SAB FoodTec GmbH (SAB)
General Condition of Sale and Delivery
1. Area of application
1.1. These conditions of sale and delivery shall from an integral part of the contract. Amendments, supplements or other collateral agreements shall only be valid if they are made in writing or confirmed by SAB in writing.
1.2. If merchants accept without demur SAB’s acknowledgement of order that includes a reference to these conditions, this is deemed as their approval of the inclusion of these conditions into the contract.
1.3. Other conditions of sale drawn up by the Buyer shall not apply, unless SAB has explicitly agreed to their inclusion in the contract.
1.4. Should one or several provisions of these conditions or of the contract to be concluded be or become ineffective, the remaining provisions shall remain in effect.
2. Offers and conclusion of contracts
2.1. SAB shall only be bound to offers if these are explicitly specified as such. The commitment period shall be 30 days after the posting of the offer, except as otherwise provided in the offer.
2.2. In case the Buyer accepts the offer after the expirations of this commitment period, a contract will materialise only, if SAB confirms the declaration acceptance.
2.3. The documents forming part of the offer, such as photocopies, drawings, samples, specifica-tions, weights and measures, instructions for use, operating instructions and similar documents are submitted for illustration only; they only become an integral element of the contract, if and to the extent SAB identifies them as binding in writing.
2.4. All documents accompanying the offer shall remain the property of SAB. The right to utilization is not transferred to the Buyer with their delivery. The documents shall be treated confidentially, they may not be made accessible to a third party.
2.5. The objects and documentation mentioned in subparagraph 2.3. shall be returned to SAB on the first request.
2.6. Declarations establishing a legal fact may be made by SAB staff only if they are authorised to do so in general or in a particular case.
3.1. The offer or the acknowledgement of order sent by SAB shall be decisive for the scope of supplies.
3.2. Delivery shall be made within the agreed delivery date. Deliveries being made within 14 days after agreed delivery date shall be regarded as on time delivery of the order. In the event of a change of order, mode of transport or of destination, the date of delivery will be adjusted by SAB.
3.3. If the delivery period is given in days, these shall be working days.
3.4. A prerequisite for the compliance with the period of delivery is that any documents to be submitted by the Buyer, official permits and clearance notes are received on the date specified in the contract.
3.5. In case the Buyer is entitled to set a final deadline to SAB for the performance of the contract after the expiration of the period of delivery, this shall be at least 30 days.
3.6. Any delivery delay caused by force majeure, strike, unforeseeable plant interruption, supply bottlenecks of raw and other materials, energy and loading space required for the manufacture of the bought object and other circumstances for which SAB is not responsible, releases SAB from the supply commitment as long as they it is in effect or justifies a reasonable adjustment of delivery dates. In these cases the Buyer has the right, after expiration of the respite of 30 days which he shall grant in writing, to refuse acceptance of the delayed supplies. Apart from this, the Buyer shall not make any additional claims against SAB.
3.7. If the Buyer organises or arranges for the bought object, the notice by SAB that the object is ready for shipment shall be deemed as compliance with the delivery date by SAB.
3.8. In case the Buyer does not collect the bought object at SAB`s site within six working days after receipt of the notice that the bought object is ready for shipment or in case the Buyer requests SAB to delay the shipment of the bought object, the Buyer, without another deadline being requi-red, shall reimburse SAB for storing the bought object at its site, the charges amounting to no less then 2 per cent of the invoice amount for each month of storage commenced.
3.9. In case of call orders, the Buyer’s call must be received not later than 21 days before the desired date of supply.
4. Place of delivery and passage of risk
4.1. Place of delivery is the SAB factory or warehouse from which the goods are shipped.
4.2. The risk of accidental loss or deterioration of the bought object passes to the Buyer with its delivery to the Buyer or transport agent. This shall also apply if SAB arranges for the transport on behalf of the Buyer or carries out the transport itself.
4.3. In case shipment is replaced by the notice that the goods are ready for shipment or the Buyer requests shipment at some later than the contractually agreed date, the risk of accidental loss or accidental deterioration of the bought object passes to the Buyer on the agreed delivery date or six working days after the posting of the notice that the bought object is ready for shipment.
4.4. Unless SAB receives special instructions by the Buyer, SAB may select the forwarding agent, carrier and the means of transport.
