TERMS AND CONDITIONS
TERMS AND CONDITIONS OF SALE AND DELIVERY
Terms & Conditions – STOBER Drives Ltd. – Download
TERMS AND CONDITIONS OF SALE AND DELIVERY
STÖBER Antriebstechnik GmbH + Co. KG
- Scope
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTCSD”) shall apply to all of our business relationships with our customers. These GTCSD shall apply only if the customer is an entrepreneur within the meaning of Section 14 BGB [German Civil Code].
1.2 These GTCSD shall apply in particular to contracts for the sale and/or delivery of movable property (hereinafter referred to as “Goods” or “Delivery Item” or “Products”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the present GTCSD shall apply as a framework agreement also for similar future contracts in the version applicable at the time the order is placed by the customer and/or in the text form last communicated [“text form” as defined under § 126b BGB] to the customer, without any requirement on our part to refer to them in each individual case.
1.3 All deliveries and services effected by us shall be governed by these GTCSD exclusively. We do not acknowledge any terms to the contrary or any deviating terms used by the customer, unless such have been expressly approved by us. This approval requirement shall apply in each and every case, for example even if the customer refers to its general terms and conditions in the context of the order and we do not expressly object to this.
1.4 Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our acknowledgment of order shall take precedence over these GTCSD. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC), as amended at the time the contract is concluded.
1.5 Legally relevant declarations and notifications from the customer relating to the contract (e.g. setting of deadlines, notification of defects, withdrawal from contract or price reduction) must be given in writing. Written form within the meaning of these GTCP shall include written and text form (e.g. letter, e-mail, fax). Any legal formal requirements and additional supporting evidence, in particular in cases of doubt relating to the lawful entitlement of the declaring party, shall remain unaffected.
1.6 Any reference to the application of statutory provisions shall be for the purpose of clarification only. The statutory provisions shall thus also apply without such clarification, unless they are directly modified or expressly excluded by these GTCSD. - Information / Consulting / Properties of Products and Services / Cooperation
2.1 Information on or explanations of our Products and services provided by us or our sales agents are based exclusively on our experience to date. They do not constitute properties or guarantees with respect to our Products. Any figures specified shall be regarded as averages for our Products.
Unless otherwise expressly agreed, we do not guarantee that our Products and/or services are suitable for the purpose intended by the customer.
2.2 We will only assume consulting obligations if such have been expressly stipulated by virtue of a written, separate consultancy agreement.
2.3 A guarantee shall be deemed to have been assumed by us only if we have declared in writing that a property and/or a successful outcome is “legally guaranteed”.
2.4 Within the framework of order placement, the customer must provide us with all documents necessary for the execution of the order, including but not limited to technical drawings, technical data, test instructions, etc. The customer must in particular notify us of the tolerances and standards which must be observed. The customer shall be liable for ensuring that all the documents and information are correct. We shall not be liable for any defects resulting from any errors in these documents or information.
2.5 The customer undertakes to inform us if usage of the Products to be processed is associated with specific risks. Such shall apply in particular to use of the Products in safety-relevant areas, such as the automotive sector, medical engineering and dental technology, aerospace and armaments. - Conclusion of Contract / Scope of Delivery and Service
3.1 Our offers are without obligation and are not binding, unless they have been expressly stipulated to be binding. Such shall also apply if we provide the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve title and copyrights.
3.2 The order of the Goods by the customer shall be deemed a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 4 weeks of its receipt by us.
3.3 Acceptance can be declared either in writing (e.g. by way of acknowledgment of order) or by delivering the Goods to the customer.
3.4 Each order shall be governed by our written acknowledgment of order. An invoice sent may also be deemed to be an acknowledgment of order. If the customer has any objections as to the contents of the acknowledgment of order, the customer must oppose such acknowledgment of order without
delay. Otherwise, the contract shall take effect in accordance with the acknowledgment of order. In the event of any deviations in the content of drawings the specifications in the acknowledgment of order shall be authoritative.
3.5 Verbal agreements or agreements by phone shall only become an integral part of the contract if they are confirmed by us in writing.
3.6 Any information provided by us relating to the subject-matter of the delivery or service (e.g. weights, dimensions, values in use, capacity, tolerances and technical specifications) as well as the depictions thereof provided by us (e.g. drawings and illustrations) shall only be deemed approximates unless the usability of such information for the contractually intended purpose requires precise conformity. These shall not constitute guaranteed characteristics but are descriptions or designations of the delivery or service. Deviations customary in the trade and deviations which are the result of legal provisions or which represent technical improvements as well as the replacement of components by equivalent parts shall be permissible insofar as they do not adversely affect the usability for the contractually intended purpose.
3.7 We shall be entitled to make structural modifications to the Products delivered by us insofar as such modifications are the result of enhancements of the respective series product and if the modified Products are at least commercially and technically equivalent to the Products ordered by the customer and can be used by the customer the same way as the Products originally to be delivered.
3.8 If the scope of services needs to be modified due to missing or incorrect information provided by the customer, we shall be entitled to effect such modifications; any costs or damage incurred thereby must be reimbursed to us by the customer. - Time of Delivery and Delay in Delivery
4.1 The delivery time is agreed on an individual basis or is specified by us upon acceptance of the order.
4.2 Compliance with the delivery times is based on the proviso that all commercial and technical questions are clarified and the customer has met all obligations incumbent on it. These are in particular:
• the defect-free, complete and timely provision of the materials and the objects on loan specified in the acknowledgment of order by the customer in accordance with Section 15 below,
• compliance with the agreed terms of payment (such as payment of a down payment by the customer),
• the provision of securities by the customer.
If this is not the case, the delivery period shall be extended accordingly. This shall not apply if we are responsible for the delay. The plea of non-performance shall remain reserved.
4.3. We shall only be under the obligation to render performance out of our own stock [German „Vorratsschuld“ – debt settled out of one’s own stock].
4.4 We shall only be entitled to effect partial deliveries if:
• the partial delivery can be used by the customer within the framework of the contractually intended purpose,
• delivery of the remaining Goods ordered is ensured and if
• the customer does not incur any significant additional effort or expense on account of this (unless we agree to bear such costs).
4.5 The onset of our being in delay in delivery shall be determined on the basis of the statutory provisions. In any case, however, a reminder by the customer shall be required.
If the customer suffers damage due to our delay, the customer may demand a flat-rate compensation for the damage caused to it by the delay. The flat-rate compensation for damage shall amount to 0.5% of the net price for the entire delayed delivery and/or service in default (value of the delivery) for each completed calendar week of the delay but shall not exceed, however, 5% of the delivery value of the Goods and/or services delivered or provided late. Any further compensation paid by us for the damage caused by the delay shall be excluded. Such shall not apply if we have acted on intent, with gross negligence or maliciously, in the case of claims for injury to life, limb or health and if a fixed date of delivery within the meaning of the law has been agreed and a performance guarantee has been given or a procurement risk has been assumed in accordance with Section 276 BGB and in the case of compulsory statutory liability.
