1.1. All deliveries, services and offers of SAM Vertriebs GmbH & Co. KG (hereafter called „SAM“) are exclusively effected on the basis of the present business terms. These will also operate for all future business relationships, even when they should not have been expressly agreed upon again. No later than at the time of acceptance of the goods or the service, these conditions are supposed to have been approved.
1.2. Any deviations from these business terms will become an integral part of the relative contract only when they have become an express individual and written agreement between SAM and the purchaser. The General Terms of Business of the purchaser are opposed. They are supposed to have been accepted only when and so far SAM will have agreed to them expressly in writing.
2.1. Drawings as well as weight specifications and measurements in brochures and catalogues, have been developed conscientiously. In case of obvious errors, we reserve the right to effect subsequent corrections.
2.2. The data and illustrations contained in brochures and catalogues are approximate values pursuant to the industry standards, unless they are expressly designated as binding. The customer has to convince himself of the products for the intended purpose by his own test of the suitability.
2.3. All offers of SAM are invariably to be understood non-binding and subject to changes.
2.4. Declarations of acceptance and all orders require a written or telegraphic confirmation of SAM to be legally binding. Order confirmations which are transmitted by data transmission and via computer printout are also valid without signature. The acceptance may also be declared to the customer by delivery of the goods.
2.5. The written confirmation of order by SAM is relevant as to both the contents and the scope of deliveries and services.
2.6. Orders of goods shall be deemed as binding contract offers by the customer.
2.7. All subsidiary or supplementary agreements must be laid down in writing to be legally binding.
2.8. The prices stipulated are to be understood in Euros, exclusive of the relative legal VAT rate.
2.9. All prices are ex works prices, plus packaging, for export deliveries customs duties and other public charges.
2.10. The prices shall be binding until the date of delivery stated in the order confirmation, unless a fixed price has been expressly agreed on; SAM shall be bound to the agreed prices for a period of four months from the date of the order confirmation, if the parties did not have agreed upon a fixed price. SAM is then entitled to make reasonable price adjustments in the event of increases in costs following the order confirmation.
(e.g. due to increases in material, salary and other costs to be borne by SAM), provided that SAM is not already in default of delivery. If SAM adjusts the products to the client’s demands, the additional costs resulting will be invoiced to the purchaser.
3.1. When goods or products are manufactured or processed/machined in accordance with the purchaser‘s design/s or other instructions, he will be responsible for any possible infringements of proprietary rights of third parties (design patent rights, license or patent rights, etc.), and he has to hold SAM harmless in the inner relationship with respect to any liability in this regard.
3.2. When for the manufacture or processing of specific goods or products, tools are produced by SAM or by order of SAM, then these tools will remain the sole property of SAM, even when the purchaser should have defrayed proportionate tooling costs in addition to the payment or within the limit of the payment received.
4.1. The compliance with delivery terms presupposes the receipt by SAM of all necessary data to be provided by the purchaser, together will all data and information or samples to be furnished by him. The same applies to necessary permits (including possibly required import licenses) and other releases and last but not least the compliance with the terms of payment and other obligations on the part of the purchaser. When these conditions are not fulfilled in due course, the terms of delivery will be extended accordingly to the extent the delay is not attributable to SAM.
4.2. Transactions on account require the express written confirmation through SAM.
4.3. The delivery obligation is subject to the possibility of delivery.
4.4. Whenever the failure to meet the terms of delivery is due to acts of God, such as natural phenomenon (flood disasters and the like), mobilization, war, civil commotion or similar events, such as accidents, fire, strikes, lockouts, considerable breakdowns or similar disturbances, government measures or omissions etc., the delivery date can be extended also by the duration of such impediment, even if the delivery date has been expressly agreed upon. If the delivery is impossible or unreasonable to SAM due to such circumstances, SAM may withdraw from the contract in whole or in part. Any alterations to the delivered goods caused by the purchaser also lead to a reasonable extension of the delivery period.
4.5. Such proportionate extension of the terms of delivery will also occur when SAM is unable to provide for their self-supplying requirements, including delayed or faulty supply of the required raw materials, half-finished or finished products unless this should be attributable of (organizational) faults of SAM.
4.6. The term of delivery is considered to have been observed when the consignment of the ready-to-use goods was dispatched within the terms of delivery agreed upon and/or the readiness for shipment has been announced.
