SHW Storage & Handling Solutions GmbH

Transcription

1 General Terms and Conditions of Delivery 05/2013 Section 1: General provisions 1. All deliveries, services and offers made by SHW Storage & Handling Solutions GmbH (hereinafter referred to as SHW) shall be exclusively based on these General Terms and Conditions to the extent the principal is an entrepreneur, a legal person under public law or a public-law special fund. These General Terms and Conditions shall be an integral part of any contract concluded with SHS. They shall apply to all contracts even in case they were not specifically and separately agreed upon. 2. SHS s offers are without engagement. Any documentation pertaining to the offer, including but not limited to illustrations, drawings, weights and measurements shall be approximate information unless expressly designated as binding. SHS reserves property rights and copyrights to all cost estimates, drawings, project proposals, documentation and other documents, including in electronic form. Such documents may not be copied or provided to third parties without SHS s written consent. 3. The fulfilment of contracts for deliveries that are subject to governmental export regulations shall be subject to the provisions that SHS receives the necessary permits. 4. General Terms and Conditions of the customer or of any third party shall not apply, even if SHS does not expressly object to them. Section 2: Scope of delivery and services 1. SHS s written order confirmation shall be authorative for the determination of the scope of delivery and services. In case SHS made an offer open for a limited period and such offer was accepted in due time, the offer shall be authorative in case no order confirmation is made in due time. 2. Collateral agreements and changes must be confirmed in writing by SHS in order to be valid. 3. Should the customer desire changes after the order was placed, SHS shall be entitled to demand a reasonably increased remuneration if such changes cause higher expenses. Section 3: Prices and payment 1. Unless otherwise agreed upon, the prices shall be EXW Hüttlingen, Wasseralfinger Str , Germany, in accordance with ICC Incoterms The prices are stated net of applicable statutory VAT. 2. Unless specifically otherwise agreed upon, payments are to be made without deductions as follows: - 30 % of the contract price upon conclusion of contract; - 30 % upon the time SHS declares that the item to be delivered and/or a material part thereof is ready for despatch from the place of production (despatch shall be effected upon receipt of payment); - 30 % upon receipt of the item to be deliverd at the installation site; - the remainder within one month upon the transfer of risk. 3. No discount shall be deducted unless expressly otherwise agreed upon. 4. The customer shall not be entitled to withhold payment or set off payments against counterclaims unless such counterclaims are undisputed or recognized by declaratory judgment. 5. Irrespective of the means of payment used, a payment shall not be deemed to be made unless the full invoiced amount was irrevocably credited to SHS s account. In case of any delay in payment by the customer, SHS shall be entitled to demand default interest amounting to 5% above the applicable base rate of the European Central Bank, starting as oft he date the payment was due. 6. In case of any material deterioration of the customer s financial position which might endanger SHS s claim for payment, SHS shall be entitled to withhold delivery until payment is made or until sufficient security was provided. Section 4: Delivery period; Delay 1. The delivery period shall be in accordance with the agreement made between the contractual parties. SHS is only able to comply with such stipulated delivery period if all commercial and technical issues were resolved and the customer fulfilled all obligations, including but not limited to obtaining all necessary official certificates or permits or making a down payment. Failing this, the delivery period shall be prolonged by a reasonable period of time. However, this shall not apply if SHS is responsible for such delay. 2. Compliance with the delivery period shall be subject to the condition that SHS s suppliers deliver properly and in due time. SHS shall inform the customer of any delay as soon as such delay becomes apparent.

