Terms and Conditions as of March 2011
of Sunbrush mobil GmbH with respect to buyers, customers or legal entities or special funds governed by public law.
Our “terms and conditions” shall be included as constituents of all contracts we conclude as seller/contractor, even if no explicit reference is subsequently made to permanent business relations. Any terms and conditions of the buyer/customer shall not apply to us. Any deviating and additional agreements must be made in writing and shall only apply to the respective individual Contract. Any oral supplementary agreements shall be invalid. Changes and/or additions to the agreement may only be implemented by our management or our authorised agents.
1. Order, Acceptance
Offers made by Sunbrush mobil GmbH are subject to change. We reserve the right to make technical modifications to the components or technical developments. The contractual relationship is only concluded with our written acceptance or our written sales confirmation.
2. Service Scope
a. The service scope is based on the sales confirmation.
b. The specified features of the delivery item are comprehensively and finally stipulated in the sales confirmation. In particular, public statements of Sunbrush mobil GmbH, the manufacturer, its agents or third parties (e.g. publicly specifying product properties) exclude additional or modified descriptions of the delivery item/factory.
3. Payment Terms
a. All prices shall be subject to VAT at the prevailing rate.
b. Delivery is exclusively on a cash-before-delivery basis. The full payment of the agreed fee must be made prior to collection/delivery.
c. Invoices must be paid within 10 days of receipt of invoice, without any discount on payment. Such discount deductions shall only be granted if agreed in writing.
Customers are deemed in payment default after the payment deadline stipulated in said invoice has expired, without any further payment reminder required. If the payment is delayed, Sunbrush mobil GmbH shall be entitled to charge interest on arrears amounting to 8% above the basic rate of interest. We also reserve the right to exercise further claims to compensate for delay. However, the buyer/customer shall also be entitled, for its part, to prove that Sunbrush mobil GmbH has incurred no or a very minor loss on account of said payment delay.
d. If we become aware of circumstances which place the buyer/customer’s creditability in question, Sunbrush mobil GmbH reserves the right to make deliveries dependent on advance payment of the invoiced amount. This also applies if such circumstances emerge in the time between conclusion of the Contract and the date of delivery or after one or several partial deliveries. If the buyer/customer refuses to pay in advance or within the specified period, Sunbrush mobil GmbH has the right to withdraw from the Contract and demand damages. If the buyer/customer is threatened with an insolvency petition or insolvency proceedings have been launched on the buyer/customer’s assets, Sunbrush mobil GmbH shall be entitled to withdraw from the Contract and claim for damages without any further requirements.
e. Bills of exchange and cheques are only accepted for performance; expenses concerning discounts, bills of exchange and other costs are to be borne by our customers and settled in advance.
4. Offsetting, Right of Retention
a. The buyer/customer is not entitled to offset sums owed with counterclaims, regardless of nature, unless the counterclaims are undisputed by Sunbrush mobil GmbH or legally ascertained.
b. For existing defects, the buyer/customer has no right of retention unless the delivery is evidently defective or the buyer/customer is obviously entitled to decline acceptance. In such cases, the buyer/customer is authorised to withhold provided the retained amount is proportionate to the defects and the anticipated cost of the subsequent fulfilment (particularly when involving remedying of defects). The buyer/customer is not entitled to exercise claims and rights due to defects, if he/she has not made due payments and the sum due (including any payments made) is in adequate proportion to the value of the defective service or performance.
5. Obligations of the Buyer/Customer, Claims for Damages for Delayed Acceptance
a. The buyer/customer shall grant Sunbrush mobil Gmbh and the third parties we have engaged unhindered access to the property and building, if required for the provision of services in compliance with the Contract.
b. If the buyer/customer is in default of acceptance and culpable for such circumstances, Sunbrush mobil GmbH is entitled to compensation for the proven damages, including loss of profits.
