Applicable terms of business, general
All orders and deliveries are exclusively subject to the following General Terms and Conditions. Differing terms on the part of the Party placing the order only apply if they have been accepted in writing by Sebro Maschinenteile GmbH (hereinafter referred to as Sebro). These GTCs apply until they are amended. The terms "consumer" and "entrepreneur" used below are defined by Sections 13 and 14 of the German Civil Code (BGB).
Acceptance of an order, quotations
All agreements, orders or contract proposals must be made in writing, by e-mail or by fax in order to be legally binding. An order is considered accepted by Sebro if the Buyer receives a written confirmation or the delivery is tacitly executed. Quotations provided by Sebro are equally subject to alteration until a written order confirmation is issued. Any documents that form part of a quotation, such as diagrams, technical drawings or technical data, do not constitute an assurance of characteristics, but rather simply indicate the subject of the agreement.
All prices are given in euros and are quoted ex works (i.e. from Kirchardt), whereby transport costs and costs for repeated delivery attempts are invoiced separately. The Buyer shall bear costs resulting from a change to an order after receipt of the order confirmation. Where deliveries are made to countries outside the EU, the Buyer shall bear all costs and fees for import and export permits and customs duties, irrespective of whether they are on the Buyer's account or whether Sebro exports the products on behalf of the customer. Statutory value-added tax is not included in the prices. This tax is calculated separately at the statutory amount on the day on which the invoice is issued. The Seller reserves the right to adjust the prices after the conclusion of a contract in the event that material prices change, which must be proven by the Seller. In the case of consumers, such adjustments may only be made in accordance with the statutory provisions. The Seller reserves the right to adjust the prices after the conclusion of a contract in the event that material prices change, which must be proven by the Seller. This is based on the "Report on purchase values for cast iron scrap and foundry steel scrap" issued each month by the Bundesverband der Deutschen Gießerei-Industrie (German Federal Foundry Industry Association, BDG), Sohnstraße 70 in 40237 Düsseldorf, Germany. The applicable data concerns the south/east region and reported lowest and highest values for the following scrap grades: Machine cast iron scrap 2a, foundry steel scrap II, BB rail sections 40 cm IV and deep-drawn steel sheet bundles 30 x 30 x 30 cm II/6. The applicable materials surcharge per tonne is the arithmetic mean of these four individual values in euros per tonne. In the case of consumers, such adjustments may only be made in accordance with the statutory provisions.
Terms and conditions of payment
Payments must be made net within 30 days. Provided that the delivery is not made cash on delivery or from the plant or warehouse in exchange for immediate payment of the equivalent value, the invoice amounts are due immediately. In the case of repairs, the incurred costs become due and payable net cash upon notification that the work has been completed. A proper credit note may only be issued if the Buyer provides the customer and invoice numbers indicated on the invoice. In the event of late payment, Sebro reserves the right to invoice default interest either at the statutory rate or at 2% above the typical banking interest rate for account credit, at Sebro's option. The Buyer may only offset undisputed or legally established receivables against Sebro claims. A right of retention may only be exercised if it concerns claims arising from the purchase contract. Contrary to the statutory provisions, in the event of multiple receivables vis-à-vis an entrepreneur, Sebro has the right to determine which receivable the entrepreneur's payment is offset against, provided that Sebro has a legitimate interest in such determination. In the event of costs and interest due, the Seller is entitled to offset any incoming payments first against these costs, then the interest and finally against the original amount due.
