GTCs – Singold

General Terms and Conditions (GTCs) of singold gerätetechnik gmbh (Version: 2.1)

For use towards:

a natural person or legal entity that acts upon conclusion of the contract while performing their commercial or self-employed professional activity (entrepreneur);
legal entities under public law or a special fund under public law.

I. General information

All deliveries and services are based on these terms and conditions as well as possible separate contractual agreements. Deviating Terms of Purchase of the orderer shall not become a content of the contract by acceptance of the order either.
A contract shall be concluded – in the absence of a special agreement – with the written order confirmation of the supplier.
The supplier shall reserve property rights and copyrights to samples, cost estimates, drawings etc. information of a physical and non-physical kind – also in an electronic form -; they may not be made accessible to
third parties. The supplier undertakes to only make information and documents described by the orderer as confidential accessible to third parties with its consent.

II. Price and payment

In the absence of a special agreement the prices shall be deemed ex works including loading in the plant, however excluding packaging, freight, transfer, insurance, customs duties and unloading. Value added tax in the respective statutory amount will be added to the prices. In case of services within the EU the orderer will communicate its VAT ID number in time before invoicing.
In the absence of a special agreement the payment is to be made without any deduction on account of the supplier, as follows: 1/3 down payment after receipt of the order confirmation, 1/3 as soon as the orderer has been informed that the main parts are ready for shipment, the residual amount within one month after passing of risk.
The orderer shall only be entitled to withhold payments to the extent that its counterclaims are undisputed or have been declared final and binding.
The orderer is only entitled to offset against counterclaims from other legal relationships to the extent that they are undisputed or have been declared final and binding.

III. Delivery time, delay in delivery

The delivery time results from the agreements of the contractual parties. The adherence hereto by the supplier presumes that all commercial and technical questions have been clarified between the contractual parties and the orderer has fulfilled all obligations for which it is responsible, such as the procurement of the necessary official certificates or permits or the payment of a deposit. If this is not the case, then the delivery time shall be extended by a reasonable extent. This shall not apply insofar as the supplier is responsible for the delay.
The adherence to the delivery time is subject to the reservation of correct and timely self-delivery. The supplier shall communicate any indicated delays as soon as possible.
The delivery time shall be deemed as adhered to if the object of delivery has left the supplier’s plant by its expiry or the readiness for shipment has been notified. Insofar as an acceptance has to be carried out – except in the event of a justified refusal of acceptance – the acceptance dates shall be decisive, alternatively the notification of the readiness for acceptance.
If the shipment or the acceptance of the object of delivery are delayed for reasons, for which the orderer is responsible then it will be charged the costs incurred through the delay, beginning one month after the notification of the readiness for shipment or the acceptance.
If the non-adherence to the delivery time is a result of force majeure, of industrial disputes or other events, which are beyond the scope of influence of the supplier, then the delivery time shall be extended by a reasonable extent. The supplier will notify the orderer of the start and the end of the circumstances as soon as possible.
The orderer can rescind the contract without setting a deadline if the entire service becomes finally impossible for the supplier before the passing of risk. The orderer can additionally rescind the contract if with an order the execution of part of the delivery becomes impossible and it has a legitimate interest in refusing the partial delivery. If this is not the case, then the orderer has to pay the contractual price relating to the partial delivery. The same shall apply in case of incapacity of the supplier. Apart from that, Section VII.2 shall apply.

If the impossibility or incapacity occurs during the default of acceptance or if the orderer is solely or primarily responsible for these circumstances it shall remain obliged to the consideration.

7. If the supplier is in default and if the orderer accordingly suffers a damage, then it is entitled to request flat rate compensation due to default. It amounts for eachfull week of the delay to 0.5 %, in total however to a maximum of 5 % of the value of that part of the total delivery, which cannot be used in time or not as per contract as a result of the delay.

If – by taking the statutory exceptional cases into consideration – the orderer sets the supplier a reasonabledeadline for the service after the due date and if the deadline is not adhered to, the orderer shall be entitled to rescission within the scope of the statutory regulations. It undertakes, at the request of the supplier, to declare within a reasonable deadline whether it will exercise its right of rescission.

Further claims from delay in delivery shall be exclusively determined according to Section VII.2 of these terms and conditions.

IV. Delivery, passing of risk, acceptance, partial deliveries

The delivery shall be carried out – insofar as not otherwise derived from these General Business Terms and Conditions or an agreement between the orderer and the supplier, which must at least be concluded in a text form, – FCA (Incoterms 2020) works of the seller, or a delivery warehouse named by it.
The risk shall pass to the orderer when the object of delivery has left the plant, also when partial deliveries are carried out or the supplier has taken over other services still, e.g. the shipment costs or delivery and installation. Insofar as an acceptance has to be carried out this shall be decisive for the passing of risk. It must be carried out without delay as of the acceptance date, alternatively after the notification of the supplier regarding the readiness for acceptance. The orderer may not refuse the acceptance with the existence of an insignificant defect.
If the shipment or acceptance is delayed or is not carried out as a result of circumstances, which are not attributable to the supplier, the risk shall pass to the orderer from the day of the notification of the readiness for shipment or acceptance. The supplier undertakes, at the costs of the orderer, to conclude the insurances, requested hereby.
Partial deliveries are permitted insofar as these are deemed reasonable for the orderer.

