Clause 1 - Miscellaneous and area of application
(1) All deliveries, services and offers by SUER Nutzfahrzeugtechnik GmbH & Co. KG (hereinafter referred to as “SUER”) are exclusively based on these General Terms and Conditions of Business. They form an integral part of all contracts which SUER concludes with its contracting partners (hereinafter also referred to as "Customers”) with regard to the deliveries or services it offers. They also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed to again.
(2) The business terms and conditions of the Customer or third parties do not apply even if SUER has not specifically contradicted their validity in the individual case. Even if we refer to a letter which includes the Supplier’s or a third party’s business terms and conditions or make reference to the latter, this does not constitute an agreement with the validity of such business terms and conditions.
(3) These General Terms and Conditions of Business only apply vis-à-vis companies, legal persons under public law as well as separate estates under public law pursuant to Section 310 sub-section 1 Civil Code [BGB = Bürgerliches Gesetzbuch).
Clause 2 - Offer, minimum quantities and conclusion of contracts
(1) All SUER’s offers are subject to change and are non-binding as far as they have not expressly been marked as binding or include a specific acceptance deadline. SUER can accept orders or contracts within fourteen days after receipt. The acceptance can either be declared in writing (for example, an order confirmation) or through the delivery of the goods to the Customer.
(2) The written purchase agreement with the inclusion of these General Terms and Conditions of Business are solely decisive for the legal relationship between SUER and the Customer. The purchase agreement reflects all agreements between the contracting parties regarding the subject matter of the agreement. SUER’s verbal commitments prior to the conclusion of this agreement are not legally binding and verbal agreements between the contracting parties are replaced by the written agreement provided the terms of the contract do not stipulate that prevailing conditions continue to apply.
(3) For their effectiveness, supplements and changes to the agreements reached including these General Terms and Conditions of Business require the written form. With the exception of managing directors or a holder of a special statutory authority (“Prokurist”), employees of SUER are not entitled to make any deviating verbal agreements. Transmission by telecommunication, in particular by fax or email, is sufficient to maintain the written form requirement provided the copy of the signed declaration is sent.
(4) A lump sum of EUR 10.00 is deemed agreed as a minimum quantity surcharge where the contract or order value is less than EUR 50.00.
(5) SUER reserves the right of ownership or copyright to all offers and cost estimates it makes as well as to all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and means of production provided. The Customer may not make these items accessible to third parties, either as such or their content, nor divulge them or use or duplicate them personally or through a third party. At our request, the Customer shall return these documents to us if they are no longer required in the normal course of business or if negotiations do not lead to the conclusion of a contract. The exception to this is the storage of electronically provided data for the purpose of normal data backup.
(6) Information provided by SUER with regard to the delivery or service (e.g. weights, measurements, utility values, capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately relevant as far as the usability does not assume an accurate conformity with regard to the contractually envisaged purpose. They are not guaranteed characteristics but descriptions or markings of the delivery or service. Customary deviations and deviations which take place based on legal regulations or technical improvements, as well as the replacement of components with equivalent parts, are permissible as far as they do not hamper the usability according to the contractually envisaged purpose. Weights are calculated on the basis of the values stated in the catalogues. These are considered to be known. The following norms apply for aluminium profiles: a) EN 755-1 - Technical Delivery Terms b) EN 755-8 - with chamber tool extruded tube, tolerances on dimensions and form tolerances c) EN 755-9 - profile, tolerances on dimensions and form tolerances.
(7) DIN ISO 2768-1 applies to for board walls manufactured according to Customer specifications as well as the aluminium kits
Section 3 - Prices and payment terms
(1) Prices apply to the scope of service and delivery stated in the order confirmations. Additional and special services are charged for separately. Prices are quoted in EURO ex works and exclude statutory value-added-tax, customs for export deliveries as well as taxes and other public duties. All prices also exclude carriage, shipping and packaging costs and other ancillary costs - as far as these apply.
