General Terms and Conditions
1.1. These General Terms and Conditions (GTC or Terms and Conditions of Sale) shall apply to all sales, deliveries and other services (hereinafter also referred to collectively as “Deliveries”) of SUYIN GmbH (SUYIN).
1.2. These Terms and Conditions of Sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
1.3. These General Terms and Conditions of Sale of SUYIN shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that SUYIN has expressly agreed to their validity. This requirement of consent shall also apply if the Buyer refers to its General Terms and Conditions in the context of the order and SUYIN has not expressly objected to the Buyer’s General Terms and Conditions.
1.4. These Terms and Conditions of Sale shall also apply to all future transactions with the Buyer, insofar as they are legal transactions of a related nature.
1.5. Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation from SUYIN.
2. Offers, documents and samples
2.1. SUYIN’s offers are subject to change and non-binding. This shall also apply if SUYIN has provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN/EN standards) and other product descriptions or documents (including in electronic form).
2.2. The order of the goods by the Buyer is a non-binding contractual offer in accordance with § 145 BGB. In the event that nothing to the contrary results from the order, SUYIN shall be entitled to accept this contractual offer within two weeks of its receipt by SUYIN.
2.3. SUYIN reserves the right of ownership and copyright to all documents provided to the Buyer in connection with the placing of the order – including in electronic form – such as calculations, drawings, samples, etc. SUYIN reserves the right of ownership and copyright to these documents. These documents may not be reproduced and may not be made accessible to third parties unless SUYIN grants the Buyer express written authorisation to do so. All such documents and samples shall be returned to SUYIN upon request.
3.1. Prices are quoted in the offered currency, packaged, exclusive of VAT and, unless otherwise agreed in writing, according to FCA SUYIN factory/warehouse (Incoterms 2020). The location of the SUYIN plant/warehouse is specified in the offer.
3.2. SUYIN reserves the right to make reasonable price changes due to changes in labour, material and distribution costs for deliveries made 3 months or later after conclusion of the contract. In particular, but not exclusively, the prices on the London Metal Exchange (LME Index) shall be used as a benchmark for changes in material costs. A price change occurs if the LME Index changes by more than 7 % upwards or downwards. When using the LME Index, the adjustment is based on the proportion of metal contained in the products.
3.3. If the costs for products change significantly due to external factors that cannot be controlled by SUYIN, in particular with regard to material costs, changes to the agreed purchase quantities by the Buyer or customer requirements, SUYIN shall send new price offers to the Buyer taking into account the changed conditions. The prices contained therein shall apply from the 20th calendar day after receipt of the adjusted price offers to the Buyer if the Buyer does not object to the new prices.
4.1. All invoices are payable net within 30 days of the invoice date. The parties reserve the right to make deviating agreements.
4.2. Payment of the purchase price shall be made exclusively to the account specified by SUYIN in the invoice. The deduction of a discount shall only be permitted if a special written agreement has been made.
4.3. The buyer shall be in default if the above payment period expires. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate pursuant to Section 288 (2) BGB (German Civil Code) in the amount of nine percentage points above the respective base interest rate. SUYIN reserves the right to claim further damages caused by default. The claim to commercial maturity interest in accordance with § 353 HGB remains unaffected for merchants.
4.4. If it is foreseeable after conclusion of the contract that SUYIN’s claim to payment of the purchase price is jeopardised due to the Buyer’s inability to pay (e.g. due to an application for the opening of insolvency proceedings), SUYIN shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary after setting a deadline, to withdraw from the contract (§ 321 BGB). In the case of contracts for which the manufacture of non-fungible items (customised products) is owed, SUYIN may declare its withdrawal immediately. The statutory provisions on the dispensability of setting a deadline shall remain unaffected in this respect.
5. Rights of retention
The purchaser shall only be entitled to set-off or retention rights if his claim has been legally established or is undisputed and his counterclaim is based on the same contractual relationship.
6. Delivery, transfer of risk, acceptance, default of acceptance
6.1. If the delivery period is specified as a period (and not as a date), it shall commence on the date of the written order confirmation in accordance with the unchanged offer.