6. Dates/Deadlines, Right to Withdrawal in case of Supply Failure, Transfer of Risk
a. Dates and deadlines shall only be binding for Sunbrush mobil GmbH if explicitly confirmed in writing beforehand by Sunbrush mobil GmbH.
b. If cooperative acts of the buyer/customer are not implemented in time, the dates/deadline shall be extended by the period of hindrance. The same applies if acts of providence, riots, lockouts and major operational disturbances beyond our control alter the dates and deadlines.
c. Sunbrush mobil GmbH is entitled to withdraw from the Contract if Sunbrush mobil GmbH does not receive the delivery item as expected, despite previously concluding a corresponding procurement agreement. In this case, Sunbrush mobil GmbH’s liability for damages due to intentional or grossly negligent breach of contract as defined by point 9 remains unaffected. However, Sunbrush mobil GmbH shall promptly inform the buyer/customer of the availability of goods and promptly exercise the right of withdrawal in the event of a rescission. In case of rescission by us we will compensate for any corresponding consideration already paid by the buyer/customer for such goods.
d. In case of pure material supply, the transfer of risk takes place in the warehouse of Sunbrush mobil GmbH. The goods shall be picked up by the buyer/customer from the Sunbrush mobil GmbH premises. The shipping shall be uninsured and at the cost and risk of the buyer/customer. The shipping method is selected by Sunbrush mobil GmbH. Insurance shall only be taken out by Sunbrush mobil GmbH if expressly requested in writing by the buyer/customer and for a fee based on the insurance charge. Sunbrush mobil GmbH shall then only compensate for any damage provided it has been covered by the insurance company.
7. Retention of Title
a. The delivery item remains the property of Sunbrush mobil GmbH pending fulfilment of all obligations to the buyer/customer resulting from the contractual relationship.
b. With effect from the date of transfer of risk, until the date of transfer of ownership, the buyer/customer shall be obligated to treat the goods delivered with due care and shall insure the goods at its own cost against damage by fire, water and theft sufficiently to cover their value when new.
c. For the duration of the retention of title the buyer/customer may process or transform the reserved goods or combine the same with another item.
d. If the delivery item or new product is sold, the buyer/customer also hereby assigns to Sunbrush mobil GmbH its claim on the buyer/customer arising from the resale as security, including all ancillary rights, without any further special declarations being required. This assignment applies inclusive of any balance claims. The assignment, however, shall only apply with respect to an amount corresponding to the value of the processed goods and subject to retention of title invoiced by us. The portion of the claim assigned to Sunbrush mobil GmbH shall be satisfied as a priority.
e. Until a retraction, the buyer/customer shall be authorised by point 7 of this document (Retention of Title) to collect receivables regarding the demands of the Sunbrush mobil GmbH. The buyer/customer shall promptly forward Sunbrush mobil GmbH payments made towards the assigned receivables up to the amount of the secured account receivable. If there is a legitimate interest, particularly in the event of any payment default, the suspension of payments, the opening of insolvency proceedings, the protest of a bill of exchange or substantiated indication of the Purchaser’s over-indebtedness or impending inability to pay, Sunbrush mobil GmbH shall be entitled to revoke the purchaser’s authority to collect. Furthermore, after issuing a prior warning and allowing a corresponding grace period, Sunbrush mobil GmbH may disclose the assignment of security, realise the assigned claims and demand disclosure of the assignment of security by the buyer/customer to the purchaser.
f. Following authentication of a justified interest, the buyer/customer shall provide Sunbrush mobil GmbH with all information necessary to exercise Sunbrush mobil GmbH’s rights over the buyer/customer and hand over the necessary documents.
g. For the duration of the retention of title, the buyer/customer may not pledge the Retained goods or use them as security. In case of attachments, seizure or other dispositions of third parties, our buyer/customer is obliged to inform us promptly. Resale is only permitted to resellers via ordinary transactions and only provided the equivalent value of the delivery item is paid to the contracting party. The buyer/customer must also agree with the Purchaser that the latter shall only acquire ownership with this payment.
h. If the realisable value of all the security rights due to Sunbrush mobil GmbH exceeds the amount of all secured claims by more than 10%, we shall release an appropriate share of the security rights to the buyer/customer if requested. It is assumed that the conditions mentioned in the previous sentence are met if the estimated value of the goods and claims assigned by way of security reaches or exceeds 150 percent of the value secured claims. Sunbrush mobil GmbH shall have the right to select between various security interests for release.
i. If the buyer/customer violates its obligations, particularly any default in payment, we are entitled to demand recovery of the conditional goods and/or withdraw from the Contract. The buyer/customer is obliged to surrender the goods. A demand to surrender the delivered goods shall not constitute withdrawal from the Contract by Sunbrush mobil GmbH, unless expressly stipulated.
a. The buyer/customer is obliged to report obvious defects of quality and title to Sunbrush mobil GmbH in writing within three days of receipt of the goods; the dispatch of said notification within this deadline is sufficient. In this regard, the defects must be described in as much detail as possible to the buyer.
