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General Terms and Conditions



General Terms and Conditions of Sale

I. Applicability of the General Terms and Conditions of Sale

1. These General Terms and Conditions of Sale shall apply to all current and future contracts and services pertaining mainly to the supply of goods to the customer.

2. The customer’s conflicting or divergent Terms and Conditions of Business shall not obligate us even if we do not expressly object to these Terms and Conditions of Business and, irrespective of such terms and conditions, perform services or accept customer services without reservation.

3. Agreements that diverge from our General Terms and Conditions of Sale shall be recorded in writing. Failing this, our General Terms and Conditions of Sale shall retain their validity.


II. Entry into the Contract, Applicability of the Offers

1. Our offers shall be subject to change and valid only for a reasonable period.

2. Agreements, in particular, oral collateral agreements,
commitments, guarantees and other assurances made by our salespersons, shall only become binding if they have our written confirmation and are based on these General Terms and Conditions of Sale.

3. The documents that form part of the offer, such
as drawings, illustrations, technical data, references to standards and statements in promotional material shall not constitute indications of quality, assurances of properties or guarantees unless they have been expressly designated as such in writing. We reserve the right to make design changes in the interests of technological progress.

4. The customer shall ensure to the full extent that our products are fit for the purpose intended by the customer. If the ordered goods are not to be used exclusively for ordinary purposes or deployed under unusual conditions, conditions that are particularly relevant for safety matters or such as make increased operational demands, the customer shall be obliged to inform us of this before entering into the contract.


III. sapor’s Obligations

1. We shall be obliged to supply in accordance with standard commercial tolerances in respect of type, quality and packaging.

2. The delivery dates quoted by us shall be anticipated dates and refer to the time of the outbound delivery, i.e. departing from the Essen plant.

3. We shall adhere to delivery dates wherever possible, providing the customer provides the documents or releases to be procured in good time, makes advance payments as stipulated in the agreement and fulfils all other obligations incumbent upon him in a timely manner. We shall be entitled to fulfil contractual obligations after the designated delivery date if the customer is informed of the delivery date overrun and advised of a period of time for subsequent performance, unless the subsequent performance is unacceptable to the customer or the customer objects to the offer of subsequent performance within a reasonable period. In the event of subsequent performance, we shall reimburse any additional customer expenditure that was demonstrably necessary as a result of the delivery date overrun, providing we are liable for damage pursuant to the provisions contained in Clause VI.


IV. Prices

The prices that have been confirmed to the customer in writing and, in the absence thereof, the prices valid on the day of dispatch shall apply. All prices shall be ex Essen plant, without cash discount or other price discounts and exclusive of VAT. Additional ancillary services (e.g. freight, packaging or shipping costs) shall be charged separately.


V. Warranty

1. Subject to the recourse rules pursuant to Sections 478 and 479 of the German Civil Code, all claims by the customer on account of delivery of defective goods shall become time-barred one year after commencement of the statutory limitation period.

2. The customer shall inspect the supplied goods immediately and in all respects for identifiable defects in quality, quantity or other kind and inform us in writing of complaints within 5 working days, providing an exact description of the type and extent of the defect. If the customer does not comply with his immediate duty to inspect the goods and give notice of defects with regard to dentifiable defects in quality, the supplied goods shall be regarded as approved with regard to identifiable defects in quality, whereby the assertion of corresponding warranty claims including consequential damage shall be excluded.

3. If the customer himself attempts to remove defects in quality or engages third parties so to do without our agreement, we shall be released from the warranty obligation, unless said attempts are carried out properly.

4. In the event of legitimate, immediate notification of defects, we shall, at our option, render subsequent performance either by removing the defect or by supplying goods that are free of defects. If the subsequent performance is unsuccessful, the customer shall be entitled, in accordance with the statutory provisions, to demand rescission or price reduction.

5. We shall only bear expenditure relating to subsequent performance if it is appropriate in the individual case, particularly in comparison to the purchase price of the goods. We shall not bear expenditure that is incurred due to the goods being transported to a location other than the customer’s registered or regional office, unless this complies with their use as stipulated in the contract.

