GENERAL DELIVERY AND PAYMENT CONDITIONS STERN GMBH & CO. KG
Section 1 General information, scope
(1) These General Terms of Sale (GTS) apply to all of our business relationships with our customers (“purchasers”). The GTS shall only apply if the purchaser is a company (Sec. 14 BGB - German Civil Code), a legal entity under public law, or a public law special fund.
(2) The GTS shall apply, in particular, to contracts for the sale and/or delivery of movable objects (“goods”), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). Unless otherwise agreed, the GTS apply in the version valid at the time the purchaser placed its order, or in the version last shared with the purchaser in text form as a framework agreement for future contracts of the same type as well, without the need for us to reference it again in each individual case.
(3) Our GTS shall apply exclusively. Any deviating, contrary or supplementary General Terms and Conditions of the purchaser shall only be considered a component of the contract if and insofar as we have expressly approved their applicability. This approval requirement applies in every case, for example even if we complete an unconditional delivery even though we are aware of the purchaser's GTC.
(4) Individual agreements concluded in the specific case with the purchaser (including ancillary agreements, supplements and amendments) shall always take precedence over these GTS. Unless proven otherwise, a written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally valid declarations and notifications to be submitted to us by the purchaser after the contract is concluded (such as deadlines, notifications of defects, declarations of withdrawal or reduction) must be made in text form to be valid.
(6) Notices of the applicability of statutory regulations are provided only as clarification. Even if such clarification is not provided, therefore, statutory regulations apply unless they are directly amended or expressly excluded in these GTS.
Section 2 Conclusion of contract
(1) Our offers are non-binding. This also applies even if we have provided the purchaser catalogs, technical documentation (such as drawings, plans, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – to which we have reserved rights of ownership or copyrights. Documents associated with the offer, such as images, drawings, weights and dimensional information is only to be considered approximate, unless expressly indicated as binding.
(2) A purchase of goods by the purchaser shall be considered a binding contractual offer. If not otherwise indicated in the order, we are entitled to accept this contractual offer within 14 days after we receive it.
(3) Acceptance can be declared either in text form / writing (for instance through an order confirmation) or by delivering goods to the purchaser.
Section 3 Delivery term and default
(1) The delivery term shall be agreed individually or indicated by us when we accept the order. If this is not the case, then the delivery term shall be approx. 4 weeks from the time the contract is concluded. The delivery term shall begin when the order confirmation is sent, and shall not begin before the provision of any documents, permits, approvals to be obtained by the purchaser in the individual case, or before receipt of any agreed advance payment.
(2) If we cannot comply with binding delivery deadlines for reasons for which we are not responsible (services not available), we will inform the purchaser of this promptly, at the same time informing them of the planned new delivery date. If the service is not available even within this new delivery deadline, we are entitled to withdraw from the agreement in full or in part; we will promptly reimburse any return service already provided by the purchaser. Delayed deliveries by our suppliers, in particular, shall be considered non-availability of services in this sense if we have concluded a congruent cover transaction, if neither we nor our suppliers are culpable for the delays, or if we are not obligated to make the purchase in the individual case.
(3) The start of the delivery delay shall be determined in accordance with the law. However, the purchaser must provide a warning and grant a grace period of at least 3 weeks in every case.
(4) The purchaser's rights according to Sec. 8 of these GTS and our statutory rights, in particular if our service obligation is excluded (for instance because the service would be impossible or unreasonable and/or supplementary performance) shall remain unaffected.
Section 4 Delivery, transfer of risk, acceptance, delay of acceptance
(1) Deliveries are made ex works, which is also the place of fulfillment for the delivery and any supplementary performance. We reserve the right to ship not from the place of fulfillment but from another location of our choice. Upon request and at the cost of the purchaser, goods shall be shipped to another destination (sales shipment). If not otherwise agreed, we are entitled to select the type of shipment (in particular the transportation company, shipping route, packaging).
(2) The risk of accidental destruction and deterioration of goods shall be transferred to the purchaser at the latest upon handover. However, in case of a sales shipment, the risk of accidental destruction and deterioration of the goods and the risk of default shall be transferred upon delivery of goods to the freight carrier, forwarder, or other person or entity commissioned to carry out the shipment. The above regulations also apply if we deliver the goods with our own vehicles. If acceptance has been agreed upon, it must be completed before the transfer of risk. The statutory regulations of law on contracts for work, furthermore, apply accordingly to any agreed acceptance. There is no difference between handover and acceptance, if the purchaser is in default of acceptance.
(3) If the purchaser falls into default of acceptance, if it fails to cooperate, or if our delivery is delayed for other reasons for which the purchaser is responsible, we are entitled to request reimbursement for any resulting damages, including additional expenses (such as storage costs).
Section 5 Prices and payment conditions
(1) Unless otherwise agreed in an individual case, our current prices at the time the contract is concluded apply, ex works, and do not include any statutory VAT or packaging costs. Our list and catalog prices are non-binding.
(2) In the case of sales shipments (Sec. 4 para. 1), the purchaser shall be responsible for transportation costs ex works and for the costs of any transportation insurance requested by the purchaser. Any customs duties, fees, taxes and other public contributions shall be borne by the purchaser.
(3) The purchase price shall be due and payable within 14 days from the invoice date and delivery or acceptance of the goods. However, we are entitled to complete a delivery only for advance payment, either in whole or in part, at any time - even in the course of an ongoing business relationship. We shall declare such a reservation at the latest when we confirm the order.
(4) The purchaser shall fall into default at the end of the above payment term. Interest shall be charged on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert further default damages. Our claim to commercial interest on maturity (Sec. 353 HGB - German Commercial Code) against merchants shall remain unaffected.
(5) The purchaser shall only be entitled to rights of offsetting and retention only insofar as its claim is established as legally valid or is undisputed. In case of defective deliveries, the rights of the purchaser shall remain unaffected, in particular according to Sec. 7 para. 6 clause 2 of these GTS.
(6) If it becomes clear after the agreement is concluded (for instance because a motion is made to open insolvency proceedings) that our claim to the purchase price because the purchaser is unable to make payment is endangered, we are entitled to deny service and to withdraw from the agreement in accordance with the law (Sec. 321 BGB), after providing a grace period, if applicable. In the case of contracts for manufacturing custom items, we can declare our withdrawal immediately; statutory regulations requiring a notice period shall remain unaffected.
(7) If the purchaser does not accept the delivery objects for more than 14 days after a written request to do so from us, or if it withdraws from the delivery for a reason that is not within our scope of responsibility, or if the contract is not carried out due to another reason for which is the purchaser's responsibility, then we are entitled to withdraw from the contract following an additional grace period of 14 days and to assert claims for damages. The aforementioned grace period does not have to be granted if the purchaser finally and seriously rejects acceptance, or is obviously not able to pay the price even within the grace period.
In such cases, we are entitled to request 25% of the purchase price as claims for damages. The purchaser is entitled to prove that no damages occurred, or that they were significantly lower than the above flat-rate. We are entitled to prove that the damages incurred were higher than the above flat-rate.
Section 6 Retention of ownership
(1) We reserve ownership to the sold goods until all of our current and future claims under the purchasing agreement and our ongoing business relationship (secured claims) are paid in full.
(2) Goods subject to this retention of ownership may not be leased or transferred to third parties as a security until the secured claims are paid in full. The purchaser shall inform us promptly and in writing if a motion is made to open insolvency proceedings, or if third parties could dispose over goods belonging to us (such as through seizure).
(3) If the purchaser violates the contract, in particular by failing to pay the purchase price owed, we are entitled to withdraw from the contract in accordance with the law, and/or to request return of the goods based on the retention of ownership. The request for return shall not be considered declaration of a withdrawal; instead, we are entitled to only request the goods and to reserve the right to withdraw. If the purchaser does not pay the purchase price owed, then we will only assert these rights if we have already given the purchaser a reasonable grace period for payment and they have not done so, or if such a grace period is not required by law.
(4) Until revocation, the purchaser is entitled according to the below (c) to sell and/or process goods subject to a retention of ownership in the normal course of its business. The following provisions shall apply as a supplement in such cases.
(a) The retention of ownership shall apply to products made by processing, mixing or combining our goods, at their full value, whereby we are to be considered the manufacturer. If third parties retain their ownership rights when goods are processed, mixed or combined with third party goods, then we will obtain co-ownership to the processed, mixed or combined goods in relation to the invoice value. Otherwise, the same regulations apply to the new products as to goods delivered under the retention of ownership.
(b) The purchaser hereby already assigns any claims against third parties resulting from the further sale of the goods or products to us in full by way of a security, amounting to any percentage of co-ownership in accordance with the above paragraph. We hereby accept said assignment. The obligations of the purchaser indicated in para. 2 shall also apply to the assigned claims.
