General terms and conditions of trade
„Seller“ within the following clauses is the Stabalux GmbH.
I. I. Application / Offers
1. These General Conditions of Sale (Conditions) shall apply to all present and future contracts with commercial buyers, with public legal entities as well as public trusts in regard to deliveries and other services, including contracts relating to the supply and manufacture of non fungible goods. In case of direct sales (“Streckengeschäfte”), the producer’s conditions as laid down in his price list shall apply in addition to these conditions. The Buyer’s purchase conditions shall not be binding even if the Seller does not expressly object to them again after their receipt.
2. The Seller’s offers are not binding to him. Oral agreements, promises, assurances and guaranties made or given by the Seller’s sales staff shall not be binding unless confirmed by the Seller in writing.
3. Any trade terms shall, in cases of doubt, be interpreted according to the Incoterms as amended from time to time.
I. II. Prices
1. Unless otherwise agreed to, only such prices and terms shall apply as contained in the Seller’s price lists effective at the time when the contract is concluded.
2. Should taxes or other extraneous expenses not dependent on the Seller’s influence and included in the agreed upon price, change or be added later than four weeks after the conclusion of the contract, the Seller shall be authorised to modify the price relative to the respective change.
I. III. Payment and Set-Off
1. Unless otherwise agreed or stated in the Seller’s invoices, payment shall be made without cash discounts immediately so that the Seller can dispose of the sum on the due date. Any payment transfer costs shall be borne by the Buyer. The Buyer may retain or set off any counterclaims only in so far as his claims are undisputed or have become legally binding.
2. Should the Buyer exceed the agreed payment term or should he default in payment, he will be liable to pay interest at 8 %points above the basic interest rate, unless higher rates have been agreed upon. The Seller reserves the right to claim additional damages resulting from late payment.
3. Should the Buyer default in payment with a considerable amount or should he fail to honour a bill of exchange or should other circumstances arise which indicate a material deterioration in the Buyer’s financial position after the conclusion of the contract and which jeopardise the Seller’s financial claims, the Seller shall be authorised to make due any and all of his non statute-barred accounts receivable resulting from the same legal relationship. He may then also request securities for any and all outstanding deliveries and services resulting from the business connection with the Buyer unless the Buyer will effect sufficient security.
4. Any agreed upon cash discount always relates to the invoiced value excluding freight and will only be granted if and in so far as the Buyer has completely paid all payables due at the time of the discount. Unless otherwise agreed to discount periods shall begin with the date of the invoice.
I. IV. Delivery Times
1. The Seller’s commitment to deliver is subject to his correct and timely self-delivery unless he is responsible for the deficient or late self-delivery.
2. Any confirmation as to delivery times shall only be approximate. Delivery times shall commence with the date of the order confirmation and are subject to the timely clarification of any details of the order as well as of the fulfilment of any of the Buyer’s obligations, e.g. to produce official certifications, to provide letters of credit and payment guarantees or to pay agreed instalments.
3. Any agreed delivery time shall be considered to be met if and in so far the goods have left the works or the warehouse at such time or date. If and in so far the goods fail to be despatched at the agreed time for reasons not attributable to the Seller, the agreed delivery time shall be considered to have been met at the day on which the goods are notified to be ready for dispatch.
4. Within events of force majeure and other unforeseeable extraordinary circumstances not due the Seller’s fault – such as shortage in raw material, operating shutdowns, strikes, lockouts, lack of transportation, governmental acts, difficulties in energy supply etc., including such circumstances which are the supplier’s responsibility – any agreed delivery terms shall be adequately extended. Should, in consequence of the aforementioned circumstances, the performance of the contract become impossible or unreasonable to fulfil to the Seller, he will then be relieved from his obligation to deliver.
I. V. Retention of Title
from this contract or from other contracts is jeopardised by the Buyer’s lack of ability to pay. If the Reserved Property is taken back, this shall not be regarded as withdrawal from the contract.
8. Should the total invoiced value of the Seller’s collateral exceed the amount of the secured receivables including additional claims for interest, costs etc. by more than 50 %, the Seller shall – upon the Buyer’s request – release pro tanto collateral at the Seller’s discretion.
I. VI. Grades, Sizes and Weight
1. Unless otherwise agreed, Grades and sizes shall be determined in accordance with the DIN-/EN or mills’ standards effective at the time of the conclusion of the contract, in absence of such standards with the trade usage.
2. The weight of the goods shall be determined on the Seller’s or his suppliers’ scales and shall be proven by presentation of the pertinent weight slip. Where provided by law, the weight may be determined without weighing in accordance with the standards, whereby any supplements as provided by trade usage (“Handelsgewichte”) shall apply. Any indications given in the delivery notes as to the number of pieces, bundles etc. are not binding if and in so far as the goods are invoiced by weight. Where, in accordance with trade usage, the goods are not weighed piece by piece, the total weight of the delivery shall prevail. Any difference with regard to the calculated weight of the single pieces shall be proportionally allocated to them.
I. VII. Dispatch, Passing of Risk, Packaging, Partial Delivery, Continuous Delivery
1. The Seller shall be entitled to choose the route and mode of dispatch as well as the forwarding agent and the carrier.
2. The Buyer shall immediately request delivery of those goods which have been notified to him as ready for dispatch. Otherwise the Seller is entitled, upon reminder, to ship such goods at the Buyer’s cost and risk or to store them at the Seller’s discretion and to invoice them to the Buyer.