We reserve the right to prove that the customer has not suffered any damage at all or that the amount of the damage was significantly below the above flat rate.
4.6 The rights of the customer in accordance with Section 11 of these GTCSD as well as our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or supplementary performance) shall remain unaffected. - Delivery / Passing of Risk / Acceptance / Delay in Acceptance
5.1 Delivery shall be effected FCA in accordance with the Incoterms, which shall also be the place of performance for delivery and supplementary performance, if applicable. Upon the request and
expense of the customer, the Goods will also be shipped to another point of destination (sale by dispatch). Unless otherwise agreed, we shall have the right to determine the respective type of shipment (in particular select the shipping company, dispatch route, packaging) ourselves.
5.2 The risk of accidental loss and accidental deterioration of the Goods shall pass to the customer upon delivery at the latest. However, in the case of sale by dispatch the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall already pass with delivery of the Goods to the carrier, forwarding agent or other person or entity charged with the shipping of the Goods. If acceptance has been agreed, such acceptance shall be authoritative for the passing of risk. In other respects, the statutory provisions of the law on contracts for work and services [German “Werkvertragsrecht”] shall apply mutatis mutandis if acceptance has been agreed. Default in acceptance [German “Annahmeverzug”] by the customer shall be equivalent to delivery [German “Übergabe”] or acceptance [German “Abnahme”].
5.3 If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the damage incurred thereby, including additional expenditures (e.g. storage costs). For this, we will charge a flat-rate compensation amounting to 0.5% of the agreed net order value for each commencing calendar week of the delay for the part of the delivery that has not been accepted,
however not exceeding a total of 10% of the agreed net order value, commencing with the delivery period or – in the absence of a delivery period – with the notification that the Goods are ready for dispatch. We shall also be entitled to store the Goods outside our factory. The right to provide proof of a higher damage as well as our claims laid down by law (including but not limited to the reimbursement of additional expenditure, reasonable compensation, termination) shall remain unaffected; however, the flat rate shall be set off against further monetary claims. The customer shall have the right to prove that we have suffered no damage at all or that the damage was significantly below the above flat rate. - Supply by our own Suppliers, Force Majeure
6.1 If, for reasons for which we are not responsible, we are not supplied, not correctly supplied or not supplied on time with the deliveries or services of our sub-suppliers for the provision of our contractually owed deliveries or services despite proper and sufficient coverage of requirements before conclusion of the contract with the customer in accordance with the quantity and quality resulting from our supply or performance agreement with the customer (matching cover transaction)
or if events of Force Majeure occur which continue for a not insignificant length of time (i.e. lasting more than 14 calendar days), we will inform our customer thereof in writing or in text form in good time. In such case, we shall be entitled to postpone the delivery for the duration of the impediment or to withdraw from the contract in whole or in part on account of the part of the contract that has not yet been fulfilled, insofar as we have fulfilled our aforesaid obligation to provide information and have not assumed the procurement risk or a delivery guarantee.
Events of Force Majeure shall include combat operations (irrespective of whether or not a war has been declared), riots, explosions, fire, flood, earthquake, typhoon, epidemics, pandemics, diseases or quarantine, cyber-attacks, disruptions to the operation of the world wide web and labor disputes as a result of which business operations come to a complete or major standstill, as well as acts, omissions or actions of any government or when complying with government requests and official interventions. Force Majeure shall be equivalent to energy and raw material shortages, transport bottlenecks or impediments through no fault of our own, operational impediments through no fault of our own – e.g. due to fire, water or machine damage – and all and any other impediments which, from an objective point of view, have not been culpably brought about by us.
6.2 If a delivery date or a delivery period has been bindingly agreed and the agreed delivery date or the agreed delivery period is exceeded due to events in accordance with item 6.1. above, the customer shall be entitled – after a reasonable grace period has expired without result – to withdraw from the contract on account of the part that has not yet been fulfilled. In such case, any further claims of the customer, in particular claims for damages, shall be excluded.
6.3 The above provision pursuant to item 6.2. shall apply accordingly if, for the reasons stated in item 6.1., even without contractual agreement of a fixed delivery date, further adherence to the contract cannot objectively be expected of the customer. - Prices and Terms of Payment
7.1 The prices stated in the acknowledgment of order shall be authoritative. They shall be ex works and shall be exclusive of packaging, freight, postage, insurance or other value assurance and VAT.
Transport insurance is only provided on request and for the account of the customer. Half of the
calculated price will be refunded for packaging returned carriage paid and undamaged. 7.2 In the case of sale by dispatch (item 5.1 above) the customer shall bear the transport costs ex
warehouse as well as the costs of any transport insurance that the customer may require. If we do not invoice the transport costs actually incurred in individual cases, a flat rate for transport costs(excluding transport insurance) of up to 3% of the agreed net order value shall be deemed agreed. Any customs duties, fees, taxes and other public dues shall be borne by the customer.
7.3 The purchase price shall be due for payment within 14 days of invoicing and delivery or acceptance of the Goods. The deduction of a discount shall require special written agreement. However, even within the scope of an ongoing business relationship we shall be entitled at any time to effect delivery, in whole or in part, only with advance payment. The respective reservation will be made with the acknowledgment of order at the latest.
7.4 Upon expiry of the above payment period, the customer shall be in default. The purchase price shall bear interest during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by the delay. With regard to merchants, our claim to the commercial maturity interest (Section 353 HGB [German Commercial Code]) shall remain unaffected.
7.5 If, after conclusion of the contract it becomes apparent that our claim to the purchase price is at risk due to the customer’s inability to perform (e.g. if an application for the initiation of insolvency
proceedings has been filed), based on statutory provisions we shall be entitled to refuse performance and – after setting a deadline, if applicable – to withdraw from the contract (Section 321 BGB). In the case of contracts on the production of non-fungible goods (custom-made items) we shall have the right to withdraw from the contract immediately; the statutory provisions on the waiver of deadlines shall remain unaffected. - Retention of Title
8.1 We retain title to the Goods sold until payment of all current and future claims arising out of the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
8.2 The Goods subject to retention of title may neither be pledged to any third party nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application for the initiation of insolvency proceedings has been filed or in the event of third-party intervention (e.g. attachment) relating to the Goods owned by us.
8.3 If the customer acts in breach of the contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Goods based on retention of title. The demand for return of the Goods does not at the same time include the declaration of withdrawal; rather, we shall be entitled merely to demand the return of the Goods and to reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if such a deadline is dispensable under the provisions laid down by law.
