General Terms of Delivery and Payment of Sommer GmbH
1. Scope of application
- 1.1 These terms and conditions of sale apply to companies, legal entities under public law and special funds under public law. Our deliveries and services are provided exclusively on the basis of the following conditions. Any terms and conditions of the partner which are not expressly recognized by us shall not be valid.
- 1.2 These terms and conditions of delivery of the supplier apply to all contracts concluded between the customer and the supplier for the sale, manufacture and processing of goods. They shall also apply to all future business relations, even if they are not expressly agreed.
2. General terms and conditions
- 2.1 Orders only become binding with our order confirmation.
- 2.2 If we determine within an assessment period of 4 weeks after conclusion of the contract that we cannot manufacture or process the ordered goods for technical reasons, we may withdraw from the contract. In this case, the customer is not entitled to claim damages against us. We shall inform the customer immediately about the technical obstacles and exercise our right of withdrawal without delay; in the event of withdrawal, we shall reimburse the customer immediately for any corresponding consideration already received. Claims for damages on the part of the customer are excluded or limited in accordance with section 13 of these terms and conditions of delivery.
- 2.3 The information and illustrations contained in brochures and catalogs are approximate values customary in the industry unless we have expressly designated them as binding.
- 2.4 All offers not expressly designated as binding are subject to change without notice.
- If individual provisions of these general terms and conditions of delivery are or become legally ineffective for any reason whatsoever, the validity of the remaining provisions shall not be affected.
- 2.6 Individual agreements made with us in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
3. Fixed-term and call-off contracts
- 3.1 Unlimited contracts can be terminated with a notice period of 6 months.
- 3.2 Fixed-term contracts within the meaning of this contract are contracts that are concluded for a period of more than 12 months.
- 3.3 If a binding order quantity has not been agreed, the parties agree that our calculation shall be based on the non-binding order quantity (target quantity) expected by the partner for a specific period of time. Goods ordered at call are to be accepted within 12 months after order confirmation.
- 3.4 In the case of delivery contracts at call, we must be notified of binding quantities at call at least 2 months before the delivery date, unless otherwise agreed. Additional costs caused by a delayed call or subsequent changes to the call in terms of time or quantity by our partner shall be borne by the partner; our calculation shall be decisive in this respect.
- 4.1 Each contractual party shall use all documents (including samples, models and data) and knowledge received from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same due care as applied to their own corresponding documents and knowledge. This obligation shall commence upon first receipt of the documents or knowledge and shall remain unaffected by the termination of the business relationship.
- 4.2 The obligation does not apply to documents and knowledge which are generally known or which were already known to the contractual partner on receipt without it being obliged to maintain secrecy, or which are subsequently transmitted by a third party authorized to pass on such documents or knowledge, or which are developed by the receiving contractual partner without exploitation of documents or knowledge of the other contractual partner which must be kept secret.
5. Drawings and descriptions
- 5.1 If one contractual party provides the other contractual party with drawings or technical documents concerning the goods to be delivered or their manufacture, these remain the property of the submitting contractual party.
- 5.2 If the property rights of third parties are infringed when the goods are manufactured according to drawings, samples or other information provided by the customer, the customer shall indemnify the supplier against all claims.
- 5.3 Any change to the text correction requires the production of new graphics and films.
6. Samples and production equipment
- 6.1 Unless otherwise agreed, the production costs for samples and/or production equipment (tools, molds, templates etc.) will be invoiced separately from the goods to be delivered. This also applies to samples and/or production equipment that must be replaced due to wear and tear.
- 6.2 The costs of maintenance and proper storage as well as the risk of damage or destruction of the production equipment shall be borne by us.
- 6.3 If the partner suspends or terminates the collaboration during the period of production of the samples or production equipment, all production costs incurred up to that time shall be borne by the partner.
- 6.4 Proofs produced by the supplier as well as production equipment such as films, printing plates, tools, molds remain the property of the supplier and will not be handed over, even if the customer is partially invoiced for the production costs.
- 6.5 We shall store the production equipment free of charge for three years after the last delivery to our partner. Thereafter, we shall request our partner in writing to comment on further use within 6 weeks. Our obligation to keep the production equipment ends if no statement is made within these 6 weeks or no new order is placed.
- 7.1 Our prices are quoted in euros, excluding value added tax, packaging, freight, postage and insurance.
8. Terms of payment
- 8.1 All invoices are due for payment within 30 days without deduction, from the date of invoice.
- 8.2 If we have indisputably delivered partially defective goods, our partner is nevertheless obliged to make payment for the defect-free part unless the partial delivery is of no interest to it. Otherwise, the partner may only offset with counterclaims which have been established as legally binding or are undisputed.
