1.1 The following General Terms and Conditions of Sale and Delivery (GTCS) apply to the processing of all our deliveries and services to entrepreneurs, legal entities under public law or special funds under public law within the meaning of §310 subsection 1 BGB (German Civil Code). Conditions contrary to our GTCS will not be accepted, unless we have expressly agreed to their validity in writing. Our GTCS shall also apply if we carry out the delivery to the purchaser subject to conflicting or deviating conditions of the purchaser from our GTCS.
1.2 Our GTCS become part of the contract at the latest upon acceptance of the delivery. In the case of continuing business relationships, the GTCS are also valid for future transactions in which they are not expressly referred to, provided that they have been received by the customer on an earlier order confirmed by us.
2. Orders and subsequent changes:
2.1 All our offers are subject to change until the written order confirmation. For the scope of the service, our written order confirmation, with which the contract is concluded, shall prevail. Oral side agreements are not made. Agreements deviating from these terms and conditions are only binding if confirmed in writing by us.
2.2 Orders are binding. We can accept them within 2 weeks of receipt either in writing or by delivering the goods to the purchaser. If the order is made electronically and an acknowledgment of receipt is issued, this confirmation of receipt does not represent a binding acceptance of the purchaser. The order confirmation may be combined with the confirmation of receipt.
2.3 Subsequent change requests of the purchaser shall only be binding for us if we have expressly agreed to them in writing.
2.4 If the production must be carried out according to the dimensions specified by the purchaser, we shall only consider subsequent requests for modifications by the purchaser if they are made in time, that a production-technical implementation is still possible, or if the production has not yet begun.
2.5 Costs caused by the change of the order shall be borne by the purchaser.
3. Prices and terms of payment:
3.1 Unless otherwise agreed, our prices are Euro ex works, excluding freight, customs, import incidental duties and packaging. These will be billed separately. The statutory sales tax is not included in our prices. The statutory amount shall be reported separately in the invoice on the day of billing.
3.2 Unless otherwise expressly agreed, payments for delivered goods must be made without deduction within 30 days of the date of invoice, and for payments within 10 days from the invoice date with a 2% discount. This also applies to goods which we store at the request of the purchaser or for reasons beyond our control. Discount deductions are only permitted to the extent that otherwise no already due, undisputed invoices are open.
3.3 Pure contract works as well as tool costs and reusable packaging are payable at once without deduction.
3.4 Set off rights are only available to the purchaser if his counterclaims have been legally established, are undisputed, ready for decision or recognized by us in writing. The same applies to the exercise of rights of retention.
3.5 The acceptance of checks is to be understood as conditional payment only.
3.6 In case of delayed payment or failure to pay, we shall be entitled to assert default interest or deferred interest in the amount of 8 percent above the respective base interest rate pursuant to § 247 BGB (German Civil Code). The assertion of further damage caused by delay is not excluded herby. The purchaser is free to prove that we have incurred no or a (substantially) lower interest rate loss.
3.7 The sustained failure to comply with terms of payment or circumstances that became apparent after the conclusion of the contract, which raises serious doubts about the creditworthiness of the purchaser, result in the immediate claim for settlement of all our invoices. In addition, in this case, we are entitled to demand advance payment or other security services for outstanding deliveries and to withdraw all or part of all contracts concluded with the purchaser after unsuccessful expiry of a reasonable period and / or demand compensation for damages.
4.1 Only expressly agreed delivery dates are binding for us. Our written order confirmation is decisive. Outside the contract, in particular in catalogs or other documents mentioned delivery times are purely information and not binding. Due to subsequent changes, agreed delivery dates, depending on the scope of change requests, are postponed by a reasonable period to a later date, unless we have confirmed the adherence to the originally agreed date once again in writing.
4.2 Compliance with the delivery periods shall require the on-time receipt of all documents to be supplied by the purchaser, necessary approvals and releases as well as the adherence to the agreed terms of payment and other obligations by the customer. If these conditions are not met, the deadlines will be extended to an appropriate extent. This does not apply if we are responsible for the delay.
