SCS GmbH Werkzeug- und Vorrichtungsbau
General Terms and Conditions for Commercial Business Transactions
- General / Scope of Application
The deliveries, services and quotations of SCS GmbH (hereinafter referred to as SCS) take place exclusively on the basis of these General Terms and Conditions. They apply to all current and future business relationships, even if they are not expressly agreed upon again. With the placing of the order, the Purchaser declares that they are familiar with and accept the General Terms and Conditions. Unless expressly accepted in writing, any deviating, contradicting or supplementing terms and conditions shall not become an integral part of the contract, even if they are known or if SCS fails to contradict them.
- Quotations and Conclusion of Contract
- Unless expressly designated otherwise, the quotations of SCS shall be non-binding and subject to alteration. Unless expressly referred to as binding, the documents pertaining to the quotation, including but not limited to figures, drawings, weight and dimension data, shall be approximately decisive only. SCS reserves the ownership rights and copyrights to price quotations, drawings and other documents. These shall not be made accessible to third parties.
- By placing the order, the Purchaser expressly declares that they want to acquire the goods ordered.
- SCS shall be entitled to accept the contractual offer included in the order within 2 weeks after receipt. The acceptance may be declared either in writing or by delivering the goods to the Purchaser. Information about goods and services made available by SCS shall only become an integral part of the contract if mentioned in a binding quotation, written order confirmation or written contract. Information and quotations shall refer to common standard quality and design. General data concerning the quality and design shall be considered as average values only. Collateral agreements and amendments require the written confirmation of SCS.
- Any deviations between the invoice or note of delivery and the goods actually delivered shall be reported by the Purchaser immediately, but at the latest 3 days after receipt of the goods.
- The contract shall be concluded under reserve of the correct and punctual delivery by the subcontractors of SCS. This shall only apply in the event that the non-delivery is not attributable to SCS, especially in case of the conclusion of a congruent hedging transaction with the subcontractor of SCS. The Purchaser shall immediately be informed about the non-availability of the service, whilst the consideration shall immediately be reimbursed.
- The pricelist valid on the day of the delivery shall be taken as a basis for the products sold by SCS.
- All prices shall be understood as charged ex stock, exclusive of packaging, transport, insurance and installation. Unless a different provision has been expressly agreed upon in writing, the transport and insurance costs shall be borne by the Purchaser.
- The minimum contract value shall be EUR 100.00 (except for spare parts and additional deliveries).
- The applicable statutory value-added tax shall be added to all prices quoted.
- Terms of Delivery and Transfer of Risk
- Delivery dates or deadlines agreed upon as binding or non-binding require the written form.
- The delivery deadline shall start with the dispatch of the order confirmation, but not before the submission of all documents, consents and approvals to be provided by the Purchaser as well as before receipt of any down payment agreed upon.
- The delivery deadline agreed upon shall be deemed to have been complied with once the shipments have left the warehouse or once the goods are ready for dispatch within the deadline and the Purchaser has been informed about that.
- The obligation to deliver shall cease when the delivery becomes unfeasible, in whole or in part, due to events of force majeure or other unforeseeable events. This shall also apply when a subcontractor of SCS is affected by these circumstances. In these cases, SCS may either withdraw from the contract or postpone the delivery for the duration of the impediment plus an appropriate lead time. In the latter case, the Purchaser shall not be entitled to withdraw any orders, to reject any partial deliveries or to claim any compensation whatsoever. SCS may only invoke the circumstances mentioned provided that the customer has been notified immediately.
- The risk shall be transferred to the Purchaser once the delivery has been picked up at and left the warehouse of SCS. Otherwise, it will be transferred with the handing over of the shipment to the carrier or forwarder. This shall also apply when SCS will bear the shipping costs pursuant to a special agreement or when shipment takes place with vehicles of SCS.
- Unless otherwise agreed, invoices issued by SCS shall be paid with a 2% cash discount within 10 days from the invoice date or net cash within 30 days. The prerequisite for the granting of a cash discount shall be that the Purchaser is not in delay of payment of any outstanding receivables. This shall not apply to invoices for services such as repairs, programming, training courses, commissioning etc.
- The deduction of a cash discount on allocated credit amounts shall not be permitted.
- If reminders become necessary upon expiry of the payment term, the resulting costs shall be passed on to the Purchaser.
- SCS shall, from the due date onwards, be entitled to charge default interest of 8% above the applicable discount rate of the European Central Bank. As regards consumers, the interest amount shall be 5% above the applicable discount rate of the European Central Bank.
