1. The following terms and conditions apply exclusively to entrepreneurs pursuant to Section 14 German Civil Code (BGB), legal entities under public law and special funds under public law.
2. The General Terms and Conditions of the Supplier shall apply to all offers of the Supplier, deliveries and services. Should the Purchaser refer to its own deviating, supplementary or conflicting terms and conditions, these shall only apply if they have been expressly recognised in writing by the Supplier.
3.The General Terms and Conditions of the Supplier shall also apply to pending and imminent future transactions; this shall also apply if no express reference is made thereto, provided that only the General Terms and Conditions of the Supplier were included by the Supplier in a preceding contract from the Supplier.
Delivery dates or delivery periods, binding or non-binding, must be agreed in writing. The delivery periods shall begin upon conclusion of the contract.
The Supplier’s delivery dates or delivery periods shall not be binding unless otherwise agreed in writing. The delivery dates shall also not be binding if the customer has not provided all information and documents required for the business transaction.
The Purchaser may request delivery from Supplier six weeks after exceeding a non-binding delivery date or a non-binding delivery period. The Supplier shall be in default upon receipt of the request. Should the Purchaser be entitled to a claim of compensation for damages caused by delay, the Purchaser shall be entitled to demand lump-sum compensation. However, this shall be limited to a maximum of 5 percent of the purchase price.
Unforeseen operational disruptions, delivery delays or delivery failures on the part of the Supplier’s suppliers, shortages of labour, energy or raw materials, strikes, lockouts, difficulties in procuring transport, traffic disruptions, official decrees and cases of force majeure shall release the party affected from the obligation to deliver or to accept delivery for the duration of the disruption and to the extent of its effect. If delivery or acceptance is delayed by more than one month as a consequence, each of the parties shall be entitled to withdraw from the contract concerning the quantity affected by the disruption in delivery or acceptance, to the exclusion of all further claims.
The Supplier shall be entitled to make partial deliveries without any special agreements, provided that these are reasonable for the Purchaser.
The minimum purchase quantity shall be one unit pack, unless otherwise agreed.
In the case of framework agreements, a term of twelve months from the date of the agreement shall apply unless otherwise stated. This means that the goods can be purchased for a twelve month period in corresponding call-off lots and, after the expiry of these twelve months, the remaining quantity (residual credit) of the framework agreement shall be due for delivery and settlement.
If partial deliveries have been agreed between the Supplier and the Purchaser (call-off orders), the Purchaser shall be obliged to accept delivery in approximately equal monthly quantities, unless otherwise agreed between the parties.
Deliveries shall be made ex supplier’s distribution warehouse, unless otherwise agreed between the parties.
If justified by the nature of the goods, an excess or short delivery of up to 10% compared to the order quantity shall be permissible. When calculating the prices, the prices stated by the supplier shall be decisive.
Version dated: 18.01.2021
The Supplier’s invoices shall be paid in cash without deductions within 30 days of the invoice date. After expiry of the 30-day period, the Purchaser shall be in default of payment.
Cheques and bills of exchange, subject to their discountability, shall only be accepted subject to special agreements and only on account of performance, with all costs and expenses being charged.
Credit shall be made on the day on which the Supplier can freely dispose of the countervalue; an earlier due date in the event of default on the part of the Purchaser shall remain unaffected. No liability shall be assumed for timely presentation, protest, notification and return of dishonoured bills of exchange or cheques.
In the event of default in payment, the Supplier shall be entitled to charge interest to the amount of 8% above the respective base rate announced by the European Central Bank. The Supplier reserves the right to provide proof of and claim higher damages caused by delay.
All claims by the Supplier against the Purchaser shall become due immediately if the Purchaser is in default with one of its payments to the Supplier, enforcement measures are taken against the Purchaser, a prohibition of payment is imposed, composition or insolvency proceedings are applied for or securities requested by the Supplier are not provided. In this case, any discounts, price reductions, etc. granted shall be deemed to have lapsed; the gross prices shown on the invoice shall then be payable.
In the case of partial deliveries, payment shall be demanded for each partial delivery in accordance with the above conditions.
IV. Delivery and transfer of risk.
The prices are ex warehouse of the goods, unless otherwise agreed in writing. However, in the case of invoice values of less than €250 (excluding VAT), the supplier reserves the right to charge a flat rate for small quantities. The shipping method and means shall be determined by the supplier as appropriate.
For all deliveries, the risk of accidental loss and accidental deterioration of the delivery items shall pass to the Purchaser upon handover of the goods to the Purchaser or, in the case of sales shipment to a place other than the place of performance, upon delivery of the item to the forwarding agent, to the carrier or to the person or institution otherwise designated as the recipient of the shipment. It is equivalent to handover if the buyer is in default of acceptance (Section 446 German Civil Code (BGB)).