3. Can, by reasons not attributable to the Seller, the goods not be shipped or shall it become substantially difficult to ship them via the designated route or to the designated place within the designated time, the Seller reserves the right to ship them via a different route or to a different place. Any additional costs will be borne by the Buyer. In such cases the Seller will ask the Buyer for his prior comments.
4. In all transactions, including freight prepaid and freight-free deliveries, the risk of loss or damage to the goods shall pass to the Buyer at the time where the Seller hands them over to the forwarding agent or to the carrier, at the latest with their departure from the Seller’s warehouse. The Seller will buy insurance only if requested to by the Buyer and at his cost. The Buyer shall unload the goods at his cost.
5. The goods will be delivered unpacked and not be protected against rust. Only where so provided by trade usage will the goods be packed. Any package, protection and/or transport device will be supplied according to the Seller’s experience and at the Buyer’s cost. The Seller will take back such devices only at his warehouse. The Seller will not bear any costs for their re-transport or disposal.
6. Where the contract provides for continuous deliveries, the Buyer shall divide the quantities and grades of the goods into approximately equal monthly shipments. Otherwise the Seller shall be entitled to specify them at his own fair and just discretion. Where the single calls for delivery exceed the total contractual quantity, the Seller shall be entitled, yet not committed, to deliver the surplus quantity and invoice it at the prices applicable at the time of the call or the delivery.
7. The Buyer will immediately unload such goods which are delivered to him by lorry. Any idle time and dead freight will be charged to him.
I. VIII. Seller’s Warranty
1. The Buyer shall immediately notify the Seller in writing of any defects of the goods. Defects which, even upon careful inspection, cannot be discovered must be notified in writing immediately upon their discovery, at the latest before the elapse of any agreed or statutory warranty periods. In such cases the Buyer must suspend any processing or manufacturing of the goods.
2. If and in so far the Buyer’s claim for defects is justified and has been made in time, the Seller may, upon his discretion, remedy the defect or deliver non-defective goods (“substitution”). Should he fail or decline the substitution, the Buyer may, upon the elapse of an adequate additional period of time set by him, withdraw from the contract or reduce the purchase price. In cases where the defect is minor, where the goods have already been resold, processed or transformed, he may only reduce the purchase price.
3. The Seller will reimburse the Buyer for his expenditures in connection with the substitution only in so far as such expenditures are reasonable and proportional to the purchase price of the goods. The Seller will not reimburse the Buyer for any expenditures in connection with the redelivery of the goods to any other place than the place of performance, unless such redelivery corresponds to the contractual use of the goods.
4. If and in so far as the goods are subject to contractually agreed testing and inspection by the Buyer, such testing and inspection shall bar any claims for such defects which might have been determined by the agreed type of testing and inspection.
5. If the Buyer fails to immediately give to the Seller the opportunity to inspect the defect, especially if he fails – upon the Seller’s request – to immediately make the goods or samples hereof available, he will loose all of his warranty rights.
6. No warranty shall be given to goods sold as declassified material with regard to such defects either specified in the contract or to those normally to be expected. Goods classified as “IIa-Ware” (“secondaries”) are not subject to any warranty.
7. The Seller’s further liability is subject to Section IX. Any of the Buyer’s rights of recourse according to §§ 478, 479 BGB (German Civil Code) shall remain unaffected.
I. IX. Seller’s Further Liability and Limitation Periods
1. The Seller’s liability for breach of contractual or extra-contractual obligations – including his responsibility for his managerial staff and any other person employed in performing his obligations – shall be restricted to damages caused by his wrongful intent or by his gross negligence and shall in no case exceed the foreseeable losses and damages characteristic for the type of contract in question. Apart from this, the Seller shall not be liable for any defects and consequential losses therefrom.
2. The aforesaid restriction shall not apply to such cases where the Seller breaches his fundamental contractual obligations and where such a breach of contract will endanger the contractual purpose; it shall neither pertain to damages to life, to the body or to health caused by the Seller’s fault nor to any cases where the Seller has guaranteed certain characteristics of the goods. Nor shall such clause affect the Seller’s statutory liability laid down in the Product Liability Act (Produkthaftungsgesetz) of 15/12/89. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
3. Unless otherwise agreed to, any contractual claims which the Buyer is entitled to in connection with the delivery of the goods or with the performance of services shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buyer. This limitation shall also apply to such goods which, according to their normal purpose of use, have been used for constructional works related to real estate property and which have caused damage within this construction, unless this purpose of use has been agreed upon in writing. This restriction shall not apply to the Seller’s liability resulting from breaches of contract caused by his wrongful intent or by his gross negligence; neither to damages to life, to the body and to health caused by the Seller’s fault nor to any recourse claims under §§ 478, 479 of the German BGB.
I. X. Written Form
In cases where these Conditions or otherwise written form is provided, this requirement shall be met where declarations are transmitted via telefax, e-mail or via any other means of electronic transmission.
I. XI. Jurisdiction / Applicable Law
1. The place of jurisdiction shall be at the Seller’s principal seat or at his branch office which has concluded the contract with the Buyer. The Seller may also sue the Buyer at his seat.
2. All legal relationships between the Seller and the Buyer shall be governed by the laws applicable at the Seller’s seat supplementing these Conditions, including the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCITRAL).