STANDARD TERMS OF SALE AND DELIVERY
of Ströbel GmbH, Mühlsteig 31-33, 90579 Langenzenn, Germany
1. Validity; conclusion of contracts
1.1. All deliveries, services, and product sales effected by us shall be governed solely by the Standard Terms and Conditions hereof (hereinafter referred to as the “Standard Terms”). Any recognition or acceptance on our part of any customer conditions that differ from the conditions hereof shall be excluded, except insofar as we have expressly indicated that such customer conditions apply. Our Standard Terms shall also apply insofar as, in knowledge of any terms and conditions that contravene or differ from the Standard Terms, we unconditionally supply the customer with deliverables. Any contract that is concluded between us and any customer for the purpose of fulfilling any order that has been placed shall be set down in writing.
1.2. Insofar as a customer’s order is regarded as a proposal (Angebot) within the meaning of Article 145 of the German Civil Code (BGB), we shall be entitled to accept it within four weeks.
Our bids, offers and proposals (hereinafter: “Offers”) shall be nonbinding, except insofar as we expressly indicate that they are binding. Any graphics, descriptions, technical data or service descriptions that appear in any printed materials issued by us such as brochures, price lists, catalogues, circular letters and the like or that are included in any document that is part of any Offer shall be nonbinding.
A contract shall be deemed to have been concluded on acceptance, by the mandated deadline, of our written Offer or of an order confirmation sent by us that sets forth the scope of the deliverables that we will be providing.
We shall retain property rights to any written document that is marked “confidential.” Any disclosure of any such document to any third party is expressly prohibited. Any liability on our part for the accuracy of technical data and any other information in any manufacturer brochure shall be excluded.
1.3. We reserve the right to modify technical specifications without notice. The customer shall accept any discrepancies and/or differences and/or inconsistencies in such specifications, insofar as such discrepancies and/or differences and/or inconsistencies are reasonable for the customer. We reserve the right to modify our products and services insofar as such modifications do not have an adverse effect on functionality and/or operation.
2. Subject matter of the contract
2.1. In addition to our Standard Terms, the stipulations of our Offer shall be deemed to definitively define the scope and nature of our deliverables.
2.2. Our order confirmation shall be deemed to definitively specify (a) the deliverables that we are obligated to provide; (b) the payment the customer is to effect for such deliverables; and (c) the terms and conditions of delivery and acceptance thereof by the customer.
3. Deliverables not covered by the contract; change requests
3.1 The deliverables that we are to provide under this contract shall be deemed to have been definitively specified in our order confirmation.
3.2. Insofar as, after the contract has been concluded, the customer submits a written request for a change in our deliverables relative to their nature and scope as specified in the order confirmation (“Change Request”), we shall assess the feasibility of complying with such request. We shall then notify the customer within a reasonable period whether complying with the Change Request is feasible for us. If it is, we shall submit an Offer to the customer that reflects the changes in the conditions and in the order fulfillment relative to such conditions/fulfillment as specified in the order confirmation.
3.3 Fulfillment of any Change Request shall be subject to conclusion of a separate contractual agreement. Insofar as any Change Request is not reasonably feasible for us, or if the customer fails to accept our order confirmation concerning our compliance with a Change Request within five working days following receipt of such confirmation, we shall continue to fulfill the customer’s original order as per our order confirmation, insofar as the customer fails to terminate the contract (a) within five working days following receipt of the notice to the effect that compliance with the Change Request is not reasonably feasible for us; or (b) at the time the customer declines our order confirmation concerning compliance with the Change Request. In such a case, customer payments until the termination takes effect shall be governed by the provisions of section 4 hereof.
3.4. If we supply goods to a company elsewhere in the EU (i.e. not in Germany), we do not charge VAT on such intra-Community supplies, provided that we have a valid VAT ID no. of our customer.
The customer shall furthermore sign and submit to us - both in case of delivery [to the customer’s premises] and in case of collection of the goods from our premises - a confirmation of arrival of the relevant goods in the EU Member State in question (a so-called Gelangensbestätigung, i.e. a confirmation of arrival, which meets the requirements of section (§) 17a of the VAT implementation regulation (Umsatzsteuer-Durchführungsverordnung: UStDV), as amended from time to time.
