General Terms and Conditions of Delivery and Payment
Hans Sasserath GmbH & Co. KG
41352 Korschenbroich, Germany
1. General Provisions
2. Offer and Conclusion of Contract
- We transact all business exclusively according to our General Terms and Conditions of Delivery and Payment as set out below.
Any terms of the customer providing for otherwise shall not apply. Our General Terms and Conditions of Delivery and
Payment shall also apply in the event that we effect delivery without objection, regardless of having knowledge of conflicting or deviating terms of the customer.
- All agreements made with the customer for the purpose of performing a contract
shall be set out in the contract in writing. This shall also apply
in particular to oral side agreements made before concluding the contract.
- These General Terms and Conditions of Delivery and Payment shall also apply to
future similar transactions with the same customer without a specific agreement having to
be concluded to this end.
3. Prices and Payment
- Our offers and quotations are without obligation, unless expressly stated otherwise. Cost estimates
- A contract pertaining to a delivery order shall not be deemed to have
come about unless it has been confirmed by us in writing. Any amendments,
addenda or ancillary agreements — including this requirement of the written form —
shall also be subject to written confirmation by us.
- All rights, particularly with regard to copyright and ownership, to illustrations, drawings, brochures,
catalogues, patterns, samples, models and other similar materials included by us with quotations
shall remain with us. These materials may not be made available to third
parties without our prior express written consent. They shall be returned to us
immediately if a contract or order does not come about.
- For products manufactured under license as well as for products that we do
not manufacture ourselves, the enclosed license conditions shall additionally apply.
- Our quotations are subject to the proviso that all requisite permits (e.g. export
licenses) are granted.
4. Delivery, Shipment, Passage of Risk
- Unless otherwise expressly agreed in writing, the prices applied by us are those
that are in effect on the day of delivery.
- Our prices are quoted net, “ex works”, in euros, plus legally applicable value-added
tax, excluding packing.
- Payment shall be effected by bank, giro or post office bank transfer. Where
a transfer is made, payment shall not be deemed to have been received
until the amount is credited to our account. We shall not be obligated
to accept bills of exchange or checks. In the event that we do
accept them, then only for the purpose of payment. Payment shall not be
deemed to have been received until these instruments have been redeemed. Any applicable
bank, discounting and collection charges shall be assumed by the customer and shall
be payable immediately. Where bills of exchange are accepted, no liability will be
assumed for proper presentation and protest.
- Unless explicitly agreed otherwise in writing, the purchase price shall be payable within
10 (ten) days of the invoice date, for which a cash discount of
3% may be taken, otherwise net, in full, within 30 (thirty) days of
the invoice date, without any cash discounts or deductions being taken.
- Where the customer falls into arrears with payment, we shall be entitled to
charge default interest at the statutory rate of interest applicable to payment arrears.
Where we are able to show evidence of higher loss from arrears, we
may also assert these amounts as well. However, the customer shall have the
right to show that a lesser loss has been incurred as the result
of the payment arrears.
- The customer may offset amounts due if and only if the respective counterclaims
have become res judicata (unappealable) or are undisputed or recognized by us. The
customer shall also not be entitled to withhold payment due to disputed counterclaims
unless the customer is not a registered trader, a legal entity under public
law, or a special fund under public law. In these cases the customer
may exercise their right to withhold payment provided that the customer’s counterclaim is
based on the same contract.
5. Warranty / Liability for Defects
- Our prices are quoted ex works, exclusive of packing. For orders with a
net merchandise value of over EUR 770.00, delivery will be effected free of
charge, including packing, to the designated receiving terminal or franco domicile at our
discretion. Other de minimis thresholds shall apply outside of Germany.
- An agreed-upon delivery date shall not be binding unless rendered in writing; this
shall be subject to correct and timely delivery by our suppliers.
- The commencement of and adherence to agreed delivery periods shall be subject to
the customer complying with their obligations to cooperate, including, but not limited to,
the timely receipt of all items, documentation, permits, releases, clearances and examinations to
be provided by the customer, compliance with the agreed payment terms, including agreed
advance payments. Agreed delivery dates will be postponed by a suitable period where
these obligations are not satisfied by the customer in a proper and timely
- Where the customer delays acceptance or fails to perform other
obligations to cooperate incumbent upon them, we may, at our option, claim compensation
for any related damage or loss sustained by us, including but not necessarily
limited to, reimbursement for additional expenses incurred by us, if any. This shall
be without prejudice to our exercising further rights and asserting further claims.
- Unforeseen operational disruptions and those not attributable to us that occur or become
known upon concluding the contract, including strikes, lock-outs or other concerted acts of
workmen; war; insurrections; shortage of raw materials; machinery breakdowns and essential components becoming
defective; acts on the part of government authorities; or any other causes, circumstances
or contingencies beyond our control, despite exercising the utmost care, shall cause delivery
times to be extended for the duration of the existence of these impediments,
in addition to an appropriate lead time. We will go to every effort
to inform the customer of the beginning and end of the delivery delay
and how long it is expected to last.