6.2. The commencement of the delivery period stated by SUYIN shall be subject to the timely and proper fulfilment of the Buyer’s obligations. The defence of non-performance of the contract shall remain reserved. If the Buyer is in default of acceptance or culpably violates other obligations to co-operate, SUYIN shall be entitled to claim compensation for the damage incurred by SUYIN in this respect, including to demand compensation for any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the buyer at the point in time at which the buyer is in default of acceptance or debtor’s delay.
6.3. Whether SUYIN as seller is in default of delivery shall be determined in accordance with the statutory provisions. However, the prerequisite for a delay in delivery by SUYIN as seller is a reminder from the buyer. In the event of a delay in delivery, the Buyer may only claim proven damages caused by the delay. SUYIN reserves the right to prove that the Buyer has suffered no damage or only minor damage.
6.4. The rights of the Buyer pursuant to Section 9 of these General Terms and Conditions of Sale and the statutory rights to which SUYIN is entitled, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
6.5. In the event that SUYIN is unable to meet contractually agreed delivery deadlines for reasons for which SUYIN is not responsible, SUYIN shall inform the Buyer of this circumstance without delay and at the same time notify the Buyer of the expected or new delivery deadline. If a delayed delivery cannot be made due to non-availability of the service even within the newly announced delivery period, SUYIN shall be entitled to withdraw from the contract in whole or in part; SUYIN shall immediately reimburse any consideration already provided by the Buyer (in the form of payment of the purchase price). The non- availability of the service shall be deemed to exist, for example, if SUYIN’s supplier has failed to deliver to SUYIN on time, if SUYIN has concluded a congruent hedging transaction, if there are other disruptions in the supply chain (for example due to force majeure) or if SUYIN is not obliged to procure in individual cases.
“Force majeure” includes, but is not limited to: War, riots, insurrections, acts of sabotage or similar events, strikes or other industrial action, newly enacted laws and regulations, delay due to acts or omissions of a government/its authorities, fire, explosions or other unavoidable events, floods, storms, earthquakes, inundations, strikes, lawful lockouts, epidemics and pandemics, provided that a risk level of at least “moderate” is defined by the Robert Koch Institute, or other extraordinary natural events.
6.6. Partial deliveries are permissible. In the case of long-term supply contracts, each partial delivery shall be deemed a separate transaction. Impossibility of a partial delivery or delay with a partial delivery shall not entitle the buyer to withdraw from the entire contract or to claim damages.
6.7. At the Buyer’s request, SUYIN shall offer contracts in such a way that the quantity of the ordered goods specified in the order confirmation is not delivered immediately, but in the delivery lots specified in the order confirmation, staggered over time, on call by the Buyer (framework agreement). In framework agreements, the quantities ordered are binding from the outset and must be called off by the Buyer at the latest by the end of the term of the respective order item specified in the order confirmation. In the event that the call-off does not take place by the end of the term, SUYIN shall store the quantities not called off for the Buyer for a maximum of 2 months from the end of the term. SUYIN reserves the right to invoice the costs incurred for this in the amount of 5% of the net value of the goods. The Buyer reserves the right to prove that SUYIN has incurred lower costs due to the storage.
6.8. If the Buyer does not call for the stored quantity within these 2 months despite a request and setting of a grace period in text form, SUYIN reserves the right to deliver the goods at the Buyer’s expense after expiry of the 2 months without request. The goods shall become due for payment upon delivery.
6.9. If acceptance is delayed or impossible for reasons for which SUYIN is not responsible, SUYIN shall be entitled to store the goods at its own or a third party’s premises at the Buyer’s expense and risk. The corresponding obligations of SUYIN shall hereby be deemed to have been fulfilled.
6.10. SUYIN’s standard packaging is cardboard, not stackable.
6.11. In the event that the Buyer wishes to have the goods shipped to another destination (sale to
destination), the Buyer shall bear the costs of the shipment. In the event that nothing has been contractually agreed, SUYIN may itself determine the type of dispatch (packaging, dispatch route, transport company).
6.12. The risk of accidental loss and accidental deterioration shall pass to the buyer when the goods are handed over to the buyer. In the case of a sale involving the carriage of goods, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent or carrier. In the event that acceptance of the goods is contractually agreed, this shall be decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and labour remain unaffected. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance of the goods.
