I. Application of these General Conditions
All deliveries and other services of skysupply GmbH (thereafter called “skysupply”) are exclusively based on the following General Terms and Conditions. General terms and conditions of the customer deviating therefrom are herewith not accepted. They have also no effectiveness even if skysupply does not expressively protest them again after their receipt and knowledge and carries out delivery and services without further reservations of these general conditions.
1. Indications of delivery dates are only approximately applicable, unless skysupply confirms a definite delivery date in writing. Time of contract conclusion is generally decisive for the beginning of the agreed delivery period. There is no delay of delivery unless the customer has not fulfilled the contractual obligations or the duties to cooperate assumed by him in time, in particular, if he does not provide or cause to be provided approvals, releases, other documents or further prerequisites necessary for orderly contractual performance within the time agreed upon. In these cases, the delivery period agreed upon shall begin not before complete fulfilment of the customer’s obligations.
2. If skysupply is in arrears with a service, the customer must grant an adequate extended period for orderly performance. Only after the fruitless expiry of this extended period is the customer entitled to withdraw from the contract by means of a written declaration. Damage claims against skysupply due to delay or non-performance including interest in arrears are excluded unless they are based on wilful intent or gross negligence. Required expenses for orderly subsequent performance are on skysupply’s cost.
3. skysupply is entitled to carry out partial deliveries or partial services unless partial performance is against the customer’s concern due to the contractual content. This, however, does not affect the customer’s rights to completely withdraw from the contract or to demand damages due to a more than unessential breach of contract even after partial fulfilment on part ofskysupply. Damage claims due to partial delivery or partial service are excluded unless partial delivery or partial service is based on wilful intent or gross negligence by skysupply.
4. If a call-off or pick-up period for the customer has passed or if the customer has not accepted a delivery or service despite skysupply’s request to do so, skysupply shall be entitled to claim for damages due to late performance and, after granting an adequate extended period, to withdraw from the whole contract and claim for damages due to the breach of contract.
5. Instead of compensating the real damage cased by the customer’s breach of contract, skysupply is entitled to claim 15 % of the total order value (without value added tax). skysupply is entitled to assert higher evidenced damages and the customer has the right to give proof of the fact that the damage incurred is lower than the lump-sum calculated.
6. Expenses for transport of the ordered goods are in all cases at the customer’s cost. The risks in connection with the contractual object are transferred to the customer upon dispatch. If dispatch is delayed without skysupply’s fault, the risk will be transferred to the customer upon preparation of the goods and notification of the readiness for collection. If the delay is based on a violation of one of the customer’s obligations, skysupply will be entitled to store the contractual object at the customer’s cost or to effect delivery at the customer’s risk.
7. skysupply reserves the right to perform excess or short deliveries of a maximum of 5 % of the quantity ordered if this is unavoidable for technical reasons or only avoidable under expenditure of substantial additional costs and if the excess or short delivery is acceptable to the customer .
III. Prices and Terms of Payment
1. Unless something different results from the order confirmation, our prices are “ex works” and plus value-added tax in the respectively valid amount.
2. The customer shall be obliged to pay one third of the purchase price after receiving the order confirmation by skysupply. Payment of the residual amount is due upon delivery in accordance with the following provisions.
3. Payments must be made net without reduction within 20 days upon receipt of the invoice. If total payment is effected within 10 days upon receipt of the invoice, a discount in the amount of 2 % of the total invoice value is granted.
4. If the customer is in arrears with payment, skysupply will be entitled to demand interest in arrears in the amount of 8 % above the respective basic interest rate of the European Central Bank. skysupply reserves the right to assert higher, evidenced damage caused by delayed performance, and the customer is entitled to give proof of a lower damage caused by delayed performance.
5. Offset and withholding delivery on part of the customer due to counter-claims disputed by skysupply are only permissible if the counter-claims have been determined with legal effectiveness.
1. The customer shall notify skysupply immediately in writing of obvious defects in the delivery item, but no later than 5 workdays from its receipt. skysupply is to be informed of hidden defects immediately in writing, but no later than 5 workdays from their discovery. After one year upon receipt notification of the defects is excluded.
2. If skysupply’s delivery shows defects which impair its value and/or usability in a considerable manner or if it misses a warranted property, skysupply will remove the defect upon customers request within an adequate period, at its option, by way of rework or substitute delivery. If rework and/or substitute delivery remain without success even after the second attempt or if it is not effected within the adequate extended period granted by the customer, the customer is entitled to demand reduction of the sales price or to withdraw from the contract.
3. All further damage claims – no matter for which legal causes – are herewith excluded. This also applies to liability for consequential damages, i.e. for all damages which have not occurred in the delivery itself. This exclusion of liability shall not apply to cases of wilful intent or gross negligence, of violation of material contractual duties or of violation of physical integrity, health or life on part of skysupply. Above-mentioned exclusion of liability shall also not apply to claims resulting from the product liability law. The obligation to pay damages is in all cases, except for wilful intent and gross negligence, limited to the contract-typical, foreseeable damage. The upper limit of the damages is in all cases the gross value of the invoice concerned in the particular case.
4. The afore-mentioned disclaimer of liability with respect to contractual damage claims shall also apply to parallel claims resulting from unlawful acts.
V. Collection Costs>In the case that the customer has not disputed a claim of skysupply and if skysupply cannot assume – on the basis of the overall circumstances of the purchase – that the customer will react to an extrajudicial reminder, skysupply shall be entitled to retain a collection company with collecting the claim concerned.In this case, the customer shall bear the costs resulting from retaining the collection company. His obligation to pay is limited to the expenditure actually incurred by the respective collection company, under exclusion of a participation in the overhead costs. The customer’s obligation to pay is in all cases limited to those costs which will result from instructing an attorney on the basis of the German Federal Attorneys’ Fees Act.
VI. Reservation of Ownership, Anticipatory Assignment, Securing Reserved Goods
1. All deliveries by skysupply are effected with reservation of ownership, i.e. the right of ownership is only transferred to the customer if he has paid all his liabilities (including all balance claims in current accounts) and incidental claims due to skysupply.
2. The customer is entitled to resell the reserved goods within the context of orderly businesses, but not to pledge or transfer it as a security. In the case of pledges, attachments or other impairments of skysupply’s ownership in the reserved goods, the customer must give notice of skysupply’s ownership in the goods and inform skysupply immediately thereof.
3. Authorization of resale shall be excluded if the customer agrees with his purchasers an effective covenant not to assign the debt of purchase. skysupply is entitled to revoke authorization of resale of reserved goods in the cases of payment in arrears, termination of payment, initiation of proceedings aiming at debt settlement and if circumstances exist which are suited to reduce the customer’s credit worthiness.
4. For securing all present and future claims arising from the business relationship with skysupply, the customer shall assign to skysupply right now all claims and incidental rights, which result from a possible resale or other use of the reserved goods in orderly businesses. skysupply shall accept this assignment. This assignment also comprises balance claims resulting from current account agreements, which the customer concludes with his purchasers if the claim resulting from resale of reserved goods is included in the current account relationship.
5. skysupply authorizes the customer revocably to collect the claims assigned to it at his cost and in his own name. skysupply shall be entitled to revoke the collection authorization in the cases of payment in arrears, termination of payment or initiation of proceedings aiming at debt settlement and if circumstances exist, which are suited to reduce the customer’s credit worthiness.
6. If the customer is in arrears with payment, skysupply shall be entitled to demand recovery of the reserved goods and to procure possession thereof by itself or by authorized people, no matter where the goods are situated. Recovery shall not mean the simultaneous withdrawal from the contract, unless explicitly declared. The customer shall be obliged to surrender the reserved goods to skysupply and to provide the information necessary for asserting its rights as well as the corresponding documents.In addition, the customer shall be obliged to inform skysupply at its request about the debtors of the claims assigned, to grant skysupply access to information and documents necessary for collecting and to notify his debtors of the assignment. skysupply itself shall be entitled to notify the customer’s debtors of the assignment and to request payment effected to skysupply.
7. skysupply shall release all securities due to it at the orderer’s request in so far as the realisable value of the securities exceeds the claims to be secured by more than 20 %. skysupply shall be exclusively responsible for selecting the claims to be released.
VII. Data Protection
skysupply informs their customers according to the provisions of the Data Protection Law that personal data acquired within the context of a business relationship is stored by means of electronic data processing and is only used for internal company purposes.
VIII. Place of Performance, Place of Jurisdiction and Applicable Law
1. Unless otherwise stated in the order confirmation, Munich shall be the place of performance concerning delivery and payment.
2. Exclusive place of jurisdiction for all disputes arising out of the underlying contractual relationship between skysupply and the customer shall be Munich in respect of commercial legal business. skysupply shall, however, be entitled to sue the customer at his residence or business address.
3. The Law of the Federal Republic of Germany shall exclusively apply to legal relationships between skysupply and foreign customers. Application of the UN Convention on International Sale of Goods is herewith excluded.
General Conditions of Purchase of skysupply GmbH
I. General Provisions
All orders of skysupply GmbH (thereafter called “skysupply”) are exclusively based on the following Conditions of Purchase. General terms > and conditions of the supplier deviating therefrom are herewith not accepted. They have also no effectiveness even if skysupply does not expressively protest them again after their receipt. The supplier acknowledges the following Conditions of Purchase upon acceptance of an order of skysupply, at the latest upon first delivery. They shall apply to the entire term of the business relationship.
II. Conclusion of Contract
1. A supplier’s quotation shall be binding as long as skysupply doesn’t receive a written revocation by the supplier, at least for a period of one month from skysupply’s receipt of the quotation. All quotations must comply with skysupply’s inquiries with respect to quantity and quality. Deviations must be indicated in writing.
2. A contract between skysupply and the supplier comes into force upon the issuance of a written order by skysupply. The data in the written order is exclusively decisive concerning prices, quantity and delivery dates.
3. The supplier shall confirm an order from skysupply within two weeks from receipt. If the supplier fails to give this confirmation, a contract has been concluded on the basis of skysupply’s order, skysupply, however, is entitled to immediately cancel the order.
III. Prices and Payment
1. All prices agreed upon are fixed prices inclusive of all legal taxes and charges.
2. If, in an exceptional case, a delivery price has not been fixed upon conclusion of the contract, it is to be stated bindingly at the latest in the confirmation given by the supplier. If the delivery price stated in the confirmation shall deviate in said case by more than 20% from the customary compensation or from an existing list price, skysupply shall be entitled to cancel the order immediately after receipt of the confirmation or to withdraw from the delivery contract.
3. All goods and services of the supplier, including accessory parts and work, for the relevant order shall be settled with the agreed price. All prices are free delivery at skysupply, unless other delivery conditions have been stated in the order.
4. At the skysupply’s option, payment shall be effected within 14 days with 3% discount or after 30 days without reduction or after special agreement. Payment periods shall start upon receipt of the goods and acceptance of correct invoice by skysupply. skysupply can freely choose the type of payment; date of dispatch of the payment means or of giving the payment order to the bank shall be decisive for punctuality of the payment. If a defect subject to warranty is present, skysupply shall be entitled to refuse payment until complete removal of the defect or successful substitute delivery. In this case, the payment periods shall start with removal of the defect or substitute delivery. Early delivery without the consent of skysupply does not affect the payment period based on the contractual delivery date.
5. If skysupply is, totally or partially, in arrears with a payment, the supplier will initially again request payment by granting an extended period of a minimum of one (1) week. The supplier shall not be entitled to claim for damage caused by delayed performance before expiry of said extended period.6. Payments effected by skysupply are not to be deemed as unconditional recognition of the supplier’s invoice.
1. All deliveries shall be effected at the supplier’s own cost and risk.
2. If reusable packaging is used, the supplier shall take back the packaging at his cost. If skysupply has been charged separately for the packaging, skysupply shall be entitled to a credit note in the amount of the packaging value invoiced after the packaging has been returned. If the supplier uses non-reusable packaging, he is responsible for taking the packaging back uponskysupply’s request.
3. Each delivery must be accompanied by a delivery note in duplicate, in which all order data is indicated, in particular, article and part number and order number. Should the supplier repeatedly and culpably infringe upon this delivery obligation, skysupply shall be entitled to charge the supplier for the additional expenditure incurred with an expense allowance in the amount of 10% of the order value of the order affected in the respective case, if the supplier continues to be in violation despite a written request to desist from the violation or if a non-acceptable frequency of violations occurs. The supplier has the right to give proof of lower damages and skysupply of a higher damages.
4. All delivery dates and periods shall be binding and must be exactly adhered to. They shall mean the time, at which the delivery item must have arrived at the place of receipt indicated in the order and, in the case of a service agreement, that time, at which the relevant service must have been rendered. If the supplier does not observe a delivery or service period agreed upon or a date indicated in the delivery schedule, he shall pay for each workday a penalty in the amount of 1% of the delayed order value for each workday of delay to skysupply, but no more than 20% of the invoice amount. Assertion of further damages by skysupply is not excluded thereby.Excess or short deliveries deviating from the order are not permissible. skysupply reserves the right to freely decide upon acceptance of excess or short deliveries in particular. Unconditional acceptance without reprehension does not represent approval of the excess or short delivery.
5. Irrespective of the provision under Number 4, skysupply shall be entitled in the case of delivery not in compliance with the dates or periods or quantities to organize delivery of the goods as quickly as possible via air freight or express service at the supplier’s cost or organize performance of that part of delivery which has not been fulfilled by a third party at the supplier’s cost or grant an extended period and threaten with the refusal of further contractual fulfilment. If the supplier does not react within the extended period granted, skysupply shall be entitled to withdraw from the contract or demand damages due to non-fulfilment, even if the delay has not been within the supplier’s responsibility.
6. The supplier shall be obliged to immediately notify skysupply in writing of recognizable difficulties with respect to observance of the delivery dates, of their reasons and the presumable duration of the delay. The notification does not prevent start of delay at the delivery date agreed upon.
7. Early partial deliveries are only permissible with the previous written consent of skysupply and do not affect the general duty of fulfilment. skysupply shall be entitled to send back deliveries which have been effected before the delivery date agreed upon at the cost and risk of the supplier or to demand additional storage costs.8. skysupply is only in delay, if the supplier has granted in writing an adequate extended acceptance period of a minimum of 3 weeks, if this period has passed unused and if skysupply is responsible for the failer. Subsequently, the supplier is entitled to withdraw from the contract.
V. Production Means
1. All production means, provided by skysupply to the supplier, such as samples, drawings, plans, etc. shall remain the property of skysupply.
2. Without skysupply’s consent, said production means must not be made accessible to third parties and must not be copied. Products, which have been produced on the basis of said production means, may only be used by the supplier for performance of the order of skysupply and not be offered or delivered to third parties.
3. As soon as the production means, provided by skysupply to the supplier, are no longer required, they are immediately to be returned to skysupply without request free of charge. The supplier shall be liable for any loss and damage thereof. If production means are provided by the supplier, he is obliged to transfer ownership thereto to skysupply if they have been invoiced separately. In this case, the supplier shall also transfer the intellectual property rights in the production means provided, insofar as he is entitled thereto.
VI. Quality Assurance
1. The supplier shall be obliged to carefully revise documents handed over to him for execution of the order. The supplier shall notify skysupply of recognizable errors in the specifications, in particular, with respect to producability of the goods or calculation thereof.
2. The supplier guarantees that the ordered goods are of such quality preconditioned in the order. for the existence of properties which skysupply has mentioned in the order. The supplier assures in particular that the goods are in compliance with the samples, which he has sent before placing the order or which have been provided by skysupply.
3. All goods and services shall be in compliance with the applicable regulations concerning accident prevention, work protection and environmental protection as well as the VDE regulations. The supplier shall also guarantee that the deliveries correspond with the recognized technical provisions and safety and other provisions with respect to the agreed technical data, including the DIN standards.
4. The supplier shall be obliged to only produce delivery items from completely new components; secondary raw materials must not be used.
5. The supplier shall be obliged to carry out a first sample test. Series production can be started only after skysupply has accepted and released in writing any samples produced.