b. If the buyer/customer reports a defect, which subsequently emerges as non-existent according to Sunbrush mobil GmbH’s inspection and if the buyer/customer intentionally or negligently reported the same, the buyer/customer must compensate Sunbrush mobil GmbH for any damage incurred. The buyer/customer shall be entitled to prove the existence of the alleged defect. Under the above provisions Sunbrush mobil GmbH shall particularly be entitled to demand reimbursement from the buyer/customer of any expenditure incurred, e.g. in inspecting the goods or for the repair demanded by the contractual partner.
c. In the context of subsequent fulfilment, Sunbrush mobil GmbH is not obliged to make replacement deliveries regardless of circumstances. Requests for supplementary performance must be made in writing. Sunbrush mobil GmbH shall be granted a reasonable period for reworking of at least 15 days. If amendments are to be undertaken, repeated amendments after any failed amendment shall be valid. If subsequent fulfilment fails, the buyer/customer has the right to reduce payment or - if the deficient performance does not involve building services - withdraw from the Contract, as desired. The statutory cases concerning the dispensability of setting a deadline are unaffected.
d. We have the right to choose whether to remedy the defect or supply a replacement.
e. The expenditure incurred for any subsequent fulfilment shall be borne by the Customer, insofar as the increased expenditure is due to the goods and services having to be rendered outside the Customer’s premises or the assembly site, unless such transport corresponds to the goods’ intended use.
f. All warranty claims against us lapse once 12 months have expired from the date of transfer of risk.
a. Sunbrush mobil GmbH accepts liability in the event of intent, or gross negligence on the part of Sunbrush mobil GmbH, one of its representatives or agents, as well as in cases of physical damage and harm to health caused by carelessness, in accordance with statutory legislation. Our liability in cases of gross negligence is also limited to foreseeable damage typical of the Contract concerned, provided none of the exceptional cases listed in clauses one or three of this paragraph applies. Otherwise, Sunbrush mobil GmbH shall only be liable according to the product liability law, or where it is culpable for damages to fundamental contractual duties, has fraudulently concealed defects or issued a quality guarantee for the goods. Claims for Damages for violation of significant obligations under the Contract, however, shall be limited to foreseeable damages typical for the Contract, unless another of the exceptions listed in clauses one or three of this paragraph applies at the same time.
b. The provisions of the above section 1 cover compensation for damages besides performance and compensation for damages instead of performance, regardless of legal cause, particularly on account of deficiencies, any breach of obligations resulting from the contractual relationship or from tort. They also apply to claims for reimbursement of futile expenses and liability due to impossibility of performance and default.
c. As agreed, the customer is under obligation to use the SunBrush mobil GmbH product only after installation, completion of the training and briefing. The company SunBrush mobil is not liable for damage caused by improper or incorrect use of the product before installation, completion of training and briefing on the machine technology. The customer is obliged to prove that the use of the product was not improper or incorrect before installation, completion of the training and briefing. The customer is also obliged to prove that the damage was not caused by improper or incorrect use of the product.
d. No change in the burden of proof disadvantageous to the buyer/customer is implied by the preceding provisions.
10. Utilisation as Reference
a. The buyer/customer consents that Sunbrush mobil GmbH may name the buyer/customer and the respective project as reference vis-à-vis third parties and utilise photographic images for promotional purposes.
11. Place of Jurisdiction
a. The place of settlement and seat of jurisdiction applicable to contracting parties, traders, corporate bodies governed by public law or separate estates subject to public law is Memmingen (87700).
12. Severability Clause, Governing Law
a. If individual provisions of the Contract of these terms of payment and delivery are declared void or invalid, in whole or in part, or if they are declared ineffectual by judicial or governmental decree, the validity or executability of the remaining provisions of this agreement or these terms of payment and conditions shall remain unaffected.
b. German law shall apply to any claim resulting from this business relation. The UN purchase law is excluded.
13. Data protection
The data provided by you will be used and processed by us exclusively for processing your orders and for the fulfilment of the contract. Of course, your data will be treated as strictly confidential on our part. The data will only be forwarded to third parties if this is necessary for processing the order, processing your inquiry or the fulfilment of the contract. Reference is made in this respect to Article 6, paragraph 1 DSGVO, in particular to Article 6, paragraph 1 b) DSGVO. You have a right of access to the personal data concerned, of rectification or deletion or of limitation of the processing and a right of objection to the processing or the transferability of data. If your data is otherwise covered by a statutory authorisation, a separate declaration of consent pursuant to Article 6(1)(a) DSGVO shall be obtained.