4.7. When a delivery deadline or term of delivery definitely accepted by SAM has not been met, the purchaser is obligated to grant SAM in writing an appropriate extension of the delivery date. Should SAM non-accidentally fail to effect delivery within the extension period granted, then the purchaser will be entitled to terminate the contract.
4.8. To the extend SAM is responsible for not having observed the firmly promised terms, the purchaser subsequent to the unsatisfied expiry of the extension period granted – and to the extent he establishes credibly that he had to suffer a damage therefrom – will be entitled to claim a compensation for each full week of the delay in the amount of 0,5%, but all in all not more than 5% of the net worth of goods, deliveries or services covered by the delay.. The rights of the customer according from No. 8.19 up to 8.27 of these terms remain unaffected.
4.9. Upon request by SAM, the purchaser is obligated to declare within a reasonable period of time whether he withdraws from the contract as a consequence of the delay of delivery and/or whether he claims damages instead of the performance of the contract and/or whether he insists on the fulfilment of the contract.
4.10. The goods which SAM have announced to be ready for collection at the date of delivery agreed upon, must be collected by the purchaser within a week. The announcement according to which the goods are ready for being collected, the obligation of the purchaser to collect the goods becomes due. When the purchaser defaults to come up its obligation to collect the goods, then the risk of an accidental deterioration and of the accidental destruction of the goods passes to the purchaser.
4.11. In addition to this, SAM no later than ten business days following the announcement of the preparedness to dispatch the goods, will be entitled to put to account of the purchaser warehouse charges amounting to 0,5% of the invoice amount, and this for each beginning month, but not more than 5% of the said invoice amount. The contracting parties reserve the right to prove higher or lower storage charges.
4.12. If the Purchaser is in default of acceptance, if he fails to cooperate, or if SAM is delayed for other reasons the Purchaser is responsible for, SAM shall be entitled to demand compensation for any damage resulting therefrom, including any extra charges (e.g. storage costs). SAM is entitled to charge a storage fee of 0.5% of the invoice amount for each month commenced, but a maximum of 5% of storage costs. Evidence of higher or lower storage costs remains unaffected by the contracting parties.
5.1. The goods have to be collected by the purchaser, unless a different agreement has been arrived at in writing in each individual case.
5.2. When the dispatch of the goods is effected in particular containers of SAM, these have to be treated carefully and must be sent back or returned within the shortest period of time.
5.3. The risk of the accidental destruction and/or loss as well as the risk of delay passes to the purchaser at the time of dispatch of the goods and/or the handing-over to the person entrusted with their transport.
5.4. This is also true in case SAM should effect the transport with their own vehicles and/or through their own vicarious agents.
5.5. In addition, these risks pass to the customer as soon as he gets in default of acceptance by receiving the display of willingness of dispatch by SAM.
5.6. If goods are withdrawn in individual cases on the basis of a special written agreement and for reasons SAM is not responsible for, the customer shall bear all risks up to receipt of the goods at SAM.
5.7. SAM is entitled to carry out partial deliveries if
– the partial delivery can be used by the contracting party within the frame of the contractual purpose,
– the delivery of the ordered goods outstanding is ensured and
– any substantial additional costs or additional efforts will not incur to the customer (unless SAM is willing to accept such costs).
5.8. Additionally plus or minus deliveries of up to 10% of the quantity ordered are admissible in accordance with the customs of the trade or industry, unless in individual cases a deviation from the quantity laid down in the contract should be unacceptable for the purchaser.
5.9. Deviations as to the technical design and manufacture as well as unavoidable chromatic deviations are admissible within the tolerance limits usual in the trade.
6.1. The invoices of SAM are payable within 30 days after the issue of the invoice (date of the invoice) and delivery or acceptance of the goods, without any deduction whatsoever. The payment is considered as having been effected as soon as SAM can dispose of the relative amount. Should the purchaser fail to come up to his payment obligations within the term fixed to this effect, i.e. within 30 days following the issue of the relative invoice and delivery or acceptance of the goods, then he will be put in default also without having been requested to effect payment. SAM is, however, also entitled to carry out a delivery, in whole or in part, against payment in advance, even in the context of an ongoing business relationship. SAM shall declare a corresponding retention at the latest with the order confirmation.
