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General Terms of Sale and Delivery
SUMITOMO ELECTRIC
Schrumpf-Produkte GmbH
1. Scope
of Application
(1) The General Terms of Sale and Delivery (hereinafter
called "General Conditions") apply exclusively to all
sales and deliveries of goods, accessories and spare
parts (hereinafter "the Goods") by SUMITOMO ELECTRIC
Schrumpf-Produkte GmbH (hereinafter "SESP"). Any
conflicting and/or supplementing general conditions of
the Buyer are not binding upon SESP. This applies also,
if SESP shall not expressly object to such conditions or
if SESP shall fulfil its obligations without objecting
to such conditions.
(2) The General Conditions together with the document of
which they form a part contain all relevant terms of the
agreement entered into with the Buyer.
(3) These General Conditions apply also to all future
business with the Buyer.
(4) Special contractual conditions shall apply to
repairs, maintenance contracts and other services unless
reference is made therein to these General Conditions.
2. Orders, Specifications
(1) Any offers made by SESP are not binding. They merely
constitute an invitation to the Buyer to submit an
offer.
(2) Public announcements of SESP, of the manufacturer of
the delivered goods or the agents of whom, in particular
in advertisement and labelling, are neither descriptions
of the quality of the goods or a guaranty thereof. If
any model or sample was shown to the Buyer, such model
of sample was shown to illustrate the general type and
quality of the goods and does not constitute a
description of the quality nor a guaranty that the goods
will conform to the model or sample. Price lists,
advertisements and other material of SESP are always not
binding upon SESP and subject to change without notice
at any time.
3. Prices, Costs of
Performance of Contract
(1) The prices stated in the confirmation of order are
binding for a period of four weeks from the date of
conclusion of the contract. In the event that the costs
of SESP shall increase after such period and prior to
delivery due to increases of costs e.g. prices for raw
materials, wages, taxes, or other costs beyond the
control of SESP, SESP shall be entitled to adapt its
prices accordingly. SESP will provide the Buyer with
evidence for such cost increases upon request.
(2) All customs duties, taxes, fees, charges, freight
surcharges, insurance premiums, import and export
charges and other expenses which additionally become
payable after the conclusion of the contract in relation
to its performance shall be for the account of the
Buyer. This does not apply to the extent that such costs
are caused by circumstances within the control of SESP.
4. Insurance
If under this contract SESP is required to provide
insurance, such insurance shall be provided for the
amount of SESP's invoice plus ten (10) percent covering
marine insurance only, unless otherwise agreed. If under
this contract insurance is to be provided by the Buyer,
the Buyer shall upon request furnish proof to SESP of
cover of insurance or provisional insurance before the
time of shipment/consignment, and any Letter of Credit
to be opened by the Buyer shall clearly exempt SESP from
providing insurance certificates.
5. Terms of Payment
(1) Where the contract provides for payment by Letter of
Credit, the Buyer is obliged to open and deliver on the
hand of SESP said Letter of Credit within seven days of
the date hereof unless some other time is specified on
the face hereof.
(2) Any letter of Credit must be an irrevocable,
confirmed, transferable Letter of Credit complying with
the terms specified on the face hereof and available for
the beneficiary's draft. The said Letter of Credit has
to be opened by an internationally reputable first class
bank, and confirmed by a first class Western European
Bank, satisfactory to SESP, without restricting the
negotiating Bank, and shall be valid for at least 21
days after the shipment date. The Letter of Credit has
to refer to the contract number, and has to authorise
reimbursement to SESP for such sums, if any, as may be
advanced by SESP for consular invoices, inspection fees
and other expenditure made by SESP.
(3) SESP is under no circumstances obliged to perform
the contract before receiving a Letter of Credit
complying with the foregoing provision.
(4) Payments are due within 14 days of the date of
delivery. Non-payment within said period results in
default of payment pursuant to Sec. 286 para. 2 no. 2
German Civil Code. The legal consequences follow from
Sec. 288 German Civil Code.
(5) In the event that the Buyer fails to meet his
payment obligations SESP is entitled to suspend further
performance either in whole or in part until payment of
the amounts due or provision of security.
(6) Provided SESP is obliged to perform in advance and
that the Buyer's financial situation deteriorates
substantially which endangers the payments of the agreed
price, e.g. suspension of payment by the Buyer or filing
of a petition for the commencement of insolvency
proceedings upon the assets of the Buyer, SESP shall be
entitled to suspend performance, until payment in
advance or provision of security. If after a reasonable
period of time the Buyer has failed to pay in advance or
provide security SESP shall be entitled to rescind the
contract.
(7) Set-Off or retention rights of the Buyer are only
given if its counterclaim is undisputed or has been
confirmed by a final court decision.
(8) The Buyer is not entitled to assign any rights or
claims under this contract to a third party, without
SESP's prior consent.
6. Delivery and default of
delivery
(1) Time Limits, in particular delivery dates stipulated
by SESP are only binding if expressly confirmed as
binding in the confirmation of order. SESP is under no
obligation to meet confirmed delivery dates if any final
specifications and/or information of the customer
required for the delivery of the goods are received by
SESP after dispatch of the confirmation of order.