6. The supplier shall further be obliged to continuously check the quality of the delivery items. Insofar as this has been determined in a separate agreement with skysupply, the supplier shall be obliged to record separately, when, in which manner and by whom the delivery items have been checked with respect to the features subject to documentation and which results have been found.
7. If the representations and warranties mentioned under Number 1 to 6 are not observed, the supplier shall be obliged to pay damages due to non-fulfilment. The before-mentioned regulations shall particularly apply to product properties, which have been explicitly promised by the supplier. The obligation to pay damages shall also comprise consequential damage, use and enjoyment lost, profits lost, futile expenses, which have been useless due to the missing properties, as well as every damage which has been caused by further sale (further processing) of the goods supplied, which has already occurred.
VII. Examination of the Goods and Notification of Defects
1. skysupply shall be obliged to examine the delivered items for defects subsequent to delivery and to notify the supplier thereof within a period of two weeks from handing over the delivery items. Punctual dispatch of the notification of defects shall be enough for observance of this period. The duty to examine does not apply to hidden defects, which become visible upon processing or utilization. In these cases, skysupply will notify the supplier within two weeks from discovery.
2. In the case of delivery of greater item numbers or quantities of a product, examination of individual products (spot-check samples) shall be sufficient for orderly examination. If an overall control becomes necessary, which exceeds the usual degree of the incoming-goods control, the supplier shall bear the additional costs resulting therefrom.
3. Payment on the part of skysupply shall not be deemed as a waiver of rights resulting from late delivery or of warranty claims.
1. If the delivery item is defective skysupply shall be entitled, at its option, to demand rework or substitute delivery within an adequate extended period. If rework or substitute delivery remain without success skysupply shall be entitled to withdraw from the contract and claim for damages without further warnings. This does not affect further claims for damages of skysupply. The warranty shall cover all costs connected to removal of the defects, including costs for removal of the items, storage and return transportation and similar. Return of rejected deliveries is effected at the cost and risk of the supplier, selection of the method of transportation lies with skysupply.
2. The claims of skysupply within the context of the defect warranty shall terminate 24 months after delivery, unless the legal period is longer. The periods shall start anew after each defect removal or substitute delivery.
3. If claims by third parties are asserted against skysupply due to defects of the delivery item, the supplier shall indemnify skysupply for these claims, in particular, for claims resulting from product liability. This only applies to cases, in which the supplier would be liable himself to third parties.
4. Consent by skysupply to samples, models and calculations shall not affect the supplier’s warranty obligations. In particular, consent shall not mean a waiver of warranty.
IX. Protection Rights
The supplier shall be liable that no industrial protection rights of third persons are violated due to his delivery and contract-conforming use of the delivery item. The supplier will indemnify skysupply for all claims due to violation of production rights if he himself is directly liable as to third parties.
X. Reservation of Ownership, Offset and Prohibition of Assignment
1. Ownership of all deliveries shall pass irrevocably to skysupply upon acceptance of the goods. Reservations of ownership are in no case acknowledged. The supplier shall guarantee that no reservation of ownership of third parties exists in the goods supplied and that he is entitled to transfer ownership thereof.
2. skysupply shall be entitled to offset with or against claims, which skysupply has against the supplier. Offsetting is also permissible if the claim or counter-claim is not yet due. In this case, offset is carried out on value date of invoice.
3. Assignment of the supplier’s rights and duties towards skysupply shall be excluded and is only permissible with written consent given by skysupply.
XI. Data Protection
skysupply informs their suppliers according to the provisions of the Data Protection Law that personal data acquired within the context of a business relationship is stored by means of electronic data processing and is only used for company-internal purposes.
XII. Place of Performance, Place of Jurisdiction and Applicable Law
1. Unless otherwise stated in the order, Munich shall be the place of performance concerning delivery and payment.
2. Exclusive place of jurisdiction for all disputes arising out of the underlying contractual relationship between skysupply and the supplier shall be Munich in respect of commercial legal business. skysupply shall, however, be entitled to sue the supplier at his residence or business address.
3. The Law of the Federal Republic of Germany shall exclusively apply to legal relationships between the supplier and skysupply. Application of the UN Convention on International Sale of Goods is herewith excluded.
Munich, January 2002