STANDARD TERMS OF SALE AND DELIVERY
of Ströbel GmbH, Mühlsteig 31-33, 90579 Langenzenn, Germany
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1. Validity; conclusion of contracts
1.1 These standard terms of sale and delivery (hereinafter referred to as the “Standard Terms”) shall apply to all business relationships with our customers. However, these Standard Terms shall apply only if the customer is an entrepreneur (within the meaning of section (§) 14 of the German Civil Code (BGB)), a legal entity under public law or special fund under public law.
1.2 All deliveries, services, and product sales effected by us shall be governed solely by the Standard Terms and Conditions hereof. 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 agreed to the application of such customer conditions. Our Standard Terms shall also apply insofar as, in knowledge of any customer’s terms and conditions that contravene or differ from our Standard Terms, we unconditionally supply the customer with deliverables.
1.3. Legally relevant statements and notifications which are to be submitted to us by the customer after conclusion of the contract (e.g. setting of deadlines, reports of defects or declarations of withdrawal or price reduction) shall only be effective if made in writing.
1.4 Insofar as a customer’s order is regarded as a proposal (Angebot) within the meaning of Section (§) 145 of the German Civil Code (BGB), we shall be entitled to accept it within four weeks.
1.5. 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.
1.6. A contract shall be deemed to have been concluded on acceptance, within the specified deadline, of our written Offer or by an order confirmation sent by us that sets forth the scope of the deliverables that we will be providing.
1.7. We shall retain property rights and/or copyright to any written document that is marked “confidential.” Any disclosure of any such document to any third party is prohibited. Any liability on our part for the accuracy of technical data and any other information in any manufacturer brochure shall be excluded.
1.8. 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.
1.9. Any reference to any applicable statutory provision is included for clarification purposes only. Even without such clarification the statutory provisions shall apply, insofar as they have not been actually amended or expressly excluded by these Standard Terms.
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. Prices; terms of payment
3.1. The nature, amount and payment due dates for our contractual deliverables shall be specified in our order confirmation, and unless otherwise expressly stipulated shall apply “free domicile,” including packaging.
3.2. 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.
3.3. Insofar as delivery is effected after more than four months after the conclusion of the contract, we shall be entitled to increase our prices if such an increase is attributable to circumstances which we were unable to avoid and which have occurred only after the conclusion of the contract. Unavoidable circumstances are, e.g., price increases effected by our suppliers of raw materials and purchased parts as well as amendments of standards or salary and wage increases which are beyond our control. Prior to expiration of four months, unavoidable price increases shall be allowed only insofar as they are attributable to circumstances which we could not have foreseen when the contract was concluded. If the agreed-upon prices are increased by more than five per cent, the customer shall be entitled to cancel the contract. Any price increase which interferes with any price we’ve guaranteed shall be null and void.
3.4. Invoices shall be paid in full on a net 30 days basis, or with a 2% discount if paid within 14 days. We shall, however, at all times during an ongoing business relationship also be entitled to request payment in advance, either in full or in part. Payment in advance shall be requested at latest with the order confirmation. The above mentioned 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.
3.5. If, after the contract has been concluded, it comes to light (e.g. due to an application for insolvency proceedings) that our right to be paid the purchase price is put in danger by the customer’s inability to perform, we shall be entitled to refuse performance and to cancel the contract, after having given notice (if necessary) pursuant to section (§) 321 of the German Civil Code (BGB). We shall be entitled to immediately rescind any contract concerning the production of specific items (job production); the statutory provisions relating to the dispensability of a deadline shall remain unaffected.
3.6. Insofar as the customer is in arrears on any payment, we shall be entitled to charge the customer late-payment interest at the legal 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.
3.7. The customer shall only be entitled to make a deduction from the total amount due or to withhold payment insofar as any claim asserted by the customer is legally effective or uncontested. The customer’s rights in case of defective goods, in particular pursuant to section 7.2., second sentence, of these Standard Terms, shall remain unaffected.
4.1. 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.
4.2. In the event that we fail to meet binding delivery dates for reasons not attributable to us (non-availability of performance), we shall immediately inform the customer of such failure and simultaneously advise him of the new expected delivery date. If performance is not available on or before the new delivery date, we shall be entitled to cancel the contract in full or in part; we will promptly refund any payment already made by the customer. Performance shall be deemed to be unavailable, in particular, if our supplier does not deliver the products in time, if we have entered into a supply contract covering the respective delivery ("kongruentes Deckungsgeschäft"), neither we nor our supplier can be held responsible for the delay, or we are not obligated to deliver the goods in the individual case.
4.3. 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.
4.4. The advent of our delivery delay shall be governed by the applicable laws, whereby in any such case a warning from Customer shall be necessary. Insofar as any of our deliveries are late, Customer shall be entitled to require compensation for damages resulting from such delay. Such compensation shall amount to 0.5 percent, per full week, of the net price (value of the shipment in question), subject to a maximum of 5 percent of the value of the shipment in question. We reserve the right to demonstrate that Customer has incurred no damages or that the damages incurred are considerably lower than the damages claimed.
