXMAR GmbH, SERTO Italiana S.r.l. and SERTO CZ s.r.o.), hereinafter referred to as the “Supplier”. These General Terms and Conditions shall be exclusively valid for offers, order confirmations, deliveries and services. Modifications, supplements or conflicting conditions of the customer/purchaser/orderer shall only be applicable when expressly confirmed in writing in each individual case. By placing the order, or at the latest upon receipt of the goods, the purchaser acknowledges our General Terms and Conditions of Sale and Delivery.
2. Offers and Contracts
Our offers are subject to change. Orders placed in writing, verbally or by telephone shall only become binding for us with our written order confirmation. For manufactures according to customer samples/drawings, we reserve the right to an excess or short delivery of up to 10 % (for order quantities under 10 pieces, we reserve the right to an excess or short delivery of 1 piece). With respect to orders based on the most recent version of our documentation, such as catalogues, price lists or brochures, it shall be borne in mind that our information (in particular technical data) is non-binding in so far as no other agreements are specifically made or corresponding designation is contained in the documentation. In addition, our information in documentation, such as catalogues or brochures, shall be understood as an invitation to submit a quotation. A binding contract for our part requires a written order confirmation which establishes the extent of the contractual obligation. Should the order confirmation show information which deviates from that in the offer of the customer/purchaser/orderer, he must notify us immediately if the contract is not to be pursued under these altered conditions. Subsequent additions, modifications or other agreements must be made in writing. If, after conclusion of the contract, the ability to pay or the financial circumstances of the customer/purchaser/orderer have deteriorated to the extent that our right to compensation is jeopardised, we shall be entitled to refuse fulfilment of the contract until which time the customer/purchaser/orderer shall effect such consideration or provide a security for it. Should the customer/purchaser/orderer not be able to provide the required security within an appropriate time, we shall be entitled to withdraw from the contract.
The Supplier’s prices shall be subject to change and are given by SERTO GmbH, SERTO S.A.R.L., SERTO Italiana S.r.l. and EXMAR GMbH in Euro, by SERTO AG in Swiss francs (CHF), ex works (INCOTERMS 2010), but excluding packaging, transport costs, minimum order charge, insurance and the applicable statutory value-added tax.
The sales tax shall be shown separately at the rate applicable on the day of invoicing. Deliveries shall always be made ex works.
4. Deliveries, Time of Delivery and Performance
The dates and deadlines must be agreed in writing upon conclusion of the contract. The same holds true for subsequent agreements or amendments. Adherence to a delivery time shall be subject to the timely receipt of all documents, parts and information to be supplied by the customer/purchaser/orderer as well as any advance payments contractually or legally owed by the customer/purchaser/orderer. If these requirements are not met, the delivery time shall be extended accordingly. The day of delivery shall be considered the day on which the goods are reported to the customer/purchaser/orderer as ready for pickup. If shipping is owed, the day of delivery shall be the day on which the goods are consigned to the forwarder. We shall not bear responsibility for delivery and performance difficulties due to force majeure events that take effect after conclusion of the contract and that are only known to us after the fact through no fault of our own (such as e.g. unforeseeable interruptions in operation, strikes, lockouts, unavoidable difficulties in material procurement and the like). If the obstacle to performance is of a temporary nature, the delivery and performance time shall be extended accordingly. If, however, the event of force majeure should result in a permanent inability to perform, we shall be entitled to withdraw as a whole or in part from the contract concerning the part not yet fulfilled. For call orders consisting of several partial shipments, no rights may be asserted for other partial shipments of this order on the basis of delivery problems for one partial shipment unless the customer/purchaser/orderer submits proof that partial fulfilment of the contract is of no interest to him. The same applies should the partial shipment be insignificant in comparison to the overall delivery. For call orders consisting of several partial shipments, we shall be entitled to manufacture the entire order amount immediately. Any change requests on the part of the customer/purchaser/orderer cannot be taken into account after our order confirmation has been issued. We are entitled to make partial deliveries and partial performance to a reasonable extent. Unavoidable upward or downward deviations in amounts / manufacturing results of up to 10% shall be allowed without any adjustments in the purchase price.
