general terms & conditions of sale and delivery
Terms and Conditions of Sales and Deliveries
- 1. General
- Exclusively our Terms and Conditions of Sales and Deliveries apply to this contract. Terms and Conditions of Business of the Client, warranties and subsequent changes to the contract shall only apply if agreed in writing and confirmed by us in writing. Information on the conditions of our services are no warranties in the sense of §443 BGB (German Commercial Code), unless we expressly declare in writing that we are giving a warranty pursuant to § 443 BGB.
- In so far as the written form is prescribed in these Terms and Conditions, the electronic form (§126a BGB) and the text form (§126b BGB) are equal to the written form.
- These Terms and Conditions shall not apply if the Client is a consumer in the sense of §13 BGB.
- 2. Bid and range of the delivery
If the client makes a bid the contract shall only be concluded if we have accepted the bid in writing. Our written declaration of acceptance (bid confirmation) is decisive for the range of delivery. Any documents enclosed with the bid or bid confirmation such as descriptions, photographs and drawings, indications of measurements and weights are only decisive, if they are expressly described as binding. Excess and under weights within the normal trade limits do not justify complaints and price discounts.
Complaints on our bid confirmation must be made immediately, but by latest within a week in writing.
- 3. Construction changes, cost proposals
- Changes in the construction, implementation and assembly between the time of contract conclusion and delivery remain reserved, insofar as the Client’s intended use is not hampered and the value of our service is not reduced.
- Ownership and copyright rights to cost estimates, drawings models and other documents remain with us; they may only be made accessible to third parties with our prior agreement. The client must return immediately any drawing and other documents belonging to our bids immediately. These regulations apply accordingly for documents of the Client; these may, however, be made accessible to third parties, if we have employed them in the manufacture of the object of delivery or have transferred the delivery to them.
- Protection devices are only delivered at the same time, in and insofar as these are legally prescribed or expressly agreed; any extra costs of this are for the account of the Client
- 4. Processing of dispatched parts
Parts for processing or repair are free, and insofar as necessary must be sent in good packaging with a package label included, furthermore the Client must send us a notice of dispatch with information of the order number. Insofar as this concerns supplementary work for a defective delivery, no 9 shall apply.
- 5. Price and payment conditions, off-setting
- The listed prices are net excluding VAT. The prices apply ex works and exclude packaging, freight, carriage and insurance and other dispatch costs. The packaging will not be taken back, insofar as nothing other is bindingly agreed for legal reasons.
- If we have taken on the set-up of assembly, the Client shall pay all the necessary auxiliary costs such as travel, transport, accommodation and allowances, as long as nothing other has been agreed, in addition to the agreed remuneration.
- Order for which express firm prices have not been agreed in writing, the valid list price on the day of delivery shall be invoiced. If delivery is delayed on grounds of circumstances that we are not responsible for, we are entitled after 6 months to adjust the prices to an appropriate extent.
- Payments, except if otherwise agreed, are due within 30 days of the invoice date in cash and without any discount, payable free of charge to our payment office.
- Acceptance of bills of exchange and cheques shall only be accepted by way of payment under condition of the correct input, and under calculation of the debt collection and discount charges; also transferral and prolongation are not deemed to be fulfilment.
- The Client may only set off such claims or apply a retention right with regard to counter-claims due to him, if they are legally established or ready for adjudication.
- If payment in instalments has been agreed and the Client is either partly or entirely in arrears with two consecutive instalments and the sum due is at least the 10th part of the agreed price, the entire remaining sum becomes due.
- If payments are stopped, an insolvency application has been made or fruitless debt enforcement has been made, also by third parties, our invoices shall become payable immediately.
- 6. Retention of proprietary rights
- We reserve ownership of the delivered goods until all claims from the business relationship are fulfilled. This shall apply also if individual or all claims are recorded in an outstanding account and the balance is drawn and recognised.