4.3 In the event of force majeure and other unforeseeable, extraordinary circumstances beyond our control, such as those uncured by us or a subcontractor, e.g. material procurement difficulties, breakdowns, strikes, lockouts, lack of means of transport, official intervention, energy supply difficulties, we are entitled, insofar as we are prevented by a timely fulfilment of our obligations to postpone the delivery by the duration of the disability and a reasonable start-up time. We have to inform the purchaser immediately of the circumstances. If the delivery delay lasts for more than 3 months for the aforementioned reasons, the purchaser is entitled to withdraw from the contract. If the delivery or service becomes impossible or unreasonable due to the aforementioned circumstances, we shall be released from the delivery obligation. If the delivery time is extended for the aforementioned reasons or if we are released from the delivery obligation, the customer cannot derive any claims for damages from this. Partial deliveries already made, to which we are in principle entitled, are considered as independent business. Due to the outstanding quantities, the payment of the partial delivery must not be refused.
4.4 The call-offs of partial shipments are to be declared in time by the purchaser so that a proper production and delivery within the contract period is possible, otherwise the delivery period is extended to an appropriate extent.
4.5 If a delivery date has been expressly agreed and is delayed by the purchaser, we have the right to demand payment of the invoice amount of the already completed service or the goods provided.
4.6 In the delivery of the goods, we reserve the right to deviations in terms of production-related deviations in weights, quantities and dimensions to an appropriate extent. With regard to weight and quantity, a deviation of 10% is allowed.
4.7 Any applicable inspection and acceptance costs are to be borne by the purchaser.
5.0 Return of goods:
5.1 We charge a processing fee of 20% of the invoice amount for voluntary returns. We reserve the right to deduct further discounts for impairments of voluntarily returned goods. The purchaser is free to prove that no or substantially lower impairment has occurred to us as a result of the return of goods.
5.2 Goods which have been specially customized or procured for the purchaser are excluded from the voluntary return.
6.0 Risk transfer and shipping:
6.1 Unless otherwise agreed, the delivery will be “ex works”. The risk is transferred to the purchaser even when shipped free of charge upon leaving the factory. If the order is delayed by the purchaser, the risk is transferred to it on the day of dispatch. The safekeeping of the delivery then takes place in the name and at the expense of the purchaser.
6.2 The unloading of the delivery is the responsibility of the purchaser. It has to be done promptly and properly. Any unloading by the wagon personnel or their assistance in unloading takes place only at the risk and expense of the purchaser.
6.3 Should the purchaser culpably fail to fulfill his obligation to unload, we shall be entitled to unload and store the delivery at the expense of the purchaser at another place. In this case, the purchaser has no right to refuse acceptance or assert that the delivery was delivered damaged.
7.1 The packaging is determined at our discretion. Simple packaging as well as boxes and crates are charged at cost. The purchaser is responsible for disposing of this simple packaging at this own expense.
7.2 An orderly acceptance of the delivery by a carrier does not exclude our liability for inappropriate packaging unless we are liable due to intent or gross negligence.
8. Defect rights:
8.1 The agreed quality of the contractual object owed by us results exclusively from the contractual agreements with the customer. Samples, information in catalogs or information resulting from other advertising material are non-binding and do not represent the assumption of durability or procurement guarantees within the meaning of § 443 BGB (German Civil Code), but serve for the description and merely convey a general idea of the products described therein. Reference to technical standards only serves the purpose of the specification and is likewise not to be construed as a guarantee of quality. We consider changes in the design, choice of materials and material design, profile design and other changes which serve the technical progress as reasonable and reserve our right for that even without prior notice at any time.
8.2 We provide advice to the best of our knowledge based on our experience, but exclude any liability. Information about the suitability and application or use of our goods, such as written, computational, drafting and oral proposals, drafts and the like which deal with the assembly, construction, arrangement, processing, refinement, assembly, statics, tendering and help with calculations are neither the main or secondary obligation of our performance obligation and in any case nonbinding. They do not exempt the customer from their own examinations, unless an additional purchase order is granted.
8.3 The purchaser is obliged to check the delivery immediately after receipt for damage, completeness and absence of defects. Transport damages, defects, wrong deliveries or other deviations from the delivery note or the invoice are to be communicated to us in writing immediately, at the latest within 7 days. Otherwise, the shipment is considered approved. If the purchaser processes the delivered goods after discovery of a defect, all claims of the purchaser due to the defectiveness of the goods are excluded.