6.2. When the time of the service of the invoice or the payment statement or the service of the same is uncertain, the relative payment becomes due at the latest 30 days following the receipt of the service rendered in return. Consequently no later than after the 31st day following the receipt of the service rendered in return, the default condition will occur.
6.3. When the relevant payment has been effected within 10 days after the date of invoice and delivery or acceptance of the goods, SAM will grant a discount of 2%. Such a discount requires in addition that the purchaser is not constructively in arrears with his other payment obligations and that the credit entry of the amount of the invoice on the account of SAM has been effected within the period of time agreed upon.
6.4. Should the purchaser fall into arrears, SAM will be entitled to claim from the purchaser who is not a consumer, default interest in an amount of 9% p.a. over the relative base interest rate of Article 247 of the Civil Code. The purchaser, on his part, may not object that SAM would have suffered a lower interest loss or no loss at all. The right to claim additional damage will not be affected therefrom.
6.5. SAM is not under obligation to accept bills of exchange. When due to particular agreements such bills of exchange are accepted in isolated cases, the submission of the bill of exchange is merely considered as fulfilment of the obligation and the payment can be considered as having been effected only when the bill of exchange has been honoured. The discount and collecting charges connected with the bill of exchange are for the account of the drawer of the bill and have to be paid by him immediately in cash when the debt has become due.
6.6. Regardless whether in individual cases specific payment agreements have been stipulated, any debts SAM is entitled to become immediately payable when in relation to the purchaser circumstances have occurred as a consequence of which the maintenance of the payment arrangements agreed can no longer be considered as reasonable. This is true when there are well-founded indications of a substantial impairment of the financial situation of the purchaser, especially when he has suspended his payments or in case of protests of cheques or bills or delays in payment, whereupon SAM comes to the conclusion that their claim is jeopardized as a consequence of the failure of the purchaser to come up to his payment obligations. In such cases SAM will be additionally entitled to require concurrent fulfilment of the payment obligations or the furnish additional guarantees. SAM may also fix a reasonable time during which the purchaser on concurrent terms and following the performance of SAM has to provide for adequate consideration or for additional security, such as SAM may determine on their own discretion. After the unsatisfied expiry of the time granted, SAM is allowed to withdraw from the contract.
6.7. In connection with the product warranty, the purchaser may withhold payment subsequent to the justified assertion of a complaint in respect of a defect only to the extent which is in a reasonable relationship to the inhibitory defect occurred. As for the rest, a purchaser‘s lien is excluded.
6.8. Only for validly established counterclaims, counterclaims which are ready for judgment and undisputed counterclaims is the purchaser authorized in so far to the balancing of accounts or use his right of retention.
7.1. Until the fulfilment of all debts due by the purchaser to SAM in conjunction with the commercial relationship, the goods delivered (conditional goods) remain the property of SAM. During the time of title retention, the purchaser store and to deposit goods delivered by SAM separately from similar or equivalent goods delivered by other companies. Those goods originating from SAM must also be marked as such.
7.2. The purchaser is also not allowed to effect any bailment or mortgaging of the goods. In case of an attachment, seizure or other dispositions o encroachments through third parties or if an application for the opening of insolvency proceedings is filed, the purchaser has to inform SAM immediately.
7.3. The purchaser is however authorized to resell, to incorporate or to manufacture the conditional goods in his ordinary business transactions, provided that he received the countervalue agreed or he reserves on his part the ownership of the relevant goods, and no prohibition of assignment has been stipulated. Also now, the purchaser for safety‘s sake assigns to SAM the claim arising from the sale of the goods or of any other legal course (Incorporation, Manufacture, unlawful act or insurances) and relating to the sales price in the amount of the invoice amount of the delivered goods. He remains however empowered to collect the claims assigned for safety‘s sake for his own invoice and in his own name, as long as that authorization has not been withdrawn. The relative empowerment can then be withdrawn when the purchaser constructively fails to come up to his contractual obligations or ceases to comply with them or if and when the insolvency proceedings against him have been opened. When the direct-debit mandate has been cancelled, SAM will be authorized to announce the assignment effected. The purchaser has to immediately submit the data and information necessary for the notification of the assignment and for the collection. A sales status in the regular course of business does not exist when the purchaser contrary to the provisions of Article 7.2., pledges or gives in security the conditional goods or the goods resulting from processing to a third party.