6.13. In the event that the Buyer is in default of acceptance or SUYIN’s delivery is delayed for other reasons for which the Buyer is responsible, SUYIN shall be entitled to claim compensation from the Buyer for the damage incurred, including additional expenses (e.g. storage costs). If this is the case, SUYIN shall invoice the Buyer for these costs.
6.14. If the Buyer has the goods collected from SUYIN by a forwarding agent/third party or collects the goods from SUYIN itself or if goods are delivered by SUYIN to a “cross-dock” and accepted there by the Buyer, the Buyer shall be obliged to provide SUYIN with copies of the transport documents and, if the goods are exported from the EU, copies of the customs documents within one month after collection of the goods or after arrival of the goods at the “cross-dock”. If SUYIN is not provided with the relevant documents by the Buyer within the above-mentioned period, SUYIN reserves the right to charge any VAT and other costs incurred as a result or to invoice the Buyer.
The Buyer is obliged to ensure that SUYIN is provided at all times during the contractual relationship with the correct and valid VAT identification number of the part of the company (head office/branch office) under which the Buyer orders the delivery of goods or services from SUYIN.
7. Retention of title
7.1. The delivered goods (reserved goods) shall remain the property of SUYIN until all claims arising from this contract have been paid in full.
7.2. As long as ownership has not yet been transferred to him, the buyer undertakes to treat the reserved goods with care and to insure them adequately at his own expense against fire, water damage and theft at replacement value.
7.3. The purchaser is not authorised to pledge the reserved goods to third parties or to assign them by way of security. However, the Buyer shall be entitled to use the reserved goods and to resell them in the ordinary course of business as long as he is not in arrears with his payment obligations. The Buyer shall assign to SUYIN by way of security any claims against its business partners arising from the sale. SUYIN accepts the assignment.
SUYIN revocably authorises the Buyer to collect the claims assigned to SUYIN for its account in its own name. This shall not affect SUYIN’s right to collect the receivables itself. However, SUYIN shall not collect the receivables itself and shall not revoke the direct debit authorisation as long as the Buyer duly fulfils its payment obligations.
If the Buyer is in breach of contract with SUYIN, in particular if it defaults on its payment obligations, SUYIN may demand that the Buyer discloses the assigned claims and the respective debtors, informs the respective debtors of the assignment and hands over to SUYIN all documents and provides all information that SUYIN requires to assert the claims.
7.4. The processing or transformation of the reserved goods by the Buyer shall always be carried out in the name of and on behalf of SUYIN. If the reserved goods are processed with other items which are not the property of SUYIN, SUYIN shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items at the time of processing. If the reserved goods are inseparably combined or mixed with other items not belonging to SUYIN, SUYIN shall acquire co- ownership of the new item in the ratio of the value of the reserved goods to the other combined or mixed items at the time of combination or mixing. If the combining or mixing is carried out in such a way that the Buyer’s item is to be regarded as the main item, it shall be deemed agreed that the Buyer shall transfer co- ownership to SUYIN on a pro rata basis. SUYIN accepts this transfer. The Buyer shall hold the resulting sole ownership or co-ownership of the item for SUYIN.
7.5. If the goods subject to retention of title are seized or are subject to other interventions by third parties, the Buyer shall be obliged to inform the third party of SUYIN’s ownership rights as long as ownership has not yet been transferred to the Buyer and to notify SUYIN immediately in writing so that SUYIN can enforce its ownership rights. The Buyer shall be liable to SUYIN for any judicial or extrajudicial costs incurred in this connection, unless the third party is able to reimburse SUYIN for these costs.
7.6. SUYIN undertakes, at the Buyer’s request, to release the securities to which it is entitled to the extent that the realisable value exceeds the value of the outstanding claims against the Buyer by 10%.
8.1. Unless the transfer of ownership to the Buyer of tools developed, manufactured or procured by SUYIN for the purpose of manufacturing the goods to be delivered to the Buyer has been expressly agreed in writing, these tools shall remain the property of SUYIN.
8.2. Even if the development, manufacturing or procurement costs for these tools are partially or fully reimbursed, the purchaser shall not acquire any claim to transfer of ownership of the tools themselves.