4.5. The Buyer shall take out transport and other insurances for the bought object. However, he may require SAB to take out these insurance policies at his expense.
5.1. The prices are quoted ex SAB works or warehouse. They do not include the costs of transport, special packing, freight containers or pallets, etc. and other costs, charges and fees. These shall be paid by the Buyer in addition to the price of the object. In addition to this, merchants shall pay the increased tax rate in the event of an increase in value-added tax. The loading at SAB’s site or warehouse is included in the price.
5.2. The prices shall be fixed up to the contractual delivery date. If a delay of shipment occurs for which SAB is not responsible, SAB shall be entitled to change the prices invoiced to merchants. The change results from adjustments necessary to take account of the change in major cost factors occurring in the period before the new delivery date.
5.3. In dealing with non-merchants, SAB shall be entitled to change ist prices if the goods or work were to be supplied or carried out by SAB more than four months after to conclusion of the contract and a delivery delay occurs for which SAB is not responsible. In that case the change results from the adjustment of prices to the general change in the cost of living occurring in the period before the new delivery date.
5.4. In case of longer-term delivery and call orders the prices shall be fixed for a period of four months from the conclusion of contract. After that period, subparagraph 5.2. shall apply mutatis mutandis.
6. Conditions of payment
6.1. The invoices made by SAB shall be paid without discount in the specified currency within 14 days of the date of invoice.
6.2. If payment is not made within the specified period or if SAB serves a formal notice of default on the Buyer, granting him a respite of 14 days, the amount invoiced shall bear interest from the occurrence of default at a rate of 3 percentage points above the discount rate of the Deutsche Bundesbank from time to time, but not less than 5 percentage points.
6.3. In case cheques and bills are accepted, the cost of collection shall be borne by the Buyer.
6.4. Any offset with a counterclaim of the Buyer shall be prohibited, unless this counterclaim is due and uncontested or based on an unappealable decision.
6.5. The Buyer may only withhold the purchase price if this lien is stipulated in the delivery contract. Merchants may only assert a lien in case of a severe breach of obligations by SAB, if the value of the performance by the Buyer exceeds the value of the performance by SAB or if the counter-claim is uncontested and due or based on an unappealable decision.
6.6. If the Buyer defaults on the settlement of the invoice, all accounts receivable by SAB shall become immediately due without regard to the agreed dates of payment. In addition to that, SAB shall be entitled to withhold shipments still to be made until all receivables have been paid and to demand prepayment of these shipments.
6.7. In the cases specified in subparagraph 6.6., SAB shall be entitled to retain a lien on all objects of the Buyer that are in SAB’s possession.
7. Retention of ownership
7.1. All deliveries are subject to retention of ownership. Title shall not pass to the Buyer until he has met all his liabilities resulting from the contracts of delivery concluded with SAB. In case of current ac-count, the withheld property is used to provide security for the balance claim of SAB. If a bought ob-ject that was supplied by SAB under reservation of ownership is processed, SAB shall be deemed the producer within the meaining of the law (§ 950 Civil Code), however, SAB will not assume any production liabilities. SAB shall have title to the new object made by processing.
7.2. The Buyer may resell in regular business the object supplied with of ownership. He herewith assigns his claims from justified and unjustified resale to SAB. SAB takes cession. SAB shall be informed of the names and addresses of the customer and the amount of the account receivable at its first request. The Buyer may collect the claims assigned to SAB as long as he makes regular payments to SAB or SAB does not withdraw this authorisation. Should the Buyer have a current ac-count with his customer in which his account receivable is included, he shall assign the current account balance.
7.3. In case the new object is made by processing the bought object supplied with reservation of ownership or by joining it with another object and the Buyer is entitled to payment from the sale of the new object, he shall herewith assign to SAB a part of his account receivable that corresponds to the invoice price of the object supplied by SAB. SAB takes cession. In other respects the stipulati-ons of subparagraph 7.2. shall apply mutatis mutandis.
7.4. The Buyer shall store the object that was supplied with reservation of ownership seperately from other objects, until it is utilized in the proper way. Any pledging or collateral assignment of this bought object shall be prohibited. the Buyer shall inform SAB without delay of any seizure or inter-ference with SAB’s ownership by a third party and avert them by taking appropriate steps.
