General terms of delivery and payment of SOMA PUMPS GmbH
I. Definition, scope of applicability
1. The following Terms and Conditions of Business only apply with respect to companies in the meaning of Article 310 par. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
2. Our Terms and Conditions of Business apply exclusively. Any terms and conditions of the customer being contrary to or differing from these terms and conditions are not recognised by SOMA Pumps GmbH. The following Terms and Conditions of Business also apply if, in the knowledge of terms and conditions of the customer being contrary to or differing from these terms and conditions, SOMA Pumps GmbH carries out the delivery to it without any reservations.
3. Any arrangements or ancillary agreements that differ from these Terms and Conditions of Business shall only be effective if they have been confirmed by SOMA Pumps GmbH in writing.
II. Offers, order confirmation
1. A supply contract only arises when either the customer has received a written order confirmation from SOMA Pumps GmbH or the goods have been shipped by SOMA Pumps GmbH.
2. Information on drawings or in lists or catalogues, as well as images and weight data, should be deemed mere approximations.
III. Prices – payment method
1. All prices of SOMA Pumps GmbH should be understood as net prices Ex-Works excluding packaging. Shipment will be carried out carriage forward unless agreed otherwise in the order confirmation.
2. Unless fixed prices have been explicitly agreed, the list prices as of the delivery date apply. All changes of a foreign currency or its exchange rate vis-à-vis the EURO occurring after the conclusion of the contract shall affect the customer.
3. The delivery periods specified by SOMA Pumps GmbH should be understood as the delivery time from the supplying factory in business days. If the customer’s cooperation is required for the completion of a
work, the delivery period specified by SOMA Pumps GmbH should be understood as running from the date when the required documents of the customer are received by SOMA Pumps GmbH.
4. For payment periods, the deadlines and conditions stated in the order confirmation apply. First orders under €200.00 shall only be accepted against cash on delivery or prepayment.
5. Payments should only be made to SOMA Pumps GmbH or into its bank accounts. The customer shall make payments to representatives at its own risk. Despite the assignment of a payment deadline, the purchase price shall be due for immediate payment if the customer defaults with regard to a different item or if circumstances arise that indicate that the claim may be at risk.
IV. Late payment
If, despite a reminder and the setting of a time limit, the customer fails to fulfil its payment obligation within the set payment period or if an application for the initiation of insolvency proceedings is filed with regard to the customer’s assets, the entire outstanding balance from the business relationship shall be due for immediate payment plus all additional costs. In such cases, SOMA Pumps GmbH shall have the right to declare the rescission of all unfulfilled contracts and collect already delivered and not yet paid for goods subject to retention of ownership, as well as to demand the reimbursement of all costs associated with such rescission.
V. Retention of ownership
1. SOMA Pumps GmbH shall retain the ownership title to the delivered items until all payments from the business relationship with the customer have been received.
2. The customer shall have the right to resell the items delivered by SOMA Pumps GmbH in the course of ordinary business dealings. However, it assigns to SOMA Pumps GmbH, already upon the effective inclusion of these terms and conditions, all receivables in the amount of the purchase price agreed between SOMA Pumps GmbH and the customer (including VAT). The customer shall be authorised to collect the claim after the assignment thereof. The authorisation of SOMA Pumps GmbH to collect the claim itself is not affected by this agreement. However, SOMA Pumps GmbH undertakes not to collect it as long as the customer fulfils its payment obligations properly and completely and is not late in making payment. If, however, the customer delays in making payment SOMA Pumps GmbH will be able to demand that the customer specify the assigned receivables and the name of the third-party debtors, provide it with all the documents necessary for collection and inform the third-party debtors of the assignment.
3. Processing and/or alteration of the items delivered by SOMA Pumps GmbH by the customer shall always be carried out by the customer for SOMA Pumps GmbH. If the delivered goods are processed,
combined or blended with other items not being the property of SOMA Pumps GmbH, SOMA Pumps GmbH shall acquire a co-ownership right to the new item in the ratio of the value of the delivered goods to the other processed items at the time of the processing. The customer shall safekeep the co-owned property of SOMA Pumps GmbH.
4. The customer may neither pledge the delivered goods nor assign them as security. In the event of attachment or seizure or other interventions by third parties, the customer must promptly notify SOMA Pumps GmbH thereof and provide it with all information and documents necessary for the protection of its rights. Enforcement officers / third parties must be informed of SOMA Pumps GmbH’s ownership title.
VI. Deliveries, delivery period
1. Adherence to the delivery and performance deadlines agreed between the parties requires that all technical issues be clarified, that any necessary documents, sketches, drawings, tools etc. have been provided by the customer and that payments or other obligations of the customer have been clarified. If this does not occur, the time limit for delivery shall be extended by the duration of the impediment.
2. Stated delivery times are mere approximations. Transport delays, rejected casting, material shortages and events of force majeure shall release SOMA Pumps GmbH from its obligation to punctually meet the deadline, including if the impediments occur in a subsupplier’s establishment. The customer may not terminate the order or assert claims for compensation for losses for such reasons.