- In cases of delay or other behaviour breaching the contract we are entitled to take back the products. The Client shall allow access to his offices, premises and construction sites for this purpose and also do all the necessary for the transport. In the retraction of the seizure of the products a withdrawal from the contract is only in place if we expressly declare this in writing. The Client is, subject to the condition, that the assignment of claims and liens pursuant to section 4 has been completely concluded, entitled in the ordinary course of business to the further sale and processing of the reserved products. Other disposals, in particular pledging or transfer by way of security, are not permitted. A further dale may, insofar as the purchaser does not pay immediately upon receipt, only take place under retention of proprietary rights. The permission for further sales shall be cancelled in the Client stop his payments or an application for bankruptcy is made; it can be withdrawn by us on important grounds, in particular if the Client has not fulfilled his payment or other significant obligations from this contract or other contracts concluded with us, unless he can prove that the breach of obligation is not his responsibility.
- The Client hereby already assigns to us all claims and security rights, which he acquires against his purchasers or against other third parties from the resale of the products, and regardless of whether the reserved products are resold without or after processing. We accept this assignment. The assignment shall be made in each case only in the amount of the calculated invoice value of our products.
- The client remains entitled to collect the claims assigned to us even after the assignment without prejudice to our right to collect the claims ourselves. We shall not collect the clams as long as the Client fulfils his payment obligations, also from other contracts concluded with us in an orderly manner. We may at any time demand that the Client informs us of the assigned claims and the debtors, gives us all the necessary information for collection, the necessary documents and announces the assignment to the debtors. The collection right expires or can be revoked by us under the same conditions as the resale authorisation granted pursuant to sub-section 3.
- The processing or alteration of the reserved products or the installation is always done for us by the Clients. If our products are processed with objects not belonging to us or inseparably mixed with other moveable objects and if the finished result is to be viewed as the main product, we shall acquire co-ownership of the new product in proportion to the invoice value of our products to the remainder, upon which we and the Client are in agreement. If in these cases the Client acquires co-ownership for his part in a product belonging to a third party, the share of the co-ownership shall transfer to us, to the extent that corresponds to the invoice value of our products to the remainder. The transfer of the affected objects shall be replaced in that the Client holds the affected products for us free of charge or, if such holding is out of the question, he assigns to us the claims on issue against the owning third parties in the amount that corresponds to the ration of our co-ownership. For the aforementioned co-ownership share also the same shall apply as for the reserved products.
- On pledging or other intervention by third parties the Client must inform us immediately and present to us all the necessary documents for an intervention.
- In case of over-collaterisation of our claims by more than 20% we are obliged to release, at the Client’s request any excessive securities at our discretion.
- 7. Delivery times
- Delivery dates or deadlines must be agreed in writing or confirmed in writing by us.
- If the client must provide the necessary documents, authorisations, construction conditions or an agreed deposit payment necessary for carrying out the order and he does not provide this in time, the time of the delivery shall increase accordingly. If during the course of development changes occur for which the client is responsible, and the supplementary order is not received in time, the time of delivery shall increase accordingly.
- The delivery date is deemed to be adhered to if the ready to operate dispatch has left the works within the agreed delivery or service deadline or, in the case of debt to be collected, the willingness to dispatch had been announced, insofar as obligation to perform has not been expressly agreed.
- The delivery date shall also increase in accordance upon the occurrence of unforeseen hindrances – regardless of whether at our works or at the premises of our of out sub-contractors – for example in cases of force majeure, operation disturbances, delays in the delivery of significant materials and such hindrances that prove to have an influence on the finishing. We are not responsible for such circumstances even if we are already in delay. This condition shall not apply if we are responsible for hindrances on grounds of malicious intent or gross negligence. We shall inform the Client immediately or the start and end of such hindrances.
- F the Client does not accept a timely offered delivery or service, we are entitled to set the Client a period of grace of two weeks and after fruitless passing of this term, to withdraw from the contract, independently of this we may demand damage compensation. In that case we may demand without particular proof 20% of the order total (in each case less VAT) as an overall damage compensation sum, unless the Client can prove to us that no damages have occurred or significantly lower damages than this overall sum.
- If an agreed date is not adhered to as a result of circumstances that we are not responsible for, the Client may, after expiry of an appropriate period of grace set by him, withdraw from the contract. Insofar as the Client can claim damage compensation, the sum of the proven damage compensation is limited to 20% of the invoice amount for the service not provided, unless this is based on malicious intent or gross negligence. Delay damages are limited to a sum of maximum ½% for each full week of the delay, but at most, however, a total of 5% of that part of the delivery or service, which, as a result of the delay, cannot be put into serviceable operation, unless based on malicious intent or gross negligence. All other compensation claims of the Client in all cases of late delivery of service, for whatever legal reason, are excluded, unless attributable to malicious intent or gross negligence.