To this end, the customer can use the confirmation of arrival form provided by us. The confirmation of arrival must be either manually signed or transmitted electronically.
If we are not in possession of a valid VAT ID no. or if we are not provided with the confirmation of arrival (Gelangensbestätigung), we will have to treat the supply of goods in question as subject to VAT and issue the customer a new invoice including the statutory VAT. The customer shall immediately reimburse us for the VAT. Any administrative expenses incurred by us due to the subsequent treatment of the
supply of goods as subject to VAT, shall be borne by the customer. The customer shall immediately reimburse us for said extra administrative expenses.
4. Prices; terms of payment
4.1. The nature, amount and payment due dates for our contractual deliverables shall be specified in our order confirmation, and except insofar as not otherwise expressly stipulated shall apply “free domicile,” including packaging.
4.2. The legally applicable value added tax (VAT) shall not be included in our prices and shall be charged in addition to the product price in accordance with the rate that is applicable on the date of issuance of the invoice. All prices shall be subject to any other applicable costs and charges, in accordance with the mandated statutory amount thereof.
4.3. We reserve the right to increase our prices by a reasonable amount insofar as our cost of materials and/or salary costs increase between the date of issuance of our Offer and the date of provisioning of the deliverables. On request, we shall substantiate such increase for the customer.
4.4. Insofar as it comes to light that the customer’s asset situation has deteriorated following the effective date of the contract, we shall be entitled to suspend fulfillment of our obligations until such time as any amount due has been paid or the customer provides adequate surety for the relevant deliverables. We reserve the right to cancel the contract insofar as the customer fails to effect payment of any amount due or fails to provide surety within a reasonable period so as to eliminate the threat to fulfillment of the contract resulting from deterioration of the customer’s asset situation. Any costs incurred by us up to that point shall be invoiced, and payment thereof shall be due immediately.
4.5. Invoices shall be paid in full on a net 30 days basis, or with a 2% discount if paid within 14 days. Any such discount shall be inadmissible insofar as any outstanding amount is due at the time of payment. Payments shall be credited first to any interest and costs, and then to the oldest amount due.
4.6. Insofar as the customer is in arrears on any payment, we shall be entitled to charge the customer late-payment interest amounting to 4% per annum above the Deutsche Bank discount rate. We shall be entitled to file a claim against the customer for any greater damages resulting from any late payment by the customer, insofar as we are able to prove that such damages were incurred.
4.7. The customer shall only be entitled to make a deduction from the total amount due insofar as any claim asserted by the customer is legally effective or uncontested, or is accepted by us. Apart from this, any customer exercise of any right to withhold payment owing to any contested amount due shall be excluded.
4.8. All goods and services shall be supplied with the proviso that the supply of said goods and services is not contrary to any national or international provisions of law, in particular any export control provisions, embargoes or other sanctions. The contracting parties shall provide any information and documents required for export, transport and import purposes. The customer shall reimburse us for any costs incurred in this regard. Any delay attributable to export controls or licence procedures shall suspend deadlines and delivery times. In the event that any required licence is not granted, or if the customer is not willing to reimburse us for the above mentioned costs, the contract shall be deemed not concluded with regard to the parts concerned; any liability in this regard as well as any liability based on the above mentioned non-observance of deadlines and/or delivery times shall be excluded.
5.1. All supply agreements shall be effected in writing. Delivery deadlines shall be deemed to begin as from the date of our order confirmation, subject to prior clarification of all technical data. Delivery dates shall be considered to be nonbinding and indicative, insofar as not otherwise expressly confirmed.
5.2. Insofar as any order is not fulfilled on time (“Late Delivery”) for reasons attributable to us, any liability on our part for ordinary negligence arising from a commercial transaction shall be excluded. Our liability for Late Delivery in the case of any noncommercial transaction in conjunction with minor negligence shall be limited to 50% of the foreseeable damages. Any further damage claims shall be excluded, except insofar as the relevant Late Delivery was attributable to gross negligence or willful misconduct on our part.
