GENERAL TERMS AND CONDITIONS

GENERAL TERMS OF BUSINESS OF SANKYO OILLESS INDUSTRY GmbH

Version 01.11.2019

 

1 Scope of application

1.     These terms and conditions of sale apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB (German Civil Code). We shall only accept any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.

2.     These terms and conditions of sale shall also apply to all future business transactions with the customer, insofar as these are legal transactions of a related kind.

 

2 Offer and conclusion of contract

  1. The order is only considered as accepted when it has been confirmed in writing by Sankyo Oilless Industry GmbH, until then the offer is not binding.

2.     Individual written agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these terms of sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

3.     We keep property rights and copyrights to all documents - also in electronic form - provided to the buyer in connection with the placing of the order, such as calculations, drawings etc. These documents may not be made accessible to third parties unless we give the customer our express written approval.

 

3 Prices and payments

  1. Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the current rate.

2.     Unless otherwise agreed, our invoices are payable within 14 days of the invoice date with 2% discount or within 30 days of the invoice date net without deduction.

3.     The retention of payments or set-offs due to any counterclaims of the buyer disputed by the supplier are excluded.

4.     Interest on arrears shall be charged at a rate of 8% above the respective base rate of the German Federal Bank p.a.; the right to claim higher damages caused by default shall be reserved.

 

4 Packaging

  1. Packaging is invoiced at cost price. Invoiced wooden boxes will be credited with half of the invoiced price if returned freight paid and in perfect condition. Contractual provisions to the contrary shall have precedence.

2.     Cardboard boxes and packaging for the protection of the goods (e.g. foils, labels, tapes, etc.) will not be taken back. We shall not bear any costs for disposal.

 

5 Delivery/delivery time

  1. The beginning of the delivery time stated by us assumes the timely and proper fulfilment of the obligations of the customer.

2.     If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to make further claims. Insofar as the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.

3.     Cases of force majeure, i.e. unforeseen events beyond our control, e.g. strike, natural disasters, operational breakdowns, late delivery by subcontractors, rejects - in our own factory or at the subcontractor's - shall extend the delivery period appropriately, even if they occur during a possible delay in delivery. Partial deliveries are permissible.

4.     The contractual partners are released from their obligations to perform for the duration of the disturbance and to the extent of its effect. They are obliged to inform each other immediately about the occurrence and the expected duration of these circumstances and to adapt their obligations to the changed circumstances in good faith. If the disturbance lasts for more than 1 month, each party to the contract is entitled to withdraw from the contract without further notice.

5.     In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay in the amount of 0.5% of the price of the delayed delivery, but not more than 5% of the value of the delayed delivery. Any other claims for compensation are excluded.

6.     Further legal claims and rights of the buyer due to a delay in delivery remain unaffected.

7.     In the case of delivery of special designs, we reserve the right to short or over-delivery of +/- 10%.

 

6 Transfer of risk on dispatch

  1. If the goods are dispatched to the customer at his request, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.

2.     Transport insurance shall only be taken out on the instructions and at the expense of the buyer. If dispatch is delayed through the fault of the customer, the risk shall pass to the customer from the day of readiness for dispatch. Sankyo Oilless Industry GmbH is entitled to insure the goods against all relevant risks at the expense of the customer.

 

7 Warranty and notice of defects as well as recourse/manufacturer recourse

  1. Warranty rights of the buyer presuppose that the buyer has properly fulfilled his obligations to examine the goods and make a complaint in accordance with § 377 HGB.

2.     Claims for defects become time-barred 12 months after delivery of the goods delivered by us to our customer. The statutory period of limitation shall apply to claims for damages in cases of intent and gross negligence as well as injury to life, body and health, which are based on an intentional or negligent breach of duty by the user.

3.     Sankyo Oilless Industry GmbH shall only be liable for incorrect constructions or defective designs for which it is responsible, for material defects only to the extent that the customer should have recognized the defect when applying professional care.

4.     In case of production according to the customer's drawing, Sankyo Oilless Industry GmbH is only liable for the execution according to the drawing. If Sankyo Oilless Industry GmbH is entrusted with the solution of design tasks, liability for defects can only be claimed if the customer proves that the product of Sankyo Oilless Industry GmbH culpably does not correspond to the general state of the art.

5.     If, despite all the care taken, the delivered goods show a defect which already existed at the time of the transfer of risk, we will, subject to timely notification of defects, either repair the goods or deliver replacement goods at our discretion. We must always be given the opportunity for subsequent performance within a reasonable period. Recourse claims remain unaffected by the above provision without restriction.

6.     if the subsequent performance fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.

7.     Claims for defects shall not exist in the case of insignificant deviation from the agreed quality, insignificant impairment of usability, natural wear and tear or wear and tear as well as damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment or due to special external influences that are not provided for under the contract. If the buyer or third parties carry out improper repair work or modifications, no claims for defects shall exist for these and the consequences thereof. Our consent must be obtained before any return of the goods.