- If the dispatch or delivery is delayed on request of the Client, he shall be invoiced for the resulting storage costs, but at least ½% of the invoice sum (excluding VAT) after expiry of one month from announcement of the willingness to dispatch, and for every following started month.
- If delivery has been agreed on demand or according to construction progress, the Client must inform us in writing no later than three weeks before the eligible delivery or service performance date.
- Partial deliveries are permitted, insofar as these are reasonable for the Client.
- 8. Transfer of risk and acceptance
Upon commissioning to the shipper, forwarding agent or Federal Railway the risk in each case – except for FOB- and CIF-business transactions – transfers to the Client. The same shall apply if the Client is in delay with acceptance. If the Client wishes we can insure the cargo against breakage, transport damages, fire and water damages for his account. If the dispatch is delayed for circumstances for which the Client is responsible, then the risk transfers to him with the information of our willingness to deliver; if acceptance has been agreed, it can take place only after our report of the readiness for acceptance, and this for the account of the Client. If acceptance does not take place, does not take place in time, or not completely, we are entitled to dispatch the objects of delivery without acceptance by the Client or his sub-contractor, or to store them at the cost and risk of the Client. The objects of delivery are then in every respect delivered according to the contract with the dispatch or storage. If, on the order, no definite instruction for dispatch were given, the delivery will take place to the best of knowledge without any responsibility on our part.
- 9. Liability for defects in the delivery
We are liable for material damages as follows:
- In case of material defects we have the choice in the way of supplementary performance to either remove the defect or replace the product concerned with the defect by a new product. We are also permitted to decline the supplementary performance in the cases of § 275 sub-section 2.3 BGB if only possible at unreasonable cost.
- The client shall grant us an appropriate term for the supplementary performance.
- If the supplementary performance fails, is declined by us, or is unreasonable for the Client, the Client may withdraw from the contract or cut the costs. No. 12 applies to claims for damage compensation.
- The client must object to material defects immediately. If the Client is a businessman, §§377, 381 sub-section 2 HGB shall apply. The objections must be in the written form.
- If the expenses of the supplementary performance increase, in particular working, material, transport and travel costs, because the object of our delivery has been subsequently brought to a different location to that where our delivery was made, the Client must pay these increased costs; this shall not apply if the transportation to another location corresponds to the designated use of our delivery. Any costs that would have occurred without transportation to a different location are for our own account.
- Defects claims cannot be made for only insignificant deviation of the composition of our products, an only insignificant hampering of the usefulness, natural wear and tear or damages resulting after the transfer of risk from faulty or negligent handling, or improperly executed maintenance, excessive strain, unsuitable equipment or attributable to external influences not assumed under this contract or in case of software errors that cannot be reproduced. If improper changes, repairs of other works on the products provided by us are undertaken by third parties, these shall have no claims and the consequent implications represent no claims for the Client.
- In deviation from § 438 sub-section1 No. 3 BGB the statute of limitation for all claims regarding material damages amounts to twelve months. In case of damages to life, the body, the health, or in case of a maliciously intended or grossly negligent breach of obligations or in case of fraudulent intent the legal statute of limitation shall apply.
- The client can only apply a retention right on grounds of material damages if his claim is determined to be undisputed, legally in force or ready for decision. A retention right can furthermore only be applied to the extent that it is in proportion to the incurred material damages. If the Client makes an unjustified claim on defects, the Client shall pay any costs we incur in connection with the unjustified complaint.
- Furthermore No. 12 applies to damage compensation claims of the Client. Any further damage compensation claims other than those regulated here and in No. 12 for the Client against us or our vicarious aides on grounds of a material damage are excluded.
- In case of a warranty in the sense of § 443 BGB our liability remain limited to the legal regulations. If no warranty term has been agreed a deadline of one year after transfer of risk shall apply.
- 10. Legal defects On the existence of legal defects the conditions of No. 9 shall apply accordingly. Any further claims or other than are regulated in this article and in No. 12 against us or our vicarious aides on grounds of a legal defect are excluded.