- In the event of default in payment of an invoice, all other outstanding invoices shall be due for immediate payment regardless of their actual due date.
- Notwithstanding any other provisions of the Purchaser, SCS shall be entitled to first offset any payments against the Purchaser's older debts. If interest and costs have already arisen, SCS shall be entitled to first offset the payments against the costs, then against the interest and lastly against the main service. SCS shall inform the Purchaser about the selected type of offsetting.
- If the Purchaser fails to comply with their payment obligations, which applies especially to the failure to honour a cheque or bill of exchange or the cessation of payment, or if, at a later point in time, SCS becomes aware of unfavourable circumstances relating to the financial situation or the credit worthiness of the contracting party, SCS shall be entitled to demand advance payments or additional collateral securities with respect to all other contracts and, upon expiry of a reasonable grace period, to withdraw from the contracts and to demand compensation due to non-fulfilment.
- The Purchaser shall only be entitled to offsetting when their counterclaims are undisputed or legally binding. Any right of retention may only be exercised by the Purchaser when their counterclaim is based on the same contractual relationship and undisputed or legally binding.
- SCS may request a Purchaser to make an advance payment if the timely payment of the purchase price seems to be jeopardised according to the information of a bank, the Schufa (German credit investigation company) or similar institutions. The Purchaser's failure to pay the purchase price within two weeks upon request by SCS shall entitle SCS to withdraw from the contract. In this case, SCS shall be entitled to claim compensation in the amount of 25% of the purchase price agreed upon. The Purchaser shall be entitled to provide evidence of a lower damage.
- The term of payment for new customers shall initially always be: immediately without discount.
- Retention of Title
- The goods delivered by SCS shall remain the property of SCS until all claims arising from the contractual relationship have been paid in full, especially until the balance of a current account has been settled and, provided that payment is made by means of a cheque or bill of exchange, until these have been successfully honoured.
- If the Purchaser behaves contrary to agreement, especially in case of default in payment, SCS shall be entitled to take back the delivery item, whilst the Purchaser shall be obliged to return it. Unless otherwise stipulated by provisions of the consumer credit law or expressly declared by SCS in writing, SCS's reclaiming of the delivery item shall not constitute a withdrawal from the contract. If the goods are treated or processed by the Purchaser or combined and mixed with third-party products, SCS's retention of title shall also cover these new products or the claims resulting therefrom. In this respect, SCS shall be considered the manufacturer, thus acquiring ownership according to §§ 947, 948, 950 BGB (German Civil Code). If the delivery item is processed with other objects not belonging to SCS, SCS shall acquire co-ownership in the new product according to the ratio of the final invoice value of the goods subject to retention of title to the other processed objects at the time of their processing.
- Until all claims have been paid in full, the goods shall not be pledged, assigned as collateral or otherwise encumbered with third-party rights. Such third-party interference shall immediately be reported to SCS by means of a registered letter.
- Provided that the Purchaser is not in default, the Purchaser may resell the goods delivered – irrespective of whether in unprocessed, processed or combined form – in the course of normal business transactions.
- The Purchaser shall, as early as now, assign to SCS as collateral any claims (including all claims relating to the current account balance) that they are entitled to due to the resell of the goods or for another legal reason relating thereto. The Purchaser's failure to comply with their payment obligation shall entitle SCS to notify the Purchaser's customers to this effect and to request payments to be made to SCS. In this case, the Purchaser shall be obliged to allow SCS immediate access to all evidence, documents and information required to assert this claim.
- SCS authorises the Purchaser to collect the claims assigned to SCS in their own name for the account of SCS. This collection authorisation may be cancelled at any time. However, it may only be withdrawn with the Purchaser's failure to comply with their payment obligations.
- The consent to resell, however, shall not include the sale to a third party who hinges the assignment of the debts owed by them on their consent.
- SCS undertakes to release the collateral they are entitled to on the Purchaser's request provided that it is no longer necessary (not only temporarily) to secure the claim, especially if it exceeds the value of the claim to be secured by more than 20%.
- SCS shall not provide any warranty for minor deviations relating to production that impair neither the external appearance nor the functioning.
- SCS ensures that the goods delivered are free from substantial manufacturing or material defects.
- The warranty shall be limited, at the option of SCS, to repair or replacement. In the event that repair or replacement fails, the Purchaser shall be entitled to request a reduction of the purchase price (abatement) or the cancellation of the contract (redhibition). However, in case of a minor infringement of the contract, especially in case of minor defects, the Purchaser shall not be entitled to exercise the right to withdraw from the contract. Replaced parts shall become the property of SCS.