8.     Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded if the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer's premises, unless the transfer corresponds to their intended use.

9.     The customer's rights of recourse against us exist only insofar as the customer has not made any agreements with his customer that go beyond the legally binding claims for defects.

10.  The customer shall bear any costs incurred by Sankyo Oilless Industry GmbH due to unjustified notification of defects. The liability for defects shall not apply if the customer has carried out rectification work without the consent of Sankyo Oilless Industry GmbH.

11.  Material defects shall be notified in writing without delay, at the latest within 1 week after delivery.

 

8 Termination of contract

  1. The customer shall only be entitled to prematurely terminate the contract if Sankyo Oilless Industry GmbH has allowed a reasonable grace period granted to it for the elimination of a defect for which it is responsible to expire, or if in such a case the repair or delivery of a replacement part is impossible, or if Sankyo Oilless Industry GmbH refuses to eliminate such a defect.

2.     Other claims of the customer are excluded. If Sankyo Oilless Industry GmbH becomes aware after conclusion of the contract that the buyer is in an unfavourable financial situation, Sankyo Oilless Industry GmbH may demand security for the counter-performance or declare that the buyer will refrain from counter-performance. In the latter case, the customer shall reimburse Sankyo Oilless Industry GmbH for any expenses incurred until then and shall pay damages for non-performance of the delivery.

 

9 Retention of title

  1. We reserve the right of ownership of the delivered goods until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the customer acts in breach of contract.

2.     Ownership shall not pass to the customer until he has fulfilled all his obligations, including future ones, towards Sankyo Oilless Industry GmbH; this shall also apply if the customer has paid the equivalent value of individual deliveries designated by him.

3.     The buyer is obliged to handle the goods with care as long as the ownership has not been transferred to him. As long as the ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. As far as the third party is not able to compensate us for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the buyer is liable for the loss incurred by us.

4.     The buyer is entitled to resell the goods subject to retention of title in the normal course of business. The customer hereby assigns to us all claims against the purchaser arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The buyer is authorised to collect the claims from the resale for the supplier. This authorisation can be revoked by us at any time. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the buyer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.

5.     The treatment, processing or transformation of the object of sale by the customer shall always be carried out for Sankyo Oilless Industry GmbH. In this case, the expectant right of the buyer to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same applies in the event of mixing. If the mixing is carried out in such a way that the buyer's item is to be regarded as the main item, it is deemed to be agreed that the buyer transfers proportional co-ownership to us and keeps the resulting sole ownership or co-ownership for us. In order to secure our claims against the buyer, the buyer also assigns to us such claims that accrue to him against a third party through the connection of the reserved goods with a property; we hereby accept this assignment.

6.     We undertake to release the securities to which we are entitled at the request of the customer if their value exceeds the claims to be secured by more than 20%.

 

10 Consent to data protection

  1. Article 6 paragraph 1 letter b of the DPA serves as the legal basis for the processing of personal data required for the performance of a contract to which the data subject is a party. This also applies to processing operations which are necessary for the implementation of pre-contractual measures. Insofar as processing of personal data is necessary to fulfil a legal obligation to which our company is subject, Art. 6 para. 1 lit. c DSGVO serves as the legal basis.

2.     If the processing is necessary to safeguard a legitimate interest of our company or of a third party and if the interests, fundamental rights and freedoms of the person concerned do not outweigh the former interest, Art. 6 para. 1 lit. f DSGVO serves as the legal basis for the processing.

 

11 Data subject rights with regard to information, correction, deletion and blocking

  1. According to Art. 15 DSGVO you have the right to obtain information from Sankyo Oilless Industry GmbH at any time about the data stored about you.

2.     According to articles 16, 17, 18 DSGVO, you may at any time request Sankyo Oilless Industry GmbH to correct, delete or restrict the processing of individual personal data. You are also entitled to the right of data transfer (Art. 20 DSGVO).

3.     In accordance with Art. 77 DSGVO, you have the right to appeal to a supervisory authority at any time if you believe that the processing of your data violates the regulation.

4.     Furthermore, you may at any time and without stating reasons exercise your right of objection (Art. 21 DSGVO) and amend or withdraw your consent with effect for the future.

5.     This consent fulfils the requirements of the: Art. 4 No. 11 DSGVO; Art. 6 para. 1, first subparagraph, letter A; Article 7(3) and is therefore effective.

6.     Enquiries to: dataprotection@de.sankyo-oilless.com

 

12 Place of performance and jurisdiction

  1. This contract and the entire legal relations between the parties shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

2.     The place of performance for the obligations of both parties arising from the contract, including any claims for cancellation of the contract or compensation for damages, is Hilden.

3.     The place of jurisdiction for legal disputes is the court responsible for the business location of Sankyo Oilless Industry GmbH. Sankyo Oilless Industry GmbH is also entitled to sue the customer at his general place of jurisdiction.

4.     The supply contract shall not be invalidated as a whole by the invalidity of individual provisions.

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