(2) Unless otherwise agreed, invoices are payable immediately on receipt without any deduction. At the Customer’s request, invoices are exclusively sent electronically. The Customer will accordingly provide the following declaration of consent. Invoices are considered to be in arrears after 14 days from receipt. No reminder is required on the occurrence of the arrears. SUER is entitled, despite contrary provisions of the Customer, to initially set off payments against older debts of the Customer: SUER will inform the Customer of any such settlement. In cases where costs and interest have already arisen, SUER is authorized to first set off the payment against the costs and then the interest and finally the main service.
(3) Setting off counter-claims on the part of the Customer, or the retention of payments in connection with such claims, is only permissible as far as the counter-claims are undisputed or have been legally determined.
(4) SUER is entitled to carry out or to provide outstanding deliveries or services only against advance payment or the provision of securities if, after concluding the contract, circumstances become known which are appropriate to significantly minimize the Customer’s creditworthiness and endanger the payment of SUER’s outstanding claims relating to the relevant contractual relationship (including other individual orders which are subject to the same outline agreement). In this case, SUER is also entitled to regard the entire debt as due.
Clause 4 - Delivery and delivery time
(1) Deliveries are ex work.
(2) Prospective deadlines and dates for deliveries and services stated by SUER are only approximate unless a fixed deadline or date has been promised in writing or agreed. The delivery periods and delivery dates for an agreed shipment refer to the date of handover to the shipper, carrier or any other person entrusted with the transport.
(3) Irrespective of the rights arising from a delay on the part of the Customer, SUER can request the Customer to grant an extension of delivery and service deadlines or a postponement of the delivery and service dates by the period that the Customer does not meet his contractual obligations vis-à-vis SUER.
(4) SUER is not liable for the impossibility of the delivery or for delivery delays as far as these are caused by force majeure or other events not foreseeable at the time the contract was concluded (e.g. any kind of interruption of operations, difficulties in the procurement of materials or power, transport delays, strikes, legal lockouts, labour shortage, energy or raw material shortage, difficulties in obtaining the necessary official authorisations, official measures or the omitted, incorrect or non-timely delivery by suppliers) for which SUER is not responsible. As far as such events make the delivery or performance significantly more difficult or impossible for SUER, and the hindrance is not only of temporary duration, SUER is entitled to withdraw from the contract. For those hindrances which are of a temporary duration, the delivery and/or performance deadlines are extended or postponed by the duration of the hindrance plus a reasonable start-up period. As far as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately submitting a written declaration to SUER.
(5) SUER is entitled to provide partial deliveries if the partial delivery is useful for the Customer within the scope of the contractual intended purpose, the delivery of the remaining goods ordered is assured and no significant additional expenditure or additional costs arise for the Customer as a result (unless SUER declares that it is willing to assume these costs).
(6) If SUER is in arrears with a delivery or service, or if a delivery or service is impossible for SUER, irrespective of the reason, SUER’s liability is restricted to compensation in terms of clause 8 of these General Terms and Conditions of Business.
(7) Blanket or call-off orders obligate the buyer to accept the total quantity that forms the basis of the blanket or call-off contract. Where blanket / call-off orders exceed the order quantity, SUER is entitled to only deliver the order quantity or charge the additional quantity at the daily rate. As far as the contract does not specify call-off quantities, the entire quantity of the blanket / call order must be called up within 12 months. If the Customer does not adhere to call-off dates, SUER is entitled to deliver and charge the entire quantity four weeks after written notification with reference to the consequences of the omitted call-off. In the event that call-offs are not carried out or accepted in time, SUER is entitled to assert compensation for additional expenditure incurred, for example, by storing the goods at the Customer’s cost and risk. Rights arising from the delay on the part of the Customer remain reserved.
Clause 5 Place of performance, despatch, packaging material, transfer of risk, acceptance
(1) As far as nothing else has been determined, place of performance for all obligations arising from the contractual relationship is SUER’s registered office in Wermelskirchen. If SUER also owes the installation, the place of performance shall be the place of the installation.
(2) The method of despatch and type of packaging material is carried out at SUER’s dutiful discretion.