V. Reservation of title

The supplier shall reserve the property to the object of delivery until the receipt of all payments – also for if applicable additionally owed secondary services – from the supply contract.
The supplier is entitled to insure the object of delivery, at the costs of the orderer, against theft, breakage, fire, water and other damages, insofar as the orderer has not as proven concluded the insurances itself.
The orderer may neither sell, pledge, nor assign the object of delivery as collateral. In case of attachments as well as seizures or other disposals by third parties it has to notify the supplier hereof without delay.
In case of conduct of the orderer that is in breach of the contract, in particular with default of payment, the supplier is entitled to take the object of delivery back after a reminder and the orderer is obliged to hand the goods over.
Owing to the reservation of title the supplier can only request hand over of the object of delivery if it has rescinded the contract.
Until revocation pursuant to (c) below the orderer is authorised to resell the object of delivery in the proper course of business and/or to process it. In this case the following provisions shall apply in addition.

(a) The reservation of title shall cover the products created by processing, mixing or connection of the object of delivery at their full value, whereby the supplier shall be deemed the manufacturer. If, in case of processing, mixing or connection with goods of third parties their property right continues to exist, then the supplier shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or connected goods. Incidentally, the same shall apply to the created product as to the goods delivered subject to a reservation of title.

(b) The orderer hereby now already assigns the claims against third parties established from the resale of the goods or the product in total respectively in the amount of the possible co-ownership share of the object of delivery pursuant to the paragraph above for security to the supplier. The supplier hereby accepts the assignment. The obligations of the orderer stated in Subclause 3 shall also apply in view of the assigned claims.

(c) The orderer shall remain authorised to collect the claim besides the supplier. The supplier undertakes not to collect the claim as long as the orderer meets its payment obligations towards the supplier, there is no deficiency to its ability to make payments and the supplier does not assert the reservation of title by exercising a right pursuant to Subclause 4. If this is however the case then the supplier can request that the orderer announces the assigned claims and their debtors to the supplier, provides all details that are necessary for the collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In addition, the supplier is in this case entitled to revoke the orderer’s authorisation for the resale and processing of the goods subject to a reservation of title.

(d) If the realisable value of the collateral exceeds the claims of the supplier by more than 10%, the supplier will, at the orderer’s request, release collateral items at the choice of the supplier.

VI. Owed properties, claims due to defects

The objects of delivery are designed, manufactured and set up in accordance with the statutory provisions applicable in the Federal Republic of Germany. Should further or other specifications or further or other protection measures against influences of the product be necessary for the products in the country of the orderer – in particular for import, placing on the market or use of the products – the orderer shall be responsible for these.

If the orderer wishes the setup of the objects of delivery according to provisions, which deviate from the German regulations it must communicate this with the order. For these cases the supplier shall reserve the right to offer other prices and delivery dates.

The supplier shall be liable for material defects and defects of title to the delivery under the exclusion of further claims – subject to Section VII – as follows:

Material defects

All those parts are to be subsequently improved or to be replaced fault-free at the choice of the supplier, which prove to be defective as a result of a circumstance that exists before the passing of risk. The determination of such defects is to be notified to the supplier in writing without delay. Replaced parts will become the property of the supplier.
The orderer has to give the supplier the necessary time and opportunity to undertake all subsequent improvements and replacement deliveries that appear necessary to the supplier after coordination with the supplier; otherwise, the supplier shall be exempted from the liability for the thus resulting consequences.
Only in urgent cases of a danger to the operational safety or in order to avoid disproportionately large damages, whereby the supplier is to be notified immediately, shall the orderer have the right to remedy the defect itself or have this remedied by third parties and to request reimbursement of the necessary expenses from the supplier.
The supplier shall bear – insofar as the complaint proves to be justified – the expenses necessary for the purpose of subsequent performance, insofar as this does not result in a disproportionate burden on the supplier. Insofar as the expenses are increased by the fact that the buyer has transported the object of purchase to another location than the place of performance after delivery, additional costs incurred hereby are to be borne by the buyer. With the sale of a newly produced object, in the extent of its statutory obligation, the supplier shall additionally reimburse the expenses paid by the orderer within the scope of claims for recourse in the supply chain.
Within the scope of the statutory regulations the orderer has a right to rescission from the contract if the supplier – by taking the statutory exceptional cases into consideration – allows a reasonable deadline to set it for the subsequent improvement or the replacement delivery because of a material defect to pass unsuccessfully. In case of an only insignificant defect the orderer shall merely be entitled to a right to reduction of the contractual price. The right to reduction of the contractual price
Further claims shall be exclusively determined according to Section VII. 2 of these terms and conditions.
No liability will in particular be assumed in the following cases: Unsuitable or improper use, faulty assembly or commissioning by the orderer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – insofar as they are not the responsibility of the supplier.
If the orderer or a third party improperly makes subsequent improvements, the supplier shall not be held liable for the thus resulting consequences. The same shallapply to changes to the object of delivery undertaken without the prior consent of the supplier.

