International Conditions of Sale for Customers not Resident in Germany
§ 1 General – Scope
- Our “International Conditions of Sale for Customers not Resident in Germany” shall apply to all customers of SONAX GmbH, whose relevant place of business is not in Germany. For customers whose place of business is in Germany, the “General Terms and Conditions of Sale” of SONAX shall apply. In each case, the relevant place of business is the one which concludes the contract in its own name.
- Our Conditions of Sale apply exclusively; we shall not accept conditions of the customer conflicting with or differing from our terms and conditions of sale unless we have expressly agreed to the validity of such terms and conditions in writing. Our Conditions of Sale shall also apply if we effect delivery to the customer unconditionally in the knowledge of terms and conditions of the customer conflicting with or differing from our Conditions of Sale.
- All agreements made between us and the customer for the purposes of the execution of this contract shall be set down in writing in this contract.
- Our Conditions of Sale shall apply only to entrepreneurs and companies as defined by § 310 (1) of the German Civil Code (BGB).
- The German version of these Conditions of Sale, as set forth hereunder, is expressly agreed on as solely authoritative. The English version is for working purposes only and not legally binding; it is not part of the contract.
§ 2 Formation of the Contract
- Insofar as an order placed by the customer constitutes a contractual offer within the meaning of § 145 BGB, we are entitled to accept the offer within two weeks by dispatching a written confirmation.
- Our contractual offers are non-binding unless expressly declared as binding.
- With regard to calculations, pictures, drawings and other documents we reserve all proprietary rights, copyrights and other industrial rights. Without our prior written consent the customer is not entitled to make them available to third parties, whether they were declared confidential or not.
§ 3 Prices
- Our prices are in Euro on the basis of the price list valid at the time of the order, ex factory Neuburg/Danube, exclusive of the respective statutory VAT, freight charges, postage and insurance. Additionally, the customer shall bear customs duties, customs clearance charges, taxes and levies arising out of the delivery of the goods. Packaging material shall be free of charge. The customer shall bear the cost of any pallet fees incurred by us.
- Should the customer ask us to collect the transport packaging, he shall bear the cost incurred for packaging, loading, transport to our factory (Neuburg/Danube) and unloading. In such case, the customer shall be obliged to conclude an appropriate contract of carriage in its own name and at its own expense. Where the collected transport packaging cannot be reused, the customer shall bear the recycling costs incurred by us and additionally the customs clearance charges, taxes and levies incurred for the collection of transport packaging.
§ 4 Terms of Payment
- All invoices shall be payable in full within 30 days of the due date and receipt of the invoice or an equivalent request for payment. The customer is in default on the 31st day after receipt of the invoice or any equivalent request for payment. As per this day we shall be entitled to default interest amounting to 8 percentage points above the current basic interest rate of the European Central Bank. Bills of exchange, cheques, assignments and accepted bills shall only be accepted by arrangement and only by way of provisional performance and on condition of eligibility for discount. Discount charges will be invoiced from the day the amount of the invoice is due. The customer shall bear all costs related to these papers. They will only be credited to the orders upon encashment and after the risk of recourse has passed, expenses deducted.
- Should it emerge after the conclusion of the contract that the customer´s ability to pay is not sufficiently guaranteed and our claim for payment is - in our own opinion - endangered, we are entitled to refuse delivery, to accelerate maturity of the whole balance owing and to withdraw from any contract entered into with the customer unless the customer offers security at our discretion within ten calendar days of our demand. The same applies if the customer fails to comply with our terms of payment.
- The customer shall only be entitled to offset payments if its counterclaims have been upheld pursuant to a final and absolute court decision, are uncontested or acknowledged by us. Furthermore, the customer shall be entitled to exercise a right of retention insofar as the counterclaim is based on the same contractual relationship.
§ 5 Acceptance and Transfer of Risk
The goods shall be deemed to be sold “ex works” even if we have made a carriage-paid delivery. The risk of accidental loss or accidental deterioration of the goods passes to the customer after they have been reported ready for dispatch. This also applies if we undertake to deliver the goods. The customer undertakes to collect the goods without delay after they have been reported ready for dispatch. In case of default we are at our discretion entitled to either dispatch the goods or store them at the customer´s expense respectively.
§ 6 Delivery Time
- The beginning of the delivery time specified by us shall presuppose that all technical issues have been clarified.
- Compliance with our duty to deliver shall furthermore be contingent on the customer duly meeting its obligations in good time. We reserve the right to make a plea of non-performance.