- 8.3 If the customer is in default of payment, we shall be entitled to charge interest on arrears at the rate that the bank charges us for current account overdrafts, but at least 9 percentage points above the respective base rate of the European Central Bank.
- 8.4 In the event of default of payment, we may, after giving written notice to the customer, suspend performance of our obligations until payments have been received.
- 8.5 Bills of exchange and checks are only accepted by agreement and only on account of performance and on condition that they are discountable. Discount charges are calculated from the due date of the invoice amount.
- 8.6 If, after conclusion of the contract, it becomes apparent that our claim to payment is jeopardized by the partner's lack of ability to pay, we may refuse performance and set the partner a reasonable deadline within which it must make payment or provide security concurrently with delivery. If the partner refuses to do so or if the deadline expires unsuccessfully, we shall be entitled to withdraw from the contract and to claim damages.
- 8.7 When placing an order, the customer is obliged to provide us with precise information on the legal form and legal representation of its company. If the information is incomplete or unclear, the customer is obliged to bear the costs incurred by us in obtaining information from the commercial register and/or trade register, irrespective of the occurrence of the delay.
- 8.8 If no satisfactory credit information is provided about the customer with whom no business relationship has yet existed, if there are doubts about the solvency of the customer or if the supplier has already had to apply for a dunning notice, the supplier is entitled to demand full advance payment of the gross order value.
- 8.9 If, after conclusion of the contract, there is a significant deterioration in the financial situation of the customer, we may demand advance payment within a reasonable period and refuse performance until fulfillment. In both cases (8.8 and 8.9), we are entitled to withdraw from the contract and to claim damages for non-performance in the event of refusal on the part of the customer or fruitless expiry of the deadline.
- 9.1 Unless otherwise agreed, we deliver "ex works". What is decisive for compliance with the delivery date or delivery period is our notification of readiness for dispatch or collection.
- 9.2 The supplier reserves the right to choose the mode of dispatch.
- 9.3 The delivery period shall only be deemed to be agreed as approximate. It begins from the point in time at which we have received all information and releases from the customer, if these are required, at the earliest with the dispatch of our order confirmation. It shall be extended appropriately in the event of force majeure.
- 9.4 Partial deliveries are permissible to a reasonable extent. They will be invoiced separately.
- 9.5 In the event of changes to the contract at the request of the customer (orders) which influence the delivery time, the delivery time shall be extended by a reasonable period. Orders (one or more) may not delay the completion of the order for more than 3 months.
- 9.6 Within a tolerance of 10 percent of the total order quantity, production-related excess or short deliveries are permissible.
10. Dispatch and transfer of risk
- 10.1 Goods notified as ready for dispatch must be accepted by the partner without delay. If the customer is in default of acceptance of the goods, the risk of accidental loss shall pass to the customer. Furthermore, we are entitled to dispatch the goods at our own discretion or to store them at the partner's expense and risk.
- 10.2 In the absence of a special agreement, we shall choose the means of transport and the transport route.
- 10.3 The risk is transferred to the partner when the goods are handed over to the railway, forwarding agent or carrier or when storage begins, but at the latest when the goods leave the factory or warehouse, even if we have taken over delivery.
11. Delay in delivery
- 11.1 If delivery is delayed due to force majeure or due to an act or omission of the partner, an extension of the delivery period appropriate to the circumstances will be granted.
- 11.2 The partner shall only be entitled to withdraw from the contract if we are responsible for the failure to meet the delivery date and the partner has unsuccessfully given us a reasonable period of grace.
12. Production equipment and reservation of title
- 12.1 The customer undertakes to provide us with the necessary production equipment for the next quarterly production in good time, at the latest 14 days before the beginning of the quarter.
- 12.2 The production equipment made available to us by the customer is not transferred by way of a legal transaction, but is provided for the purpose of manufacturing the contractual product.
- 12.3 We are permitted to process the parts and raw materials provided by the customer or to mix them with other objects, to combine them in order to manufacture the contractual product, provided that the respective production equipment is intended for this purpose. The processing, mixing or combining (processing) of tools of the customer is prohibited.
- 12.4 The processing is carried out for the customer in its interest.
- 12.5 If production equipment is our property and the customer does not already acquire sole ownership of the respective manufactured contractual product by operation of law, we shall only transfer our (co-)ownership to the customer upon full payment of the respective manufactured contractual product.
- 12.6 Even as long as the contractual product is not yet the sole property of the customer, the customer is permitted to process the contractual product, mix it with other objects, blend it, connect it or resell it in the course of business, as long as the customer is not in default of payment.