4.5. The foregoing shall be without prejudice to Customer’s rights pursuant to Section 8 hereof and our statutory rights, notably in the event the obligation to perform is excluded on grounds such as the impossibility or unreasonableness of performance and/or subsequent performance.
4.6. Partial deliveries shall be admissible and may be invoiced separately, except insofar as such deliveries are not economically useful for the customer.
4.7. 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.
4.8. 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.
5. Passage of risk
5.1. Insofar as not otherwise stipulated in the order confirmation, all deliveries shall be effected on an “ex works” basis, i.e. at the seller’s premises, which shall also be the place of performance as well as the place of any subsequent performances (Nacherfüllung) for deliveries.
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.
5.2. Insofar as our order confirmation stipulates that delivery is to be effected to the customer, we shall defray the costs of shipping insurance.
5.3. The risk of accidental destruction and/or deterioration of the goods shall pass to Customer as at the date of handover to Customer, at the latest. In the case of any purchase to destination (Versendungskauf), the said risk of accidental destruction and deterioration of the goods, as well as the risk entailed by late delivery, shall instead pass to the shipper, carrier or any other party or entity that is designated to convey the goods. Where acceptance of delivery has been covenanted, risk shall be deemed to have been transferred upon such acceptance. The law governing contracts for work shall apply mutatis mutandis in any other case where acceptance of delivery has been covenanted. Delivery and/or acceptance shall be deemed to have taken place insofar as Customer fails to effect acceptance on time.
6.1. Payment shall fall due on acceptance of the deliverables by the customer, which 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.
6.2. Deliverables shall be deemed to have been accepted insofar as the customer accepts the relevant consignment without reservation.
6.3. 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.
6.4. 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.
6.5. 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 6.4, 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.
6.6. Insofar as the customer fails to carry out the acceptance procedure for a consignment in a timely manner, or if the customer breaches any contractual duty to cooperate, we shall be entitled to require the customer to indemnify us for any damages or additional costs incurred by us as a result of such failure or breach.
7.1. Customer’s rights concerning material defects and/or defects in title (including cases where incorrect goods or a deficient number of goods are supplied, or in the event assembly and/or assembly instructions are incorrect or defective) shall be governed by the applicable laws, insofar as not otherwise stipulated below. The foregoing shall in all cases be without prejudice to the statutory provisions governing deliveries of goods to end users, pursuant to Articles 478 and 479 of the German Civil Code (BGB).
7.2. 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).
7.3. In the event that any delivered goods are defective, we shall be entitled to either repair (Nachbesserung) or replace (Ersatzlieferung) the defective goods, in our discretion.
Our right to refuse subsequent performance (Nacherfüllung) as provided for by law shall remain unaffected.
We shall be entitled to make subsequent performance dependent on the customer having paid the amount owing for the purchase. The customer shall, however, be entitled to withhold such part of the purchase price which is appropriate in relation to the defect.
7.4. Any customer assignment of any warranty claim shall be subject to our prior written consent.
7.5 We shall defray all costs arising from the correction of any defect/deficiency, including shipping, travel, labor and material costs (to the exclusion of dismantling or installation costs) insofar as an actual defect/deficiency exists. In any other case, we shall be entitled to require Customer to reimburse us for any cost (including inspection and shipping costs) that we may incur as the result of Customer lodging an unjustified request for correction of a defect/deficiency, except insofar as such lack of defect/deficiency was not recognizable to Customer.
7.6. 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.
7.7. We cannot be held liable for any defect in any third party product and/or service that is not delivered or provided by us.
8. Limitation of liability
8.1. Insofar as not otherwise specified herein, our liability for any breach of any contractual or extra-contractual duty shall be governed by the applicable laws.
8.2. We shall be liable for damages (regardless of the legal grounds thereof) within the limits of the so-called “liability based on fault” (Verschuldenshaftung) insofar as the damages are attributable to willful misconduct or gross negligence. In case of simple negligence we shall be liable as provided by law, without prejudice to any less severe liability rules (e.g. diligence one usually employs in one’s own affairs), only:
for damages resulting from injury to life, body or health.
for damages resulting from material breach of any material contractual duty (i.e. any duty the fulfillment of which is essential for the proper execution of the contract and on the fulfillment of which the contracting party regularly relies and can rely); in this case, however, our liability shall be limited to typically foreseeable damages
8.3. The limitations of liability resulting from section 8.2. hereof shall also apply to any breach of duty committed by or in favor of any third person for whose faults we are responsible by law. They shall, however, not apply insofar as we have fraudulently concealed a defect or have provided a product quality guarantee nor to customer claims according to the German Product Liability Act (Produkthaftungsgesetz).
8.4. The customer shall only be entitled to withdraw or terminate (the contract) on account of a breach of duty which does not constitute a defect if we are responsible for the breach. In all other respects the statutory requirements and legal consequences shall apply.