- Where the delay in
delivery is attributable to us, the customer shall grant us a reasonable grace
period for fulfilling the terms of the contract. Where delivery is delayed and
this delay causes damage or loss to be incurred by the customer, the
customer shall be entitled to demand liquidated damages for delayed completion, in full
satisfaction of our liability for said failure. Said liquidated damages shall amount to
1% of the contract value for each full week of delay, but not
more than a total maximum of 5% of the portion of all merchandise
to be supplied that could not be utilized in a timely manner or
could not be utilized as provided for under the contract as a result
of the delay. Any compensation for damage or loss in excess of this
on account of delay shall be precluded.
- Where we are already
late with delivery and the customer grants us a reasonable grace period subject
to the threat of refusal to accept delivery, then, to the extent that
we are responsible for letting this grace period lapse without making delivery, the
customer shall be entitled to withdraw from the contract.
- All deliveries
are effected ex warehouse. Where shipment of the merchandise has been agreed, the
customer shall assume the shipping costs. If the customer so requests, we will
have the merchandise insured during transport, in which case the customer shall assume
these costs. Unless specifically instructed by the customer, we will determine the type
of dispatch and packing at our equitable discretion. We will assume no liability
unless we, our legal representatives, our authorized representatives and executive staff, and vicarious
agents are guilty of willful intent or gross negligence.
- Risk shall
pass to the customer as soon as the consignment has left our warehouse
or has been delivered into the custody of the persons effecting transport, the
latter being the case irrespective of who assumes the freight costs. Where the
merchandise is ready for dispatch and dispatch is delayed for reasons beyond our
control, risk shall pass to the customer upon receipt of notification of readiness
for dispatch. The foregoing passage of risk provisions shall also apply where shipment
is effected within the same location. They shall also apply where shipment is
carried out by our vehicles or by our personnel.
- In the case
of call-off orders (orders for delivery on demand), the customer shall accept the
merchandise ordered within 12 (twelve) months of receiving our written confirmation of order
at the latest, unless expressly agreed otherwise in writing.
- We shall be entitled to make partial deliveries or make partial performance of services.
6. Reservation of Title
- Claims for defects asserted by the customer are predicated on the customer inspecting
the items supplied for defects without undue delay, however within one week of
accepting the consignment at the latest; where a defect is detected, the customer
shall notify us immediately in writing. Defects that cannot be detected directly upon
careful examination within this period shall be notified to us in writing without
undue delay upon being detected. The customer shall make written notification of defects
in a cogent, verifiable and detailed manner, providing all the pertinent information required
for recognizing and analyzing the defects. Where upon review it is shown that
the customer wrongly filed a complaint for defective merchandise, we may demand that
the customer compensate us on a time-spent basis for the time and effort
invested by us on account of the complaint. The customer shall be obligated
to return to us incidental hardware and components whose replacement is suitable for
remedying a defect where, upon consulting with us, the customer is shown to
be in a position to remove and replace these items.
a purchased item is shown to be defective, the customer shall, at their
option, be entitled to subsequent performance in the form of remedial action or
to the supply of a new, faultless replacement. Where the customer opts for
remedial action we shall be obligated to assume all the necessary expenses for
the purpose of performing the remedial action, including costs for transport, infrastructure, labor
and materials, insofar as these expenses are not increased due to the purchased
item having been moved to a location other than the place of performance.
- In the event that remedial action is unsuccessful, the customer may, at their option, rescind the contract or request a reduction in price.
- Warranty / liability for defects shall not include remedying flaws that arise
as the result of normal wear and tear, external factors, operating errors or
improper use. The same shall also apply where the customer (or a third
party commissioned by the customer) makes modifications to the item supplied, unless the
material defect is not causally related to the modification.
- Claims based
on defect in respect of quality or title shall become time-barred upon the
lapse of 12 (twelve) months from the passage of risk.
provisions contained in this section (section 5) shall conclusively govern the warranty /
liability for defects in respect of the merchandise supplied by us. Claims of
the customer extending beyond this, including, but not limited to, damage not exhibited
by the merchandise itself, shall be governed exclusively in accordance with section 7
(“Disclaimer of Liability”) below.
7. Disclaimer of Liability
- The purchased items shall remain our property until all our claims against the
customer under the contract have been satisfied in full (“Reserved Merchandise”). The customer
shall not be authorized to transfer title of the reserved merchandise as collateral
security or to pledge it in favor of third parties without our consent;
the customer shall be obligated to notify us without undue delay in the
event of any lien placed on the reserved merchandise or where it is
subjected to levy of execution by third parties. Where the customer breaches the
contract, i.e. in the event that the customer falls into arrears with payment,
we shall be entitled to take back the items supplied by us for
safekeeping or request that they be surrendered to a sequestrator, without this constituting
rescission of the contract. In such an event we shall also be entitled
to demand that the merchandise be surrendered for the purpose of disposal through
sale; sale of the merchandise shall be deemed to constitute rescission of the
contract. Sale shall be effected in the best possible manner. We shall apply
the sale proceeds — less reasonable sales costs — to the amounts outstanding
owed by the customer.