- 12.7 In the event of the sale of a contractual product which is our sole property, the customer hereby assigns to us by way of security its claim from the resale with all ancillary rights, without the need for any further declaration. However, the assignment shall only apply to the amount corresponding to the price of the contractual product invoiced by us to the customer. If, in the event of sale, the customer only has co-ownership, the assignment shall only apply to the amount corresponding to the value of the co-ownership share.
- 12.8 The customer shall inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, the claims assigned to us or other securities, and shall hand over the documents necessary for intervention. This also applies to impairments of any other kind.
- If the value of the existing securities exceeds the secured claims by more than 20% in total, we shall be obliged to release securities at our discretion to this extent at the partner's request.
13. Material defects, compensation, liability
- 13.1 The quality of the goods is exclusively based on the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples etc. of our partner, the latter shall assume the risk of suitability for the intended purpose. The decisive factor for the condition of the goods in accordance with the contract is the time of the transfer of risk.
- 13.2 For material defects and defects of title, we shall provide a warranty at your discretion either by repairing the goods free of charge or by delivering a replacement. In the event of failure to remedy the defect or defectiveness of the replacement delivery, the customer expressly reserves the right, at its discretion, to reduce the price of the individual contract in which the default occurred or to withdraw from the contract. The right to damages shall be determined in accordance with section 13.3.
- 13.3 Liability for damages and reimbursement of expenses is based on the statutory provisions. We shall be liable for any kind of breach of duty (pre-contractual, contractual and non-contractual) for damages and reimbursement of expenses only in the event of gross negligence and intent attributable to us or our vicarious agent. Otherwise liability is excluded. Damages are limited in total - except in the case of intent - to €5 million per damaging event. Liability under the German Product Liability Act and other mandatory legal regulations remains unaffected.
- 13.4 Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
- 13.5 Claims for material defects lapse after 12 months. This does not apply if the law mandatorily prescribes longer periods, particularly for defects in a building and for goods that were used for a building in accordance with their usual purpose, which caused its defectiveness.
- 13.6 In the case of print and/or surface colors according to a template, sample or color specification, we reserve the right to make minor deviations in color shade.
- 13.7 A slight burr formation on metal and plastic signs is due to technical reasons and does not constitute a defect.
- 13.8 With the release of the submitted proofs or release samples by the customer or with the customer's waiver of their submission, the supplier's liability for any errors shall cease.
- 13.9 We must be given the opportunity to determine the defect reported. Goods complained about must be returned to us immediately upon request; we shall bear the transport costs if the notice of defects is justified. If the partner does not comply with these obligations or makes changes to the goods already complained about without our consent, the partner will lose any claims for material defects.
- 13.10 The partner shall only have statutory rights of recourse against us insofar as the partner has not made any agreements with its customer which go beyond the statutory claims for defects.
- 13.11 If the customer demands the rescission of the contract due to a defect after subsequent performance has failed, the customer is not entitled to any additional claims for damages due to the defect.
14. Change requests
- 14.1 If the customer makes a change compared to the placed order, we are entitled to the additional costs as well as the costs for services already rendered including the calculated risk and profit surcharge - without prior notice.
15. Other claims, liability
- 15.1 If we allow the customer to cancel an order once it has been placed, the customer shall reimburse us for the costs of concluding the contract, including lost profits. The respective costs will be charged according to the work already done, depending on the amount of work involved.
- 15.2 If the customer makes a change compared to the placed order, the supplier will invoice the cost price incurred without prior notice.
16. Force majeure
- 16.1 Force majeure, labor disputes, operational disruptions, unrest, official measures, failure to receive supplies from our suppliers and other unforeseeable, unavoidable and serious events shall release the contractual parties from their performance obligations for the duration of the disruption and to the extent of its effect. These disturbances extend the delivery period to a reasonable extent. This shall also apply if these events occur at a time when the affected contractual partner is in default unless the default was caused intentionally or through gross negligence. The contractual partners are obliged to provide the necessary information immediately within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
- 16.2 If delivery or performance becomes impossible as a result of the aforementioned events, the supplier shall be released from its obligation without the customer being able to withdraw from the contract or claim damages. The contractual partners are obliged to inform the other party immediately in writing of any hindrances of the type described above.
17. Place of performance, place of jurisdiction and applicable law
- 17.1 Unless otherwise stated in the order confirmation, our registered office is the place of performance.
- 17.2 For all legal disputes, also in the context of a bill of exchange and check process, our registered office is the place of jurisdiction. We are also entitled to take legal action at the partner's place of business.
- 17.3 The law of the Federal Republic of Germany applies exclusively to the contractual relationship, excluding the conflict-of-law provisions of the Introductory Act to the German Civil Code and the CISG (UN Convention on Contracts for the International Sale of Goods).