Scope of application
The terms and conditions of business set out below form an integral part of all our quotations and contractual order confirmations, and are the basis of all our sales and deliveries, including consultation services and the provision of information. These terms and conditions shall apply no later than at the moment in which the customer takes delivery of the item or service concerned.
Customer terms and conditions that differ in any way from our own terms and conditions are hereby excluded, even if we have not expressly opposed their application.
These general terms and conditions shall also apply accordingly to additional and/or follow-up orders submitted under the terms of section I.1. They shall come into effect by no later than the moment in which the corresponding items and/or services are accepted.
Contents of the agreement
Provisional, non-contractual notifications, in particular but not limited to quotations, descriptions and/or cost estimates, shall remain non-binding, unless otherwise expressly agreed. Details contained in brochures, fact-sheets, descriptions of applications and elsewhere are provided for general informative purposes only. They are strictly non-contractual, unless otherwise agreed. Contractual amendments and oral side-agreements must be confirmed in writing to be effective. If this agreement forms part of a business relationship with a commercial entity, our written order-confirmation shall determine the content and scope of the agreement.
We reserve the right, when completing the order, to apply technical changes arising from progress in the area of technological development and/or which, in individual cases, are in the interest of the quality of the work being carried out and/or are reasonably considered beneficial to the other party to the agreement.
Prices
Unless otherwise specified, our prices are quoted without value-added tax (VAT) at the corresponding rate. If the legally-applicable rate of value-added tax rises after the conclusion of the agreement, we shall be entitled to increase the corresponding prices accordingly.
Partial deliveries, transfer of risk
Risk shall be transferred to our contractual partner on the date of acceptance of the work concerned. This shall also apply to partial deliveries, insofar as the type and state of completion of the work concerned permit such transfer.
If the customer does not specify any acceptance procedure, the delivery shall be regarded as accepted after twelve (12) working days, starting from the date of issue of written notification of completion. The initial commissioning of the delivery shall in any case confirm its acceptance. This provision shall also apply to partial deliveries. Acceptance cannot be refused or delayed on the grounds of minor defects.
If delivery is delayed at the request of the other party to the agreement, or on grounds attributable to that party (creditor’s default of acceptance), risk shall be transferred to the other party to the agreement for the duration of the delay concerned. The other party to the agreement shall meet the resulting costs of delay, preparation work and storage, along with any additional travel that might be required on the part of our vicarious agents.
We shall be entitled to make partial deliveries to the extent that these are reasonable.
Payment
Payment of invoiced items shall fall due immediately upon receipt of the invoice concerned.
If the other party to the agreement falls into arrears with payments, interest shall be payable in accordance with article 288 of the German Civil Code (BGB), without affecting our entitlement to claim for further loss and damage.
Payments must be made directly to us, and not to any other agent or representative.
Advance payments may be specified by individual agreement. If advance payments are not settled in a timely manner, SOMMER shall be entitled to suspend delivery and/or delay it until the corresponding payments have been met.
In the event of partial deliveries, SOMMER shall be entitled to demand the corresponding part-payments.The offsetting of claims by the other party to the agreement shall only be permitted if the corresponding counterclaim is undisputed, established in law or otherwise legally enforceable.
Reservation of title
All items delivered by us are subject to extended retention of title, and shall remain our property until all claims arising from the conclusion of the agreement and concerning such items subject to retention of title have been settled, regardless of the legal grounds concerned and even if other corresponding claims have already been settled. In the event of resale, all customer claims to items subject to retention of title arising from such resale shall be assigned to us up to their finally-agreed invoiced amount. If the item supplied is processed alongside or combined with other items, SOMMER shall, until payment has been settled in full, be entitled to claim joint shared title to the resulting item up to the value of the corresponding, final invoiced amount.
Warranty
Warranty liability for the work supplied shall expire after twelve (12) months, starting from the date of acceptance of the work concerned or, if no acceptance is forthcoming, from the date on which the item is first put into use, provided that:
a) we are notified in writing of immediately apparent defects within two weeks of acceptance or, if no acceptance is forthcoming, from the date on which the item is first put into use. Defects that are not immediately apparent must be reported to us in writing immediately upon discovery and, in any case, within the twelve-month warranty period
b) the item concerned has been correctly maintained by SOMMER and used for its intended purpose by the other party to the agreement.
In the event that the customer demands rectification, SOMMER shall, at its own discretion, repair or replace the item concerned
If and to the extent that SOMMER finally and definitively refuses to rectify the defect on the grounds of unreasonable cost, or if such rectification fails or proves to be unviable for SOMMER, the customer may, at its discretion, demand a reduction in price or withdraw from the agreement
The customer’s right to withdraw shall not apply if the contractual infringement is only minor, or if the defect is due to breach of duty not attributable to the supplier.
The customer shall allow the supplier to take, at the supplier’s discretion, the necessary time and opportunity to remedy defects.
Liability
All claims not expressly defined in these terms and conditions, with particular reference but not limited to claims for loss and damage arising from impossibility of delivery, delay, breach of contract, contractual negligence, tort and/or compensation for secondary loss and damage – even if such claims relate to the warranty rights of the other party to the agreement – are hereby excluded, unless they are attributable to wilful or gross negligence or breach of contract by us, our legal representatives or vicarious agents. This provision shall not apply to personal injury or loss and damage attributable to the infringement of cardinal contractual obligations.
If this agreement forms part of a business relationship with a commercial entity, our liability shall be limited, even in the event of gross negligence, to the loss and damage foreseeable when entering into the agreement. Liability for gross negligence is furthermore excluded in the context of transactions with a commercial entity if the resulting loss and damage is attributable to a minor contractual infringement by any of our vicarious agents.
For the purposes of rectification, we must be notified immediately and in writing of all and any irregularities affecting the fulfilment of our contractual obligations, otherwise no resulting claims can be accepted.
Applicable law, place of performance and jurisdiction
- This agreement is subject exclusively to the laws of the Federal Republic of Germany.
- The exclusive place of performance shall be SOMMER GmbH registered place of business in Hilter (Germany).
- Exclusive legal jurisdiction corresponds to the courts and tribunals of the German city of Osnabrück.
Data storage
Pursuant to the German Federal Law on Data Protection (Bundesdatenschutzgesetz), we shall be entitled to process and store data we receive from the other party to the agreement in connection with our business relationship insofar as this data is required for the contractual purposes of carrying out the agreement. The other party to the agreement hereby expressly authorises SOMMER, to the extent required by the legal transactions concerned, to collect and process its data using the corresponding IT systems.
SOMMER GmbH
49176 Hilter