(3) The risk transfers to the Customer no later than on handover of the delivery item to the forwarder, carrier or other third parties entrusted to carry out the despatch; whereby the beginning of the loading process is decisive. This also applies to partial deliveries or in cases where SUER has taken over other services (e.g. despatch or installation). If the despatch or the handover is delayed as a result of circumstances for which the Customer is responsible, risk already transfers to the Customer on the day the delivery item is ready for despatch and SUER has notified the Customer accordingly.
(4) Storage costs following the transfer of risk are borne by the Customer. SUER charges storage costs per completed week at 0.25% of the invoice amount of the delivery items to be stored. The assertion and evidence of additional or lower storage costs remains reserved.
(5) The consignment is only insured at the Customer’s explicit request and at his expense against theft, damage for breakage, transport, fire and water or other insurable risks.
(6) As far as an acceptance is required, the purchase item is considered to be accepted if the delivery and, as far as SUER also owes the installation, the installation is concluded; SUER has notified the Customer accordingly with reference to the assumed acceptance and has requested him to carry out the acceptance in terms of this clause 5 (6); twelve working days have passed since delivery or installation or the Customer has started to use the purchase item (e.g. the delivered facility has been commissioned) and in this case six working days have passed since delivery or installation and the Customer has omitted to notify SUER of the acceptance within this period for another reason other than a defect notified to SUER which makes the use of the purchase item impossible or significantly hampers its use.
Clause 6 Warranty, defects
(1) The warranty period is one year from delivery or, as far as an acceptance is required, from date of acceptance. This deadline does not apply to claims for damages on the part of the Customer resulting from harm to life, body or health or intentional or gross negligence of obligations on the part of SUER or its vicarious agents which become statute-barred in terms of legal provisions.
(2) The delivered items must be carefully examined immediately after delivery to the Customer or the third party designated by him. They are deemed to be approved by the buyer if SUER does not receive a written notice of defects within seven working days from date of delivery with regard to obvious defects or other defects which would have been recognisable during an immediate careful examination. With regard to all other defects, the delivery items are deemed to be approved by the Buyer if SUER does not receive a notice of defects within seven days. If, however, the Customer was already able to recognise the defect during normal use at an earlier point in time, this earlier date shall be decisive for the commencement of the period for complaints. At SUER’s request, the rejected delivery item shall be returned carriage-free to SUER. In the event of a justified notice of defect, SUER shall reimburse the costs of the most economic shipping method; this does not apply should the costs increase because the delivery item is at a different location than that of the intended use.
(3) For material defects in the delivered item SUER, at its choice and within a reasonable deadline, is initially obligated and entitled to carry out improvements or a replacement delivery. In the event that this fails, that is to say an impossibility, unreasonableness, refusal or unreasonable delay of the improvement or replacement delivery, the Customer can withdraw from the agreement or appropriately reduce the purchase price.
(4) If SUER is to blame for the defect, the Customer can demand compensation in terms of the prerequisites outlined in clause 8.
(5) For defective components from other manufacturers which SUER, for reasons of licensing law or factual reasons cannot remove, SUER will, at its choice, assert its warranty claims against the manufacturer and supplier for account of the Customer or assign these to the Customer. Warranty claims against SUER for such defects only exist under the other conditions and according to these General Terms and Conditions of Business if the judicial enforcement against the aforementioned manufacturer and supplier was unsuccessful or, for example, is hopeless due to an insolvency. The statute of limitations of the Customer’s affected warranty claims against SUER is suspended during the period of the legal dispute.
(6) The warranty lapses if the Customer carries out modifications to the delivery item or allows it to be modified by a third party without SUER’s approval and the removal of the defect is thus made impossible or unreasonably hampered. In any case, the Customer shall bear the additionally incurred costs for the removal of the defects due to the modification.
(7) The warranty falls away completely if the Customer does not comply with operating, assembly or maintenance instructions. The warranty in particular falls away if the relevant assembly guidelines of the relevant chassis manufacturer are not observed during the assembly of a so-called cargo trailer assembly. Here it is particularly important to note the proper dimensioning of the required subframe and its mounting onto the chassis.