- The Purchaser shall be obliged to notify SCS of obvious defects within a period of two weeks from receipt of the goods. Otherwise, the assertion of warranty claims shall be excluded. Timely dispatch shall be considered to be sufficient to keep the deadline. The Purchaser shall have the burden of proof with regard to all prerequisites for raising a claim, especially with regard to the defect itself, the date on which the defect was discovered and the timely submission of the notice of defects.
- If the Purchaser chooses to withdraw from the contract due to a defect of title or material defect after unsuccessful rectification, the Purchaser shall not be entitled to claim compensation due to the defect. If, after unsuccessful rectification, the Purchaser chooses compensation, the goods shall remain with the Purchaser provided that this is acceptable for the Purchaser. The compensation shall be limited to the difference between the purchase price and the value of the defective product. This shall not apply if there has been a malicious contract violation on the part of SCS.
- The warranty period shall be one year from the transfer of risk of the goods. No warranty shall be provided for used products.
- As a matter of principle, only the manufacturer's product description shall be rated as condition of the goods. Public statements, targeting or advertising of the manufacturer shall not constitute a contractual condition of the goods. In the event that the Purchaser obtains faulty instructions for use, the provision of a correct instruction manual shall be the only obligation of SCS. However, this shall only apply if the defect of the instruction manual is opposed to the proper assembly.
- No liability shall be assumed for damages resulting from the following reasons: inappropriate or improper use, defective assembly and/or commissioning on the part of the Purchaser or third parties, natural wear, defective or careless treatment, inappropriate equipment, substitute materials, poor processing, inappropriate building ground, chemical, electrochemical or electrical factors provided that they are not attributable to SCS.
- In order to carry out the repairs and replacements considered necessary according to the reasonable discretion of SCS, the Purchaser shall provide SCS with the required time and opportunity. Otherwise, SCS shall not assume any liability for defects. The Purchaser shall only be entitled to rectify the defect themselves or to have it rectified by a third party and to request SCS to reimburse the necessary costs when there is a risk for the operational safety and in order to prevent disproportionately high damages – in case of which SCS shall be immediately notified – or if SCS is in default with the rectification of the defect.
- Modification or repair works carried out improperly by the Purchaser or third parties without prior consent of SCS shall exclude any liability and warranty.
VIII. Liability Limitations
- Unless resulting from wilful or grossly negligent behaviour, claims for compensation arising due to the impossibility of performing the service, positive claim infringement, faults upon conclusion of the contract and unlawful act shall be excluded towards SCS as well as towards their agents and assistants. This shall also apply to claims for compensation due to non-fulfilment, but only insofar as compensation is requested for indirect or consequential damages. This shall not apply if the liability is based on a guarantee intended to protect the Purchaser against the risk of such damages. SCS shall not assume any liability for a slightly negligent infringement of insignificant contractual obligations.
- In case of gross negligence, no compensation shall be granted towards merchants for damages that are not typically associated with the contract or that have not been foreseeable upon conclusion of the contract. This shall not apply if compensation is to be granted due to a warranted property.
- The above-mentioned liability limitations shall not affect the Purchaser's product liability claims. Furthermore, the liability limitations shall not apply to physical damage and health detriment or in the event of the death of the Purchaser if attributable to SCS.
- The Purchaser's claims for damages due to a defect shall lapse after one year from the taking over of the goods. This shall not apply when SCS can be accused of gross default as well as in the event of physical damage and health detriment or death of the Purchaser if attributable to SCS.
- Severability Clause
If individual provisions of the contract or these General Terms and Conditions are or become ineffective, whether in whole or in part, this shall not affect the validity of the remaining provisions. The provision that is ineffective in whole or in part shall be replaced by a provision whose economic success comes closest to that of the ineffective provision.
- Place of Fulfilment and Jurisdiction
- These General Terms and Conditions as well as the entire legal relationship between SCS and their business partners shall be subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable.
- The place of fulfilment and jurisdiction for all disputes arising from the contractual relationship shall be the registered office of SCS. This shall also apply when the contracting party relocates their place of residence or habitual residence to a foreign country after conclusion of the contract or if their place of residence or habitual residence is unknown.
SCS GmbH · Hosterfeldstr.31 · 41747 Viersen · Version as of 11/ 2011