General Terms and Conditions of
Supratec Gesellschaft für Umwelt- und Verfahrenstechnik mbH von-Drais-Str. 7 ∙ D-55469 Simmern ∙ Amtsgericht Bad Kreuznach HRB 4860
as per October 2012
1.1 All sales, deliveries and installations on the part of Supratec to third parties are performed exclusively in accordance with the following terms and conditions. Any contradictory terms and conditions of the customer are not acknowledged by the acceptance of its orders unless this is expressly confirmed in writing by Supratec.
1.2 These General Terms and Conditions (GTC) also apply for all future orders placed by the customer with Supratec.
2. Quotations, prices, bringing about of contracts
2.1 The quotations tendered by Supratec are always without obligation and unbinding insofar as no special agreements have been concluded. Agreements concluded orally, by telephone or by representatives of Supratec only become valid once confirmed in writing by Supratec.
2.2 The quotations are based on the currently applicable material prices; there are no fixed prices. If costs increase following conclusion of the contract and during the manufacturing process, Supratec is entitled to adjust the prices accordingly.
2.3 If the performance of a contract is delayed for reasons for which the customer is responsible, Supratec may claim compensation from the customer for any additional costs incurred as a result of the delay. Even without the need to provide evidence of such additional costs, Supratec may impose a surcharge of 0.5% of the net price for every month commenced as of the seventh month of delay.
2.4 Unless otherwise agreed, all prices are understood as not including statutory value added tax, insurance, transport and packaging ex works and installation. The transport risk is borne by the customer, even in cases where Supratec orders the shipment. The prices apply excluding all parts and components which are not expressly listed in any agreed material list. This shall also apply for all additions, supplements, amendments or reductions of the order.
2.5 The delivery or service to be performed by Supratec is subject to correct and timely delivery to us by our own suppliers. Should the ordered goods or service no longer be available and/or only be procurable with unreasonable efforts, Supratec is entitled to withdraw from the contract. Supratec’s responsibility for intent or negligence as defined by Point 12 of these terms and conditions shall remain unaffected. In this case, Supratec will notify the customer immediately that the order cannot be executed and refund any payments it has already received for the goods or service. Supratec is also entitled to withdraw from the contract if it becomes aware following conclusion of the contract of an objective lack of creditworthiness on the customer’s part which might put Supratec’s claims for payment at risk.
2.6 All specifications provided by Supratec concerning the object of the delivery or service (e.g., weight, dimensions, market values, tolerances and technical data) and any representations of the same (e.g., drawings and graphics) are only approximately decisive unless the use of the delivery or service for the purpose outlined in the contract stipulates an exact match. They are not guaranteed characteristics, but instead descriptions or designations of the delivery or service. Deviations which are customary in the trade, which occur as a result of legal regulations or which represent technical improvements and the replacement of components with equivalent parts are permitted as long as they do not influence the usability of the delivery or service for the purpose outlined in the contract.
3. Payment conditions
3.1 Unless agreed otherwise, all prices apply in euros (€) and net, in other words without discounts or other deductions.
3.2 Supratec can demand payment in three to five identical or similar instalments, determined by Supratec, during the performance of the contract. Supratec may make the first instalment due directly after placement of the order and then determine the due dates of the remaining instalments in such a way that Supratec is not required to complete any advanced performances.
3.3 In the case of arrears, Supratec is entitled to apply default interest at 8% above the base rate.
3.4 Offsetting against the customer’s counterclaims or retention of payments as a result of such claims is only permitted insofar as the counterclaims are undisputed or have become res judicata.
3.5 Supratec is entitled to execute or perform any outstanding deliveries or services only against advance payments or the provision of a security if it becomes aware of circumstances following conclusion of the contract which considerably reduce the customer’s creditworthiness and which put the payment by the customer of Supratec’s open claim from the respective contractual relationship at risk.
4. Reservation of title
4.1 All deliveries and services performed by Supratec are done so under reservation of title. Title shall only pass to the customer once all Supratec’s claims from the business relationship have been settled. This includes all claims, irrespective of the legal basis, including future or conditional claims also arising from contracts concluded simultaneously or at a later date within the scope of this business relationship. This also applies if payments are sent for specially designated claims. In the case of a current account, the retained title shall be considered security for Supratec’s outstanding balance claim.
4.2 The customer is obligated to treat the products with care and especially to insure them sufficiently against fire, water damage and theft to their replacement value at its own expense.
4.3 The customer may neither pledge nor use as a security the object to which Supratec reserves the title. In the case of attachments or seizures of property and other third party decrees, the customer must inform Supratec accordingly immediately. In such a case, the customer must also provide Supratec with all the help required to safeguard its rights. Any costs incurred by necessary interventions shall be borne by the customer. In the case of cessation of payment, the customer must also inform Supratec of the goods still existing.