- In the event that the customer is in default in taking delivery or in breach of any other duties to cooperate incumbent upon him, we shall be entitled to demand compensation for any losses sustained by us, including any additional costs incurred. We reserve the right to assert further claims.
- To the extent that the conditions of paragraph (3) are given, the risk of accidental loss or an incidental deterioration of the object of sale shall pass to the customer from the moment the customer is in default in taking delivery or in default of payments.
- We shall be liable in accordance with the legal provisions
- where the underlying sales contract is a transaction where time is of the essence as defined by § 376 of the German Commercial Code (HGB);
- where, as a result of a delay in delivery attributable to us, the customer is entitled to claim that he has no interest in continuing with the further performance of the contract;
- where the delay in delivery is due to a wilful or grossly negligent breach of contract attributable to us. Fault on the part of our representatives or vicarious agents shall be attributed to us. Provided that the delay in delivery is not caused by a wilful breach of contract attributable to us, our liability for damages shall be restricted to foreseeable, typically occurring damage;
- where the delay in delivery attributable to us is due to a culpable breach of a material contractual obligation. Liability for damages shall be restricted to foreseeable, typically occurring damage.
- In the event of any delay in supplying the goods through no fault of ours due to force majeure, illegal industrial action, administrative measures, non-delivery of supplies by third parties or other events we are not liable for, the customer shall grant an extension of time adequate under the circumstances. If we fail to meet the deadline, the customer is entitled to withdraw from the contract.
§ 7 Liability for Defects and Liability for Damages
- The customer is obliged to examine the goods without delay and to give us notice in writing within ten days after receipt of the goods of such defects as are obvious and recognisable by proper examination. In case of such defects that are not obvious and recognisable by proper examination, the customer shall give us notice in writing within ten days after discovery. If the customer fails to meet the deadline for notification, he is not entitled to any claims regarding the defects concerned.
- If the customer gives us notice of the defect in time, it is at our discretion to rectify the defects or to replace the faulty item (subsequent performance). Should the cost of subsequent performance amount to more than 50% of the value of the items delivered, we are entitled to refuse a subsequent performance. In case of subsequent performance we shall bear all necessary expenses, in particular the costs of transport, labour and material, provided that such costs are not increased by the fact that the object of sale has been taken to a location other than the place of performance.
- In the event that the subsequent performance fails, is not carried out in time or is refused, the customer is entitled to choose between withdrawal from contract, a reduction of the purchase price corresponding to the decrease in value caused by the defect (abatement) or – within the limits of the following paragraphs – claim damages instead of performance. In case of minor defects, the customer is not entitled to withdraw from the contract.
- We shall be liable in accordance with the legal provisions
- if the customer claims damages on the grounds of wilful or gross negligence, including wilful or gross negligence on the part of our representatives or vicarious agents. Provided that we are not accused of wilful breach of contract, our liability for damages shall be restricted to foreseeable, typically occurring damage.
- insofar as we culpably breach a material contractual obligation. In such case liability for damages shall be restricted to foreseeable, typically occurring damage.
- Our liability for a culpable loss of life, physical injury or damage to health remains unaffected; this shall also apply to statutory liability under the German Product Liability Act.
- Any further contractual or tortuous liability, especially for damage to objects other than the goods delivered to the customer, for loss of profit or other financial damage is hereby excluded.
- In case of any breach of precontractual obligations or any impediment to performance already existing at the time the contract is concluded (§§ 311par.2, 311a BGB, German Civil Code), our liability is limited to compensation for damage through or loss incurred by relying on the validity of a declaration.
- Par. (4) to (7) also apply to our tortuous liability and claims to damages resulting from other breaches of obligations as well as claims to reimbursement of useless expenses according to § 284 BGB.
- The aforementioned exclusions or limitations of liability also apply to the personal liability of our employees, workers, freelances, representatives and vicarious agents.
§ 8 Limitation of Actions
- Our liability for a customer´s claims based on defects is limited to one year after delivery, clause 7 (1) notwithstanding, unless we acted fraudulently.
- The period of limitation in case of delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years commencing from delivery.
§ 9 Reservation of Title
- We reserve the title to the object of sale until all payments stipulated in the delivery contract have been received. Should the customer act contrary to the terms of the contract, in particular, should he fall into arrears, we shall be entitled to take back the object of sale. In the event that we take back the object of sale, this shall not constitute a withdrawal from the contract unless specifically stated by us in writing. Seizure of the object of sale by us shall always constitute a withdrawal from the contract. After we have taken back the goods we shall be authorised to use them as we see fit. Any revenues from such use must then be offset against the liabilities of the customer, less reasonable utilisation costs.