8.4 Insofar as a defect of the delivery for which we are responsible already exists at the time of the transfer of risk, we are obliged to remedy the defect or to replace the goods at our discretion. To rectify the defect, the purchaser has to grant us reasonable time and opportunity. If this is denied, we are exempt from liability for defects.
8.5 If the subsequent performance fails several times, the purchaser is subject to the provisions according to number 9 and shall be entitled to assert the otherwise statutory rights of defect.
8.6 Claims for liability for defects shall not exist in the case of insignificant deviation from the agreed quality, for only insignificant impairment of the usability, for natural wear, attrition or damage after the transfer of risk as a result of faulty or negligent treatment or storage, excessive use, faulty installations or commissioning by the purchaser of third parties, unsuitable equipment, the use of replacement materials, inadequate construction work, unsuitable subsoil or due to special external particular chemical, electrochemical or electrical influences that are not required by the contract.
8.7 If the purchaser or a third party makes improper changes or repairs, there are is no liability for defects if the purchaser fails to prove that the improper changes or repair work are not the reason for the defect.
8.8 Claims by the purchaser for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses are increased, because the object of the delivery has been subsequently taken to another location than the branch of the purchaser, unless the relocation corresponds with its use as intended.
9.1 We are liable according to the legal provisions when the purchaser asserts claims for damages based on intent or gross negligence on our part, including intent and gross negligence on the part of our representatives or vicarious agents. Unless we are charged with intentional breach of contract, the liability for damages is limited to foreseeable, typically occurring damage.
9.2 In the case of culpable breach of a contractual obligation, we are liable in accordance with the statutory provisions. In this case, however, the liability for damages is limited to the predictable, typical occurring damage. In particular, we are not liable in the case for lost profit of the customer and unforeseeable indirect consequential damages. These limitations of liability also apply to damages caused by intent or gross negligence on the part of our employees and vicarious agents unless they belong to our managing directors or executives.
9.3 Unless otherwise stated, claims for damages by the purchaser, regardless of the legal grounds, are excluded.
9-4 The limitations of liability do not apply if our liability is mandatory under the provisions of the product liability law, if life, body or health has been violated or if claims for damages due to a lack of a guaranteed condition according to § 443 BGB (German Civil Code) be asserted against us or a defect was fraudulently concealed. In the absence of a guaranteed condition, we shall only be liable for such matters whose absence was covered by the guarantee. Likewise, legal claims for damages on account of impossibilities which are our responsibility, or the responsibility of those working on our behalf, remain unaffected.
9.5 Insofar as our liability is excluded or limited, this also applies to the benefit of our employees, representatives and vicarious agents in the case of direct claims by the purchaser.
10. Security of reservation of ownership:
10.1 We reserve the right to reservation of ownership with regard to the object of sale until all payments arising from the business relationship with the customer have been received. Should the purchaser act in breach of the contract, particularly in the case of a delay in payment, we are entitled to take back the object of sale. We reserve the right to inspect the reserved goods in our possession at any time in the place where they are located. If we assert our claim after withdrawal from the contract, the purchaser hereby irrevocably authorizes us to take possession of the object, whether they are unprocessed or processed, and to enter the place where the object is located. Taking back or garnishing the object of sale by us, we are allowed to cancel the contract without any claims for damages. We are entitled to use the object of sale after the contract has been cancelled. The proceeds of sale shall be credited against the liabilities of the purchaser, minus reasonable utilization costs.
10.2 The purchaser is obliged to treat the object of sale with care. In particular, he is obliged to protect it against fire, water and theft at his own expense. If maintenance and inspection work is required, the purchaser must carry it out on time as his own cost.
10.3 In the event of seizure or other interventions by third parties, the purchaser most notify us in writing without delay so that we can file an action in accordance with § 771 ZPO (Code of Civil Proceedings). In the case of seizures, the purchaser must attach a copy of the seizure protocol. Insofar as the third party is not in a position to reimburse the court and out-of-court costs of a claim in accordance with § 771 ZPO (Code of Civil Proceedings), the purchaser is liable for the loss incurred by us.