4.4 Should the customer fall into arrears with the payments, Supratec is entitled – without affecting the validity of the rest of the contract – to demand that the goods be returned immediately. If Supratec asserts the reservation of title, this shall only apply as withdrawal from the contract if Supratec has expressly declared so in writing. The transport and other costs incurred by Supratec when reclaiming the goods shall always be borne by the customer.
4.5 The processing or transformation of the reserved goods by the customer is always performed for Supratec. If the reserved goods are processed or mixed with others, the reservation of title shall continue to apply to the processed or mixed goods. If the reserved goods are processed or mixed in such a way that they cannot be separated with other objects not belonging to Supratec, Supratec shall be granted ownership of the new item in the ratio of the invoiced value of the reserved goods in the sense of these provisions to the value of the new item. If reserved goods are combined with other commodities to form a whole or mixed together so that they cannot be separated and if the other item is deemed to be the main item, the customer shall assign Supratec pro rata co-ownership, insofar as the main item belongs to it. In the cases above, the customer already assigns Supratec its rights of ownership to the processed, combined or mixed goods here and now. The handover is replaced by the customer storing the processed, combined or mixed object for Supratec. In all other respects, the same shall apply for the item produced via processing, use or mixture as for reserved goods.
4.6 The customer is entitled to process and resell the reserved goods within its normal course of business unless it falls into default with Supratec, has ceased payments or bankruptcy proceedings are being initiated concerning its assets. The customer assigns all claims with all rights arising for him over recipients or third parties as a result of the reselling to Supratec in the full amount here and now. Supratec accepts this assignment. If reserved goods are resold by the customer – following processing/combination – together with other goods not belonging to the customer, it assigns all the claims here and now that arise from the reselling in the sum of the value of the reserved goods with all ancillary rights and with the rank above all others to Supratec. Supratec accepts this assignment here and now.
4.7 The customer is also authorised to collect these claims even after assignment. Supratec’s possibility of collecting the claims remains unaffected – however, Supratec undertakes not to collect the claims as long as the customer complies with his payment and other obligations correctly and especially as long as no bankruptcy proceedings are initiated, there is no cessation of payment or reasonable doubt of the customer’s ability to pay or creditworthiness. The customer is not entitled to assign the claims to others under any circumstances.
4.8 Supratec may demand that the customer notify it of the claims and the debtors, provide all the information necessary for the collection, provide the corresponding documents and inform the debtors of the assignment. Any bills of exchange issued by third-party purchasers must be transferred to Supratec.
4.9 If the value of the securities accruing to Supratec exceeds its total claims over the customer by more than 20%, Supratec, at the customer’s request, is obligated to release the securities to the exceeded extent, whereby Supratec may select which securities.
4.10 Should Supratec take back goods by mutual agreement, the credit note for them will only be issued to the actual market value.
Supratec only performs the planning or consultancy services for an order if this has been expressly agreed. Planning or consultancy services performed free of charge and orally are unbinding and as such no liability is assumed.
6. Delivery period
6.1 Delivery periods are only binding if they have been expressly guaranteed as such in writing by Supratec.
6.2 Agreed delivery periods shall be extended and Supratec not fall into default if Supratec is hindered in the performance of the order by circumstances beyond Supratec’s control, especially natural disasters, accident, public unrest, factors concerning its suppliers and carriers, late deliveries on the part of Supratec’s suppliers or epidemics. Supratec shall notify the customer of the cause and foreseeable duration of the delay.
6.3 If the goods are made available by Supratec on time but not accepted by the customer, Supratec is entitled to invoice the customer for the storage costs or any incurred additional costs.
7.1 If the delivered parts are installed by Supratec or a subcontractor commissioned by Supratec, the customer must provide a lockable room for the storage of materials and tools.
7.2 It must be possible to perform the work without being disturbed by others.
7.3 Installed parts are transferred to the customer’s custody. Free replacements will not be delivered in cases of damage or theft.
7.4 If the installation is performed or commissioned by the customer, the delivered parts are transferred to the customer’s custody on delivery.
8.1 The customer may only use all the plans, drafts and design drawings and descriptions, manuals and operating instructions (hereinafter “documents”) disclosed or provided to it by Supratec for the purposes for which they were disclosed or provided and must only make them available to people who are trustworthy and who have previously been sworn to confidentiality in the scope of Point 8 of this document.
8.2 The customer may only copy, make drawings of, transcribe or store descriptions of the documents of parts thereof – including all the information contained therein concerning products, machine types and design details, edit or amend the documents, provide them to third parties, inform third parties of the existence of the documents or make use of them in any other way with the express written permission of Supratec; expressly forbidden is the execution of the plans or planning concepts contained in the documents by the customer or a third party without the express, advanced, written permission of Supratec. This obligation shall continue after the winding up of the order.
8.3 The customer shall compensate Supratec for all damages that Supratec incurs as a result of a breach of these confidentiality obligations, including by third parties to whom the customer has made the documents available and also insofar as the documents are protected by copyright, patents or any other rights. The compensation obligation also applies to any profits lost by Supratec in the case where the customer or a third party does not place an order with Supratec as a result of a breach of the above confidentiality obligations.