5. Passing of risk
We deliver at the risk and cost of the customer/purchaser/orderer. Risk passes to the customer/purchaser/orderer as soon as the goods leave our plant or one of our external storage areas for shipment. If shipment is delayed or not possible due to circumstances for which the customer/purchaser/orderer is responsible, the risk shall pass to the customer/purchaser/orderer on the day of notification of readiness to dispatch. The customer/purchaser/orderer shall accept delivered goods even if they exhibit defects irrespective of the rights stipulated in Paragraph 6.
Minor and/or insignificant deviations or modifications compared to the catalogues or previously supplied goods shall not be considered a defect. The information regarding our goods and services provided in our catalogues, brochures and price lists merely constitutes descriptions, identifications and reference values. The assurance of characteristics and the exclusion of deviations customary in the trade shall be subject to explicit written agreement in each individual case. For goods supplied by us, the inspection duties and the complaint notification obligation valid in the respective countries shall apply. The customer/purchaser/orderer must report any defects immediately to us in writing and in full; visible defects are to be reported at the latest within one week of receipt of the goods, hidden defects at the latest within one week of detection. Warranty claims may not be put forward after the notification period has elapsed, as well as after 24 months of the passing of risk. For justified and accurately timed notifications of defect, our warranty obligation shall be limited, at our discretion, to reworking the goods or replacing them. Regardless of the fact whether we rework or supply new parts, only parts that exhibit a defect in the material or in our workmanship shall be replaced. Should subsequent deliveries or improvements fail, the customer/purchaser/orderer may only choose to demand a reduction in payment or termination of the contract. Claims for damages by the customer/purchaser/orderer are governed under Paragraph 7. The customer/purchaser/orderer shall be entitled to compensation for any consequential damages caused by a defect only in the event that the risk of consequential damages due to the guaranteed characteristic should be excluded when an expressly guaranteed characteristic is not present. Any warranty is excluded for defects based on non-compliance or non-adherence to the assembly instructions and installation recommendations, on negligent or improper handling, on other applications or other uses of our goods or services than foreseen in the contract, on given outside resources or on modifications or repair work undertaken improperly by the customer/purchaser/orderer or third parties without our prior approval. If there is a state of exclusion, the customer/purchaser/orderer shall bear the burden of proving that the defect asserted by him was not caused by behaviour leading to exclusion.
7. Claims for damages
We shall not be held liable for all types of damages unforeseeable at the time of concluding the contract due to non-delivery or delayed delivery, due to violation of other contractual obligations, for violations of obligations upon conclusion of the contract as well as for damages due to unlawful acts. This does not apply unless it can be shown that we have acted wilfully or with gross negligence, unless it is a case of initial inability or the violation of an obligation essential to meeting contractual ends or the violation of the organisational duty of the company to prevent defects arising from design, production and use.
