General Conditions of Sale of StekoX® GmbH Abdichtungstechnik, Blumenstr. 42/1, 71106 Magstadt
To be used with sales contracts with enterprises according to Article 310, para. 1 of the BGB (German Civil Code)
I. General/Scope of application
(1) Our Conditions of Sale shall apply exclusively. Conflicting or differing conditions of the customer/ordering party shall not be recognised, unless these have been explicitly agreed to in writing. Our Conditions of Sale shall also apply if without reservation we conduct the delivery to the customer despite being aware of conflicting or differing Conditions of Sale. Confirmation to the contrary by the customer in reference to its terms is hereby rejected. These terms shall be deemed to have been accepted at the latest on receipt of our delivery by the customer, even if the customer has previously referred to its own terms.
(2) All agreements that are concluded between us and the customer for the purposes of executing this contract shall be contained in writing in this contract.
(3) Our Conditions of Sale shall also apply for all future business relations with the customer.
(4) Our Conditions of Sale shall only apply to enterprises as defined in Article 310, paragraph 1 of the BGB (German Civil Code).
II. Offers/Conclusion of contract/Prices/Payment terms
(1) Our individually compiled offers shall remain valid for a period of 30 days; other offers are subject to change.
(2) A contract accepting the ordering party’s offer is concluded when our written offer is duly accepted in writing, or through our written confirmation of the order, or, at the latest, when the goods are delivered.
(3) All prices quoted in price lists, etc., are subject to change and are non-binding. Only the ex-works price quoted in our offer excluding packaging and transport or delivery costs shall be valid. VAT is not included in the prices; the VAT rate valid on the day the invoice is issued shall be shown separately on the invoice.
(4) Unless specified otherwise in our offer/order confirmation, the purchase price is to be paid in full within 15 days of the invoicing date. In the event of default in payment, legal consequences shall apply.
(5) The customer shall have no right to off-set unless counterclaims have been legally upheld, are undisputed or have been recognised by us.
(6) We reserve the title and intellectual property rights to all diagrams, drawings, calculations and other documentation or similar information in a tangible or intangible form and also in an electronic form. This shall also apply to written documents described as confidential. Prior to forwarding these to third parties, the customer must obtain our express written consent.
(7) Due to production related reasons, technical improvements or customary variations, we reserve the right to make minor changes to the diagrams in our brochures, price lists or in the documents and drawings relating to the offer and in other descriptions and documents, through which the use agreed by contract shall not be restricted and are reasonable for the customer. The content of our brochures, all descriptions and explanations related to this contract constitute approximate values usual to the industry unless they have been expressly described by us in writing as being binding. As a result, specific product properties are neither warranted nor guaranteed. Only our legal representatives are authorized to give warranty promises.
III. Delivery times/Delivery delays/Part deliveries
(1) The delivery time shall be defined in the agreements between the contracting parties. Compliance to this period shall dependent upon all commercial and technical issues having been clarified by the contracting parties and the customer having fulfilled all obligations such as obtaining the necessary certificates or permits, or making an advance payment. Should this not be the case, the delivery time shall be extended accordingly. This shall not apply if we are responsible for the delay.
(2) The fulfilment of our delivery obligation is subject to the timely and orderly completion of the obligations of the customer. The plea of non-performance shall remain reserved.
(3) The delivery deadline has been adhered to when the delivery item has left the suppliers plant or has been registered for dispatch or collection before this deadline expires.
(4) If failure to comply with the delivery time is attributable to force majeure, industrial disputes, or other occurrences beyond our control, the delivery period should be extended accordingly. We will inform the customer of the beginning and end of such circumstances as soon as possible.
(5) If the goods are divisible, we shall be entitled to a reasonable extent to make partial deliveries and to invoice these separately.
(6) If the customer is in default of acceptance or culpably violates other obligations, we shall be entitled to claim compensation for damages caused to us, including any additional expenditures. The right to assert further claims or rights shall remain reserved.
(7) In the case of default of acceptance, the risk of accidental loss or accidental deterioration of the sales item shall pass to the customer the moment the customer is in default of acceptance or payment.
(8) Further legal claims and rights of the customer shall remain unaffected.
IV. Dispatch, transfer of risk
(1) Unless otherwise specified in the contract/order confirmation, delivery is agreed to be ex-works. The shipment of goods shall take place at the risk of the customer and this shall also apply with regard to accidental loss.
(2) Should the customer so wish, we shall take out transport insurance to cover the delivery; the arising costs shall be borne by the customer.