7.4. In case of the machining or processing of conditional goods, these activities will be carried out by order and for SAM as the manufacturer, as set out in Articles 950 ss. of the Civil Code. In that case a (co-)property right accrues to SAM as to the outcome of the machining and processing activities, and this in relationship between the conditional goods and the value of the outcome at the time of the said machining and processing activities. In addition to this, SAM will be entitled to a proportionate co-ownership in the outcome of the said activities, whenever together with the conditional goods, goods of third parties are also processed. The same applies to the goods resulting from processing as with the conditional goods.
7.5. In case of damage or other impairment of the conditional goods, the purchaser has to inform SAM without delay. When out of the damage or impairment of the said conditional goods, the purchaser is entitled to claim damage against third parties, he has to assign such claims already now to SAM as a matter of security.
7.6. To the extent the value of all security rights due to SAM should exceed by more than 20% the value of all claims secured, SAM on request of the purchaser and at their absolute discretion will release a relative part of the security rights.
7.7. In case of evasions of the duties of the purchaser, especially when he is in default of payments or the insolvency proceedings has been opened against him, SAM will be entitled to withdraw from the pertinent transaction and to reclaim the conditional goods. The purchaser is bound to return such goods. The provisions of Article 449, paragraph 2, of the Civil Code will not apply hereto. The sole taking back of the conditional goods and/or the insistence on the retention of title will not require the withdrawal of SAM from the contract, nor can this be interpreted as an implied statement in the sense of the withdrawal from the contract, unless SAM declares explicitly that these proceedings are to be understood as a withdrawal from the contract.
8.1. Claims for defects of deficiencies cannot be taken into consideration when the relative goods deviate only slightly from the condition, property or quality agreed between the two parties or when the relative goods in their usability are only insignificantly impaired.
8.2. Claims for defects or deficiencies can also not taken into consideration in case of normal wear and tear or in case of damage which following the transfer of risk should occur as a consequence of faulty or negligent treatment or care, excessive service or load, the use of unsuitable working stock or deficient construction works.
8.3. The status of a faulty or negligent treatment or care exists especially in conjunction with the cleaning and care of the SAM products with unsuitable cleaning agents and/or in any other unsuitable mode of proceeding. The particular product descriptions and maintenance instructions relevant to each specific product must be adhered to and have to be forwarded in case of a resale. Damage occurred due to the disregard of the product description and the maintenance instructions do not constitute a deficiency in the sense of the warranty right.
8.4. Should the products of SAM be exposed to particular external influences, the purchaser is bound to inform SAM specifically and comprehensively in writing prior to the conclusion of the contract as to the particular use of the products and/or the particular possible external influences to which the product is exposed. Should the purchaser fail to comply with this commitment, SAM will not assume the responsibility for damage to the products of SAM nor for consequential damages which might occur as a consequence of particular external influences and which have not been a prerequisite in accordance with the contract.
8.5. When on the part of the purchaser or of third parties improper changes or „repairs“ are carried out, no claims for deficiencies will also exist for these and for the consequences originating therefrom.
8.6. The purchaser is obligated to verify immediately the goods sent to him as to their regular condition and to report any evident deficiencies to SAM in writing within a term of eight days after he had received the relative goods. For hidden defects this term applies as from their discovery.
8.7. The investigation and complaint time limit comprises especially obvious damage or loss in transport. When there are signs of damage or loss in transport (such as obviously damaged packages), these must be communicated to SAM without delay in writing, but not later than within a period of time of eight days. Should the pertinent communication not have been effected within that time allowed, and thus also not enable SAM to assert the damage or loss in transit against the carrier in charge, then SAM will be entitled to oppose the claims of the purchaser to the lost indemnification to the carrier.
8.8. Irrespective of the provisions of the paragraphs 8.6 and 8.7, the inspection of the goods supplied for apparent deficiencies must take place at the latest prior to the assembly operations. When a deficiency has been detected, the relative mounting or erection on the product must not be effected, whenever the relative deficiency cannot be removed through a repair of the product installed, when through the fixing or mounting effected any repair should be hampered or when the pertinent expenditure (and/or the relative costs) for the repair increases. The installation of the defective products must also be avoided when a subsequent delivery constitutes the economically more favourable form of the subsequent fulfilment of the pertinent obligations. The purchaser undertakes to impose that obligation also to his clients. The failure to come up to this obligation results in that any disbursements related to the assembly operations will absolutely not reimbursed by SAM.