8.4 The customer shall be entitled, subject to the revocation as per item (c) below, to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a) The retention of title shall extend to the full value of the Products created by processing, mixing or combining our Goods, whereby we shall be deemed to be the manufacturer. If, our Goods are processed, mixed or combined with goods of third parties, and the right of ownership of the
third parties remains in force, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the provisions applicable to the Goods subject to retention of title shall also apply to the Product created by such processing.
b) As early as with the present, the customer hereby assigns to us as security the claims against
any third party resulting from the resale of the Goods or the Product created in full or in the amount of our co-ownership share as per the preceding paragraph, if applicable. We accept the assignment. The obligations of the customer stipulated in item 2 above shall also apply with regard to the assigned claims.
c) In addition to ourselves, the customer shall remain entitled to collect the claim. We undertake not to collect the claim ourselves for as long as the customer meets its payment obligations with respect to us, there is no defect in its capacity to perform and we do not assert retention of title by exercising a right pursuant to item 3 above. However, if such is the case, we shall be entitled to demand that the customer discloses to us both the assigned claims and the respective debtors, provides all information necessary for collection, hands over the respective documentation and informs the debtors (third parties) of the assignment. In this case, we shall also be entitled to revoke the customer’s authority to resell and process the Goods subject to retention of title.
d) Upon request of the customer, we will release securities at our option, insofar as its realizable
value exceeds the value of the claims to be secured by more than 10%. - Material Defects
9.1 Unless otherwise provided for in the following, the provisions laid down by law shall apply to the rights of the customer in the case of material defects and defects of title (including incorrect delivery and short delivery as well as improper assembly/installation or faulty instructions). In all cases, the statutory special provisions for reimbursement of expenses in the event of end delivery of the newly manufactured goods to a consumer shall remain unaffected (supplier recourse as per Sections 478,
445a, 445b and/or 445c, 327 [5], 327u BGB) – unless an equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
9.2 Our liability for defects shall above all be based on the agreement made about the quality of the goods and the use provided for (including accessories and instructions). An agreement on the quality of the goods within this meaning shall be deemed all product descriptions and manufacturer’s information that are the subject-matter of the individual contract or that have been published by us (in particular in catalogues or on our website) at the time of the conclusion of the contract. To the extent that the quality has not been agreed, it must be determined whether or not a defect exists based on the provisions laid down by law (Section 434 [3] BGB). Public statements made by the manufacturer or on behalf of the manufacturer, in particular in advertising or on the label of the Goods, shall take precedence with respect to statements of other third parties.
9.3 In the case of Goods with digital elements or other digital content, we shall only owe the provision and updating, if applicable, of the digital content insofar as this expressly results from a quality agreement as per item 2 above. In this respect, we assume no liability for public statements made by the manufacturer and any other third party.
9.4 On principle, we shall not be liable for any defects that the customer has knowledge of – or has no knowledge of due to gross negligence – at the time of conclusion of the contract (Section 442 BGB). Furthermore, the customer may only assert claims for defects on the proviso that the customer has met its statutory inspection and notification obligations (Sections 377, 381 HGB). In the case of building materials and other goods intended for incorporation or other further processing, an inspection must in any case be made immediately before processing. If a defect becomes apparent upon delivery, during inspection or at any later date, we must be notified thereof in writing without delay. In any case, obvious defects must be reported in writing within 5 calendar days of delivery, and defects not recognizable during inspection must be reported in writing within the same time period from their detection. If the customer fails to carry out a proper inspection and/or report defects, our liability for the defect that has either not been reported at all or has not been reported in time or has not been reported in due form shall be excluded in accordance with the provisions laid down by law. In the case of Goods intended for incorporation, attachment or installation, this shall also apply if the defect that results from the breach of one of these obligations becomes apparent only after corresponding processing; in this case, in particular, the customer shall not be entitled to any claims for reimbursement of the corresponding costs (“dismantling and installation costs”).
9.5 If the Item delivered is defective, we may first of all choose to effect supplementary performance by either remedying the defect (repair) or by delivering an item free from defect (replacement delivery). If the type of supplementary performance selected by us is unreasonable for the customer in individual cases, the customer may refuse such supplementary performance. Our right to refuse supplementary performance if the respective conditions under statutory law are met shall be unaffected hereby. In the event of replacement delivery, the customer must return the defective Delivery Item to us in accordance with the statutory provisions. We shall be entitled to a claim of transfer of ownership of the replaced parts.
9.6 Unless we have expressly confirmed the existence of a defect in writing, any repair or replacement delivery or any re-manufacturing will on principle at most be effected by us as a gesture of goodwill and ex gratia, i.e. without admitting legal responsibility.
9.7 We shall have the right to make the supplementary performance owed by us conditional on the customer paying the purchase price due. However, the customer shall have the right to retain part of the purchase price proportionate to the defect.
9.8 The customer must grant us the necessary time and opportunity for the supplementary performance owed by us and must, in particular, provide us with the rejected Goods for inspection and verification. In the case of replacement delivery, upon our request, the customer must return the defective Item to us in accordance with the provisions laid down by law; however, the customer shall have no entitlement to enforce a claim for the return of the defective Item. Supplementary performance shall include neither the disassembly, removal or deinstallation of the defective Item nor the incorporation, attachment or installation of an Item free from defects if we were not originally under the obligation to perform these services; any claims of the customer for compensation of the respective costs shall remain unaffected hereby (“dismantling and installation costs”).
9.9 The expenditure required for inspection and supplementary performance, including but not limited to transport, travel, labor and material costs as well as dismantling and installation costs, if applicable, shall be borne or refunded by us in accordance with the statutory provisions and these GTCSD, if a defect actually exists. If such costs increase because the Goods were taken to a place other than the place of delivery such costs shall be borne by the customer. If no defect exists, we shall have the right to demand reimbursement from the customer for the costs incurred as a result of the unjustified demand for remedy of defect if the customer had knowledge of – or had no knowledge of due to gross negligence – that there was actually no defect.
9.10 Claims for defects by the customer shall be invalid if the customer or a third party has handled our Delivery Item improperly or has used the Delivery Item even though the customer or the third party was aware of the defect. In such cases, liability on our part shall only be considered if the customer proves that the defects were not caused, neither in whole nor in part, by the aforementioned handling.
9.11 Claims for defects due to causes that cannot be attributed to a fault on our part shall be invalid, for example:
• if the deliveries have been improperly handled, stored, assembled, used, exposed to unsuitable chemical, electrochemical or electrical influences that have not been contractually specified or have been exposed to undue stress;
• if parts submitted are processed for chip and heat treatment, grinding, etc., if the defects result from the behavior of the material.
• If parts submitted become unusable during processing due to material defects or other defects, we shall be reimbursed for the processing costs incurred.
• If workpieces become unusable due to circumstances for which the customer is responsible, the customer shall take over the processing of similar replacement parts.
• If workpieces become unusable due to circumstances for which the customer is responsible, the customer shall take over the processing of similar replacement parts.
• if the deliveries have been altered in a manner not approved by us;
• in the event of changes, additions or modifications to the deliveries not agreed with us or if third-party accessories or spare parts are used – unless the customer provides proof that there is no causal link between the asserted defect and such measure.