6. We shall provide no warranty for defects in quality that arise due to inappropriate or improper use, incorrect assembly or commissioning by the customer or third parties, natural wear and tear, incorrect or negligent handling; nor shall we warrant the consequences of improper modifications to the goods undertaken without our consent.

7. Further claims on account of defects in quality shall be excluded in accordance with Clause VI. This shall apply, in particular, to claims to compensation for damage that has not arisen on the goods themselves.


VI. General Limitation of Liability

1. Our liability for damages and for compensation of wasted expenditure, on whatever legal grounds, shall be limited to gross negligence and wilful intent. This shall also apply to negligence of duty on the part of our legal representatives and vicarious agents.

2. In the case of ordinary negligence, we shall only be liable, on whatever legal grounds, in the event of breach of material contractual obligations. The amount of any claim for damages shall be limited, in this case, to compensation for the typical, foreseeable damage. Material contractual obligations shall be those whose fulfilment enables proper enforcement of the contract and on whose observance the customer regularly relies and may rely. The customer shall be obliged to advise us in writing, prior to entering into the contract, of particular risks, atypical possibilities of damage and unusual amounts of damage. Liability for any consequential damage that goes beyond this, lack of economic success, indirect damage, lost profit and damages from third-party claims shall be excluded.

3. No limitation of liability shall apply in the event of wilful intent or gross negligence or claims relating to injury to life, limb or health or for claims arising from the Produkthaftungsgesetz (Product Liability Act) and other mandatory liability provisions.

4. If an item defined solely on the basis of its category is the object of the purchase agreement, our liability shall also be determined in this case according to the aforementioned rules; liability irrespective of fault shall be excluded.


VII. Guarantees

Guarantees requested by customers must always be specifically designated as such in the written order acknowledgement. In particular, catchwordbased designations, reference to generally accepted standards, the use of trademarks or quality marks or the submission of patterns or samples shall not by itself give rise to the assumption of a guarantee or assurance. In the case of custom productions that are executed in accordance with customer drawings or concepts, we shall only be liable for raw material defects and processing according to the state of the art when the order is placed.

General Terms and Conditions of Purchase

VIII. Liability for Defects/ Statute of Limitations

In the event of delivery of defective goods, the ordering party may, if the respective statutory prerequisites listed below exist and insofar as no other arrangement has been made in writing in anindividual case, demand the following: In the case of legitimate notification of defects, the ordering party shall, at its option, be entitled either to remedy (removal of the defects) or subsequent delivery (replacement delivery). Subsequent performance of the entire delivery may also be demanded if only a part of the delivery has defects and the ordering party has no interest in accepting the other part. The supplier shall bear expenditure incurred during subsequent performance, including additional transport or freight costs. If the supplier is unable to carry out the subsequent delivery within a reasonable deadline, if it does not comply with the request within the deadline given to it, if the subsequent performance is unsuccessful or if a deadline is dispensable, the ordering party shall be entitled to reduce the purchase price, rescind the contract and, if the supplier is responsible for the defect, demand compensation. Said compensation shall also include the costs of any replacement procurement or the costs of remedy by a third party. The compensation shall also include all damage that stands in an appropriate causal relationship to the defective item. If a defect cannot be detected in advance by means of appropriate material tests and if the defectiveness of the supplied item can therefore only be identified during production, processing or fitting, the supplier shall, providing it is responsible for the defectiveness of the item, be liable for all damage caused by stopping and delaying production, as well as for the wasted expenditure already provided, in addition to its obligation for subsequent performance. The compensation shall also include the damage that arises from the defective item resulting in a faulty product due to fitting or mixing. The compensation shall therefore also include, in individual cases, the damages and reimbursement of expenses, to which the ordering party is bound under the statutory warranty obligation and recourse liability (Section 478 ff. of the German Civil Code). A warranty period of three years shall apply to the products manufactured by the supplier or the order executed by it, unless the statutory warranty results in a longer period. In this case, the statutory warranty periods including the regulations in respect of recourse liability (Sections 438 and 479 of the German Civil Code) and the statutory suspension of the expiration of the statute of limitations pursuant to Section 479 (2) of the German Civil Code shall apply. In the case of subsequent delivery, a new warranty period shall begin when the new goods are delivered in place of the defective goods. The subsequent delivery shall demonstrate that the supplier acknowledges the defect to which an objection has been raised. In the event that the supplier maliciously conceals a defect, the warranty period shall be extended to five years.