10.4 The purchaser is entitled to resell the delivery item in the ordinary course of business. This authorization expires in the event of a default in payment. The purchaser hereby assigns all claims to us in the amount of the invoice amount (incl. VAT) of our claims, which accrue to him from the resale of reserved objects against his customers or third parties, regardless of whether the delivery object of sale continues to be sold without or after processing. However, if other suppliers have joint ownership of the resold object, the purchaser only assigns his claims from resale to us in the ratio in which the final invoice value (including VAT) of our deliveries is the total invoiced value of the deliveries of the other suppliers. The assignment is made to secure all our future claims arising from the business relationship with the purchaser. To collect this claim, the purchaser remains authorized even after the assignment. The purchaser therefore acts as a trustee for us. Our power to collect the claim ourselves remains unaffected. However, we commit ourselves not to collect the claim as long as the purchaser fulfills his payment obligations arising out of the proceeds collected, does not default in payment and in particular no does not apply for opening a bankruptcy or settlement or insolvency. If this is the case, however, we can demand that the purchaser informs us of all assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
10.5 The processing or reshaping of the object of sale by the purchaser is always carried out for us as the manufacturer. If the object is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the object (final invoice amount, including VAT) to the other processed items at the time of processing. Incidentally, the same applies to the item resulting from processing as to the object delivered under reserve.
10.6 If the object of sale is inseparable mixed with other items that do not belong to us, we acquire co-ownership of the new item in proportion to the value of the delivery item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the item of the purchaser or of a third party is to be regarded as the main item, it shall be deemed agreed that the purchaser shall transfer proportionate co-ownership to us. The purchaser keeps the resulting sole ownership or co-ownership for us.
10.7 The purchaser shall also assign the claims accruing to it against a third party as a result of the connection of the object of sale with a property against a third party.
10.8 In the case of delivery items which the purchaser has to build into a building of a third party due to a contract, the purchaser assigns to us his contractual claim to a security mortgage in the value of the delivery item (final invoice amount, including VAT).
10.9 We commit to release the securities we are entitled to upon the purchaser’s request insofar as the value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released is our responsibility.
10.10 By reimbursement of cost shares for tools, the purchaser does not acquire the right to the tools themselves. These remain our freely available property.
11. Data collection / data storage:
We collect, process and use personal data only insofar as these are necessary for the establishment, content design, processing, fulfilment and modification of the contractual relationship established with the purchaser. The purchaser agrees to a computerized storage of his data for our customer file. We are not obliged to further data storage after completion of the order. This applies in particular to the data created in connection with the order and the data which was the subject of the order. Incidentally, the legal provisions of the Federal Data Protection Act (BDSG) apply.
12. Other provisions:
12.1 We reserve ownership, patent and design rights as well as copyrights in respect of illustrations, drawings, drafts, constructions, calculations and other documents. This also applies to documents that are designated as being “confidential”. Before being passed on to third parties, the purchaser requires our expressly written consent. The purchaser expressly acknowledges all property rights to which we are entitled.
12.2 The rights of the purchaser from the delivery contract are not transferable with the exception of monetary claims.
12.3 We are entitled to process the data received from the purchaser based on the business relationships in accordance with the provisions of the Federal Data Protection Act, in particular also the credit insurer, to submit the data required for the credit insurance.
12.4 If any individual provisions of the GTCS or a contract based thereon be or become invalid, it shall not affect the validity of the remaining provisions. The contracting parties are obliged to agree on a new provision that comes closest to the purpose of the invalid provision.
13. Fulfillment and jurisdiction:
13.1 The place of fulfillment for all obligations arising from the delivery relationship is, unless the order confirmation states otherwise, our place of business.
13.2 Our registered office is the sole place of jurisdiction for all disputes arising from the contractual relationship. We are also entitled to bring an action at the place of the registered office of the purchaser, however.
14 Applicable law:
In addition to the agreement conditions, only the authoritative law of the Federal Republic of Germany applies for the legal relations of domestic parties. The application of the UN Sales Convention (United Nations Convention on Contracts of Internal Sales of Goods “CISG”) is expressly excluded.
ST-Vitrinen Trautmann GmbH & Co. KG
Non-binding translation and subject to German law.