SKS Welding Systems GmbH (As at october 2012)
General terms and conditions of sale and
delivery to commercial companies
§ 1 General – Scope of terms
1. The following general terms and conditions apply to all business relations between us and the customer. The version applicable at the time of conclusion of a contract shall apply.
2. Unless agreed otherwise in writing, any differing, contradictory or supplementary provisions to these General Terms and Conditions, even if known to the other party, shall be excluded.
3. Should any contradictory provisions have been agreed upon in an individual contract or in a written guarantee, such provisions, in case they contradict our General Terms and Conditions, shall supersede these General Terms and Conditions.
§ 2 Conclusion of Contract
1. The conditions pertaining to our goods are subject to change and not binding. Any representation of our goods on the Internet does not constitute an offer, but an invitation to place an order. We reserve the right to reasonable technical and other changes in form, colour or weight.
2. The placing of an order for goods by the customer shall constitute a binding offer for the conclusion of a purchase contract.
We shall confirm receipt of the order immediately. However, such confirmation of receipt shall not constitute a binding acceptance of the order. Only where such confirmation contains a declaration to that effect may the confirmation be deemed as a binding acceptance.
Any acceptance of orders made by telephone shall not be binding.
3. We are entitled to accept the contract offer contained in the order within two weeks after receipt. Where goods have been ordered via electronic mail, we are entitled to accept the order within three working days after receipt.
We reserve the right to decline an order, for example upon evaluation of the customer’s creditworthiness.
We reserve the right to reduce the order to such a quantity which conforms to our delivery capacity.
4. We reserve the right to partial or non-performance of a contract in case of incorrect or improper deliveries by our suppliers. This shall apply only where we are not responsible for such failure to deliver.
We shall inform the customer immediately in case the required goods are unavailable or only partially available. Any payments already made by the customer shall be returned immediately.
5. Where the customer has ordered goods by e-mail, we shall save the textual content of the contract and return it to the customer by e-mail together with the General Terms and Conditions which shall form part of the agreement.
6. Any specifications as to the delivery time are given to the best of our knowledge and ability. The delivery time is deemed to have been met if the goods have been dispatched ex works or if the goods have been declared ready for dispatch. Combined or partial deliveries are permissible.
Any events beyond our control or that of the customer, which may delay or complicate timely delivery, entitle us to a reasonable extension of the delivery time, whereby any liability claims in connection with such an extension are excluded. Should such events constitute a permanent obstacle to the performance of a contract, which cannot be removed at reasonable costs, any claim relating to the performance of the corresponding consideration shall be excluded.
Should we be accountable for such a delay in delivery, any compensation to the customer shall be limited to 5 per cent of the value of that part of the delivery which was not delivered in time.
7. In case the customer is in default of acceptance we are entitled to store the goods at the customer’s expense and risk whereby the incurred storage costs shall be added to the invoice for the goods and the delivery deemed as performed. The same shall apply in case goods which are ready for dispatch cannot be delivered due to circumstances for which the customer is responsible.
Where, upon request of the customer, the dispatch or delivery of the goods is postponed by more than one week, we are entitled to a compensation amounting to 0.5 per cent of the value of the goods to be delivered for each week started. Such compensation shall however be limited to 5 per cent of the value of the goods to be delivered. The right of either party to make claims in excess in case the damage has been proved to be higher or object to the above stipulation in case the damage has been proved to be lower than the amount stipulated above remains unaffected.
8. We shall retain ownership of any drawings, drafts samples and documentations. They must not be disclosed to third parties without our consent. We reserve all property rights in this respect.
§ 3 Retention of Ownership
1. We shall retain ownership of the goods until all outstanding payments in connection with a contractual relationship have been received. Where the value of the goods, which are subject to retention of ownership, exceeds the outstanding payment by more than 20 per cent we shall be obliged to transfer ownership upon request to the customer.
2. As long as we retain ownership of the goods the customer is obliged to handle and store the goods with care and insure them adequately. Where maintenance and inspection work is required, such work shall be carried out and the costs thereof borne by the customer.
The customer is required to inform us immediately in writing of any access to the goods by third parties, in particular of any levies of execution and possible damage or destruction of the goods. The customer must notify us immediately of any change in ownership of the goods or any change of his address.
The customer is liable to pay compensation for any damage or costs caused by a breach of the above obligations or by not intervening adequately against access to the goods by third parties.
3. We reserve the right to withdrawal from the contract and to repossession of the goods in case of a breach of contract on the part of the customer, in particular in case of default of payment. We also reserve the right to rescind a contract and repossess the goods in case of a breach of the provisions made in § 3 Section 2 of these General Terms and Conditions and in case the contractual relationship cannot reasonably be expected to be continued.
4. The customer is entitled to resell the goods as part of ordinary business transactions. Upon conclusion of a contract the customer shall assign to us any receivables arising from the resale of the goods to third parties. We hereby accept this assignment. When the assignment has been effectuated the customer shall be authorised to collect the receivables himself. We reserve the right to collect the receivables ourselves in case the customer does not meet his payment obligations and is in default of payment.
Any treatment and processing of the goods by the customer shall exclusively be performed in the name and on behalf of us. Where such processing is performed we shall be entitled to co-ownership in the new object in proportion to the value of the goods delivered by us. The same shall apply where the goods are processed or mixed together with other goods which do not belong to us.
§ 4 Payment
1. The price offered is binding. All prices are net prices, exclusive of packaging, delivery and value added tax.
Unless agreed otherwise in an individual agreement, the manner of packaging and transport as well as the forwarding route shall be at our discretion.
No additional charges shall be made if the customer orders the goods by means of a long-distance communication medium.
The customer may make payments by bank transfer. We reserve the right to change payment terms. If we accept bills of exchange and cheques, payment shall not be deemed to have been made before encashment. Any discount charges and transfer fees shall be payable by the customer.
2. The customer is required to make payment within ten days after receiving the goods. After this period the customer shall be in default of payment.
Where the customer is in default of payment, he will be charged a default interest of 8 % above the base interest rate on the amount owed. We reserve the right to prove higher damage caused by the default of payment and hence claim higher damages.
3. The customer shall only have a right to set off where the counterclaims have been validly established or acknowledged by us in writing.
The customer may only exercise his right to refuse performance where his counterclaim arises from the same contractual relationship, i.e. not from an assigned right.
§ 5 Transfer of Risk
1. The risk of accidental destruction or damage to the goods shall pass to the customer at the time the goods are handed over to the customer or, in the case of mail order purchases, upon acceptance of the goods by the forwarding agent or any other person or company commissioned with the transportation of the goods.
Delivery shall be deemed to have been effected in case the customer is in default of acceptance.
2. When receiving and sending data via the Internet the risk of loss of and changes in the data is transferred to the customer at the time the data passes the network interface.
§ 6 Warranty
1. In case of any defect in the goods, we warrant for either rectification of defects or substitute delivery, whereby the choice as to which of the two will be performed is at our discretion.
2. Should such subsequent performance be unsuccessful the customer shall be entitled to opt for either a reduction of the purchase price (abatement) or withdrawal from the contract (rescission). In addition, the customer may claim damages. In the case of small defects the customer’s right to rescission is excluded. In case the customer claims damages, the limitations of liability stipulated in § 7 Sections 1 and 2 of these General Terms and Conditions shall apply.
3. The customer is required to inspect the delivered goods for any variations in quality and quantity and to inform us in writing of any defects within one week after receipt of the goods, otherwise any right to warranty claims shall be excluded. Notification of any hidden defects must be made in writing within one week after their detection. In order to adhere to the defect notification period, notifications must be sent to our registered office. Full burden of proof pertaining to all claims, in particular to the defect itself, to the time of detection of the damage and to the timeliness of the notification of defects lies with the customer.
4. Unless otherwise stipulated in an individual contract or in a written guarantee, the warranty period is one year from the date of delivery of the goods.
In the case of used goods the warranty period is one year from delivery of the goods. The one year warranty period shall not apply in case of intention and gross negligence on our part or where we are liable for bodily harm and injury to health to or loss of life of the customer. Any liability under the product liability law shall remain unaffected.
§ 7 Limitation of Liability
1. In case of a slightly negligent breach of duty our liability as well as that of our vicarious agents shall be limited to the foreseeable, contract-specific and direct average damage. In any case, liability is limited to twice the value of the goods.
Our liability or that of our vicarious agents for any slightly negligent non-contractual breach of duty which does not endanger performance of the contract shall be excluded. The above limitations of liability shall not apply to claims by the customer which are related to product liability or warranty. The liability limitations shall not apply in case we are liable for any bodily harm and injury to health to or loss of life of the customer.
2. We shall only be liable for our own contents on our website. Where access to other websites is provided by means of links, we shall not be liable for any contents on such websites which have not been published by us. We shall not acquire ownership of such contents. Where the existence of illegal contents become known to us, we shall immediately block access to such websites.
§ 8 Returns in compliance with ElektroG (Electrical and Electronic Equipment Act)
1. We will take back the following types of waste electrical equipment delivered by us to our customers free of charge for correct disposal/recycling under the conditions specified in paragraph 2.
The types concerned:
The semi-automatic welding systems SAM 3E, SAM 3P, SAM 5E, SAM 5P
2. For the free-of-charge return we must receive notification of the return including details of the serial number of the equipment. The customer must have the equipment packed ready for transport on a pallet. The equipment will be collected by a freight carrier ordered by us. Waste electrical equipment will only be accepted by us in its original condition as shipped from the factory. We do not take back any single parts of the delivered equipment or any equipment with additionally installed components. Any unauthorized returned goods/components will be sent back at the expense of the customer. The customer will be liable for all costs incurred in such cases such as transport, processing etc.
3. If the customer passes on any semi-automatic welding systems from SKS as mentioned in §8. 1. to a third party, he must require the third party by contract to dispose of the waste equipment in an orderly manner at his own expense in compliance with the legal regulations or as mentioned in §8.1. to return such waste equipment to us. In the event the goods are passed on again, the customer must also impose the same obligations on the respective recipient.
§ 9. Final Provisions
1. The law of the Federal Republic of Germany shall apply. UN purchasing law is excluded.
2. If the customer is a trader, a legal person under public law or a public special estate, the exclusive place of jurisdiction for any disputes arising out of this contract shall be the location of our registered office. The same shall apply in case the customer does not have a general place of jurisdiction in Germany or where the customer’s domicile or usual abode at the time the action is brought is unknown.
3. Should any provisions in this contract with the customer, including these General Terms and Conditions, be or become fully or partially invalid, the validity of the remaining provisions shall remain unaffected. The invalid or partially invalid provision shall be replaced by a valid one which comes closest to the economic purpose of the invalid provision.
SKS Welding Systems GmbH
Tel: +49 6301 7986-0
Fax: +49 6301 7986-119
Dieter Klein, Markus Klein, Thomas Klein
Trade register: HRB 31381
VAT No.: DE 148 638 594