9.1. The warranty period is one year from the transfer of risk. Warranty rights of the buyer presuppose that the buyer has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
9.2. Agreements that SUYIN has made with buyers regarding the quality and intended use of the goods regularly form the basis of SUYIN’s liability for defects under the warranty. A quality agreement includes all Product descriptions and manufacturer’s specifications that are the subject of the individual contract. In the event that no quality has been agreed, it must be assessed in accordance with the provisions of Section 434 (3) BGB whether a defect exists.
9.3. SUYIN must be notified in writing without delay if a defect is discovered during delivery, inspection or at a later date. Obvious defects must be reported in writing within 5 working days of delivery and non-recognisable defects within the same period of time from discovery of the defects. In the event that the Buyer neglects or fails to fulfil its obligation to properly inspect and/or report defects, SUYIN shall not be liable for the defect that was not reported or not reported in time or not reported properly in accordance with the statutory provisions. If the goods were intended for fitting, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of non-compliance with or breach of one of these obligations. In this case, the buyer is not entitled to any claims for compensation for the “installation and removal costs”.
9.4. If the delivered goods are defective, SUYIN as the seller shall be entitled to choose whether SUYIN shall provide subsequent fulfilment by remedying the defect (subsequent improvement) or by delivering a defect-free item (subsequent delivery). In the event that the type of subsequent fulfilment chosen by SUYIN is unreasonable for the Buyer in the individual case, the Buyer may refuse it. However, SUYIN reserves the right to refuse subsequent fulfilment under the statutory conditions. In addition, SUYIN shall be entitled to make the subsequent fulfilment to be provided by SUYIN dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
9.5. Complaints about partial deliveries shall not entitle the Buyer to refuse fulfilment of the entire contract by SUYIN.
10. Liability, statute of limitations
10.1. Within the scope of fault-based liability, SUYIN shall be liable for damages, irrespective of the legal grounds, only in the event of wilful intent and gross negligence. In the event of simple negligence, SUYIN shall only be liable, subject to statutory limitations of liability (e.g. care in its own affairs; insignificant breach of duty), for damages resulting from injury to life, body or health and/or for damages resulting from the breach of a material contractual obligation (obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner relies and may also rely). In this case, however, SUYIN’s liability shall be limited to compensation for foreseeable, typically occurring damage.
10.2. The limitations of liability arising in accordance with 10.1 shall also apply to third parties and in the event of breaches of duty by persons whose fault SUYIN is responsible for in accordance with statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the limitations of liability shall not apply. This shall also apply to claims of the Buyer under the Product Liability Act.
10.3. The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not result from a defect in the event that SUYIN as the Seller is responsible for the breach of duty.
10.4. The Buyer’s right of cancellation (in particular pursuant to Sections 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
10.5. Claims for defects shall become time-barred 12 months after delivery of the goods supplied by SUYIN to the Buyer. For claims for damages in the event of intent and gross negligence as well as in the event of the statutory limitation period shall apply to claims for damages to life, limb and health that are based on an intentional or negligent breach of duty by the user.
11. Property rights
SUYIN or its affiliates are and shall remain the owner of all Intellectual Property Rights, unless otherwise agreed. In the case of orders whose execution includes development services, SUYIN shall be the sole owner of the development result, including but not limited to all concepts, drawings, samples, ideas, software, documentation and all other documents and all industrial property rights relating thereto or registered thereto. No rights of use or licences to the development result or industrial property rights are granted to the purchaser either implicitly or explicitly.
The Buyer shall be obliged to keep confidential information received from SUYIN in the course of the business relationship secret and not to disclose it to third parties.
13. Place of fulfilment and jurisdiction
13.1. These General Terms and Conditions of Sale and the contractual relationship between SUYIN as Seller and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
13.2. Rights to which SUYIN is entitled on the basis of statutory provisions shall not be affected by these GTC.
13.3. If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, SUYIN’s registered office in Pfarrkirchen shall be the exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code).
13.4. SUYIN shall also be entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these General Terms and Conditions of Sale or an overriding individual agreement or at the general place of jurisdiction of the Buyer. This shall not affect overriding statutory provisions (exclusive places of jurisdiction).