7.5. As long as ownership of the object is reserved, the Buyer shall bear all costs and expenses incurred for maintenance. He shall be liable to SAB for any deterioration of the bought object. The Buyer shall herewith assign to SAB any claims he may have against a third party for the demage or deprivation of the supplied object; SAB takes cession.
7.6. Should the Buyer default or file a petition in bankruptcy or an application for court protection from creditors, SAB shall be entitled to immediately repossess the bought object supplied with reserva-tion of ownership. In that case SAB shall be entitled to sell the bought object by private treaty; the proceeds shall be offset against the amount due from the Buyer.
8.1. SAB shall be liable for defects in supplied items, the absence of warranted quality and defects in assembling in accordance with the provisions set out below.
8.2. Specifications of or other data on the contract good are only given with a view to describing it; they do not include a warranty of certain properties. Any deviations from these specifications or data shall not be deemed defects within the meaning of the law, provided that these deviations do not exceed a level that is legally acceptable or permissible in view of the state of art and provided they do not substantially impair the operatability of delivery items.
8.3. The warranty of certain properties shall only be considered as a warranty and binding if SAB explicitly confirms it to the Buyer.
8.4. The periods of warranty depend on the legal regulations or the periods of warranty set out in the standard building contract terms (VOB), provided the validity of the entire VOB has been stipulated. This shall also apply to all other claims of the Buyer, in particular to his right of recovery and his right of rescission, regardless of their legal basis.
8.5. The Buyer shall thoroughly check the objects supplied and the work carried out by SAB for completeness and perfect condition immediately after delivery or completion of the assembly work. Non-merchants shall inform SAB of all defects found during this inspection or short delivery in writing within two weeks of taking delivery or the completion of assembly work, stating all de-tails as well as potential consequential damages. In other respects the provision of §§ 377, 378 Commercial Code shall apply to merchants.
8.6. In the event of short delivery, SAB shall be entitled to make additional delivery. The Buyer shall accept partial delivery and the additional delivery.
8.7. In case of defects in products or work, SAB shall be entitled to repair the defect or replace faulty delivery items free of charge and to remedy faulty erection work. The Buyer shall take delivery of the fault-free parts or work. If re-working or replacement do not result in a fault-free overall per-formance, the Buyer shall be entitled to cancel the sale or reduce the purchase in accordance with the general legal regulations, any further claim being excluded.
8.8. Having consulted the Buyer, SAB shall carry out the repair or replacement within a reasonable time limit, taking account of the technical requirements and the possibilities of SAB. The Buyer shall only be entitled to replacement or to repair the defect or cause the defect to be repaired at the expense of SAB, if he holds SAB in default, taking account of the above mentioned time limit date and a reasonable extension of time.
8.9. No warranty is provided by SAB, if the defects in the delivery items or the assembly work, particu-lary the functional impairment of the delivery items, are due to compliance with the Buyer’s in-structions, operating errors of the Buyer, or the conditions of the equipment and buildings provided by the Buyer. Nor does SAB warrant expendable parts or normal wear.
8.10. The warranty period for repaired or replaced objects shall be six month; it shall cover at least the original warranty period for the delivered object or the work performed.
8.11. The Buyer shall obtain any public or private permits required to operate the plant or parts thereof. SAB shall not be required to verify the validity or legal force of these permits.
8.12. Under the warranty, the Buyer shall not make other claims than those provided for in subparagraph 8., in particular claims for damages, unless the Buyer can prove that the loss was caused with in-tent or by gross negligence by SAB, one of its legal representatives or vicarious agents or that the claims of damages are due to the lack of warranted quality or a defect in the work carried out by DAB for which SAB is responsible.
9. Liability for fault
SAB shall only be liable for damages caused by its own premeditated or grossly negligent violation of contract or by premeditated or grossly negligent violation of contract by its legal representatives or vicarious agents. This shall also apply to cases where the claims for damages against SAB or its legal representatives or vicarious agents are due to negligence in contracting or tort.
10.1. SAB shall be entitled to cancel this contract if the Buyer does not comply with his contractual obligations, particularly if he defaults repeatedly, or if the Buyer’s financial status deteriorates to such extent that payment of the supplies is endangered.
10.2. In case of cancellation, the performance of the parties shall be reversed. However, SAB shall be entitled to demand that the Buyer reimburse his expenses.
11. Applicable law
The legal relationship between the parties shall be based solely on German law.
Unless another venue is established by law, venue is the headquarters of the sellers.