IX. Product Liability/Product Observation/ - Recall

If the goods have defects that are attributable to a fault of the supplier, the supplier shall, when first requested so to do, indemnify the ordering party and, if necessary, the latter’s customers from the resulting product liability to the extent that it would also be directly liable itself. The supplier shall be obliged, on the ordering party’s instruction, to carry out all required product observation measures, including warning and recall actions in individual cases. The supplier shall reimburse the ordering party for the costs that the ordering party incurs as a result of recall actions. The supplier must insure itself against the risks that arise from product liability. Corresponding proof of insurance shall be provided on request.


X. Liability/Damages

Claims for damages by the supplier, on whatever legal grounds, particularly due to breach of duties arising from the contractual obligation and from tort shall be excluded with the exception of liability for wilful or grossly negligent behaviour, injury to life, limb or health, or due to breach of material contractual obligations. Claims for damages for breach of material contractual obligations shall, however, be limited to the typical foreseeable damage, providing a limitation is not excluded on other grounds due to wilful or grossly negligent acts or due to injury to life, limb or health. If liability irrespective of fault gives rise to a thirdparty claim against the ordering party in accordance with mandatory law, the supplier shall be liable vis-à-vis the ordering party to the extent that he would also be directly liable. The principles of Section 254 of the German Civil Code shall apply accordingly to compensation for damage between ordering party and supplier. This shall also applyto the case of direct recourse against the supplier. The obligation to pay damages shall be excluded to the extent that the ordering party has effectively limited its liability vis-à-vis its customer. The ordering party shall, in this respect, endeavour, to the extent permitted by law, to agree limitations of liability to the benefit of the supplier. The supplier shall be liable for measures taken by the ordering party to avert damage (e.g. recall actions) to the extent that it is legally responsible for the defect or circumstance that has caused the damage. The ordering party shall, if it intends to claim against the supplier in accordance with the aforementioned provisions, inform the supplier immediately and comprehensively, giving it, where possible, an opportunity to inspect the damage event.


XI. Property Rights

The supplier shall warrant that the goods supplied by it do not infringe national or international property rights. The supplier shall indemnify the ordering party from all claims made against the ordering party on the grounds of infringement of a property right and shall bear the costs of protecting the rights (including any legal disputes and conciliation proceedings) if these claims are based on the supplier’s culpable negligence of duty. The ordering party shall inform the supplier immediately in the event of assertion of a claim and shall afford the supplier an opportunity to participate in the corresponding proceedings.


XII. Contractual Adaptation

If unforeseeable events pursuant to Section 313 of the German Civil Code significantly change the economic importance or the contents of the delivery or significantly impact the ordering party’s operations, the contract shall be adapted commensurately,in accordance with the principle of good faith.

If compliance with the contract is not reasonable in economic terms, the ordering party shall have the right to rescind the contract, even if an extension of the delivery period has initially been agreed with the supplier and the unreasonableness occurs subsequently. If the ordering party intends to avail itself of the right to rescission, it shall inform the supplier immediately of this subsequent knowledge of the consequences of the event.



XIII. Choice of Law/Place of Jurisdiction/ Other Provisions

German law shall apply exclusively to the legal relationship relating to this contract to the exclusion of the UN Convention on the International Sale of Goods. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the ordering party’s registered office. This shall also apply in respect of any legal issues in connection with the General Terms and Conditions of Purchase. The supplier shall only be allowed, with the ordering party’s prior written consent, to make reference to the business relationship existing with the ordering party in information and/or promotional material. If a provision in these Terms and Conditions of Business or a provision within other agreements is or becomes invalid, the validity of the other provisions or agreements shall not be affected by this. A legally valid provision shall then take the place of the invalid provision.

01/10/2011