- Notwithstanding our reservation of title, the customer
shall be entitled to sell or further process the reserved merchandise in the
course of the customer’s ordinary conduct of business. The entitlement of the customer
to sell the reserved merchandise in the ordinary conduct of business shall terminate
in the event that the customer should breach the contract, i.e. fall into
arrears with payment.
- The customer hereby assigns to us already at
this time any amounts received from the resale of the reserved merchandise in
the amount of the value of the reserved merchandise for the purpose of
securing all claims arising from the business relationship with the customer. The customer’s
entitlement to sell the reserved merchandise shall be dependent on the assignment to
us of the amounts outstanding arising from said business relationship. Pledging these amounts
outstanding in favor of third parties or any assignment of these claims to
third parties shall be subject to our consent. The customer shall be obligated
to notify us without undue delay of any attachment of these amounts outstanding.
We will not collect the assigned amounts outstanding as long as the customer
complies with their payment obligations. However, the customer shall be obligated, upon request,
to inform us of the third-party debtor and to notify the third-party debtor
of the assignment. The customer shall also assign to us those amounts that
accrue to them from third parties as a result of the combination or
attachment of the merchandise with real property.
- The processing or conversion
of the reserved merchandise by the customer shall always be on our behalf;
in the event the merchandise is processed or commingled with other items that
are not our property, we shall acquire co-ownership of the new item in
proportion to the value of the merchandise compared to that of the other
processed items at the time of the processing. The same reservation of title
that applies to the merchandise shall also apply to the item that results
from processing. Where the reserved merchandise is inextricably combined, processed or mixed with
items that are not our property, we shall acquire co-ownership of the new
item in proportion to the value of the reserved merchandise supplied by us
compared to that of the other combined or mixed items at the time
they are combined or mixed. In the event the combination or inextricable mixture
is such that the customer’s property is to be viewed as the primary
product, it is agreed and understood that the customer shall assign proportional co-ownership
rights in the product to us. The customer shall then hold the resultant
sole or co-ownership for us. Unless provided for otherwise in the foregoing two
paragraphs, the provisions of section 946 et seq. of the German Civil Code
(BGB) shall apply.
- Where the value of the collateral security given
exceeds our claims or amounts outstanding by more than 10%, we shall be
obligated, upon request by the customer or upon request by a third party
injured by our excess collateral (overcollateralization), to release collateral security items, the decision
as to which collateral security items should be released being at our discretion.
- We shall be liable as prescribed by law to the extent that the
customer asserts claims for damages based on willful intent or gross negligence, including
willful intent or gross negligence on the part of our representatives or agents.
In cases other than intentional breach of the contract, our liability for damages
shall be limited to claims for typical, foreseeable damage or loss.
- We shall be liable as provided for by law in the event we
commit a material breach of the contract. In these cases as well, our
liability for damages shall be limited to claims for typical, foreseeable damage or
- This shall be without prejudice to our liability based on
culpable injury to life, limb or health; this shall also apply to compulsory
liability under the German Product Liability Act (ProdHaftG).
- Any and all
other liability shall be excluded unless specified otherwise above.
- The foregoing
limitations of liability shall also apply in the event of claims for damages
filed by the customer against our legal representatives or agents.
9. Third-party Ownership and Intellectual Property Rights
- The customer may not assign rights from contracts concluded with us to third parties without our consent.
10. Applicable Law, Contract Language
- Where we manufacture items according to specifications contained in the customer’s illustrations, drawings,
brochures, patterns, samples, models and other similar materials, all rights pertaining to ownership
and copyright shall remain with us even where the customer is obligated to
assume a portion of the costs or no contract ultimately comes about.
- In the cases as provided for in clause 9. a) above, the
customer warrants that the representations made by them do not infringe any rights
of third parties. In the event that a third party asserts a claim
against us on account of this, the customer shall indemnify and hold us
harmless against any such claims upon first written request. However, we will not
enter into any agreements with such third parties without the customer’s consent, including
negotiating a settlement. This obligation to provide indemnity shall extend to all expenses
incurred by us of necessity from or in connection with the claim raised
by the third party.
11. Place of Performance and Venue
- All legal relations between the customer and us shall be governed by and
construed exclusively in accordance with the laws of the Federal Republic of Germany.
- Where contracts are drafted in multiple languages, only the German version
shall constitute the binding, authoritative version.
- The place of performance shall be Korschenbroich, Germany, unless provided for otherwise.
- Where the customer is a registered trader, a legal entity under public
law or a special fund under public law, the place of jurisdiction shall
be Neuss, Germany; however, we shall also be entitled to being legal action
against the customer at their domicile.