9. Limitation period
9.1 Notwithstanding section (§) 438, par. 1, n. 3, of the German Civil Code (BGB), the general limitation period for claims based on defects in quality or title shall be one year from delivery. Insofar as (formal) acceptance has been agreed upon, the limitation period shall commence on acceptance of the deliverables and/or on acceptance of the partial delivery in case of acceptance of any partial delivery.
9.2. Special statutory provisions concerning limitation periods (in particular section (§) 438, par. 1, n. 1.74, par. 3, sections (§§) 444 and 479 of the German Civil Code (BGB) shall remain unaffected.
9.3. The above mentioned limitation periods of the law on the sale of goods shall apply also to any contractual and extracontractual damage claims filed by the customer which are based on any defective goods unless application of the regular statutory limitation period (pursuant to sections (§§) 195 and 199 of the German Civil Code (BGB)) provide for shorter limitation periods in the individual case. Any customer damage claim pursuant to section 8.2., sentence 1 and sentence 2. a) of these Standard Terms, as well as any claim pursuant to the German Product Liability Act (Produkthaftungsgesetz) shall, however, be subject exclusively to statutory limitation periods.
10. Right to retain title
10.1. We shall retain title to all sold goods until full payment has been effected of all current and future receivables arising from the contract of sale and any ongoing business relationship with the customer (secured receivables).
10.2. In the event of any breach of contract on the part of the customer, and in particular if the customer fails to pay the due purchase price, we shall be entitled to cancel the contract as provided by law and/or to demand the return of the goods by virtue of the retention of title clause; whereby our request to return the goods shall not be deemed to have cancelled the contract; we shall rather be entitled to merely request the return of the goods and to reserve the right to cancel the contract.
In the event Customer fails to duly effect payment of the purchase price, we shall be entitled to exercise the aforesaid rights only insofar as Customer fails to effect such payment by a reasonable deadline, or if setting such a deadline is legally unreasonable and/or unnecessary.
10.3. 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.
10.4. Prior to full payment of the secured receivables, the goods which are subject to retention of title must neither be pledged to third parties nor provided as security. The customer shall immediately notify us in writing of any request to open insolvency proceedings or any other action by a third party (e.g. seizure) against the goods to which we retain title.
10.5. Subject to revocation pursuant to section 10.5.(c) hereof, the customer shall have the right to process and/or resell any goods that are subject to retention of title in the course of normal business. The following provisions, shall additionally apply in such a case:
(a) Retention of title shall apply to any product obtained by processing our products, combining them with existing products, or integrating them into existing products at their full value, in which case we shall be deemed to be the manufacturer. Insofar as retention of title remains in effect for the third party product in question in the event of any such processing, combining and/or integration in respect of any such third party products, we shall acquire title to such products pro rata to the invoice values of the processed, combined or integrated products in question. Any work product of such processing, combining and/or integration shall be governed by the same provisions that apply to goods that are subject to retention of title.
(b) As a precaution, Customer hereby assigns to us in their entirety, or in the amount of the pro rata ownership share accruing to us pursuant to the previous paragraph, any claim against any third party resulting from resale of the goods or products. We hereby accept such assignment. The Customer duties referred to in Section 10.3 hereof shall also apply to the said assigned claims.
(c) In addition to us, Customer shall be entitled to collect receivables. We shall refrain from collecting receivables insofar as (a) Customer meets his payment obligations to us; (b) Customer does not exhibit any performance deficiency; (c) we do not exercise our right to retention of title pursuant to Section 10.2 hereof. But in the reverse case, we shall be entitled to require 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). In such a case we shall furthermore be entitled to revoke Customer’s right to resell and process any goods that are subject to retention of title.
(d) Insofar as the realizable value of the securities exceeds the value of our receivables by more than 10 percent, upon request from Customer we shall release securities, in our discretion.
We reserve the right to outsource any work in our sole discretion.
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. Any failure to exercise any right hereof shall not imply a renunciation of the right to exercise any such right in the future.
13. Applicable law and venue
13.1. These Standard Terms and the contractual relationship between us and our customer shall be governed by German law, to the exclusion of the uniform international law, in particular the United Nations Convention on Contracts for the International Sale of Goods.
13.2.Insofar as the customer is a businessperson (Kaufmann) within the meaning of the German Commercial Code (Handelsgesetzbuch), legal person under public law, or a special fund under public law, any dispute (including international disputes) arising directly or indirectly from or in connection with this contract shall be adjudicated solely in the courts of Fürth. The foregoing shall apply mutatis mutandis if the customer is an entrepreneur (Unternehmer) within the meaning of section (§) 14 of the German Civil Code (BGB). We do, however, in any case reserve the right to file a law suit at the place of performance of the delivery (pursuant to these Standard Terms or any overriding individual agreement) or at the customer’s general place of jurisdiction, without prejudice to any overriding statutory provisions concerning in particular exclusive jurisdiction.
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.