3. If the delivery is delayed at the customer’s instigation, the goods shall be stored at SOMA Pumps GmbH at the customer’s risk and expense. For the costs of storage, SOMA Pumps GmbH shall charge a flat price in the amount of 0.5% of the value of the goods delivered per commenced month.
4. In the case of free delivery to the destination the transport insurance is covered by SOMA Pumps GmbH. In the case of ex works delivery, the insurance must be covered by the customer. Any damage in transit must be reported to the carrier and confirmed by it upon acceptance. Any defects that are not immediately identifiable (no identifiable damage to the packaging) must be reported no later than within eight days from the receipt of the goods.
5. Installation (fitting) of delivered machines and machine parts is not included in the price, unless this has been explicitly confirmed with respect to the customer.
6. Insofar as fitting has been agreed, it shall be billed accordingly. If a car is used for the journey to the customer SOMA Pumps GmbH shall also charge a mileage allowance for the fitter. Waiting periods for the fitter not being the fault of SOMA Pumps GmbH shall be charged as installation time. Overtime and night-time work performed by the fitter shall be subject to an appropriate surcharge.
7. Any scaffolding or lifting gear required by the fitter, as well as oil, fuel and lubricants, shall be purchased by the customer for its own account.
8. The transfer of risk is regulated in accordance with the conditions stated in the order confirmation. The currently applicable version of Incoterms shall be appropriately included in the conditions of delivery if reference is made to them.
9. If no conditions are stated on the order confirmation, delivery shall be at the risk and for the account of the customer. This shall also apply for any necessary return transport. Transport packaging and any other packaging shall not be taken back unless this has been explicitly agreed between the parties.
10. EXPORT CONTROL: If necessary, please submit to us, no later than the moment when the order is placed, a written end-use statement, specifying the country of use, as well as a confirmation of non-military and non-nuclear use. If the principal has not provided this information upon the placement of the order or the delivery violates national or European export control laws, we shall have the right to rescind our offer and refuse to accept the order / rescind the contract, without any claim for compensation for losses being asserted by the principal due to such non-acceptance of the order or non-performance of the contract.
ATTENTION: If the final destination of the goods is in Iran, North Korea, Sudan, Cuba or Syria, the offer made is ineffective.
VII. Liability and defects
1. Insofar as a product is specifically specified between SOMA Pumps GmbH and the customer, it is deemed free of material defects if recognised production-related tolerances are complied with. The customer may only invoke a purpose of use intended by it if it has been explicitly agreed in writing.
2. Unless an agreement to the contrary has been made between the parties, SOMA Pumps GmbH provides a warranty for the delivered goods/works such that if the works are unusable due to defective materials or substandard work all parts in the delivered works will be repaired free of charge within six months from the shipment of the delivered items. The date of the shipment ex works shall be decisive. Liability based on warranty claims shall not arise if the customer unilaterally carries out or has already carried out repair work on the delivered items, uses the delivered works and items otherwise than as stated with respect to SOMA Pumps GmbH or caused the damage due to defective and/or inadequate maintenance.
3. Parts subject to natural wear and tear, for example mechanical seals, split rings, bearings, clutch packs, indicator lamps, fuses, stators etc., are excluded from the above-mentioned warranty.
4. The customer undertakes to promptly report any identified defects to SOMA Pumps GmbH.
5. Compensation cannot be paid for damage to third-party items, labour costs, lost profits or similar expenses.
6. In the event of a defect, SOMA Pumps GmbH shall remedy the defect in its own production facilities or provide a replacement.
7. The warranty for the elimination of defects in the delivered items shall become invalid if a defect is not reported within eight days from the commissioning of the machine or the delivered parts.
8. Models / machine parts which are sent to SOMA Pumps GmbH shall be safekept by SOMA Pumps GmbH at the customer’s risk.
9. Unless provided for otherwise above, liability for defects is otherwise excluded.
VIII. Counterclaims, transferability
1. The customer shall only be entitled to set-off claims if its counterclaims have been established with legally binding effect, are undisputed or have been recognised by SOMA Pumps GmbH. Furthermore, the customer shall only be authorised to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship. 2. The customer may only assign a right under the contracts concluded with SOMA Pumps GmbH with the consent of SOMA Pumps GmbH.
IX. Place of performance, place of jurisdiction, applicable laws, miscellaneous
1. Unless explicitly agreed otherwise, the place of performance for contracts on the basis of these terms and conditions is Abstatt.
2. The place of jurisdiction is the court in Heilbronn locally competent for SOMA Pumps GmbH’s registered office. However, SOMA Pumps GmbH shall also have the right to take legal action against the customer before any other locally competent court.
3. Should a provision of these terms and conditions or individual parts hereof be or become ineffective, the other provisions / the other parts of the provision shall remain effective. Instead of the ineffective provision or the ineffective part of the provision, a provision being legally permissible that comes closest to what SOMA Pumps GmbH intended to stipulate with that provision shall apply.
4. If the customer has its place of business outside the Federal Republic of Germany, the above-mentioned provisions shall apply subject to the exclusive applicability of German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
X. Data protection
We store and process data within the framework of the joint business relationship in accordance with the requirements of the German Data Protection Act (Bundesdatenschutzgesetz – BDSG) / the General Data Protection Regulation (EU) 2016/679.”