General Terms and Conditions
for the Production and Sale of Swiss Carbon Marine Systems GmbH
1. General provisions
1) The General Terms and Conditions shall apply to all contract concluded after 1 January 2016.
2) The terms „Consumer“ and „Entrepreneur“, where used below, are used as defined by §§13 and 14 German Civil Code (BGB).
Consumer is an individual, with whom a contractual relationship is being initiated, while this relationship is not connected tot he commercial or professional occupation oft he individual.
Entrepreneur is a natural or legal person or entity, with whom/which a contractual relationship is being initiated which is connected to the commercial or professional occupation oft he person or entity.
The term „ customer“, where used below, includes both consumers and entrepreneurs.
3) Any contradicting or supplementary terms an conditions shall not govern the contractual relationship unless otherwise explicitly agreed in writing.
2. Conclusion of Contracts
1) Any offer by the Seller is non-binding, unless explicitly referred to as „binding“ in written form. The Seller is bound by such „binding“ offers for a period of 30 days.
2) The contract must be in writing.
If not concluded in a single document signed by both the customer and the seller, the contract shall be deemed concluded by the exchange of the customers written order, by which the Customer shall be bound for a period of 6 weeks, and a corresponding written confirmation by the Seller.
3) Additional agreements as well as changes and amendments to this agreement shall be deemed to be valid and binding only, if confirmed by the seller in writing. The same applies to warranted properties oft he product.
3. Prices, Terms of Payment
1) All prices are quoted ex factory (Seller).
2) The agreed purchase price is not subject to deductions. Instalments are due and payable as agreed upon. Delivery cannot be demanded before the purchase price has been paid in full.
3) Should the customer be in default of payment, the seller is entitled interest at a rate charged by a rate of the European Ventral Bank (ECB), and if the customer is not a customer but an entrepreneur, 8 percentage points above the base rate- plus VAT. The interest is due and payable immediately. The right to claim further damages is affected by these provisions.
4) If payment in instalments during the course of construction has been agreed and the customer is in default of payment with any instalment, the seller hast he right to suspend work until payment has been made. Any costs thereby incurred are to be born by the customer.
5)The customer is not entitled to offset with counter-claims unless these counter-claims are undisputed or have been awarded by a competent court.
4. Retention of Title
1) A product that has been produced for or sold to the customer remains property of the seller until all claims by the seller against the customer for producing and/or for equipping the product have been settled.
2) The customer may not sell the product to a third party without the prior consent of the seller for as long as the retention of title remains in force. The customer hereby assigns all claims arising out of such premature sale to the seller. The seller hereby accepts the assignment.
3) In the event that a third party takes hold of the product, the customer is obliged to inform the third party about the seller’s ownership and to promptly inform the seller of the incident.
4) The customer is obliged to properly insure the products at customer’s own expense during the time for which the title is retained and to produce evidence of the insurance to the seller upon delivery of the products. The customer hereby assigns all claims against the insurer to the seller. The seller hereby accepts the assignment.
5. Delivery Date
1) If a time period for delivery has been agreed, such period shall commence with the conclusion of the contract.
2) In the event that the extent of work or delivery changes or increases with regard to the contract on demand by the customer or after consultation with the customer, the agreed time period becomes invalid. The customer may however demand that a new time for delivery be fixed, which takes the changes or increase into account.
3) The customer may not demand compliance with the agreed time period if the customer does not provide proper assistance in accordance with the Appendix to the contract at the time stipulated, or – if such time is not agreed – upon written request by the seller.
4) If compliance with the sellers’ obligations is obstructed by force majeure, strike and / or lock –out at the seller or its suppliers, the seller shall be released from its obligation to keep the time period for delivery and- until the force majeure ends- from fulfilments of the contract.
The same applies if the seller or its suppliers are unable to obtain the necessary materials for production, if and to the extent (a) this was unpredictable for the seller, (b) it is significant with regard to the seller’s obligations and (c) it is not based upon a fault of the seller, including the choice of suppliers. The seller is however obliged to properly inform the sustomer about such supply contracts, if practical.
1) The delivery takes place “ex factory” (seller).