(2) Periods of delivery are reasonably extended in the
event of impediments beyond the control of SESP, in
particular shortfalls in energy supply, transport
impediments, embargo impositions, disturbances of
operation, discontinuance of operation, strikes,
industrial actions, deficiencies or delays of deliveries
by sub-suppliers. In case delivery becomes impossible
for the aforesaid reasons, the respective order is
deemed cancelled. SESP will inform the Buyer of such
impediments without undue delay.
(3) In the event that SESP fails to meet binding
delivery dates, the Buyer may rescind the contract after
granting SESP a grace period of at least four weeks.
(4) In the event that the Buyer fails to accept due
delivery, SESP shall, without prejudice to any other
remedies, be entitled to store the Goods at the Buyer's
risk and recover from the Buyer any extra expenses (such
as additional storage charges) incurred due to the
Buyer's failure of acceptance.
(5) If the Buyer still fails to accept delivery after
expiry of a reasonable grace period, SESP shall be
entitled to otherwise dispose of the delivered Goods and
to charge the Buyer 20 percent of the purchase price as
minimum damage, unless the Buyer is able to prove that
the actual damage was considerably lower.
(6) In the case of overseas sales, any demurrage
accruing at the port of discharge is for the account of
the Buyer. The Buyer shall indemnify SESP against any
claims for such demurrage.
(7) SESP is entitled to partial deliveries.
7. Shipment Terms
(1) If the Goods are shipped on CIF or CFR terms,
shipment of the Goods within the agreed period of time
shall be subject to shipping space being available; in
the event that shipping space is not available, the time
provided for shipment shall be extended until such as
space becomes available.
(2) If the Goods are shipped on FOB terms, the Buyer
shall book the necessary space and give details thereof
to SESP within sufficient time for the Goods to be
delivered to the nominated vessel within the time
referred to on the face hereof. If the Buyer fails to
book shipping space and/or to timely notify SESP about
the details of the shipment, SESP may arrange shipment
and insurance for the Buyer's account and at the Buyer's
risk.
8. Shipment
(1) Unless otherwise agreed, transshipment and partial
shipment shall be allowed.
(2) Default or breach of contract by SESP regarding a
shipment or instalment does not give the Buyer any right
of retention, or any other claim or remedy, in respect
of any other partial shipment or instalment. This does
not apply if the Buyer due to default or impossibility
caused by SESP of any of the partial shipments has no
longer any interest in the fulfilment of the whole
contract. (3) Dates on Bill of Lading shall be accepted
as conclusive evidence for all purposes of dates of
shipment.
9. Risk of Loss and Place of
Performance
Unless otherwise agreed, all deliveries shall be made ex
works Norderstedt (EXW).
10. Warranty
(1) The Buyer must examine the Goods without undue delay
following delivery by SESP and notify a defect to SESP
immediately in writing. This applies also in the event
of repair or substitute delivery. If the Buyer fails to
notify SESP, the Goods are deemed approved, unless there
is a defect which at the time of the examination was not
perceptible. Where such a defect becomes apparent at a
later time, notice must be made without undue delay
following detection, otherwise the Goods are deemed
approved with regard to the defect.
(2) If the delivered Goods shall be defective, SESP may
repair the defect free of charge or effect substitute
delivery at its own discretion. If SESP fails to effect
substitute delivery or repair the defect, the Buyer may
reduce the purchase price or rescind the contract.
Additional claims of the Buyer are excluded,
notwithstanding any rights pursuant to Article 11
(Liability).
11. Liability
(1) SESP shall only be liable for damages, if
(a) liability is mandatory under the applicable law,
e.g. under the Product Liability Act or in the event of
life, body or health is violated,
(b) SESP through its fault commits a material breach of
this contract, or if
(c) the damages attributable to gross negligence or
wilful conduct on the part of SESP.
(2) In all other cases SESP has no liability for damages
whatsoever, irrespective of the legal basis. In
particular SESP does not assume any liability for
indirect and/or consequential damage, loss of profit or
damage to other assets of the Buyer.
(3) In any event, liability shall be limited to such
damages which the party in breach foresaw or ought to
have foreseen at the time of the conclusion of the
contract, in the light of the facts and matters of which
the party then knew or ought to have known, as a
possible consequence of the breach of contract. This
limitation of liability is not applicable in the cases
referred to under para. 2, subpara (a) of this Article
11 (Liability).
(4) The exclusion and/or limitation of claims for
damages according to the above paragraphs applies also
to claims against employees and contractors of SESP.
12. Force Majeure
Notwithstanding any rights pursuant to Article 11 SESP
is not responsible or liable for any impediment or
default of the performance of any part of this contract
insofar as the same is caused by the occurrence of
events beyond SESP's control, including strikes or any
other industrial relation disputes. Should such
conditions prevail for 30 days or more, SESP and the
Buyer shall have the right to rescind the contract at
any time by giving notice to the respective other party,
without any liability for loss or damage caused thereby.