9.1 Supratec packages the goods at its discretion. The packaging will be invoiced to the customer at cost price and ownership passes to the customer.
9.2 The packaging costs will be refunded if the packaging is returned to Supratec free of charge and can be reused by Supratec.
The goods must be checked to be complete and free of errors as soon as they are received. In the case of incomplete or damaged deliveries, Supratec must be notified immediately in writing, at the latest, however, within one week of receipt. Complaints received after this date cannot be acknowledged.
11.1 The customer’s warranty rights over Supratec, with the exception of those referring to construction services in the sense of §§ 438 Para. 1 No. 2 and 634 a Para. 1 No. 2 BGB (German Civil Code), become time-barred one year after delivery or the acceptance of the item insofar as they concern purchasing and/or work performances.
11.2 Warranty claims for defects do not apply for defects: caused by factors outside the contractual performance of Supratec; arising from improper changes/modifications or repairs performed by the customer or third parties commissioned by the customer which have not been approved in writing by Supratec and the resulting consequences; in cases of only insignificant deviations from the agreed characteristics or only insignificant impairment to the usability (the customer still has the right to reduce the price accordingly); in case of natural wear and tear; in case of damage occurring as a result of improper or negligent treatment by the customer or third parties who are not vicarious agents, visitors or other persons acting on the orders of Supratec.
11.3 No warranty can be given for the standing time or service life of the venting inserts, as the influences of the wastewater and the mode of operation of the systems cannot be influenced by Supratec. Process warranties, in particular oxygen insertion warranties, shall only be assumed by Supratec if the scope of supply entails not only the venting elements, but also the piping or planning and such a guarantee has been assured in writing.
11.4 Insofar as the order is subject to the law of service contracts, Supratec shall warrant by supplementary performance. Only after the second attempt at supplementary performance on account of one and the same defect has failed can the customer assert the cancellation of the order or reduction of the remuneration. In all other cases, all warranty claims shall be excluded.
11.5 Insofar as the order is subject to the law of sales contracts, Supratec shall warrant by supplementary performance or supplementary delivery at its discretion. The customer’s warranty claims shall only be established if two attempts at supplementary performance by Supratec have failed or Supratec declares supplementary performance to be futile.
11.6 In the case of parts not manufactured by Supratec (e.g., machines, fittings, etc.), Supratec’s obligation to supplementary performance shall be limited to corresponding obligations for liability for defects of the manufacturers/suppliers in question pursuant to their contract terms/GTC. Prior to conclusion of the agreement, the customer shall be permitted to view the corresponding contracts/GTC. At the customer’s request, Supratec shall be willing to assign the claims from defects with regard to services purchased from third parties to the customer. In such cases, Supratec shall be indemnified from all and any claims in connection with the legal relationship to the third party in question.
11.7 We cannot be made liable for consequential damage to the extent that it is not to be put down to risks typical for the contract.
11.8 If the customer reports a defect which cannot be identified by Supratec in the scope of tests and if the customer was aware that there was no defect when the report was submitted or made a mistake as a result of negligence, the customer is obligated to compensate Supratec for the damages incurred. The customer is entitled to prove that the reported defect does in fact exist. Within the scope of the above provisions, Supratec is especially entitled to have the customer reimburse it for its efforts in, for example, investigating the matter or for any repairs ordered by the customer.
12. Damages, liability, barring of claims
12.1 To the extent not prescribed to the contrary by law, claims for damages and reimbursement shall become statute-barred 12 months after origination of the claim and knowledge of the origination of the claim by the customer.
12.2 Supratec shall be liable without limitation for damages caused by deliberate misconduct of its employees, including legal representatives and executive employees as well as other vicarious agents. In the event of direct damages caused by gross and slight negligence, Supratec shall be liable – insofar as it is a question of a breach of contractual obligations – to a maximum of a sum total of 1.2 million euros for all damage. The liability of Supratec for indirect damage and consequential damage such as loss of profits and saved expenditure shall be excluded insofar as this is legally admissible.
12.3 An agreed and incurred contractual penalty shall be offset against the customer’s claims to damages on account of arrears.
12.4 If the customer’s employees or their insurance companies make claims for damages against Supratec, the customer shall release Supratec from the obligations to pay damages insofar as the claims are barred or excluded for the customer pursuant to the provisions of these terms and conditions.
12.5 Insofar as the liability of Supratec has been excluded or limited pursuant to the aforementioned provisions, this shall also apply in favour of the employees of Supratec in the event of direct claims by the customer.
13. Choice of law, legal venue
13.1 The order is subject to German Federal law insofar as the application of foreign law is not expressly stipulated in accordance with the provisions of German private international law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 with its supplements and amendment – insofar as permissible – only applies in the latter case.
The Regional Court in Bad Kreuznach is exclusively responsible for all legal disputes arising in conjunction with the order irrespective of the sum in dispute.