Defects of title

If the use of the object of delivery leads to an infringement of industrial property rights or copyrights in the domestic country, the supplier will, at its costs, principally procure the right to the further use for the orderer or modify the object of delivery in a manner that is deemed reasonable for the orderer to the extent that the property right infringement no longer exists.
If this is not possible at reasonable financial conditions or within a reasonable deadline the orderer is entitled to rescission from the contract. Under the stated prerequisites the supplier shall also have a right to rescission from the contract.
In addition, the supplier shall indemnify the orderer from undisputed claims or claims which have been declared final and binding of the property right holder concerned.
The obligations of the supplier stated in Section VI. 8 are, subject to Section VII.2, conclusive for event of the property right or copyright infringements.

They shall only exist if

the orderer notifies the supplier without delay of asserted property right or copyright infringements

the orderer supports the supplier to a reasonable extent in defending the asserted claims respectively enables the supplier to carry out the modification measures pursuant to Section VI. 8,

all defence measures including out-of-court regulations remain reserved for the supplier,

the defects of title are not a result of an instruction of the orderer and

the infringement of right was not caused by the fact that the orderer autonomously changed the object of delivery or used it in a way that was not in accordance with the contract.

VII. Liability of the supplier, exclusion of liability

If the object of delivery cannot be used by the orderer as per contract as a result of proposals or advice culpably omitted or deficient proposals or advice of the supplier, which were carried out before or after conclusion of the contract, or through the culpable breach of other contractual secondary obligations – in particular instruction for operation and maintenance of the object of delivery -, under the exclusion of further claims of the orderer the regulations of Sections VI and VII.2 shall apply.
For damages, which were not caused to the object of delivery itself, the supplier shall only be liable – no matter for what legal grounds –

a. in case of wilful intent and gross negligence,
b. in case of culpable injury to life, the body, health,
c. in case of defects, which it maliciously failed to disclose,
d. within the scope of a guarantee promise,
e. in the case of defects in the object of delivery, insofar as liability exists under the Product Liability Act [Produkthaftungsgesetz] for personal injury or property damage to privately used objects.

In case of the culpable breach of essential contractual obligations the supplier will also be liable in the event of simple negligence, however limited to the reasonably foreseeable damages that are typical for the contract. Further claims are excluded.

VIII. Statute of limitations

All claims of the orderer – no matter for what legal grounds– shall become statute-barred in 12 months; this shall also apply to the statute of limitations for claims for recourse in the supply chain pursuant to Section 445b Para. 1 German Civil Code [Bürgerliches Gesetzbuch – BGB], if the last contract in this supply chain is not a purchase of consumer goods. The inhibition of expiry from Section 445b Para. 2 BGB shall remain unaffected. The statutory deadlines shall apply for claims for damages according to Section VII. 2 a-c and e. They shall also apply for defects to a building structure or for objects of delivery, which in accordance with their customary
manner of use were used for a building structure and caused its faulty condition.

IX. Use of software

Insofar as software is included in the scope of delivery, the orderer shall be granted a non-exclusive right to use the software supplied, including its documentation. It shall be provided for use on the object of delivery intended for this purpose. A use of the software on more than one system is forbidden.
The orderer may only reproduce, revise, translate the software or convert from the object code into the source code in the scope admissible by law (Section 69 a et seqq. German Act on Copyright and Related Rights [Urheberrechtsgesetz –UrhG]). The orderer undertakes not to remove manufacturer’s information – in particular copyright notices – or to change them without the prior express consent of the supplier.
All other rights to the software and the documentation including the copies shall remain with the supplier and withthe software supplier, respectively. It is not permitted to grant sub-licences.

X. Applicable law, place of jurisdiction, place of performance

The place of performance for the delivery and all secondary obligations is the plant of the supplier, the place of performance for the payment is the registered seat of the supplier.

2. Substantive German law shall apply exclusively for all legal relationships between singold gerätetechnik gmbh and the orderer under the exclusion of the UN Convention on Contracts for the International Sale of
Goods (CISG) and under the exclusion of the rules of International Private Law.

3. The place of jurisdiction is the court that is responsible for the registered seat of singold gerätetechnik gmbh. However, singold gerätetechnik gmbh shall be entitled to take legal action at the orderer’s registered seat.

4. Only the German language version is binding. The English language version serves only as a non-binding translation.

5. In the event that individual provisions of these General Terms and Conditions of singold gerätetechnik gmbh are or become invalid this shall have no effect on the validity of the other provisions.