• if the customer has not complied with the rules and regulations concerning the treatment, maintenance and care of the deliveries (e.g. operating instructions), as long as it cannot be ruled out that one of these instances has caused the occurrence of the defect.
• We do not provide any warranty for defects due to measures or constructions expressly requested by the customer or occurring on materials or products made available or provided by the customer or the use of which the customer has expressly requested contrary to our advice.
• The customer may not, in particular, assert any claims for defects in the following cases unless such measures have been carried out with our express written consent: natural wear and tear, excessive stress, unsuitable and improper use – in particular in breach of the information in the operating instructions or manual – faulty assembly or commissioning by our customer or any third party, subsequent wear and tear, incorrect or negligent treatment, improper maintenance, unsuitable operating materials / replacement materials, unsuitable installation site, in particular installation surface, lack of stability or unsuitable securing of the power supply, chemical or electrical influences, harmful environmental conditions unknown to us, unless we are answerable for them.
9.12 Furthermore, claims for defects shall not arise if the software provided by the customer is combined with third-party software and such third-party software is not compatible with the software, nor if defects are based on non-contractual or improper use of the software by the customer. Neither shall claims for defects arise if the customer does not use the required system configuration, in particular infrastructure, hardware, operating system and database.
9.13 Claims for defects by the customer shall be excluded if the systems and other machines of the
customer or a third party are not in technically sound and operational condition or are not compatible with the deliveries, if the customer’s technical systems such as supply lines, wiring, etc. are not in a technically sound and operational condition or are not compatible with the deliveries, insofar as the circumstance is the cause of the defect.
9.14 If a reasonable time period to be set by the customer for supplementary performance has expired without result or can be waived in accordance with the statutory provisions, the customer shall be entitled to withdraw from the purchase contract or to reduce the purchase price as provided for by law. However, in the event of a minor defect the right of withdrawal shall not apply.
9.15 Also in case of defects, any claims of the customer for damages and/or compensation for expenses incurred to no avail shall only apply as stipulated under item 11 hereof and shall be excluded in all other respects. - Property Rights
10.1 In accordance with this Section 10, we warrant that the Delivery Item is free of industrial property rights or copyrights of any third party. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
10.2 If the Delivery Item infringes industrial property rights or copyrights of any third party, we will, at our discretion and expense, modify or replace the Delivery Item in such a way that no third-party rights are infringed, but the Delivery Item continues to meet the contractually agreed functions, or provide the customer with the right of use by concluding a license agreement with the respective third party. If we fail to do so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for damages of the customer shall be subject to the restrictions of Section 11 of these GTCSD.
10.3 In the event of infringements of rights by Products of other manufacturers delivered by us, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign our claims to the customer. In such cases, claims against us shall only apply in accordance with this Section 10 if the judicial enforcement of the above-mentioned claims against the manufacturers and upstream suppliers was unsuccessful or, e.g. due to insolvency proceedings, is futile.
10.4 In all other respects the provisions of Section 9 hereof shall apply mutatis mutandis. - Other Liability
11.1 Unless otherwise provided for in these GTCSD and in the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the provisions laid down by law.
11.2 Within the scope of fault-based liability, we shall be liable for damages – irrespective of the legal grounds on which such claims are based – in the event of intent and gross negligence. In the event of slight negligence, we shall be liable, subject to statutory limitations of liability (e.g. due diligence in our own affairs; insignificant breach of duty), only
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from the breach of essential contractual obligations (fundamental obligations going to the root of the contract the fulfilment of which is essential for the proper execution of the contract in the first place and the observance of which the contracting party regularly relies on and may rely on); in this case, however, our liability shall be limited to the
compensation of the foreseeable damage that typically occurs.
11.3 The limitations of liability resulting from the above item 11.2. shall also apply with respect to any third party and in the event of breaches of duty by persons (also to their benefit) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect has been
fraudulently concealed or if a guarantee for the quality of the Goods has been furnished and for claims of the customer under the Product Liability Act.
11.4 The customer may only withdraw from the contract or give notice of termination based on a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination on the part of the customer (in particular pursuant to Sections 650, 648 BGB) shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.
11.5 If we provide technical information or act in an advisory capacity and if this information or advice is not part of the contractually agreed scope of performance owed by us, this shall be done free of charge and to the exclusion of any liability.
11.6 The interface responsibility for integrating our deliveries and services into any potential systems of the customer shall remain with the customer.
11.7 Liability for damage caused by data loss or hardware malfunctions at the customer site caused by incompatibility of the customer’s existing hardware and software components with our deliveries and services shall be excluded by us in the absence of responsibility. Neither shall we be liable for system malfunctions that may occur due to existent misconfigurations or older driver software that has not been completely removed. - Set-off and Retention
12.1 The customer may only offset counterclaims that are undisputed or recognized by non-appealable judgment.
12.2 The customer may only enforce a right of retention if its counterclaim is based on the same contractual relationship and is undisputed or recognized by non-appealable judgment.
12.3 In the event of defects in the delivery, the counterclaims of the customer, in particular in accordance with item 9.2, sentence 2, of these GTCSD, shall remain unaffected. - Title and Copyright
We reserve title and copyrights to all offers and cost estimates submitted by us as well as drawings,
illustrations, calculations, brochures, catalogs, models, prototypes, tools, software and similar records, data and aids made available to the customer. The customer must not make these items accessible to any third party, disclose them, use them itself or by any third party or reproduce them without our express written consent. At our request, these items must be returned to us without delay and in full, and any copies made thereof shall be destroyed if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. - Use of Software
If software is part of the scope of delivery the customer shall be granted the non-exclusive right of use of the software delivered including its documentation. It shall be made available for use on the Delivery Item intended for this purpose. Use of the software on more than one system shall not be permitted. The customer shall only be entitled to duplicate, rework, translate or convert the software from object code to source code within the scope permitted by law (Sections 69 a et. seq. of the German Copyright Act). The customer has no claim to the handover and/or use of the source code of the software. The customer undertakes not to remove any manufacturer’s information – in particular copyright notices – or to change it without our prior express consent. All other rights to the software and the documentation, including copies, shall remain with us or with the software supplier. The granting of sublicenses shall not be permitted. - Goods Provided [by the Customer]; Goods Inspection
15.1 Parts submitted for processing and assembly must be sent CTP (Incoterms) and, where required, well packed, enclosing a consignment note and delivery note. A dispatch note must be sent to us, stating the customer’s order number.
15.2 The customer must deliver the goods provided no later than 14 days before the confirmed delivery date. The article description, quantity and the order number of the order for which the goods are provided must be clearly identifiable to enable unequivocal assignment to the respective
acknowledgment of order. Goods provided without labelling will be returned to the sender.
15.3 Upon receipt, we only inspect the goods provided for external damage of packaging, boxes and the goods themselves. We will inform the customer of any defects which may be detected within 10
calendar days.