V. Retention of title
The supplier shall remain the owner of the delivery item until the purchase price has been paid in full. Furthermore, the Supplier shall retain title to the delivery item until all claims to which it is entitled against the Purchaser arising from the business relationship as a whole have been settled in full.
The supplier shall be entitled to withdraw from the contract and to demand the return of the goods in the event of a breach of contract by the Purchaser, in particular, in the event of default in payment.
Insofar as the goods delivered shall be processed or combined with third-party material, the Supplier shall acquire co-ownership of the new item produced to the ratio of the value of the reserved goods to the value of the new item created by processing. The time of processing shall be decisive when determining the value of both the goods subject to retention of title and the new item created by processing. In the event of processing, the Purchaser shall act on behalf of the Supplier but shall not acquire any claims against the Supplier due to the processing. The Purchaser must carefully store the reserved goods for the Supplier.
In the event of resale of the new product created by processing by the Purchaser, the Purchaser shall assign to the Supplier the purchase price claim to which it is entitled from the resale on a proportional basis in accordance with Number 2, Sentences 1 and 2. The Supplier accepts the assignment herewith.
If the Purchaser resells the goods purchased from the Supplier unprocessed, the Purchaser shall assign to the Supplier the claims to which it is entitled from such sales, including all principal and ancillary rights but only up to the amount of the Supplier’s claim from this delivery. The Supplier accepts the assignment.
To the extent that the securities exceed the claims of the supplier by more than 20%, the supplier shall be obliged to release the exceeding share of the securities to which it is entitled at the request of the customer.
Goods subject to retention of title may be neither pledged nor assigned as security without the consent of the supplier. Similarly, the Purchaser shall not bet entitled to assign or pledge its claim from the resale of reserved goods in their original or processed condition to a third party. The Purchaser shall notify the Supplier without delay of any seizure by third parties of the goods subject to retention of title in their unprocessed or processed state or of the assigned claims and shall submit any seizure reports and seizure orders.
The Supplier shall take back packaging material free of charge at the place of performance (section XIII,1.) if and to the extent that a legal obligation to do so exists. If the Supplier designates a disposal location for the return other than the place of performance, the Purchaser shall be obliged to return the goods to this location if this is not unreasonable due to the different distance. The costs of transport to the place of return shall be borne by the Purchaser.
Cable drums remain the property of the supplier unless otherwise agreed in writing. If the Purchaser has paid a deposit for cable drums, this deposit shall be refunded if the Purchaser returns the cable drums to the Supplier free of charge to the place of performance in a defect-free condition within one year after delivery. (Section XIII,1.)
The Supplier shall deliver the goods in accordance with the product description given by the Supplier.
Product descriptions from both the Purchaser and the Supplier shall only be regarded warranted characteristics if they have been expressly recognised as such by the Supplier.
The Purchaser must issue written notice of any recognisable defects immediately upon receipt of the goods by the Purchaser. Insofar as this concerns hidden defects, the Purchaser must notify the Supplier in writing within a limitation period of two weeks after becoming aware of the defects. If the Supplier is not notified, the product shall be deemed approved.
If the complaint by the Purchaser is justified, the Purchaser may demand subsequent performance from the Supplier. This means that the Supplier may either remedy the defect or provide replacement delivery at its own discretion.
If the supplementary performance fails, the customer shall be entitled to demand reduced remuneration (reduction) or to withdraw from the contract at its discretion. In the case of a minor breach of contract, in particular with regard to only minor defects, the customer shall not be entitled to withdraw from the contract.
If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent fulfilment has failed, it shall not be entitled to any additional claim for damages due to the defect.
If the Purchaser chooses compensation for damages after subsequent performance has failed, the goods shall remain with the Purchaser if this is reasonable for the Purchaser. Compensation shall be limited to the difference between the purchase price and the value of the defective item.
No warranty shall be granted for defects which have arisen due to unsuitable or improper use, faulty assembly or commissioning, faulty or negligent handling, normal wear and tear or other detrimental influences and for which the Supplier is not responsible. If the Purchaser or third parties perform improper modifications or repairs on the goods delivered by the Supplier without the prior approval of the Supplier, the warranty for the modified products shall lapse.
VIII. Liability/Other Claims for Damages
Claims for damages by the Purchaser arising from positive breach of contract, from breach of duties arising from contractual negotiations and conclusion of the contract as well as from tort shall be excluded regardless of the legal basis for the claims for damages.
This shall not apply to damage to privately used items in cases of intent or negligence on the part of the Supplier, its legal representative or its vicarious agent in which liability is mandatory.