8. Retention of title
Until the customer/purchaser/orderer has settled all outstanding claims – in case of payment by draft or cheque until redemption of such – to which we are entitled for any legal reason, the goods shall remain our property. In addition, the following securities shall be granted us, which we may release on request at the discretion of the purchaser/orderer, provided their value exceeds the claims by more than 15%. Processing or working the goods is always free for us as the manufacturer, but without any obligation on our part, so that we retain title to the goods at all times and every degree of the processing. The customer/purchaser/order shall keep custody of our property free of charge. Should the customer/purchaser/orderer merge or combine our goods with other goods not belonging to us, thus causing a loss of ownership, it is hereby agreed that we shall acquire a share in the joint ownership of the customer/purchaser/orderer in the new item in the total amount of the invoice proportional to the value of the new goods after processing at the time of combining/merging and that the customer/purchaser/orderer shall keep custody of them gratuitously. The customer/purchaser/orderer shall be obligated to protect our property/joint property from deterioration, spoilage or loss with the proper care and diligence, also against his customers/purchasers/orderers. The customer/purchaser/orderer shall be entitled to process and to sell the reserved-title goods in the normal course of business, provided that he is not in arrears. Claims deriving from the resale of the reserved-title goods or other legal reasons pertaining to these goods, including all types of balance claims, are herewith assigned to us by way of security in full together with all ancillary rights. We provisionally authorise him to collect in his own name and for his own account all claims ceded to us and to forward the proceeds to us when payment is due. Has the authorisation to collect been revoked, the customer/purchaser/orderer shall be required at our request to disclose the assignments and to make available to us the necessary information and documents. It is not permitted to pledge or assign the reserved-title goods as a security. If a third party attempts to secure the reserved-title goods, the customer/purchaser/orderer shall inform them of our ownership and notify us immediately. Costs and damages shall be borne by the customer/purchaser/orderer. In case of breach of contract on the part of the customer/purchaser/orderer by which the value of the goods as a security is not insignificantly endangered, we shall be authorised to take back upon reminder the reserved-title goods at his cost; the customer/purchaser/orderer shall be obligated to surrender the goods. Neither the assertion of title retention nor the pledging of the reserved-title goods shall constitute a withdrawal from the contract.
All invoices shall be payable in full within 20 days of the invoice date. Bank fees are to be paid by the customer/purchaser/orderer. All payments are to be made directly to us. Our representatives or travelling salespeople are not authorised to collect payment. Unless otherwise noted by the customer/purchaser/orderer, incoming payments shall be applied to the oldest unpaid invoice. Any special discounts agreed upon in writing, which are only granted if there are no outstanding invoices to be paid, are to be taken from the gross invoice amount, i.e. from the sum of the value of the goods, costs for additional services and value-added tax. If the customer/purchaser/orderer falls behind in payments, we shall be entitled to charge interest in the amount of 2% above the current discount rate plus the statutory value-added tax as compensation without proof from the time of default, regardless of the possibility to claim for higher actual damages, especially in the amount of the interest rate normally charged by commercial banks for overdrafts. If the customer/purchaser/orderer culpably does not meet his payment obligations, we shall be entitled to demand immediate payment of the entire outstanding balance or by way of security the provisional return of the supplied goods, even if we have accepted drafts or cheques. We shall furthermore be entitled to request advance payment or additional securities for goods not yet delivered. A payment shall be deemed effected when we can dispose of the amount; draft or cheque payments shall only be considered as being received upon final redemption. All costs incurred in the collection of payments shall be borne by the customer/purchaser/orderer. We shall only be liable for any disadvantages due to incorrect or untimely presentation or protest if we are charged with wilful or gross negligence. The customer/purchaser/orderer shall only be entitled to offset such claims against our payment demand which are undisputed by us or have been determined to be legally valid. The assertion of the right to retention is excluded. This pertains in particular to rights and demands derived from warranty claims.
Unless otherwise expressly agreed in writing, the information provided to us in connection with orders shall not be regarded as confidential. Data made known to us during processing of the contract are stored in accordance with the applicable data protection laws.
11. Partial invalidity
The legal invalidity of individual points shall not affect the validity of the remainder of the contract for both parties. Also should any of the mentioned provisions be invalid or not applicable for any other reason, the rest of the provisions shall remain valid. An invalid provision shall be replaced by a corresponding regulation of non-mandatory law.
12. Applicable law / Place of jurisdiction
The place of performance shall be the location of the supplying plant. The parties to the contract agree to apply the substantive law at the domicile of the Supplier. The applicability of the UN Convention on Contracts for the International Sales of Goods (WKR/CISG) is expressly excluded. For any possible disputes arising from this contract the parties agree to the jurisdiction of the ordinary courts at the domicile of the Supplier. The Supplier is however entitled to take legal action against the customer/purchaser/orderer at his place of business.
In case of doubt the German version shall be binding.