15.4 Goods provided, in particular engines, will not be painted.
15.5 If damage occurs to the goods provided by the customer during the manufacturing process as a result of a breach of the obligations stipulated above, we shall not be liable for this. If any damage or loss is incurred by us on account of this the customer shall be obliged to provide compensation thereof.
15.6 We do not check the interoperation of goods provided, in particular engines and gearboxes. Only the interoperation of the gearbox with an engine is checked by us. We shall not be liable for defective or incomplete deliveries or for the interoperation of the customer’s supplies with our services/deliveries.
15.7 We assume no warranty for goods provided. - Statute of Limitation
16.1 Unless otherwise stipulated in the following and in derogation from Section 438 [1], number 3, BGB, the general limitation period for claims for material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence with acceptance. In single-shift operation, claims for defects by the customer shall become statute-barred 24 months after delivery or, if acceptance is required, from acceptance.
16.2 However, if the Goods are a building or an object that, in conformity with its customary manner of utilization, has been used for a building and has caused its defectiveness (building material), claims will become statute-barred in 5 years from delivery in accordance with the statutory provision (Section 438 [1], no. 2, BGB). Any additional special provisions on limitation periods laid down by law shall remain unaffected (in particular Section 438 [1], no. 1, [3], Sections 444, 445b BGB).
16.3 The aforesaid limitation periods stipulated by sales law shall also apply to contractual and noncontractual claims for damages by the customer based on a defect of the Goods – unless the standard statutory limitation periods (Sections 195, 199 BGB) would, in an individual case, result in shorter limitation periods. However, claims for damages of the customer in accordance with item 11.2., sentence 1 and sentence 2 (a) above as well as claims under the Product Liability Act shall become statute-barred in accordance with the statutory limitation periods exclusively. - Confidentiality
17.1 The contracting parties undertake to keep confidentialthe terms and conditions of the order execution as well as any other information made available to them for this purpose, including but not limited to information of a technical and commercial nature, intentions, experience, findings, designs and records, which become known to them as a result of the collaboration under this contract (collectively referred to as “Confidential Information”), with the exception of information which is in the public domain, for a period of 3 years after conclusion of the contract and not to make such information accessible to any third party, to protect it from third-party access and not to make it the subject-matter of their own property-right application. Affiliated companies of the contracting party within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG) shall not be deemed to be third parties.
17.2 Furthermore, the contracting parties undertake to keep confidential all and any business, operational or technical matters of the respective other contracting parties that have become known or will become known to them in connection with the delivery or service, even beyond the term of the contract.
17.3 The foregoing obligations shall not apply to such Confidential Information that was already known prior to its disclosure under this agreement, was independently developed or otherwise lawfully obtained by the other contracting party, or that is generally known or becomes part of the public domain without breach of these provisions.
17.4 The contracting parties shall ensure in an appropriate manner that the employees, freelancers and subcontractors engaged by them in the execution of the contract also maintain the above
confidentiality.
17.5 After termination of this contract, the Confidential Information contained in records etc., including all and any copies thereof, that are in the possession or under the control of one of the contracting parties, shall be returned by the latter to the other contracting party upon request in full and without delay, unless such is barred by agreed or statutory retention obligations. Excluded herefrom shall also be Confidential Information contained in records etc., including all copies thereof, and other Confidential Information the destruction or return of which is technically not possible (e.g. because such Confidential Information has been saved as a backup file by an automated electronic backup system); this shall also include the technically necessary retention of master data (e.g. personnel or customer numbers) required to establish a link to the archived information.
17.6 In other respects, the provisions for the protection of trade secrets (implemented in Germany by the Trade Secrets Act and in the other EU member states by implementing Directive 2016/943) as well as the agreements made in non-disclosure agreements shall apply to the handling of trade secrets. - Compliance with Statutory Provisions
18.1 The customer undertakes to comply with the statutory provisions applicable and relevant to it in
connection with the contractual relationship. This shall apply in particular to anti-corruption and
money laundering laws as well as antitrust, labor and environmental protection regulation, Directive
2002/95/EC (RoHS) and the REACH Regulation (EC) 1907/2006.
18.2 Customers with registered office in the European Union shall ensure that the goods delivered by them meet all relevant requirements for placing them on the market in the European Union. The same shallapply to customers with registered office outside the European Union but in the European Economic Area. Upon request, the customer must prove conformity to us by submitting suitable documents. - Export Control / Product Approval / Import Regulations
19.1 In the event of export, the customer shall be responsible for compliance with the export control
regulations applicable to the Delivery Items. If the customer breaches any export regulations, we shall be entitled to withdraw from the contract.
19.2 If the delivery includes an export by us that is subject to approval, the contract shall only be deemed concluded upon receipt of the respective approval. The customer undertakes to provide all documents required for approval.
19.3 The customer agrees to provide where-used lists and/or end-user confirmations upon request, even if these are not officially requested.
19.4 In the case of export to non-EU countries / transfer to EU member states delivery shall only be exempt from German VAT upon receipt of a legally valid export certificate.
19.5 If time periods or deadlines cannot be met due to delays in export control, the delivery period shall be extended and the delivery date shall be adjusted accordingly. - Place of Performance, Place of Jurisdiction, Applicable Law
20.1 Place of performance for delivery and payment shall for both parties be our principal place of business exclusively.
20.2 Exclusive place of jurisdiction – also internationally – for all and any disputes arising out of the
contractual relationship, either directly or indirectly, including its creation and effectiveness, shall for
both parties be our principal place of business in Pforzheim provided that the customer is a merchant within the meaning of the German Commercial Code with seat in the European Union, Iceland, Norway or Switzerland when the proceedings are initiated. The same shall apply if the customer is an entrepreneur within the meaning of Section 14 BGB. In all cases, however, we shall be also entitled to take legal action at the place of performance of the delivery obligation in accordance with these GTCSD or in the event of an individual agreement taking precedence, or at the general place of jurisdiction of the customer. Any statutory provisions taking priority, in particular with regard to exclusive jurisdiction, shall remain unaffected thereby.
20.3 If the above item 20.2 is not applicable, all and any legal disputes arising out of the contractual
relationship, including its creation and effectiveness, shall be settled by final and binding decision in
accordance with the Rules of Arbitration of the German Arbitration Institute (Deutsche Institution für
Schiedsgerichtsbarkeit e.V. (DIS)), excluding the jurisdiction of the courts. Place of arbitration shall be
Karlsruhe, Germany. The language of the arbitration proceedings shall be German.
20.4 The contractual relationship shall be governed by German law exclusively, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
Effective as of May 2022
<code>CONDITIONS OF PURCHASE</code>
CONDITIONS OF PURCHASE- Download
General Terms and Conditions of Purchase
STÖBER Antriebstechnik GmbH + Co. KG
- Scope
1.1 These General Terms and Conditions of Purchase (hereinafter referred to as “GTCP”) shall apply to all and any business relationships with our business partners and suppliers (hereinafter referred to as the “Supplier”). These GTCP shall apply only with respect to entrepreneurs within the meaning of Section 14 BGB [German Civil Code].
1.2 The GTCP shall apply in particular to contracts for the sale and/or delivery of movable property (hereinafter referred to as “Items”, “Products” or “Goods”), irrespective of whether the Supplier manufactures the Goods itself or purchases them from sub-suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTCP shall apply as a framework agreement also for similar future contracts in the version applicable at the time the order was placed with the Supplier and/or in the text form [“text form” as defined under § 126b BGB] last communicated to the Supplier, without any requirement on our part to refer to them in each individual case.
1.3 These GTCP shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions used by the Supplier shall only become an integral part of the contract if and to the extent that we have expressly agreed to their validity in writing. Our consent shall be required in each and every case, for example even if the Supplier makes reference to its general terms and conditions in its order confirmation and we do not expressly object to this. In particular, acceptance
of deliveries or services or payment shall not constitute any consent.
1.4 Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information in our order shall take precedence over these GTCP. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC), as amended at the time the contract is concluded.
1.5 Legally relevant declarations and notifications from the Supplier relating to the contract (e.g. setting of deadlines, dunning letters, withdrawal from contract) must be given in writing. Written form within the meaning of these GTCP shall include written and text form (e.g. letter, e-mail, fax). Any legal formal requirements and additional supporting evidence, in particular in cases of doubt relating to the lawful entitlement of the declaring party, shall remain unaffected.
1.6 Any reference to the application of statutory provisions shall be for the purpose of clarification only. The statutory provisions shall thus also apply without such clarification, unless they are directly modified or expressly excluded by these GTCP - Conclusion of Contract
2.1. Our order shall be deemed binding at the earliest when placed or confirmed in writing. Any obvious errors (e.g. typing and calculation errors) and incomplete data within the order, including the order documents, must be pointed out to us by the Supplier, so that we can correct and/or supplement the order before acceptance; otherwise, the contract shall be deemed as not concluded.
2.2 The Supplier shall be under the obligation to confirm our order in writing within a time period of 3 working days or to execute the order unconditionally, in particular by sending the Goods.
2.3. A delayed acceptance shall be deemed to be a new offer and shall require our acceptance.
2.4 The order numbers must be stated in full on delivery notes, dispatch notes and invoices. - Blanket Order / Call-offs
In the case of blanket or standing orders, we shall specify the quantities to be delivered, delivery dates and types to be delivered in separate call-offs. These call-offs shall be binding on the Supplier. This shall not apply if the Supplier refuses to effect a call-off within three working days of receipt due to the unreasonableness of the quantities or dates of delivery, stating the earliest possible replacement delivery date. - Delivery Time and Delay in Delivery
4.1 The delivery time stated by us in the order shall be binding and must be strictly adhered to. The receipt of the Goods at our site or at the receiving point agreed or specified by us shall be decisive
for this. The Supplier undertakes to inform us immediately in writing if the Supplier anticipates that
it will not be able to meet agreed delivery times – for whatever reason.
4.2 As soon as it becomes apparent to the Supplier that deliveries might be delayed, the Supplier must inform us thereof without delay. The binding effect of the agreed delivery date shall not be affected thereby.
4.3 If the Supplier fails to provide its service or does not provide it within the agreed delivery time or if the Supplier is in default, our rights – in particular relating to withdrawal from the contract and damages – shall be determined in accordance with the provisions laid down by law. The provisions of the following item 4.4 shall remain unaffected thereby. If delivery is effected prior to the stipulated delivery date, we shall have the right to reject such delivery. Partial deliveries can likewise be rejected by us.
4.4 If the Supplier is in default, we may – in addition to any further claims laid down by law – demand a flat-rate compensation for our damage incurred by the delay amounting to 0.5% of the net price for each commencing calendar week, however in total not exceeding 5% of the net price of the Goods delivered late. We shall have the right to prove that higher damage has occurred. The Supplier shall have the right to prove that we have suffered no damage at all or that the damage was significantly below the flat rate. - Delivery and Service, Passing of Risk, Default in Acceptance
5.1. Without our prior written consent, the Supplier shall not be entitled to have the delivery or service owed by the Supplier provided by any third party (e.g. subcontractors). The Supplier shall bear the procurement risk for its deliveries or services, unless otherwise agreed in individual cases (e.g. limitation to stock).
5.2 Delivery shall be effected “DAP” to the place specified in the order. If the place of destination is not indicated and unless otherwise agreed, delivery shall be made to our registered place of business in Pforzheim. The respective place of destination shall also be the place of performance for the delivery, also for supplementary performance, should such apply (German “Bringschuld” [obligation to be performed by the debtor at the creditor’s address]).
5.3 The delivery shall be accompanied by a delivery note indicating date (date of issuance and shipment), contents of the delivery (item number and quantity) as well as our order identification (date and number). If the delivery note is missing or is incomplete, we shall not be liable for any delays in processing and payment resulting therefrom. The dispatch of each shipment must be communicated by us without delay by way of a dispatch note; such dispatch note shall be sent to us separately from the delivery note with the same content.
5.4 The risk of accidental loss and accidental deterioration of the Item shall pass to us upon delivery at the place of performance. If acceptance has been agreed, such acceptance shall be authoritative for the passing of risk. In other respects, the statutory provisions of the law on contracts for work and services [German “Werkvertragsrecht”] shall apply mutatis mutandis if acceptance has been agreed. Default in acceptance by us shall be equivalent to delivery or acceptance.
5.5 The onset of our being in default of acceptance shall be determined on the basis of the statutory
provisions. However, the Supplier must also expressly offer us its delivery or service if a specific or
determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision
of material). If we are in default of acceptance, the Supplier may demand compensation of its
additional expenditure in accordance with the statutory provisions (Section 304 BGB). In the case of
contracts on the production of non-fungible goods (custom-made items) by the Supplier, the
Supplier shall only be entitled to further rights if we undertook to cooperate and are responsible for
the lack of cooperation. - Prices and Terms of Payment
6.1 The prices stated in the order shall be binding. All prices shall include the statutory sales tax unless such tax is declared separately. The risk of cost increases of all kinds occurring after conclusion of the contract shall be borne by the Supplier. Price increases shall also be excluded if the delivery is to take place or takes place later than 4 months after conclusion of the contract.
6.2 Unless otherwise agreed in an individual case, the price shall include all services and ancillary services provided by the Supplier (e.g. assembly, installation) as well as all incidental costs (e.g. proper packaging, transportation costs including transport insurance and third-party liability insurance, if applicable).
6.3 Invoices shall be sent to us without delay after dispatch of the Goods, separately for each order and specifying the order number and the tax number. VAT shall be stated separately in the invoice. Any invoices that are not issued in due form shall be deemed as not issued.
6.4 The agreed price shall be due for payment within 60 calendar days calculated from complete delivery and service (including acceptance, if such has been agreed) and receipt of a proper invoice. If we effect payment within 14 days, the Supplier shall grant us a discount of 3% on the net amount of the invoice or, if we effect payment within 30 days, a discount of 2%. In the case of bank transfers,
payment shall be deemed made on time if our remittance order is received by our bank before expiration of the payment term; we shall not be responsible for any delays caused by the banks involved in the payment process.
6.5 We shall not owe interest on maturity. The statutory provisions shall apply to default in payment.
6.6 We shall be entitled to set-off and retention rights as well as to the plea of non-performance within the scope laid down by law. We shall in particular be entitled to withhold payments due for as long as we are still entitled to assert claims against the Supplier arising from incomplete or defective performance.
6.7 Claims the Supplier may have against us may only be assigned with our prior consent. In case of pecuniary claims, such shall not apply.
6.8 The Supplier may only offset claims for payment or exercise retention rights with counterclaims that are recognized by non-appealable judgment or are undisputed. - Obligation to Inspect and Give Notice of Defects
The statutory provisions shall apply as regards the duties of the entrepreneur to inspect and report
defects (Sections 377, 381 HGB [German Commercial Code]) with the following proviso: Our inspection duty shall be limited to defects that become clearly manifest during external
examination, including delivery documents, in our incoming goods inspection (e.g. transport
damage, incorrect or short delivery) or become apparent in random checks during our quality
controls. If acceptance has been agreed there is no obligation to inspect the delivery items. In all
other respects it depends on to what extent an inspection in the ordinary course of business is
feasible when the circumstances of the particular case are taken into account. Our obligation to
report defects if such defects are detected at a later date shall remain unaffected. Without prejudice to our inspection duty, however, our complaint (notification of defect) shall be deemed made without delay and in good time if it is sent within 10 working days starting from the date of detection or – in case of apparent defects – from the date of delivery. - Material Defects and Defects of Title
8.1 The provisions laid down by law shall apply to our rights relating to material defects and defects of title of the Goods (including incorrect delivery and short delivery as well as incorrect assembly/installation, inadequate assembly or operating instructions or instructions for use) as well as to other breaches of duty by the Supplier – and, exclusively to our benefit – the following supplements and clarifications shall also apply.
8.2 The Supplier shall be responsible for ensuring that the Goods delivered and services provided comply with the provisions laid down by law and public authorities as to their distribution or use and do not infringe any industrial property rights or any other third-party rights. The deliveries and services must comply with the respective state of the art applicable at the time of delivery or foreseeable for the future, as well as with other statutory provisions, technical test rules and accident prevention regulations. In particular, DIN and ISO standards and VDE [German Electrical Engineering Association] regulations as well as the provisions of the internationally recognized standardization bodies (e.g. CE, IEC, EN, UL) must be complied with as expressly required.
8.3 Pursuant to the provisions laid down by law, the Supplier shall be liable in particular for ensuring that the Goods have the agreed quality at the time the risk passes to us. An agreement on the quality shall be deemed such product descriptions that are the subject matter of the respective contract – in particular by way of product designation or by way of reference in our order – or have similarly been included in the contract as the present GTCP. In this respect, it makes no difference whether the product description originates from us, the Supplier or the manufacturer.
8.4 In the case of Goods with digital elements or other digital content, the Supplier shall owe the supply and updating of the digital content insofar as this ensues from a quality agreement as per item 8.3 above or other product descriptions of the manufacturer or on its behalf, in particular on the internet, in advertising or on the product label.
8.5 We shall be under no obligation to inspect the Goods or to make special inquiries about any defects at the time of the conclusion of the contract. By derogation in part from Section 442 [1], sentence 2, BGB, we shall therefore also be entitled to claims for defects without any restriction even if we were unaware of the defect at the time of the conclusion of the contract due to gross
negligence.
8.6 Supplementary performance shall also include disassembly of the defective Goods and reinstallation, insofar as the Goods have been installed in another item or attached to another item
in accordance with their nature and purpose of use before the defect has become apparent; our statutory claim to reimbursement of the respective expenses (costs of disassembly and installation) shall remain unaffected thereby. The expenditure required for inspection and supplementary performance, including but not limited to transport, travel, labor and material costs as well as dismantling and installation costs, if applicable, shall be borne by the Supplier even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy defects shall remain unaffected; in this respect, however, we shall only be liable if we have realized or failed to realize based on gross negligence that there was no defect.
8.7 Without prejudice to the rights laid down by law to which we are entitled and the provisions stipulated in item 7 above, the following shall apply: If the Supplier fails to fulfil its obligation to effect supplementary performance – at our option by either remedying the defect (repair) or by delivering a defect-free item (replacement delivery) – within a reasonable time period set by us, we may remedy the defect ourselves and demand compensation from the Supplier for the expenses required therefore and/or demand a corresponding advance payment. If supplementary performance by the Supplier has failed or cannot be expected of us (e.g. due to special urgency, risk to operational safety or the threat of disproportionate damage), the setting of a deadline shall not be required; we will inform the Supplier of such circumstances immediately, if possible in advance.
8.8 In all other respects, in the event of a material defect or a defect of title we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the provisions laid
down by law. In addition, we shall be entitled to damages and reimbursement of expenses in accordance with the provisions laid down by law. - Product Liability
9.1 If the Supplier is liable for a product defect the Supplier shall hold us harmless from and against any third-party claims if and to the extent that the cause thereof is within its field of control and organization and the Supplier is liable itself vis-à-vis third parties. In cases of liability based on fault, this shall only apply if the Supplier is at fault. If the cause of the damage is within the area of responsibility of the Supplier, the Supplier shall bear the burden of proof in this respect. In such cases, the Supplier must bear all costs and expenses, including the costs of any legal proceedings, if applicable.
9.2 Within the scope of its indemnity obligation, the Supplier must bear costs and expenses as per Sections 683, 670 BGB arising out of or in connection with claims asserted by any third party, including costs on account of recall actions conducted by us. To the extent possible and reasonable, we will inform the Supplier on the content and scope of recall measures and will give the Supplier the opportunity to comment on the same. Any further claims laid down by law shall remain unaffected.
9.3 The Supplier undertakes to take out and maintain product liability insurance with a flat-rate coverage of at least EUR 10 million per personal injury / material damage. - Recourse against the Supplier
10.1 In addition to claims for defects we shall be entitled to assert in full, without any restrictions,
claims for reimbursement of expenses and claims in recourse within the supply chain as laid down
by law (recourse against the supplier as per Sections 478, 445a, 445b, and/or Sections 445c, 327 [5],
327u BGB). We shall in particular have the right to require the Supplier to provide the exact type of
supplementary performance (repair or replacement) owed by us to our customer in each individual
case; in the case of Goods with digital elements or other digital content, this shall also apply with
regard to the supply of necessary updates. Our statutory right to select the respective cure (Section
439 [1] BGB) shall not be restricted by this.