(8) Where a delivery of a used items is agreed to with the Customer in an individual case, this shall exclude any kind of warranty for material defects.
Clause 7 - Protective rights
(1) In terms of this clause 7, SUER assures that the delivery item is free of third party industrial property rights or copyrights. Each contracting partner will immediately inform the other contracting partner in writing should claims be asserted against him with regard to the infringement of such rights.
(2) In the event that the delivery item infringes on an industrial property right or a copyright of a third party, SUER, at its choice and its expense will modify or exchange the delivery item to such an extent that third party rights are no longer infringed but the delivery item will continue to fulfil the contractually agreed function or provide the Customer with the right of use by concluding a licensing agreement. If SUER is unsuccessful in this within a reasonable period of time, the Customer is entitled to withdraw from the contract or to reasonably reduce the purchase price. Possible claims for damages on the part of the Customer are subject to the restrictions of clause 8 of these General Terms and Conditions of Business.
(3) In the event of infringements relating to products of other manufacturers delivered by SUER, SUER will, at its discretion, assert its claims against the manufacturer and sub-supplier for account of the Customer or assign such claims to the Customer. In these cases, claims against SUER in terms of this clause 7 only exist if the legal enforcement of the aforementioned claims against the manufacturer and the sub-supplier was fruitless or, for example is hopeless due to an insolvency.
Clause 8 - Liability restrictions
(1) SUER’s liability for damages, irrespective of the legal ground, in particular due to impossibility, delay, defective or incorrect delivery, contractual violation, violation of obligations during contractual negotiations and illegal action is, as far as there is a question of culpability, restricted in terms of this clause 8.
(2) SUER is not liable in the event of simple negligence of its organs, legal representatives, employees or other vicarious agents as far as it does not relate to a violation of essential contractual obligations. Essential contractual obligations comprise the obligation for the timely delivery and installation of the delivery item, its freedom of legal defects as well as such material defects which make its functionality or usability more than merely insignificantly hampered, as well as obligations to advise, protect and exercise proper care which make it possible for the Customer to use the delivery item in terms of the contract or have the purpose of protecting body or life of the Customer’s employees or to protect his property from considerable damage.
(3) As far as SUER, is liable for damages in terms of Clause 8 (2), this liability is restricted to damages which SUER foresaw as a possible consequence of a contractual violation when concluding the contract or should have seen by applying customary care. Indirect damages and consequential damages resulting from defects in the delivery item are only eligible for compensation as far as such damage could be typically expected when using the goods for their intended purpose.
(4) In the event of a liability for simple negligence SUER’s liability for material damage and any resultant further loss of income is restricted to an amount of EUR 5.200.000 per claim (corresponding to the current sum insured by SUER’s product liability insurance or liability insurance) even if it relates to a violation of essential contractual obligations.
(5) The aforementioned liability exclusions and restrictions apply to the same extent in favour of SUER’s organs, legal representatives, employees and other vicarious agents.
(6) As far as SUER provides technical information or acts as a consultant, and this information or consultation is not part of its owed contractually agreed scope of service, this takes place free of charge and excludes any kind of liability.
(7) The restrictions of this clause 8 do not apply to SUER’s liability for any intentional and grossly negligent behaviour, for guaranteed quality characteristics, harm to life, body or health or in terms of the Product Liability Act.
Clause 9 - Reservation of title
(1) The delivered goods (reserved goods) remain the property of SUER until all demands to which SUER is entitled to claim against the Customer now and in future have been settled; this includes all balance claims from the current account. As far as the Customer’s behaviour is in breach of the contract - in particular as far as he is in arrears in settling a payment request - SUER has the right to take back the reserved goods after SUER has set a reasonable period of grace for the performance. Any incurred transport costs are for the Customer’s account. As far as SUER takes back the reserved goods, this represents a withdrawal from the contract. If SUER pledges the reserved goods, this is equally considered to be a withdrawal from the contract. SUER may further exploit the reserved goods it has taken back. The proceeds from the exploitation is set off against the amounts which the Customer owes SUER after SUER has deducted a reasonable amount for the cost of such exploitation.