- The customer shall be obliged to take good care of the object of sale and, in particular, shall be obliged to provide sufficient replacement value insurance against fire damage, water damage and theft. Where maintenance and inspection work are required, the customer must carry these out in good time at its own expense.
- In the event of seizure or other third-party interventions, the customer must notify us immediately in writing so that we may file a suit in accordance with § 771 of the German Code of Civil Procedure (ZPO). Where the third party is unable to reimburse the court and out-of-court expenses of a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for any loss incurred by us.
- The customer shall be entitled to resell the object of sale in the ordinary course of business; he shall, however, assign to us here and now any claims amounting to the total sum invoiced (including VAT) accruing from the resale to the purchaser or third parties, regardless of whether the object of sale was resold with or without further processing. The customer shall remain entitled to collect this claim following assignment. This shall be without prejudice to our right to collect the claim ourselves. We shall, however, undertake to refrain from collecting the claim as long as the customer meets its payment obligations from the proceeds received, does not fall into arrears and in particular provided that no composition or insolvency proceedings have been filed or cessation of payments occurs. However, in such cases, we shall be entitled to demand that the customer notifies us of the assigned claims and the respective liable parties, provides us with all information necessary to collect the claim and submits to us all appropriate documents and notifies the liable parties (third parties) of the assignment.
- If the customer takes his claim resulting from a resale into a current account with a third party, his claim from this account agreement is herewith assigned to us in full; upon balancing the accepted balance is assigned to us up to the amount of the original claim from the account agreement. In case of a current account agreement, retention of title and assignment are deemed to be a security for our current account claim. If the customer resells goods still in our property together with other goods not in our property, he shall assign his claims resulting from this sale to us to the extent the goods supplied by us form part of the sale.
- Any processing and reorganisation of the object of sale by the customer shall always be considered to be carried out for us. If the object of sale is processed with other objects that do not belong to us, we shall acquire co-ownership of the new object in proportion to the value of the object of sale (total sum invoiced, including VAT) to the value of the other processed objects at the time of processing. The same shall apply to the object resulting from the processing as for the object of sale delivered subject to retention of title.
- If the object of sale is inseparably commingled with other objects that do not belong to us, we shall acquire co-ownership of the new object in proportion to the value of the object of sale (total sum invoiced, including VAT) to the value of the other commingled objects at the time of commingling. If the commingling is effected in such a way that the object of the customer may be considered the main object, it is deemed to be agreed that the customer shall assign to us pro rata co-ownership. The customer shall keep the resulting sole or co-ownership on our behalf.
- We undertake to release the securities which we are entitled to at the request of the customer insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %. It shall be our responsibility to select the securities to be released.
§ 10 Export Control
The Customer undertakes to comply with any and all applicable Export laws and Regulations adopted by the EU, the EU-member states and the USA. The Customer especially agrees to carry out a Denied Party Screening and warrants that
- no person, company or organization mentioned in the EC Anti-Terror Regulations as amended (EC-Regulation No. 2580/2001 and EC-Regulation No. 881/2002 as amended) will be directly or indirectly supplied with the contractual products;
- no person, company or organization mentioned in the US Sanctions Lists (including without limitation the Denied Persons List, Entity List, SDN-OFAC as amended) will be directly or indirectly supplied with the contractual products;
- the products and product related data supplied hereunder are not intended and/or used for military, nuclear or armaments purposes;
- no military consignees will be supplied.
The Customer furthermore agrees to document its screening measures and to furnish proof of it at our request.
The Customer´s failure to comply with the above mentioned export laws and regulations shall constitute a substantial infringement of the customer´s obligations hereunder and entitles us to terminate the contract without prior notice for good cause.
The Customer shall be liable for damages for any loss caused by the premature termination of the contract. The customer´s liability shall include loss of profit as well as incidental and consequential damages. The Customer shall indemnify us and hold us harmless against any and all liability, claims, demands, costs (including expert´s and attorney´s fees), damages and fines arising out of or in any way connected with any infringement of the compliance obligations set forth above.
§ 11 Place of Jurisdiction – Place of Performance – Applicable Law
- Unless otherwise stated in the confirmation of order, place of performance is at our place of business. Place of jurisdiction for any and all lawsuits, including proceedings based on a bill of exchange or an unpaid cheque, is at our place of business. We are also entitled to take legal action against a customer at his place of business.
- The laws of the Federal Republic of Germany shall apply exclusively; the UN Convention on Sale of Goods dated 11 April, 1980 (CISG) is not applicable.
(at May 1st, 2009)