These restrictions shall not apply to personal injury. In the event of a breach of material contractual liability obligations, the Supplier shall also be liable for minor negligence. The Supplier’s liability under warranty for indirect damage resulting from untypical circumstances for the contract and which are, therefore, not foreseeable for the Supplier shall be excluded. Liability for warranted characteristics shall not be limited by this provision. Insofar as the Supplier’s liability is excluded by this provision, this shall also apply in favour of its employees in the event of direct claims against them by the Purchaser.
IX. Notes from the Supplier
Any information provided by the supplier regarding the use of the goods shall be regarded as general guidelines only.
As the Supplier’s goods can often be used in different ways, the Purchaser shall be responsible for testing the goods with regard to their specific use.
Insofar as the Supplier supports the Purchaser with regard to the application, the Purchaser shall bear the risk of the success. This provision shall not exclude any claims on the part of the Purchaser against the Supplier pursuant to section VIII.
The supplier is a trading company and not a direct manufacturer. Consequently, detailed information regarding the origins with regard to preferential law cannot usually be provided. Therefore, long-term supplier declarations can only be issued in individual cases and to the extent that the required information is provided by the manufacturers.
X. Offsetting and right of retention
The Purchaser may only offset claims on the part of the Supplier if the counterclaim by the Purchaser is undisputed or a legally binding title (legal ruling, settlement, etc.) exists. This shall also apply with regard to any right of retention of the Purchaser.
XI. QM ordering requirements for suppliers of Sommer
If Sommer’s supplier discovers that defective products have been shipped, it shall inform Sommer thereof immediately.
Should the supplier make changes to the product/process/supplier/production facilities, which change the product characteristics, it shall inform Sommer thereof without delay. In addition, the supplier shall apply the customer requirements to the supply chain.
The supplier shall keep quality-relevant records (contract review, test certificates, test instructions, certificates of conformity, etc.) for at least 10 years.
Authorised employees of Sommer and representatives of official authorities or their delegates shall have access to all business premises where work is being carried out for Sommer at all times during normal business hours, regardless of whether these are business premises of the supplier or its sub-suppliers, and may inspect all applicable and order-related documents for auditing purposes or to verify legal requirements.
Representatives of clients from Sommer shall have access to all business premises where work is being performed for Sommer at all times during normal business hours.
XII. General specifications for production articles
Unless otherwise agreed in the case of cut articles, the generally valid internal version from 18.01.2021 shall apply.
Length tolerances for extruded as well as shrinkable tubing are specified as follows:
5 mm to 100 mm: Tolerance = +/- 1 mm
101 mm to 200 mm: Tolerance = +/- 2 mm
201 mm to 500 mm: Tolerance = +/- 3 mm
501 mm to 1000 mm: Tolerance = +/- 10 mm
For lengths > 1000 mm, technical clarification is required
Font for printed tubes using the thermal transfer process:
The text for printed cut pieces is defined by the customer. The Arial font is used by default and the font size depends on the dimensions or characteristics of the hose. The print is centred as far as possible. The font colour is black by default or white for black tubing.
Length tolerances for braided hoses are specified as follows:
Due to the nature of the material, the length tolerances for braided hoses can only be determined when the sleeve is mounted on a test mandrel. Unless otherwise agreed, the diameter of the test mandrel depends on the size of the braided hose used.
The tolerances are defined as follows:
50 mm to 100 mm: Tolerance = +/- 5 mm
101 mm to 300 mm: Tolerance = +/- 10 mm
301 mm to 500 mm: Tolerance = +/- 12 mm
501 mm to 1000 mm: Tolerance = +/- 15 mm
For lengths < 50 mm or > 1000 mm, technical clarification is required.
XIII. Place of jurisdiction/Place of performance
The place of performance for all liabilities arising from the business relationship or from the individual contract shall be Esslingen.
For all present and future claims arising from business relationships with merchants, the place of jurisdiction shall be the Supplier’s registered office or the general place of jurisdiction of the Purchaser, at the discretion of the Supplier. This shall also apply to disputes in proceedings concerning documents, bills of exchange or cheques.
The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods shall not apply.
XIV. Final provisions
Amendments or supplements to the agreement between the Supplier and the Purchaser must be in writing and the amended document must be signed by both parties.
Should individual or multiple provisions of these GTC or these GTC as a whole or other contractual agreements between the parties be or become ineffective in whole or in part, the respective remaining provisions shall remain effective. The contracting parties shall then reach an agreement regarding effective provisions in place of the ineffective provisions which achieve the economic success of the ineffective provisions to the greatest extent possible.