V. Inspection duties, defect rights
(1) The warranty claims of the customer presume that the customer has duly fulfilled his examination and notification obligations according to paragraph 377 of the HGB (German Commercial Code).
(2) Defects to the delivery item shall be met with remedial action by us in the form of repair or the supply of a new item. Should this action fail, the customer can assert his additional rights, although claims for damages are subsequently regulated in Section VI.
(3) We grant ourselves the opportunity before performing the remedial action to examine the delivery item in relation to the reported fault. In the case of remedial action, the customer shall allow us the necessary time and opportunity to perform all remedial actions that appear necessary. If the complaints prove to be unjustified without any fault on our part, the customer shall be liable for refunding the costs of the remedial action that was carried out by ourselves as a result of the information supplied by the customer.
(4) In the case of remedial work we shall bear all necessary expenses for the purpose of the remedial work in particular transport, road, labour and material costs, as long as these do not increase due to the fact of the delivery item having been brought to a location other than the place of performance.
(5) Defect claims shall not be valid for faults caused by improper use, incorrect installation by the customer or third party, natural wear, improper or careless handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable foundations and chemical influences, unless they have not been caused by ourselves.
(6) If the customer or a third party undertakes improper repairs, we shall not be liable for the resulting consequences. The same applies to modifications to the delivery item without obtaining our prior consent.
(1) We shall be fully liable in accordance with the statutory regulations for intentional or grossly negligent breaches of duty by our legal representatives and/or vicarious agents, for loss of life, physical injury or damage to health, for fraudulently concealing a defect as well as for the warranty promises which by virtue of their content aim to protect the customer against the occurring damages, or with regard to statutory liability, for example in accordance with the product liability law, and for a culpable breach of a major contractual obligation.
(2) Insofar as we are not charged with any premeditated contractual infringement, our liability for damages is limited to the foreseeable, typical damage occurrence (average contract-typical damage). This shall also apply in the case of the culpable breach of a strict contractual obligation in the case of delay and impossibility.
(3) We shall also be liable in accordance with the statutory regulations if the respective contract of sale specifies fixed-date delivery as defined by Article 286, para. 2 No. 4 of the BGB (German Civil Code) or Article 376 of the HGB (German Commercial Code), or if as a consequence of delay in delivery on our behalf, the customer shall be entitled to lodge a claim dismissing all interest in the further fulfilment of the agreement.
(4) Unless otherwise regulated above, liability – irrespective of the legal nature of the claim – shall be excluded. This shall apply in particular to claims for damages arising from culpa in contrahendo, due to other infringements or due to tortious claims for compensation for property damage defined by Article 823 of the BGB (German Civil Code). Limitation shall also apply where the customer instead of claiming for the compensation of damages demands compensation of unnecessary expenditures instead of performance.
(5) Insofar as liability for damages on our part is excluded or restricted, this shall also apply as regards the personal liability for damages of our salaried employees, workers, staff members, representatives and vicarious agents.
VII. Limitation period
(1) Claims for faults shall be subject to a limitation period of one year after the start of the statutory limitation period. Claims for faults concerning a construction or an object which have been used for a construction in accordance with their customary use and which have caused the defect are limited to five years.
(2) If and insofar as the customer’s claim against us is based on Articles 478, 479 of the BGB (German Civil Code) or Articles 651,478 of the BGB, - if and insofar as the customer’s claim is based on intentional, grossly negligent or fraudulent conduct on our behalf or our vicarious agents, - if and insofar as the customer’s claim against us is based on the loss of life, physical injury, damage to health or a violation of individual liberty, - if and insofar as the customer asserts claims against us under the product liability law, – if and insofar as claims for faults are based on a right in rem of a third party that may constitute the basis for demanding the return of the purchased item, or – if and insofar as claims for faults based on any other right recorded in the land register – the statutory periods of limitation shall apply. The statutory limitation periods shall also apply if the claim made is based on a guarantee given by ourselves in terms of Article 443 of the BGB, unless a shorter period has been determined in the terms of the warranty.
(3) The limitation period shall begin with the transfer of risk.
(4) Unless stipulated explicitly elsewhere, the statutory regulations for the beginning of the limitation period, the suspension of the period, the stay and recommencement of the period shall remain unaffected.
VIII. Reservation of ownership/Transfer of ownership
(1) We shall retain the right of ownership of the deliveries until all outstanding debts resulting from the delivery agreement and all other outstanding accounts from the customer at the time of the conclusion of the contract are paid in full irrespective of the legal foundation upon which they are based. In the case of a current account, retained ownership shall act as collateral for our outstanding balance claim. The customer shall not be entitled to pledge or assign the goods subject to reservation of title as collateral. The customer shall be obliged to safeguard our rights if the reserved goods are sold on credit.
(2) If the goods are impounded, seized, or otherwise claimed from the customer by a third party, the customer shall inform the third party immediately of the reservation of ownership and inform us without delay in writing of the demands so that we can take action according to Article 771 of the ZPO (German Code of Civil Procedure). Insofar as the third party is unable to reimburse us with the judicial and extrajudicial costs of a lawsuit according to Article 771 of the ZPO, the customer shall be liable for the losses incurred.
(3) The customer shall be entitled to re-sell goods supplied under reservation of ownership within the scope of proper business dealings. This authorisation shall expire should the customer suspend payments. The customer hereby assigns to us as security all receivables, together with the granted collateral, from the resale of goods delivered with reservation of ownership according to the actual invoice value including VAT until all our claims have been paid in full and irrespective of whether the delivery item was resold before or after further processing. We hereby accept this assignment. The customer shall remain authorised after the assignment to collect the receivables and recover the collateral at the customer’s expense. Our authority to collect the receivables ourselves shall remain unaffected. However, we shall refrain from making collection as long as the customer complies with his payment obligations arising from the proceed collected, does not run into default of payment and, in particular, does not file for insolvency or suspend payments. Should this be the case, we may demand that the customer discloses to us the assigned claims and their debtors, provides all information required for collection, surrenders the related documents and notifies the debtors (third parties) of the assignment.
(4) The customer shall also assign to us the claims securing our claims against the customer that may arise from third parties due to connecting the delivery item with real estate.
(5) The customer shall be obliged to handle the delivery with care and in particular shall be obliged to insure everything at its original value against damages caused by fire, water and theft at the customer’s expense. The customer shall notify us immediately of any loss, destruction or damage to the goods subject to reservation of ownership – and on demand, provide us with all claims documents for the relevant goods in particular damage reports, notify us of the existing insurance policies and provide the supplier either with a certificate of insurance or a security note for the reserved goods issued by the insurer whichever is demanded.
(6) In the case of breaches of duty by the customer, particularly in the case of default of payment, we shall be entitled to reclaim the delivery item. Reclaiming the delivery item shall signify a withdrawal from the agreement. After reclaiming the delivery item we shall be entitled to resell it; the proceeds of sale shall be offset against the debts of the customer less appropriate disposal costs.
(7) We shall be committed at the customer’s request to release the securities entitled to us insofar as the realisable value of our securities exceeds the debt to be secured by more than 10%; we shall be entitled to choose which securities to release.
IX. Applicable law, place of jurisdiction
(1) The laws of the Federal Republic of Germany that are applicable for the legal relationships of domestic parties shall apply exclusively for all legal relationships between ourselves and the customer. The rules and regulations of the United Nations from 11.04.1980 on Contracts for the International Sale of Goods are not applicable.
(2) Place of fulfilment and payment as well as the place of jurisdiction is our registered office, insofar as the customer is a merchant, a legal entity under public law or a specialised entity, or has no place of general jurisdiction in Germany. We have the right, however, to bring action against the customer at his place of general jurisdiction.
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Terms of delivery
Valid from 1st September 2013
General terms of freight
In accordance with our General Conditions of Sale Article 2 (3) the dispatch of goods shall take place:
EXW Magstadt INCOTERMS 2010.
For the delivery of goods within the Federal Republic of Germany we shall be offering as of 1st September 2013 a delivery service with the following conditions:
Regarding goods with a net value
- of less than €1000.00 we shall charge freight costs of €90.00,
- between €1000.00 and €1999.99 we shall charge freight costs of €70.00
- from €2000.00 to €2999.99 we shall charge freight costs of €50.00
- above €3000.00 no freight costs are to be paid
The costs for transport insurance are included in the delivery service.
Fixed-time deliveries on request.
Island deliveries are possible only after clarifying the feasibility and the payment of all resulting additional costs.
Inland package dispatch
- per package up to 20 kg: €20.00
- per package 20-30 kg: €30.00
Express dispatch on request.
Packing units / Breaking open
Shipments are delivered in complete packing units. Only in exceptional cases and for an additional fee of €20.00 per item can a packing unit be broken open.
In accordance with our General Conditions of Sale, Article 3.
Unloading and receipt of goods
In principle to be carried out by the receiver. The unloading point must in general be easily accessible for an articulated vehicle.
By signing the delivery note the receiver confirms that the quality and quantities of the delivery are in order.
Return of goods
The return of delivered good is in principle not possible.
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