(c) Both we and the purchaser are entitled to collect the claim. We hereby undertake not to collect the claim as long as the purchaser fulfills their payment obligations to us, as long as there are no defects in its performance capabilities, and as long as we do not assert our retention of ownership by exercising a right in accordance with para. 3. If this is the case, however, we can request that the purchaser disclose the assigned claims and their debtors to us, provide all information required to collect such claims, provide us with associated documents, and inform the debtors (third parties) of the assignment. In addition, in this case we are entitled to revoke the purchaser's authorization to sell and process goods subject to a retention of ownership.
(d) If the recoverable value of the securities exceeds our claims by more than 10%, we will release the security at our own discretion upon request by the purchaser.
(5) We reserve rights of ownership and copyrights to sketches, images, drawings, plans and other documents. They may not be copied or shared with third parties without our express written consent.
Models, tools, molds and similar objects manufactured by us shall remain our property, unless otherwise agreed in an individual case, whereby the ownership and rights to such objects shall be transferred to the purchaser for separate compensation.
(6) If the scope of delivery includes software or other goods and rights subject to copyright, then the purchaser shall be granted a non-exclusive right to use the delivered software and associated documentation.
The purchaser may only use or modify use the software in accordance with the law, and is obligated not to remove manufacturer information or modify said information without our prior approval, which must be in text form.
The purchaser is not entitled to transfer the software or software rights to third parties, for instance through licensing, without our prior approval, which must be in text form.
Section 7 Defect claims by the purchaser
(1) Statutory regulations apply to the rights of the purchaser for material and legal defects (including incorrect or reduced deliveries and improper assembly or incorrect operating instructions), unless otherwise specified in the following. The statutory special regulations for final delivery of goods to consumers (Supplier recourse in accordance with Sections 478, 479 BGB) shall remain unaffected in all cases.
(2) We will be liable for defects primarily based on the agreement concluded on the properties of goods. All product descriptions shall be considered agreements on the properties of goods and are subject to individual contracts; it is immaterial whether the product description was created by the purchaser, manufacturer or us.
(3) If the properties have not been agreed, then whether a defect exists or not must be assessed according to the law (Sec. 434 para. 1 clause 2 and 3 BGB). However, we are not liable for any public statements by the manufacturer or any other third parties (such as advertising messages).
(4) For the purchaser to make a claim for defects, it must have fulfilled its statutory duties of inspection and submitting complaints (Sections 377, 381 HGB). For defects that would have been noticeable following a prompt, careful inspection, the term shall begin upon delivery; for other defects, the term shall begin when the defect becomes apparent. If the purchaser fails to complete a proper inspection and/or submit a proper notification of defects, then we will not be liable for any defects of which we have not been notified. Negotiations regarding defects shall not be considered a waiver of our defense that a defect complaint was not received promptly or in proper condition.
(5) If the delivered goods are defective, we can first choose whether we will provide supplementary performance by correcting the defect or by delivering a product which is free from defects. Our right to deny supplementary performance under the law shall remain unaffected.
(6) We are entitled to make our supplementary fulfillment dependent on the purchaser paying the purchase price due. However, the purchaser is entitled to retain a reasonable portion of the purchase price in relation to the defect.
(7) The purchaser shall provide us the time necessary to complete our supplementary performance, along with the goods about which the complaint has been submitted, for inspection purposes. In case of a replacement delivery, the purchaser must return the defective goods to us as required by law. Supplementary performance shall not include removal of the defective goods or re-installation, if we were not obligated to complete the original installation.
(8) We will bear expenses related to inspection and supplementary performance, in particular transportation, commuting, work and material costs (not removal and installation costs) if there actually is a defect. Otherwise, we can request that the purchaser reimburse our costs associated with the illegitimate request to correct a defect (in particular inspection and transportation costs), unless the purchaser was not aware that there was no defect.
(9) In urgent cases, for instance where the operational safety may be endangered or to prevent unreasonable damages, the purchaser is entitled to correct the defect itself and request that we reimburse the objectively required expenses for this purpose. We must be informed promptly if the purchaser does so, if possible in advance. The purchaser is not entitled to correct defects itself if we were entitled to deny supplementary performance by law.
(10) If supplementary performance fails, or if a grace period to be set by the purchaser for supplementary performance passes without the defect being corrected, or is not required by law, then the purchaser can withdraw from the purchasing agreement or reduce the purchase price. However, there shall be no right to withdraw from the agreement for insignificant defects.
(11) The purchaser shall be entitled to claims for damages or reimbursement of unnecessary expenses only in accordance with Sec. 8; otherwise, they shall be excluded.
(12) The above defect claims shall not exist if
a) the defect was the result of improper use, operation or servicing, improper maintenance, improper assembly, commissioning, failure to observe or violations of our assembly and operating manuals or acts of violence or other external influences (such as chemical, electromagnetic, electrical influences, etc.), insofar as we were not responsible for these;
b) the defect was the result of an improper modification to the delivery object, in particular using improper, in particular external replacement parts, and the damages were not materially related to the modification or use, and this makes correcting the defect impossible or unreasonably difficult;
c) the defect was caused by on-site conditions.
Natural wear and other changes resulting from the nature of the materials used (such as wood) are also excluded from the above claims, if we are not culpable for these issues. Likewise, damage caused by negligent or improper operation or handling by the purchaser is also excluded.
d) the delivery was an agreed delivery of used goods.
Section 8 Other liability
(1) Unless otherwise indicated in these GTS and the following provisions, we shall be liable under the law for violations of contractual and non-contractual obligations.
(2) We are liable for claims for damages – on any legal grounds – in cases of intentional action and gross negligence. We are only liable for simple negligence, unless the law stipulates a lower threshold for negligence, for instance due diligence in our own activities
a) for damages resulting from an injury to life, body or health,
b) For damages resulting from the significant violation of a significant contractual obligation (obligation whose fulfillment makes possible the proper execution of the agreement and upon whose observance the contractual partner typically trusts and should typically be able to trust); in this case, however, our liability shall be restricted to reimbursement of typical, foreseeable damages.
(3) The liability restrictions under para. 2 also apply to breaches of duty by or in favor of persons for whom we are responsible for their violations under the law. They shall not apply if we intentionally conceal a defect or have given a warranty for characteristics of goods, or to the purchaser's claims under the Product Liability Act.
(4) The purchaser can only withdraw from or terminate the agreement due to a breach of duty not resulting from a defect if we were responsible for the breach of duty. Any free right of termination by the purchaser (in particular according to Sections 651, 649 BGB) is excluded. Furthermore, statutory requirements and consequences apply.
Section 9 Compensation
(1) In deviation from Sec. 438 para. 1 no. 3 BGB, the general limitation period for claims due to material defects and defects of title shall be three years from delivery. If acceptance has been agreed, the limitation period shall begin upon acceptance. In case of wear parts, whose normal service life is on average shorter than the limitation period due to the type, duration and intensity of use, defect claims shall be limited to their customary service life. These shortened terms shall not apply to claims for damages by the purchaser due to an injury to life, body or health, or due to intentional or grossly negligent breaches of duty by the purchaser or their agents, or to intentionally concealed defects.
(2) However, if the goods are a building or an object typically used for building, and this has caused the defect (building materials), then in accordance with the law the limitation period shall be 5 years from delivery (Sec. 438 para. 1 no. 2 BGB). Further special statutory regulations on limitation periods (in particular Sec. 438 para. 1 no. 1, 74 para. 3, Sections 444, 479 BGB) shall remain unaffected.
(3) The above limitation periods for purchase rights shall also apply to contractual and non-contractual claims for damages by the purchaser based on a defect in the goods, unless applying the regular statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in the individual case. Claims for damages by the purchaser in accordance with Sec. 8 para. 2 clause 1 and clause 2(a) and under the Product Liability Act shall, however, expire only in accordance with the statutory limitation periods.
Section 10 Jurisdiction and choice of law
(1) The law of the Federal Republic of Germany shall apply to these GTS and to the contractual relationship between us and the purchaser, excluding international uniform law, in particular UN Sales Law.
(2) If the purchaser is a merchant in the sense of the German Commercial Code, or a legal entity under public law or a public law special fund, or if it does not have its general place of jurisdiction within Germany, then the exclusive place of jurisdiction, including internationally, for all disputes arising directly or indirectly from the contractual relationship shall be our headquarters in Affalterbach. The same is true if the purchaser is a merchant in the sense of Sec. 14 BGB. However, we are entitled in all cases to bring suit at the place of fulfillment for the delivery obligation in accordance with these GTS, or an individual agreement which takes precedence, or the general place of jurisdiction for the purchaser. Statutory regulations which take precedence in this case, in particular on exclusive responsibilities, shall remain unaffected.
Section 11 Severability clause
If individual provisions of these GTS are or become invalid, null and void, or unenforceable in whole or in part, this shall not affect the effectiveness of the remaining provisions. The contractual parties shall then carry out the contract from that point with an effective replacement regulation coming as close as possible to the economic purpose of the stricken provision.
Insofar as the agreement or these GTS contain contractual gaps, legally valid regulations shall be selected to fill said gaps which the contractual partners would have agreed in accordance with the economic objectives of the agreement and the purpose of these GTS, if they had recognized the contractual gap.