- 11. Impossibility, adaptation of the contract
Insofar as delivery is impossible for us, the Client can demand damage compensation, unless we are not responsible for this impossibility. This damage compensation of the Client is, however, limited to 10% of the value of the part of the delivery which, owing to the impossibility, cannot be put into serviceable use. This limitation shall not apply, insofar as mandatory liability is prescribed regarding cases of malicious intent or gross negligence, a warranty in the sense of § 443 BGB or on grounds of damages to life, body or health. A change to the burden of proof to the detriment of the Client is not associated hereby. Withdrawal rights of the Client remain unaffected.
- 12. Other damage compensation claims
- Claims for damages and reimbursement of expenses (hereinafter referred to as damage compensation claims), regardless of the legal grounds, including breach of contractual obligations and unpermitted handling, are excluded.
- This does not apply insofar as something other is regulated in this contract or in these Terms and conditions of business; furthermore, insofar as an exclusion or limitation of damage compensation is absolutely excluded, in particular a liability under the Product Liability Law, in the cases of a warranty (§443 BGB), malicious intent, gross negligence, harm to life, body or health, on breach of cardinal obligations or other significant contractual obligations. The damage compensation claim for breaches of cardinal or significant contractual obligations is, however, limited to the typical contractual foreseeable damages; insofar as the damage is covered by an insurance policy of the Client, taken out for the damage case concerned, we are liable only for any related detriment to the Client, such as higher insurance premiums or interest payments, up till settlement of the claim by the insurer; this limitation to liability does not apply if malicious intent, gross negligence, a warranty or damages to life, body or health are concerned. A change to the burden of proof to th4 detriment of the Client is not connected to these regulations.
- Insofar as the Client is due damage compensation claims, regardless of legal grounds on material or legal defects including claims on consequential damages on grounds of a defect, the statutory limitation of No. 9, point 7 shall apply. For other damage compensation claims the regular statutory limitation, in deviation from § 199sub-section 2 BGB is one year, and without regard to the existing knowledge or grossly negligent lack of knowledge, notwithstanding § 199 sub-section3 BGB where it is five years; this shall not apply in cases of intent and a liability under the Product Liability Law. With damages to life, body or health the regular limitation period (§ 199 sub-section 1 BGB) is three years and the maximum deadline, without consideration of occurrence of the defect, the knowledge or grossly negligent lack of knowledge (§ 199 sub-section 2 BGB) is ten years. With a warranty in the sense of § 443 BGB the warranty deadline applies.
- Excluded is a personal liability of our legal representatives, vicarious agents or employees, unless caused by malicious intent or gross negligence.
- 13. Withdrawal
- In case of withdrawal the Client must pay for the decline caused in the products by the serviceable operation that has taken place. The obligation to pay compensation shall apply in deviation to § 346 sub-sections 3 No.1 and 3 BGB also if the defect entitling the withdrawal only showed up during the process of changing of the object or the deterioration or the demise of the object occurred at the Client’s premises, although he applied the same level of care, as he would have done with his own circumstances.
- In the event of the following circumstances we are entitled to withdraw from the contract:
a) technical difficulties that could not be foreseen at the time of contract conclusion, which are based on the type of order and make the implementation impossible or unreasonable for us or our suppliers;
b) strikes, lock-outs, war and all cases of force majeure for us or our suppliers, insofar as this makes the fulfilment of the contract impossible or unreasonable for us;
c) lack or loss of the creditworthiness or ability to pay of the Client, if the Client does not provide appropriate security for out claims within an appropriate deadline we have set.
The presence of the aforementioned circumstances releases us from any damage liability for delayed or not performed services. Any damage compensation claims on our part against the Client remain unaffected.
- 14. Place of fulfilment, place of jurisdiction, applicable law 1. If the client is a businessman or a legal entity under public law or a public law special fund, the place of fulfilment and the place of jurisdiction is 77933 Lahr/Black Forest
2. The law of the Federal Republic of Germany applies to all legal relationship between us and the Client in connection with this contract, under exclusion of the United Nations Agreement on the international sale of goods (CISG)
Richard Stihler GmbH Gutleutstr. 9-17 77933 Lahr