2 3. The delivery period shall be deemed complied with if as of the time the term of delivery expires the item to be delivered left SHS s production site or the customer was informed that the item is ready for dispatch. In case an acceptance has to be effected, the acceptance date or alternatively, the notification that the delivery item is ready for acceptance, shall be decisive, except in case of a justified refusal of acceptance. 4. SHS shall not be liable if delivery is impossible or delayed to the extent such impossibility or delay is caused by force majeure or any other events not foreseeable at the time the contract was concluded (including but not limited to interruption of operations of any kind, difficulties in the procurement of material or energy, transport delays, strikes, rightful lockouts, lack of workforce, energy or raw materials or failure by sub-suppliers to deliver, to deliver correctly and/or to deliver in due time) and to the extent such impossibility or delay is not attributable to SHS. Should SHS s ability to effect deliveries or services be materially impeded or even rendered impossible by such events, and such impediment is not of a merely temporary nature, SHS shall be entitled to rescind the contract. If such impediments are of a temporary nature, the periods of delivery or service shall be prolonged and/or dates of delivery and service shall be postponed, in each case by a period of time which corresponds to the duration of such impediment plus a reasonable lead time. Insofar as the customer cannot reasonably be expected to accept such delivery or service due to the delay, the customer shall be entitled to rescind the contract immediately by written notice to SHS. 5. SHS shall be entitled to effect partial deliveries if such partial delivery can be used by the customer for the contractual purpose, if the delivery of the remaining ordered goods is ensured and if the customer does not incur any material additional work or expenses. 6. In case of any delay in delivery or service by SHS or if delivery or service is rendered impossible for whatever reason, SHS s liability shall be limited to damages in accordance with section 7 and section 8 of these General Terms and Conditions. Section 5: Place of performance, delivery, acceptance, transfer of risk 1. Place of performance for all obligations arising out of the contractual relationship shall be the official seat of SHS, unless otherwise agreed upon. 2. All obligations, costs and risks related to the delivery of goods shall be subject to the provisions of the ICC Incoterms In case of any gap in such provisions, the following shall apply: a. The risk shall be transferred to the customer upon transfer of the item to be delivered to the carrier, forwarder or any other third party commissioned to effect delivery. This provision shall also apply to partial deliveries or in case SHS assumed other obligations such as dispatch or installation. If dispatch or transfer is delayed due to circumstances attributable to the customer, the risk shall be transferred to the customer as of the date the item to be delivered was ready for dispatch and SHS informed the customer that such item was ready for dispatch. Any storage costs incurring after the transfer of risk shall be borne by the customer. 3. A formal acceptance after notification of readiness for dispatch shall be effected upon either party s request. Performance shall be deemed accepted after 12 working days after the written notification of completion of such performance. In case no acceptance is requested and the customer put the object of performance in use in whole or in part, such performance shall be deemed accepted after 5 working days after commencement of use, unless otherwise agreed upon. 4. If acceptance tests are agreed upon, SHS shall be obliged to inform the customer of the acceptance test in due time in order to enable a representative of the customer to be present during such acceptance test. In case a representative of the customer is not present during the acceptance test, SHS shall send a test protocol to the customer. In such case, the customer shall not be entitled to dispute the correctness of the protocol and any use of the delivered item by the customer shall be deemed to be an acceptance of such item. 5. Minor defects do not entitle the customer to refuse acceptance if such minor defects do not materially negatively affect the functionality, safety or fitness for use of the delivered item. However, SHS shall be obliged to rectify such defects as soon as possible. Section 6: Retention of title; Collaterals 1. SHS reserves the right to retention of title to be delivered items until receipt of full payment of all receivables out of the contractual relationship. In case of any breach of contract by the customer, SHS shall be entitled to take back the delivered item, which shall be deemed to be rescission of contract. SHS shall be entitled to utilise such delivered item and any proceeds thereof shall be set off against the customer s accounts payable, after deduction of reasonable utilisation costs. 2. The customer shall be obliged to treat the delivered item with care until the end of the warranty period. The customer shall in particular be obliged to obtain insurance for such item against fire, water and theft at its own expense. To the extent maintenance and inspection work is necessary, the customer shall be obliged to effect such work in due time and at its own expense and/or have such work effected by SHS at the customer s expense. Should the customer not be able to provide evidence that such insurance was obtained, SHS shall be entitled to obtain insurance for such item against theft, breakage, fire, water and other damage at the customer s expense. 3. The customer shall be entitled to resell the delivered item in its ordinary coure of business. However, as of now, the customer shall assign to SHS all receivable up to the amount of the final invoice amount (inclusive of VAT) the customer shall be entitled