5.3. Any delivery dates shall be reasonably extended in the event of force majeure or any other impediment that is beyond our control, and in particular events that have a substantial impact on our deliveries such as any delay in the provisioning of necessary deliverables from other vendors, any labor strike, any lockouts, or any operational disruptions. Insofar as any such disruption makes it permanently impossible or economically unfeasible for us to effect deliveries, we shall be relieved of our obligation to perform the contract.
5.4. The customer shall be entitled to assert a claim for foreseeable damages arising from any default on delivery on our part only insofar as such default is attributable to gross negligence or willful misconduct.
Our liability for such damages shall be limited to 50% of the damages incurred. Insofar as we accede to a customer request to postpone a delivery, we shall be entitled to increase the contractual net price by 2% per annum above the Deutsche Bundesbank discount rate.
5.5. Partial deliveries shall be admissible and may be invoiced separately, except insofar as such deliveries are not economically useful for the customer.
5.6. Our adherence to a specific covenanted delivery time shall be deemed to be contingent upon the customer duly fulfilling the customer’s contractual obligations in a timely manner.
5.7. Insofar as any delivery delay occurs that is attributable to the customer, the customer shall reimburse us for any damages and/or additional costs incurred that exceed the contractual price.
Disposable packaging. On request from the customer, we will indicate a location where disposable packaging can be disposed of. Such indication shall be nonbinding, and the customer shall defray the disposal costs.
Reusable packaging. Reusable packaging shall be handled with care and shall be returned to us within the mandated period, or shall be returned to a location indicated by us. The customer shall defray any shipping costs in this regard.
6. Passage of risk
6.1. Insofar as not otherwise stipulated in the order confirmation, all deliveries shall be effected on an “ex works” basis.
Insofar as our order confirmation stipulates that delivery is to be effected to the customer, we shall assign to the customer any settlement payout in connection with any shipping insurance claim.
6.2. Insofar as our order confirmation stipulates that delivery is to be effected to the customer, we shall defray the costs of shipping insurance.
7.1. Payment shall fall due on acceptance of the deliverables by the customer and shall mark the beginning of the warranty period. Partial acceptance shall be an option, depending on the deliverables that have been provided. Any partial acceptance that is effected shall be without prejudice to the outcome of the definitive acceptance.
7.2. Deliverables shall be deemed to have been accepted insofar as the customer accepts the relevant consignment without reservation.
7.3. Any customer refusal to accept any deliverables shall be excluded in cases where the deliverables are nonconformant with our order confirmation to a minor degree only. Such minor anomalies shall be documented in an acceptance report and shall be eliminated by us in the context of warranty service.
7.4. Insofar as the acceptance procedure brings to light any major nonconformance relative to our order confirmation, the customer shall set a reasonable period for us to cure such nonconformance (“Period for Cure”).
The acceptance procedure shall be repeated on expiration of the Period for Cure. Insofar as the customer finds the deliverables acceptable, the customer shall formally declare that the deliverables have been accepted. Insofar as any major nonconformance relative to our order confirmation remains on expiration of the Period for Cure, the customer shall be entitled to either (a) cancel the contract (in the case of any partial solely for the non-accepted partial deliverables, insofar as the accepted deliverables are economically useful to the customer in their own right) or (b) request that the price be reduced to a reasonable degree, to the exclusion of any other claim and subject to liability pursuant to Article 10.
7.5. Insofar as the customer (a) fails to formally declare that the deliverables have been accepted despite their in fact being accepted; (b) fails to carry out the acceptance procedure in a timely manner; or (c) fails to issue a formal declaration of acceptance pursuant to section 7.4, we shall be entitled to grant the customer a three week grace period to effect a cure. However, insofar as such cure is not effected within such period, the relevant deliverables shall be deemed to have been accepted. Insofar as during the said grace period the customer fails to issue a declaration of acceptance or carry out the acceptance procedure, we shall deem the deliverables or acceptable partial deliverables to have been accepted by us.
7.6. Insofar as the customer fails to carry out the acceptance procedure for a consignment in a timely manner, or if the customer culpably breaches any contractual duty to cooperate, we shall be entitled to require the customer to indemnify us for any damages incurred by us as a result of such failure or breach. Insofar as the customer fails to carry out the acceptance procedure in a timely manner, the risk arising from any accidental destruction or deterioration of the deliverables shall pass to the customer at this time.