(2) The Customer shall treat the reserved goods with care. He shall adequately insure them at their replacement value against damage caused by fire, water and theft at his expense. In the event that maintenance and inspection work is required, the Customer shall perform such services in good time at his own expense.
(3) The Customer may use the reserved goods and sell them during the course of normal business as long as he is not in default of payment. He may, however, not pledge or assign them by way of security. The Customer’s already now assigns SUER by way of security his entire payment claims against his customers resulting from the sale of the reserved goods as well as those claims the Customer has with regard to the reserved goods arising from another legal ground against his own buyers or third parties (in particular claims due to illegal action and entitlements to insurance benefits) including all balance claims from the current account. SUER accepts this assignment. The Customer may collect the claims assigned to SUER at his expense and on his own behalf for SUER as long as SUER does not revoke this authorization. This does not affect SUER’s right to collect these claims itself; however, SUER will not assert this right and will not revoke the collection authorization as long as the Customer properly meets his payment obligations. However, should the Customer behave contrary to the contract - in particular if he is in arrears with a payment claim - SUER can demand that the Customer notifies SUER of the assigned claims and the relevant debtors, and notify the relevant debtor of the assignment and hand over all the documents to SUER and provide SUER with all the information it needs to assert the claim.
(4) Processing or transformation of the reserved goods by the Customer is always carried out for SUER. If the reserved goods are processed with other items which do not belong to SUER, SUER acquires co-ownership in the new item proportionate to the value of the reserved goods (final invoice amount including value-added-tax) to the other processed items at the time of the processing. Apart from that, the same applies to the new item that was created through the processing as for reserved goods. If the reserved goods are inseparably combined or mixed with other goods which are not the property of SUER, SUER acquires co-ownership in the new item proportionate to the value of the reserved goods (final invoice amount including value-added-tax) to the other combined or mixed items at the time they are combined or mixed. If the reserved goods are combined or mixed in such a way that the Customer’s item is to be seen as the main thing, the Customer and SUER already now agree that the Customer shall transfer proportional co-ownership of this item to SUER. SUER accepts this assignment. The Customer will keep the thus created sole ownership or co-ownership of an item for SUER.
(5) In the event the reserved goods are pledged by a third party or other interventions by a third party, the Customer must point out SUER’s ownership and must immediately inform SUER in writing so that SUER can assert its property rights. The Customer shall be liable in the event that the third party is unable to refund SUER any legal or out-of-court costs in this regard.
(6) At the Customer’s request, SUER is obligated to release the securities to which SUER is entitled to the extent that the realisable value exceeds the value of SUER’s entitled outstanding claims against the Customer by more than 10%.
Clause 10 - Final provisions
(1) If the Customer is a merchant, a legal person under public law or a special fund under public law or does not have a general place of jurisdiction in the Federal Republic of Germany, Remscheid shall be the place of jurisdiction for all possible disputes arising from the business relationship between SUER and the Customer. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.
(2) The relationships between SUER and the Customer are exclusively subject to the law of the Federal Republic of Germany. The agreement of the United Nations governing the international sale of goods of 11 April 1980 (UN Convention on Contracts for the International Sale of Goods (CISG)) does not apply.
(3) Should this agreement or these General Terms and Conditions of Business contain lacunae, such effective regulations to fill these lacunae, which the contracting partners would have agreed in terms of the commercial intent of the agreement and for the purpose of these General Terms and Conditions of Business had they known of the lacuna, are deemed agreed.
The Customer notes that SUER stores data in connection with the contractual relationship in terms of section 28 Federal Data Protection Act for the purpose of data processing and reserves the right to transfer these data to third parties (e.g. insurance companies), as far as they are required to fulfil the agreement.
SUER Nutzfahrzeugtechnik GmbH & Co. KG