Retention of title
All goods supplied by Sebro remain the property of Sebro until the receivables have been paid in full, even if payments have been made for specially designated receivables. In the case of a running account, this retention of title is considered Sebro's security for the outstanding balance. The Buyer is entitled to resell the delivery item in the ordinary course of business; however, they immediately assign all receivables to Sebro, at the final invoice amount, for the purchase price claim owed to them (including value-added tax) as a result of the resale to their customer or third parties, irrespective of whether the delivery items were sold without or after processing. The Buyer remains authorised to assign the claim in order to collect these receivables. Sebro's authority to collect these receivables itself remains unaffected by this. However, Sebro undertakes not to collect these receivables itself, provided that the Buyer meets their contractual payment obligations and no application is made to bring insolvency proceedings against them. If one of the aforementioned cases occurs, the Buyer undertakes to do everything in their power to ensure that Sebro can collect the receivables itself. In particular, this includes disclosing any assignment to third parties by the Buyer. In the event that the realisable value of the securities issued by Sebro exceeds the receivables to be secured by more than 10%, Sebro undertakes, at the request of the Buyer, to release the specified excess percentage of the securities. Sebro reserves the right to determine the securities to be released. Any processing or restructuring of the purchase item is always carried out on behalf of Sebro. Should a purchase item be processed along with other items not belonging to the Seller, Sebro receives co-ownership of the new item at the ratio of the gross value of the items supplied by Sebro to the value of the other items processed at the time they were processed. The new item resulting from the processing is subject to the aforementioned provisions for items delivered subject to retention of title. Should a purchase item be inseparably mixed with other items not belonging to Sebro, Sebro gains co-ownership of the new item at the ratio of the gross value of the items supplied by Sebro to the value of the Buyer's items mixed with them at the time they were mixed. If the mixing process is such that the item belonging to the Buyer is considered the principle item, the Buyer shall grant Sebro proportional co-ownership to this item. The Buyer shall store the resultant solely or co-owned item on behalf of the Seller.
Delivery dates may be agreed in a binding or non-binding manner. As a rule, specification of a date in the order confirmation does not create a binding agreement; instead, this is only the case when expressly agreed between the parties. Delivery deadlines start at the conclusion of the contract. Delivery delays are subject to the statutory provisions. Where a delivery delay is simply due to the breach of an immaterial contractual obligation, the Buyer may claim lump sum damages amounting to a maximum of 15% of the value of the delivery. Sebro reserves the right to prove that the damages were lesser in extent. Force majeure and events that temporarily hinder Sebro from delivering the purchase item by the agreed deadline or within the agreed period, without fault on its part, entitle Sebro to defer the delivery for the duration of the hindrance, plus a reasonable lead time. Where circumstances of this nature result in a service delay exceeding four months, the Buyer may withdraw from the contract. Other rights to withdraw remain unaffected by this. The right to make minor changes to designs or dimensions and changes to the scope of delivery is reserved, provided that such changes or deviations are reasonable for the Buyer. In the event of a delay in acceptance, storage will be subject to a reasonable fee after a four-week period. Sebro reserves the right to scrap the parts six months after the delay in acceptance starts. Our delivery obligations are subject to correct and timely deliveries to us on the part of our suppliers, unless we are at fault for such incorrect or delayed deliveries.
Consumers are subject to the statutory provisions. If the Buyer is an entrepreneur, shipping takes place at the Buyer's risk. Insurance is therefore a matter for the Buyer and is at their expense. Shipping instructions must be specified when the order is placed, otherwise Sebro is free to determine the shipping method and route; however, no guarantee is made that the fastest and cheapest solution will be used. In the case of a contract of sale involving the carriage of goods where the Buyer is not a consumer, the risk of accidental loss and degradation passes to the consumer upon handover.
Shipping documents, boxes, frames and other packaging material cannot be taken back.
The prices printed in the price lists are the recommended retail prices.
Unless the sale was made to a consumer, Buyer objections based on the quantity, weight or quality of the goods must be communicated within eight days of receipt at the latest by returning the delivery note. Dimensions and images contained in brochures, catalogues etc. are not considered binding unless they are stipulated when the order is placed. Objections to delivery invoices must also be registered within eight days of receipt of the invoice, unless the sale was made to a consumer.
a) Sales to entrepreneurs
If the sale is made to an entrepreneur, Sebro warrants that newly produced goods supplied will remain free of defects for one year after delivery. A warranty is excluded in the case of used items unless separately agreed. Buyer claims are principally limited to claims for subsequent performance, i.e. rectification or replacement delivery. Sebro reserves the right to decide between rectification and replacement delivery. If rectification work or a replacement delivery is unsuccessful, the Buyer may demand a reduction in the price or withdraw from the contract in accordance with Section 323 BGB. Rectification work is considered unsuccessful if and insofar as a reasonable deadline set by Sebro elapses without success. Expenses required for the remedy of defects in the event of rectification are refunded to the extent and at the amount set out in the statutory provisions (Section 439(2) BGB) where evidence is submitted, provided that these costs were not increased as a result of the purchase item having been moved to a location other than the place of performance. Sebro is not obliged to take back products that are free from defects that were delivered in accordance with an order. However, it is prepared, at its discretion, to take back goods that were not custom-manufactured in individual cases. Such returns exclusively take place in exchange for a credit note in the event that the items were delivered for free, whereby Sebro reserves the right to subtract a fee to cover costs incurred, amounting to 15% of the value of the credit note (restocking fee).
b) Sales to consumers
If the deliveries are made to consumers, the statutory limitation period of two years for newly produced goods and one year for used products applies to material defects. In all other respects, the statutory provisions apply, unless alternate arrangements are stipulated below. Expenses required for the remedy of defects are not accepted if the purchase item has been moved to a location other than the place of performance, unless this is in line with its intended use.
c) Claims to compensation in the case of sales to consumers and entrepreneurs
As the Seller, Sebro is liable for itself and its vicarious agents solely in cases of fraudulent or malicious intent or gross negligence. Where no malicious intent is present, liability is limited to typical foreseeable damages. Provided that the claim to compensation is based on a culpable failure to remedy a defect, it is limited, with respect to removal/installation costs, to the corresponding rates from the DAT/Schwacke value estimation listings. Liability for compensation is otherwise excluded, except in the case of loss of life, physical injury or damage to health. This applies to damage not caused to the contractual item itself in particular.
Recourse of the entrepreneur in the case of commercial resellers
The statutory provisions apply in this instance; however, claims to compensation on the part of the Buyer are excluded.
Casting models and drawings
Casting models and technical drawings or derivatives thereof must be submitted at no charge. If used during the business relationship, these are stored at your risk. Sebro is neither obliged to insure them nor bear the costs of their maintenance and repair, storage or replacement. Sebro is entitled, at any time, to return models or drawings that are not required and to pass on the cost of doing so. The risks and costs of this return are borne by the owner and not Sebro. In the event of late collection, after a prompt from Sebro, Sebro is not obliged to continue to store this property. Casting models and drawings stored at the premises of other companies on Sebro's behalf must not be moved to any location besides that contractually agreed without the written consent of Sebro. In this regard, the contractual partners undertake to notify Sebro of changes and risks in good time. They furthermore undertake to inform Sebro if they store components that have not been used for more than two years. Industrial property rights or intellectual property rights may only be exercised if Sebro has been expressly notified of this in writing and the other Party expressly reserved such rights.
Data protection information
The Buyer agrees that Sebro and its affiliated companies are permitted to store and use their contact information, including their name, phone numbers and e-mail addresses, in every country in which Sebro or its affiliated companies operate. Such information may be processed and used within the scope of the existing business relationship and disclosed to sub-contractors, business partners and authorised representatives of Sebro and its affiliated companies for the purposes of their joint business operations, including communication with the customer (e.g. processing orders, marketing campaigns, market research or performance of warranty obligations). In this context, Sebro may use affiliated companies or contractual partners in Germany and elsewhere in order to provide performance or subcontract performance to these companies, and supply such companies with the required data. Affiliated companies are those (national or international) that can exert a controlling influence, in a direct or indirect terms and with regard to finances or personnel, on the decisions of involved companies by way of instructions to management or the exercise of voting rights, as well as those companies that are subject to such influence. The Buyer furthermore assures Sebro that all documents, plans and business secrets in connection with the contractual relationship will be treated as confidential. If required, the Buyer may review the appropriateness of the technical and organisational measures taken to comply with data protection laws, during normal business hours and after giving notice, at Sebro's business premises or by other means.
Third-party rights (defect of title)
The Buyer must ensure that, in the case of products manufactured by Sebro according to their specifications, the rights of third parties are neither violated nor impaired in any way. Should these products violate third-party rights, the customer shall indemnify and hold Sebro harmless against any liability and bear all of Sebro's costs resulting from related legal proceedings.
Place of jurisdiction/place of performance/applicable law
The place of jurisdiction for all disputes arising from the contract is the registered office of Sebro, unless the Buyer is a merchant within the meaning of the German Commercial Code (HGB). The place of performance is Kirchardt unless otherwise stipulated in the order confirmation. German law applies to the contractual relationships to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). All rights vis-à-vis the Seller may only be exercised in Germany. Should individual provisions or parts of the contract be ineffective, the remaining provisions and parts of the contract shall remain in force.