13. Buyer's Liability
In the event that the Goods have been manufactured in
accordance with drawings, designs, labels, brand names
or other specifications supplied by the Buyer, the Buyer
undertakes to indemnify and hold harmless SESP in
respect of any liability for infringement of
intellectual property such as patents, registered
designs or copyrights to which SESP might be exposed by
reason of the Goods having been manufactured as
aforesaid.
14. Retention of Title
(1) SESP retains title to the delivered Goods
(hereinafter the "retained goods") until full settlement
of all claims - present and future - under the business
relationship with the Buyer.
(2) The Buyer undertakes to diligently store the
retained goods and insure such goods sufficiently
against fire, water theft and other risks at his
expense. SESP may require the Buyer to produce proof of
such insurance or payment of the premiums therefor at
any time. Upon conclusion of the contract the Buyer
simultaneously assigns his corresponding claims under
the insurance policies to SESP and SESP accepts such
assignment.
(3) The delivered goods are always processed or
transformed by the Buyer on behalf of SESP as producer,
but without binding SESP. In case SESP loses title to
the delivered goods due to processing SESP shall have
partial title to the new product proportionately to the
value of the delivered goods in relation to the value of
the other components of the new product at the time of
processing. In case title entirely passes to the Buyer
due to fixed attachment or mixture he is obliged to
transfer to SESP a partial title proportionately to the
value of the delivered goods in relation to the value of
the other components of the new product at the time of
fixed attachment or mixture. SESP's partial title
acquired under the provisions of this clause shall pass
to the Buyer under the same conditions as SESP's full
title to the delivered goods.
(4) The Buyer shall notify SESP without undue delay in
writing of any attempts of impairment or attachment of
the retained goods by third parties. The cost required
to protect the right of SESP shall be borne by the Buyer
to the extent such costs cannot be reclaimed from a
third party.
(5) The Buyer shall be entitled to resell retained goods
in the ordinary course of his business. The Buyer
assigns to SESP all present and future accounts
receivable (including VAT) resulting from the sale of
these goods in the amount corresponding to the invoice
value of the respective retained goods. The Buyer
remains entitled to collect said accounts receivable
from the respective parties which does, however, not
affect SESP's right to collect the accounts receivable
itself. SESP is obliged not to collect the assigned
accounts receivable, while, the Buyer fulfils his
obligation to forward collected payments to SESP, is not
in default of payment and no filing for the commencement
of insolvency proceedings has been made, and the Buyer
has not suspended payments. If the Buyer fails to meet
the aforesaid obligations, he shall upon SESP's request
provide SESP with information concerning the accounts
receivable assigned and the debtors involved, all the
details relevant for collection, as well as all
documents needed for enforcement. Upon ist own
discretion SESP may in the above cases be entitled to
disclose the respective assignments to the debtors in
order to secure its claims for payment.
(6) The Buyer is not entitled to use the retained goods
for any other purposes. Especially he is not entitled to
transfer ownership by way of security or pledging. The
accounts receivable assigned to SESP may be assigned for
security purposes to or pledged in favour of a third
party only with the prior consent of SESP.
(7) If the Buyer commits a material breach of contract,
in particular if he is in default of payment, SESP shall
be entitled to take the retained goods back at the
Buyer's expense or to demand assignment of the rights of
possession which the Buyer has towards third parties,
and to revoke the Buyer's right to sell the goods,
collect accounts receivable and to use, process, ship or
sell the retained goods. In case SESP takes the retained
goods back or sells these goods, such act shall not be
deemed as a rescission of contract. SESP may offset the
proceeds of the sale against the outstanding amounts.
The Buyer shall be liable for any loss to the extent
that the proceeds of the sale are lower than the
purchase price outstanding.
(8) To the extent the value of the securities provided
exceeds the claims of SESP by more than fifty (50)
percent, SESP is obliged upon the Buyer's request to
release securities at its discretion.
(9) To the extent SESP is entitled to take back retained
goods, the Buyer undertakes to offer SESP and its
representatives the irrevocable right to enter its
premises during normal business hours and to tolerate
the removal of the retained goods.
15. Governing Law, Disputes
(1) The contract is governed by the laws of the Federal
Republic of Germany. The U.N. Convention on Contracts
for the International Sale of Goods (CISG) shall be
excluded. The trade terms under this contract, are
governed by and interpreted under the provisions of the
International Rules for the Interpretation of Trade
Terms (Incoterms) and its Supplements prevailing at the
date of the shipment of the Goods hereunder.
(2) Hamburg shall be the place of exclusive jurisdiction
with respect to all legal disputes arising from or in
connection with the contract. Notwithstanding such
agreed jurisdiction, SESP shall always be entitled to
bring legal action at the Buyer's seat of business.
16. Miscellaneous
The employees of SESP (excluding the legally required
bodies, and persons holding full powers of attorney, as
well as persons authorised thereto) are neither entitled
to change or amend the conditions or the content of
contracts concluded nor to give any commitments or
representations. |
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