3 to assert against the customer s customer or any other third party based on such resale. The customer shall remain entitled to collect such receivables, irrespective of the assignment. SHS s right to collect such receivables shall be suspended for as long as the customer fulfils its payment obligations resulting from the proceeds received, is not in default in payment and did not file a petition for the commencement of insolvency proceedings. 4. Should the customer process or remodel the delivered item, such processing or remodelling shall be effected for the account of SHS. If the delivered item is processed with other items not belonging to SHS, SHS shall acquire co-ownership of the new item on a pro rata basis at the ratio between the value of the contractual item (final invoice amount including VAT) and the other processed items as of the time of processing. 5. In case the delivered item is inseparably mixed with other items not belonging to SHS, SHS shall acquire co-owernship of the new item on a pro rata basis at the ratio between the value of the contractual item (final invoice amount including VAT) and the other mixed items as of the time of mixing. If such items are mixed in such a manner that the item belonging to the customer is deemed to be the main item, the customer shall grant SHS co-owernship on a pro-rata basis. The customer shall hold any such exclusive or shared property in trust for SHS. 6. The customer shall assign to SHS any receivable from third parties arising out of the mixing of the purchased item with a piece of land. 7. For the purpose of securing the fulfilment of payment obligations, in case of delivery abroad, SHS shall be entitled to request the customer to provide an absolute performance guarantee with unlimited duration subject ot German law, issued by a bank accredited within the EU. 8. Any petition for the commencement of insolvency proceedings shall entitle SHS to rescind the contract and to demand immediate return of the delivered item. Section 7: Claims based on defects, defects in quality, defects of title 1. Any information provided by SHS pertaining to the subject matter of deliveries or services as well as the presentation thereof shall be decisive unless the fitness for the contractually intended purpose requires exact conformity. Such information shall not be guaranteed characteristics but rather descriptions or designations of the delivery or service. Any deviations which are usual in the trade or deviations due to legal requirements or which constitute technical improvements as well as the replacement of components with ones of equal value shall be admissible to the extent the fitness for the contractually intended purpose is not adversely affected. 2. The customer shall only be entitled to assert claims for defects if the customer duly fulfilled the obligations to investigate and to make a complaint in respect of a defect immediately on receipt of goods according to section 377 of the Commerical Code. In case of a contract for work and services, section 377 of the Commercial Code shall apply mutatis mutandis. The customer shall be obliged to inspect the product after transfer of risk and/or after acceptance, check its functionality and to inform SHS in writing of any defects detected and of any hidden defects immediately upon detection thereof, but not later than after 7 days. 3. SHS shall be obliged to rectify and defect if such defect is based on a constructional defect, a defect in material or workmanship. SHS shall be obliged, in its sole discretion, to repair or deliver new replacement parts for any parts which turn out to be useless or the usability of which is materially adversely affected within a period of 6 months after commissioning due to a cause incurred before the transfer of risk (evidence required). In case such defects are detected, SHS is to be informed immediately in writing in accordance with section 7, no. 2 and a description of the defect must be included. Otherwise, the customer shall forfeit its right to demand rectification of such defect. SHS shall be entitled to demand that replaced parts become SHS s property. Should the actual operating time of the delivered item exceed the agreed upon time frame, the period shall decrease accordingly. If dispatch, installation or commissioning are delayed for reasons not attributable to SHS, liability shall expire 12 months after the transfer of risk at the latest. SHS s liability for material third-party products shall be limited to the assignment of warranty claims SHS is entitled to assert against the seller of such third-party product. 4. The customer s right to assert claims based on defects shall be time-barred in any case after 6 months after the time of due notification, however, not before expiry of the warranty period. The warranty period shall be limited to 12 months. 5. No warranty obligations shall incur for any damage incurring due to one or more of the following reasons: unsuitable or improper use, incorrect installation and/or commissioning by the customer or any third party, wear and tear, wear of friction, damage by third parties, frost damage incorrect or negligent treatment, unsuitable operating materials/substitute materials, defective materials provided by the customer, design described by the customer, defective civil works, unsuitable foundation, harmful ambient conditions, chemical, electro-chemical or electric influences, to the extent they are not attributable to SHS. 5.1 SHS shall not assume any warranty obligations unless it effects and/or monitors installation and commissioning, the plant is run-in and operated with loose materials as stipulated in the contract, the operating and maintenance regulations are observed and only SHS original replacement parts are used. 6. Upon agreement with SHS, the customer shall be obliged to grand SHS sufficient time and opportunity to effect all repairs and replacement deliveries SHS deems necessary in its reasonable discretion and the customer shall be obliged to provide the necessary auxiliary means and assistance, otherwise SHS s warranty obligation shall cease to be in effect. Only in case industrial safety is endangered and for the purpose of measures to be taken to divert disproportionately considerable

4 damage (SHS is tto be informed immediately) or in case SHS is in delay with the rectification of any defect, shall the customer be entitled to rectify such defect or have it rectified by a third party and to demand compensation for any costs incurred in relation thereto from SHS. For the purpose of this provision, delay shall mean a reasonable period of time granted for rectification of at least 4 weeks, expired without success. 7. Of the direct costs incurring due to such rectification and/or replacement delivery, SHS shall bear the costs for the replacement part, including shipment provided the notice of defect was justified. SHS shall be obliged to remove and install the part if such removal or installation requires specific know-how. Otherwise, any of SHS s obligations with regard to such defect shall be deemed fulfilled upon delivery of the duly repaired or replaced part to the customer. 8. The warranty period for the replacement part and the repair shall be 3 months, however, it shall not end before expiry of the original warranty period for the delivered item. The period for the liability for defects of the delivered item shall be prolonged by a period of time corresponding to the duration of the business interruption caused by the rectifiaction work. 9. SHS shall be relieved of any liability for the consequences of changes or repairs improperly effected by the customer or any third party without SHS s prior consent. The same shall apply mutatis mutandis if other than SHS original parts and/or parts that were not approved by SHS are used. 10. a. Should rectification of any defect fail and any grace period granted to SHS for the rectification or replacement delivery in relation to any defect which is attributable to SHS expired without result, the customer shall be entitled to demand a price reduction corresponding to the diminished value of the delivered item. Such price reduction must not exceed 15% of the price. If the defect is of such a fundamental nature that the customer loses its interest in the contract in whole or in part, the customer shall be entitled to rescind the contract for that part of the delivered item which cannot be used as intended after sending a written notice to SHS informing SHS of its intention to rescind the contract. 10. b. SHS must be granted at least 3 rectification attempts. 11. Further claims shall be excluded. Section 8: Liability, limitation of liability 1. SHS s liability for damages, irrespective of the legal reason, in particular resulting from impossibility of or delay in, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tortious acts shall be limited in accordance with this section 8 to the extent fault is material in this case. 2. SHS shall not be liable for slight negligence of its bodies, legal representatives, employees or other vicarious agents unless there is a breach of material contractual obligations. A material contractual obligation is any obligation the fulfilment of which the customer relies and is entitled to rely on. Material contractual obligations include but are not limited to the obligation to deliver and install the delivered item free from material defects and in due time as well as duty to advise, duty of care and duty of custodial care and are to enable the customer to use the delivered item in accordance with its intended contractual purpose or are to protect life, limb or health of the customer s employees. 3. To the extent SHS is liable for damages in accordance with section 8, no. 2 on the merits, such liability shall be limited to damage foreseen by SHS at the time of conclusion of contract as a possible consequence of a breach of contract or which SHS should have foreseen had it exercised due care. Any indirect or consequential damage resulting from a defect of the delivered item shall only be deemed to be a recoverable damage to the extent such damage can typically be expected, provided the delivered item is used as intended. 4. SHS s liability for damages for slight negligence for property damage and any additional pecuniary damage resulting therefrom shall be limited to a maximum of two cases of damage per year (in accordance with the current insured sum under the manufacturer s liability insurance) in accordance with the insurance confirmation contained in the annex to the General Terms and Conditions, even if a material contractual obligation is violated. Upon request, SHS shall send the customer a copy of the insurance policy. Should the insurance company be exempt from paying benefits due to a breach of SHS s obligations, SHS undertakes to guarantee payment of compensation up to the amount of the order value from its own financial means. Any additional liability by SHS shall be excluded. 5. SHS shall not be liable for any damages which did not arise from the supplied goods itself. In particular SHS is not liable for losses on profit, losses on production-interruption on production or other pecuniary loss. 6. Exclusions and limitations of liability shall also apply to the bodies, legal representatives, employees and other vicarious agents of SHS to the same extent. 7. The restrictions, limitations or exclusions of liability contained in this section 8 shall not apply to the extent there is a mandatory liability, including but not limited to liability in accordance with the Product Liability Act, in case of wilful intent or gross negligence or for any injury to life, limb or health or for a violation of material contractual obligations. Material contractual obligations are obligations protecting material legal positions of the customer which the customer is to be granted in accordance with such contract s content and purpose, and contractual obligations the fulfilment of which actually facilitates the due execution of the contract and the fulfilment of which the customer generally relies on and is entitled to rely on. However, claims for damages for any violation of material contractual obligations shall be limited to the typical and foreseeable damage unless such claims for damages are based on wilful intent or gross negligence or on any liability for injury to life, limb or health. The above regulations do not entail a change oft he burden of proof to the customer s detriment.

5 Section 9: Use of software 1. For software contained in the scope of delivery, if any, the customer shall be granted a non-exclusive right to use such software and its related documentation. Such software shall be provided and is to be used together with the related delivered item. The software must not be used on more than one system or plant. 2. The customer may only copy, revise, translate the software or convert its object code to the source code in the legally admissible scope (sections 69 a et seqq. ff the Copyright Act). The customer undertakes not to remove or change any manufacturer s data in particular but not limited to copyright notes without SHS s prior express consent. 3. All other rights to the software and documentation including any copies thereof shall remain with SHS and/or with the software supplier. No sub-licenses may be granted. 4. The customer shall only be entitled to request that software defects be rectified outside SHS s premises if it is technically necessary at the place of use and if this is reasonable from an economic point of view. Any additional costs arising in connection therewith shall be borne by the customer. The customer shall be obliged to prove the existence of any alleged defect by means of an unchanged software version. SHS s liability for any loss of data shall be limited to the reconstruction expenses, provided the customer duly effected the usual data backups. Otherwise, any warranty obligations shall be subject to section 7 of these General Terms and Conditions. 5. SHS shall be entitled to request a remuneration for any activities commenced based on an error notification if the customer is not able to prove the existence of such defect, if the rectification of such defect was rendered more difficult because the customer effected changes to the software or if the defects to be rectified are not attributable to SHS. Section 10: Statute of limitations Any and all claims of the customer, irrespective of their legal grounds, become statute-barred after 12 months. Wilful or malicious conduct as well as claims based on the Product Liability Act and claims based on warranted properties or warranted durability shall be subject to the statutory limitation periods. The statutory limitation periods shall also apply to any defect of a building or to delivered items which were used for a building in accordance with their usual purpose and caused such defect of a building. Section 11: Miscellaneous 1. Insofar as it does not conflict with the customer s material interests (evidence required) and upon prior notice, SHS shall be entitled to inspect the systems it delivered on the premises and present them to its potential customers. 2. Both contracting parties undertake to treat confidentially any business and trade secrest of the respective other party they become aware of in connection with the business relationship. This obligation shall survive the termination of the business relationship. 3. Should the application of individual provisions be in conflict with mandatory law, this shall not affect the validity of the remaining provisions. 4. All taxes, fees and charges due in connection with any delivery outside of Germany shall be borne by the customer. Should SHS have to pay taxes, fees or other charges to authorities in the customer s country in connection with the execution of such delivery, the customer shall reimburse SHS for such expenses. Section 12: Governing law; jurisdiction 1. The place of jurisdiction shall be the seat of SHS. However, SHS shall be entitled to file a complaint against the customer at the customer s place of residence. 2.a. Deliveries within the territory of the Federal Republic of Germany shall be exclusively subject to German substantive law. 2.b. Deliveries abroad shall be subjet to Swiss substantive law. 3. Should the contract or these General Terms and Conditions contain any gaps, such gaps shall be deemed filled with legally effective regulations the contracting parties would have agreed upon in accordance with the economic goals of the contract and in accordnace with the purpose of these General Terms and Conditions, had they been aware of such gap.