8.1. The validity of any customer warranty rights shall be contingent upon the customer having duly fulfilled its obligations in respect to product testing and having given notice of defects as provided in Articles 377 and 378 of the German Commercial Code (HGB). The warranty period shall begin as at the date of acceptance, and in the case of partial acceptance shall begin for the accepted deliverables. The warranty period shall be six months, insofar as not otherwise stipulated.
8.2. In the event a warranty claim is submitted, we shall be entitled to either repair or replace the product, in our discretion. Insofar as we fail to correct the problem within a reasonable period set by the customer in a writing, the customer shall be entitled to either (a) cancel the contract; but in the case of partial acceptance do so solely in respect of deliverables that can be partially accepted and only insofar as the accepted partial deliverables are economically useful for the customer in their own right; or (b) require us to reasonably reduce the contractual price. Any farther-reaching warranty claim of any kind whatsoever shall be excluded, insofar as not otherwise stipulated in section 10.
8.3. Any customer assignment of any warranty claim shall be subject to our prior written consent.
8.4. Insofar as our assessment of a warranty claim reveals that the problem indicated by the customer is not covered by the warranty, the customer shall be charged (a) for such assessment and/or any repair at the rates indicated on our currently valid price list; and (b) for any third-party products or services purchased in connection with such claim.
8.5. Any customer remonstrance concerning any delivered goods shall be excluded in the following instances: (a) if the delivered amount slightly exceeds or falls short of the ordered amount; (b) if any delivered product is slightly out of tolerance relative to the relevant prevailing industry tolerances; or (c) if a relatively low number of defective goods are delivered, insofar as such defective goods are unavoidable from a technical standpoint.
8.6. We cannot be held liable for any defect in any third party product and/or service that is not delivered or provided by us.
We reserve the right to outsource any work in our sole discretion.
10. Limitation of liability
10.1. We shall be obligated to effect indemnification for damages (regardless of the legal grounds therefor) only insofar as:
- The damages are attributable to the absence of any guaranteed attribute.
- We incur liability under the Product Liability Act.
- We wrongfully breach a material contractual duty in a manner that jeopardizes fulfillment of the contract.
- The damages are attributable to gross negligence or willful misconduct.
10.2. Our liability shall be limited to foreseeable damages insofar as we incur liability owing to breach of a material contractual duty that is not attributable to gross negligence or willful misconduct.
10.3. Insofar as the customer is a businessperson (Kaufmann) within the meaning of the German Commercial Code (HGB), a legal person under public law, or a special fund under public law, our liability shall be limited as follows in accordance with the foregoing:
We shall accept no liability for any collateral and/or consequential damages and/or any lost profit, insofar as the liability is not attributable to willful misconduct or the absence of a guaranteed attribute.
Any liability on our part shall be limited to damages whose occurrence we could have reasonably foreseen on conclusion of the contract, based on the circumstances known to us at that time.
Any liability on our part for minor negligence, regardless of the legal grounds therefor and including frustration of contract or any other impossibility, contractual default, culpable default on any obligation to effect a repair or replacement, or any wrongful action shall be excluded, insofar as not otherwise stipulated above.
10.4. The warranty period shall be six months as from the date of passage of risk. The warranty period shall be deemed a limitation period and shall also apply to any consequential-damage claims, insofar as the asserted claim is not based on wrongful action.
10.5. Insofar as damage claims are excluded or limited pursuant to the provisions above, such exclusion or limitation shall also apply to claims arising from wrongful action, and claims against our employees, representatives, or agents.
11. Right to retain title
11.1. We shall retain title to all delivered goods and services until full payment has been effected of all receivables arising from the business relationship with the customer, regardless of the nature and legal grounds for such receivables. In the case of outstanding invoices, any conditional title shall be deemed to be surety for the amount of such invoices. Any modification or processing of any goods supplied by us to which we still retain title shall be effected solely at our behest, whereby no liabilities shall accrue to us in such a case.