8.9. SAM reserves the right to delegate one of his employees in order to convince themselves personally of the legitimacy of the purchaser‘s complaint. Warranty claims are excluded if SAM is not allowed to inspect the goods complained about within ten days after notification of defect.
8.10. When the complaint or notice of defect is substantiated, i.e. when material defects exist which or the origin of which existed already at the time of the passing of the risk, then SAM at their absolute discretion will be entitled to effect the relative repair work (elimination of the defect) or to effect a subsequent delivery (replacement delivery).
8.11. The Customer shall provide SAM with the necessary time and opportunity for the subsequent performance, in particular to consign the rejected goods to SAM for inspection. If SAM provides a flawless item as purpose of supplementary performance, the customer shall hand out the defective item. This shall also apply to defective components accordingly, if these are replaced by flawless ones within the scope of the improvement. The supplementary performance does not include the removal of the defective item or the reinstallation, if SAM was not originally obliged to do so.
8.12. SAM is entitled to make the supplementary performance depending on the fact that the customer pays the purchase price. The Purchaser shall, however, be entitled to withhold a portion of the purchase price commensurate with the defect.
8.13. The Purchaser shall bear the costs of SAM necessary for the purpose of the inspection and supplementary performance, in particular transportation, travel, work and material costs (not: dismantling and installation costs) if no defect exists and the missing deficiency has been recognized by the Purchaser or has been recognizable.
8.14. The costs of SAM necessary for the purpose of the inspection and supplementary performance, in particular transportation, travel, work and material costs (not: dismantling and installation costs) are paid by the parties in half, if no defect exists and the missing deficiency has not been recognized by the Purchaser and could not be recognizable.
8.15. When SAM should be unable to carry out the relative repair work or subsequent delivery, and/or when SAM pursuant to Article 439, paragraph (3) of the Civil Code is entitled to refuse the repair work or subsequent delivery, or when a delay for the repair work or subsequent delivery has occurred beyond a reasonable period of time, for which SAM is responsible, or when the subsequent delivery or repair work goes wrong two times, then the purchaser at its absolute discretion will be entitled to withdraw from the contract or to demand a corresponding reduction of the purchase price.
8.16. Lawful claims of recourse of the purchaser against SAM exist only to the extent the statutory conditions have been fulfilled. Therefore no claims of recourse can be put forward when the purchaser has entered into a pertinent agreement with his customer which goes beyond the statutory deficiency claims, based on a warranty or for fair dealing
8.17. To the extent the statutory regulations concerning the purchase of consumer goods (Articles 474 ss. Of the Civil Code), especially with respect to the recourse liability (Articles 478 ss. of the Civil Code) cannot apply in default of the pertinent statutory prerequisites, a one-year warranty term shall apply. This will however not apply to the extent the law conclusively prescribes longer terms, as set out in Article 438, paragraph 1, no. 2, of the Civil Code.
8.18. The legal consequence of a violation of the commercial investigation and claim obligation (acc. to Article 377 of the Code of Commerce) will not be affected therefrom. This also applies to the rule of Article 478 paragraph IV of the German civil code.
8.19. Claims for damages of the purchaser – based on whatever legal title – especially for the violation of duties connected with the liability relationship and with wrongful acts are excluded to the extent no conclusive liability out of the product liability law is imperative, such as in cases of wilful or gross negligent conduct, damage to life, bodily impairment or damage to health or due to the violation of substantial contractual obligations or as far as SAM has delivered a quality guarantee or has concealed the defect maliciously.
8.20. The liability limitations resulting from clause 8.19. also apply in case of breaches of duty by persons whose fault the seller is responsible for according to the legal regulations.
8.21. The claim for damages resulting from the violation of substantial contractual obligations (i.e. an obligation whose fulfilment would only allow the proper performance of the contract at first and that the contract partner would be able to trust and rely on it regularly) is however limited to the foreseeable damage typical for contracts, unless a limitation is excluded for another reason as a consequence of wilful or gross negligent acts and/or of damage to life, bodily impairment or damage to health.
8.22. If SAM provides technical information or acts as an adviser this is free of charge and without liability when this information or advice is not part of the contractually agreed scope of services.