2) If not expressly agreed otherwise in writing, the costs for shipping the products on demand by the customer, including package and loading, are to be paid by the customer. The seller is obliged to shipment only after the purchase price and said shipping costs have been paid in full.
3) If the product is shipped to the entrepreneur, the risk of incidental loss, damage or other deterioration of the product passes to the entrepreneur as soon as the product is handed over in any event upon dispatch from the seller. The risk passes to the consumer as soon as it is being handed over to the consumer. The risk also passes to the customer, if the customer is in default of acceptance regarding the delivery.
4) If the customer does not explicitly prescribe the route of transport, the mode of transportation and/or the type of package, the seller may use its own discretion to make such choices.
5) The seller shall not be responsible for damages that result out of slight negligence for the timely arrival of the shipped product.
6) The seller will only insure the transport upon express request by the customer and only in the customer´s name and for the customer´s account.
1) Should the delivered product be defective, the entrepreneur´s rights shall initially be restricted to subsequent improvement. The consumer is entitled to choose between subsequent improvement and replacement. We are however entitled to refuse replacement, if this would cause unreasonable costs while subsequent improvement and replacement. We are however entitled to refuse replacement, if this would cause unreasonable costs while subsequent improvement would not place an inadequate burden upon the consumer. The customer is entitled at its own discretion to a reduction of the purchase price or to cancel the contract, if (a) the seller refuses subsequent improvement of the product, (b) the Seller does not comply with such request within an adequate time limit, or (c) a second attempt subsequently improve the product fails.
Apart from the right to reduction of the purchase price, the foregoing rights shall not apply in respect of negligible defects.
2) Within the scope of subsequent improvement, the seller may it its own discretion either remedy the deficiencies itself or through and instructed third party. The seller may freely decide whether to conduct subsequent improvement at its own facilities or at a different place so designated by the customer under due consideration of the significance of the defect.
3) The warranty expires with regard to any party that have been modified by the customer or a third does not present the defective parts in the condition they were in, when the defect was first detected. It finally expires insofar as the defective part originates from the production of a certain third party and the customer refuses replacement with a substantially similar part produced by another third party.
4) The seller does not give any warranty with respect to damages that have been caused due to the following reason: Unfit or improper use, omitted installation or operation by the customer or a third party, normal wear and tear, faulty or negligent care – especially excessive strain -, use of equipment or parts which do not conform to the users manual, chemical, electro-chemical and/or electrical influences, as long as these do not result from a fault by the seller.
5) The seller does not give any warranty if and to the extent that it complied with special requests by the customer regarding the construction or the use of certain materials, provided that the seller has informed the customer in writing of the exclusion of warranty at the time of the request. (max. 7 days after).
1) The liability for slight negligence is limited to such damages that were reasonably foreseeable at the time the contract was concluded. The same applies for slight negligence by the Sellers legal representatives or assistants. If the customer is an entrepreneur, the liability for slight negligence regarding an immaterial contractual obligation is excluded.
2) There shall be no liability for consequential losses, unless these have been caused by intent or gross negligence or that an express warranty of property was given to the customer in order to prevent such consequential loss.
3) The liability period is limited to one year following delivery, if the damage is not a result of fraudulent intent.
4) Liability of the seller for loss of life, personal injury or health deterioration remains unaffected, if the seller, its legal representative or assistant are legally responsible for it.
5) Claims for damage compensation according to the German Law on Product Liability (ProdHaftG) remain unaffected by these provisions.
9. Protection against Legal Detriments
In the event that one or more provisions of these general terms and conditions are invalid, the remaining provisions shall remain in full force and effect. The invalid provision shall be replaced by the rules of law.
1) This contract is subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
2) If the customer is a merchant or a public legal entity, the place of performance for all claims out of or in connection with this contract shall be at the place of business of the Seller
3) If the customer does not have a domicile within the Federal Republic of Germany or if the domicile is unknown at the commencement of court proceedings, the competent courts at the place of business of the Seller have exclusive jurisdiction over any and all disputes arising out of or in connection with this agreement.
4) If any provision of the contract including these terms and conditions is or becomes invalid or unenforceable, the remaining provision shall remain in full force and effect. The invalid or unenforceable provision shall be replaced by a provision that most closely approximates the economic intent of the invalid or unenforceable provision.