11.2. In the event of any breach of contract on the part of the customer, and in particular if the customer defaults on payment, we shall be entitled to take the deliverables back; whereby in such a case we shall not be deemed to have cancelled the contract, except insofar as we expressly effect such cancellation in writing. Any pledging of any goods by us shall constitute cancellation of the contract. We shall be entitled to sell any goods that we have taken back. The proceeds from the sale of such goods shall be deducted from the amount owed by the customer, minus a reasonable processing charge.
11.3. The customer shall handle the goods with due care and shall insure them, at the customer’s expense, against fire and water damage, as well as theft. Such insurance shall cover the replacement cost of the goods.
11.4. The customer shall immediately notify us in writing of any instance of seizure or any other action by a third party so that we can file a lawsuit pursuant to Article 771 of the German Code of Civil Procedure (ZPO). If such third party is unable to reimburse us for the court costs arising from such a lawsuit, the customer shall indemnify us for such costs.
11.5. The customer shall be entitled to resell the goods via a duly executed transaction. However, in such a case the customer hereby assigns to us the amount (including value added tax) of our definitively invoiced receivables arising from the proceeds of such sale to the customer’s customer or to any third party, regardless of whether the goods in question were sold after having been processed or without having been processed. The customer shall also be entitled to collect such receivables following said assignment, without prejudice to our right to collect any such receivable ourselves. However, we shall refrain from collecting any such receivables insofar as the customer (a) meets the customer’s payment obligations as regards the relevant earned proceeds; (b) is not in arrears on payment; and (c) in particular does not file for bankruptcy or suspend payment of amounts due. But if this is the case, we shall be entitled to require the customer to do the following: (a) disclose the amounts of all assigned receivables and the debtors thereof to us; (b) provide us with all information necessary to effect collection and all documentation related to any such collection; and (c) notify the assignment to any debtor (third party).
11.6. The customer shall process or reconfigure any deliverable solely on our behalf. If any deliverable is processed in conjunction with items that do not originate with us, we shall become partial owners of the resulting product (“Resulting Product”) in proportion to the ratio, at the time of processing, between the invoiced value of the goods and the value of the other items that were processed. The foregoing provisions concerning deliverables that are accepted with reservations shall likewise apply to any Resulting Product.
11.7. Insofar as any deliverable is indivisibly combined (“Combining”) with any item to which we do not hold title, we shall become co-owners of the Resulting Product in proportion to the ratio, at the time of Combining, between the invoiced value of the goods and the value of the other items that were subject to Combining. If Combining is effected in such a way that the customer’s elements can be justifiably regarded as the principal elements, the customer shall assign shared title to us on a pro rata basis. The customer shall keep in custody the consequent sole title or joint title for us.
11.8. The customer shall furthermore assign to us the receivables necessary to secure any claims against the customer that are lodged against a third party by virtue of any combining of the purchased goods with a piece of property.
11.9. At the customer’s behest, we shall release any surety accruing to us insofar as the realizable value of our surety exceeds the amount of the secured receivables by more than 20%. It shall fall to us to determine the amount of the surety that is to be released.
12.1. Any assignment of any rights and/or claims arising from this contract shall be subject to prior written consent from the other contractual party. Any application of the foregoing to any assignment of our right to payment shall be excluded.
12.2. This contract shall supersede any previous agreement between the parties concerning the subject matter hereof. Any changes in or additions to this contract shall be effected in writing only. This applies as well to waiver of the requirement pertaining to documentation in written form.
12.3. Any failure to exercise any right hereof shall not constitute forfeiture of the right to exercise any such right in the future.
12.4. The entirety of the legal relationship between the parties shall be governed solely by German law.
13. Place of jurisdiction
Insofar as the customer is a businessperson (Vollkaufmann), legal person under public law, or a special fund under public law, any dispute arising from or in connection with this contract shall be adjudicated solely in the courts of Fürth. The foregoing shall be without prejudice to any exclusive statutory place of jurisdiction. We furthermore reserve the right to file a law suit or take any other legal action at the general place of jurisdiction or in the city in which the customer’s head office is located.
Should one or more provisions of these Standard Terms be or become invalid or be modified in writing by contractual agreement, this shall not affect the validity or the remaining provisions.