8.23. In case the purchaser is legitimately sued by his customer or by the customer of the original customer and is invited to subsequently come up to his obligations, he has to grant SAM a reasonable period of grace to enable SAM to provide for the subsequent fulfilment themselves, before he looks for a „replacement“ solution elsewhere. The purchaser has to impose that obligation accordingly to his customer. Should the purchaser fail to come up to these obligations, SAM will reserve the right to reduce the replacement expenditure to the amount which have occurred to them when they had provided themselves for the subsequent fulfilment. Article 444 of the Civil Code will not be affected therefrom.
8.24. Replacement expenditure in connection with the subsequent fulfilment by the purchaser of his obligations with respect to his customer is also excluded when the purchaser, in defiance of his obligation to mitigate the damage, has failed to have recourse to his right to refuse that type of subsequent fulfilment and/or both types of subsequent fulfilment because of the disproportionate costs.
8.25. Claims of the purchaser connected with the necessary expenditure for the subsequent fulfilment, especially carriage, travelling, labour and material costs, are excluded to the extend this expenditure increases because the object of the delivery was subsequently supplied to another place than to the place of the business location of the purchaser, unless the destination of the said object corresponds to its specific use. This is by analogy true for the liability in recourse matters.
8.26. To the claims for damages and the claims for reimbursement of the expenditure, connected with the deficiency of the goods delivered, apply the compulsory periods of limitation (8.17.) unless the application of the statutory period of limitation (Article 195, 199 of the German civil code) would lead to a shorter limitation period in individual cases The liability pursuant to the product liability law is not affected therefrom.
8.27. This does not apply to claims for damages by the customer resulting from injury to life, body or health or from wilful or grossly negligent breach of duty by SAM or his vicarious agents, which become statute-barred according to statutory provisions.
9.1. The goods delivered may be only sold in the country of the registered office of the purchaser. In case of several establishments only in the country of business location from which the order was placed. For exports of the products to other countries, a written approval of SAM will be required. Subject to the approval of the purchaser, he is not allowed to deliver the goods to customers who wish to export the goods. This prohibition is only operative when and to the extent it is covered by the petty announcement of the EU-Commission.
9.2. When the goods are delivered/sold to foreign countries, the purchaser will run the risk resulting from the application of the laws in force in the relative country.
9.3. The purchaser is also liable in case of supplies/sales to foreign countries without the prior written approval by SAM, and here solely for the violation of possible industrial rights of third parties. Consequently, he has to keep SAM harmless against any liability.
10.1. If unforeseeable events as defined by 4.3 substantially alter the economic importance or the contents of the delivery or if they have a considerable effect on the operational activities of SAM, the contract will be adapted accordingly under observance of the principle of good faith.
10.2. To the extent it would not be justifiable along commercial lines, SAM will be entitled to withdraw from the contract. If SAM is prepared to avail themselves of that right, they will have to inform the purchaser immediately pursuant to the perception of the implications of that event, and that even when initially an extension of the terms of delivery had been agreed with the purchaser.
11.1. SAM reserves the right to exercise its proprietary rights and copyrights to all drawings, illustrations, plans, calculations, execution instructions, product descriptions, models or samples, substances, containers or packaging materials, cost estimates, drawings and other documents. The documents may be made accessible to third parties only with the prior consent of SAM and, if the order SAM is not granted, shall be returned immediately upon request.
11.2. The customer is obliged to keep all drawings, illustrations, plans, calculations, execution instructions, product descriptions, models, samples, instructions or other documents secret, which are made available to him in connection with the execution of the contract. Without the prior written consent of SAM, the customer is prohibited from granting third parties access to the above documents, etc., or to make them available to third parties in any other way. The duty of secrecy shall only be terminated if and insofar as the knowledge contained in the delivered documents has become generally known or SAM has waived this obligation of secrecy in writing.
11.3. The possible ineffectiveness of individual conditions or of a disposition in conjunction with other agreements will not affect the effectiveness of all the other dispositions or agreements.
11.4. For the legal relations connected with the present contract the German substantive law shall apply under exclusion of the Agreement of the United Nations as to contracts concerning the international sale of goods.
11.5. For all disputes arising directly or indirectly from the contractual relationship, the town of Menden will be the place of performance and the sole place of jurisdiction.