10.2 Before we acknowledge or comply with a claim for defects asserted by one of our customers
(including reimbursement of expenses as per Sections 445a [1], 439 [2], [3] and [6], sentence 2, 475
[4] BGB), we will inform the Supplier and will ask for its written comment after providing a brief
account of the facts. As a rule, but without assuming any legal commitment hereby, we will give the
Supplier the opportunity to provide its comments. If the Supplier fails to submit a substantiated
statement within a reasonable period of time and if an amicable solution is not reached, the claim for defect in effect granted by us shall be deemed as owed to our customer. In such case, it shall be incumbent upon the Supplier to provide evidence to the contrary. In addition, our claims to recourse shall also apply if the defective Goods have been processed either by us or by any third party, in particular by way of incorporation into another product.
10.3 Our claims from recourse against the Supplier shall also apply if the defective Goods have been combined with another product or have been processed in any other way by us, our customer or any third party, e.g. by way of incorporation, attachment or installation. - Intellectual Property Rights
11.1. In accordance with this item 11.1, the Supplier shall ensure that the Goods delivered by the Supplier do not infringe any intellectual property rights of any third party (property rights, name rights, patent rights, trademark rights, copyrights, design rights, etc.) in the country of destination specified by us, in countries of the European Union or other countries in which the Supplier manufactures the Products or has them manufactured.
11.2 The Supplier undertakes, upon our first written request, to hold us harmless from all and any claims asserted against us by any third party on account of an infringement of industrial property rights and to indemnify us against and reimburse all necessary expenses in connection with such claim. Such shall not apply if the Supplier proves that it is neither responsible for the infringement
of property rights nor should have been aware of it at the time of delivery by using the care and diligence of a prudent businessman.
11.3 If risks of infringement become apparent or cases of infringement become known, the contracting parties shall inform each other thereof. Within the scope of what is reasonable, they
will counteract infringement claims by mutual agreement after prior consultation.
11.4 Our additional statutory claims on account of defects of title of the Goods delivered to us shall
remain unaffected. - Replacement Parts
12.1 The Supplier undertakes to have replacement parts for the Products delivered to us available for a time period of at least 5 years from delivery.
12.2 If the Supplier intends to discontinue the production of replacement parts for the Products
delivered to us upon or after expiry of the time period specified under item 12.1 above, the Supplier will inform us of its decision to discontinue production without delay. The decision must be made at least 12 months before production is discontinued. - Retention of Title, Provision of Material, Tools
13.1 We reserve title to illustrations, plans, drawings, standard specification sheets, calculations,
print templates, implementation instructions, product descriptions, gauges and other records.
13.2 If we provide the Supplier with parts, substances, raw materials and materials (e.g. software, finished and semi-finished products) as well as tools, molds, samples, models, profiles, test equipment or systems, templates, prototypes and other objects, we reserve title hereto.
The Supplier undertakes to use the tools only for the manufacture of the Goods ordered by us. The Supplier furthermore undertakes to adequately insure the tools owned by us at its own expense against fire and water damage and theft and, upon request, to prove to us that such insurance has been taken out or is maintained. At the same time, as early as with the present, the Supplier shall assign to us all and any claims for compensation arising out of this insurance; we hereby accept the assignment.
The Supplier undertakes to carry out the necessary maintenance and inspection work as well as all
maintenance and repair work relating to our tools at its own expense and in a timely manner. Any
Incidents or malfunctions must be reported to us immediately; if the Supplier culpably fails to do so, claims for damages shall remain unaffected. We shall be entitled to enter the Supplier’s premises at any time within ordinary business hours in order to inspect the tools and tool records.
13.3 Items within the meaning of item 13.2 above shall become our property if the Supplier
manufactures them or has them manufactured specifically for the execution of our order and if the
production costs are borne by us or are amortized by the prices paid by us. If we bear part of the production costs or in the event of partial amortization, we shall acquire co-ownership of the tools
in proportion to the value of the tools and the production costs assumed or amortized.
13.4 After completion of the order, Items within the meaning of item 13.2 above as well as
records in accordance with item 13.1 above must be returned to us by the Supplier without further request.
13.5 Records in accordance with item 13.1 above and Items provided in accordance with item13.2
above must be stored separately by the Supplier and marked as our property. The Supplier shall be
deemed as being in possession of them as borrower.
13.6 Any processing, mixing or combination (further processing) of Items provided by the Supplier shall be undertaken on behalf of us. The same shall apply if the Goods delivered are further processed by us, so that we shall be deemed to be the manufacturer and will acquire ownership of the Product at the latest with further processing in accordance with the provisions laid down by law.
13.7 The transfer of ownership of the Goods to us must take place unconditionally and without regard to the payment of the price. However, if, in an individual case, we accept an offer of the
Supplier for transfer of ownership dependent on payment of the purchase price, the Supplier’s
retention of title shall expire at the latest with payment of the purchase price for the delivered
Goods. In the ordinary course of business, we shall also remain authorized to sell the Goods before
payment of the purchase price under advance assignment of the resulting claim (as an alternative simple retention of title [German “einfacher Eigentumsvorbehalt”], and retention of title extended to resale shall apply). Thus, all other forms of retention of title shall be excluded, in particular
extended [German: “verlängerter Eigentumsvorbehalt”] and forwarded retention of title [German:
“weitergeleiteter Eigentumsvorbehalt”] and retention of title extended to further processing.
13.8 The Supplier shall bind its subcontractors in accordance with this Section 13. - Limitation of Liability
14.1 We shall be liable for intent and gross negligence.
14.2 We shall only be liable for slight negligence in the event of injury to life, limb or health or in
case of a breach of essential contractual obligations arising from the nature of the contract or the
breach of which endangers the fulfilment of the contractual purpose. In this case, damages shall be
limited to the foreseeable damage.
14.3 If and to the extent that our liability is excluded or limited, this shall also apply to the personal
liability of our staff members, employees, workers, representatives and vicarious agents.
14.4 The above limitations of liability shall not apply to claims under the German Product Liability
Act. - Indemnification
The Supplier undertakes to hold us harmless and indemnify us (as well as any company affiliated
with us) from and against all and any liability towards any third party or any liability claims of third
parties arising from the manufacture, delivery or storage of the Products (product liability). The
Supplier undertakes to reimburse us for payments made to settle justified claims. The indemnification and reimbursement obligation shall not apply if the underlying event is demonstrably based on a misconduct due to gross negligence or intent on our part or on the part
of one of our employees, representatives, vicarious agents or affiliated companies. The Supplier
undertakes to inform us immediately of any lawsuits brought against it or the assertion of claims
and to provide us with all relevant documents at our request - Force Majeure
Serious events, including but not limited to Force Majeure, epidemics, pandemics, diseases or
quarantine, labor disputes, riots, armed or terrorist conflicts, which entail unforeseeable consequences for the performance of the delivery or service shall release us from our performance
obligations for the duration of the disruption and to the extent of the effect thereof, even if we are
in default. An automatic termination of the contract shall not be associated herewith. We undertake
to notify the Supplier of such an impediment and the parties shall be under the obligation to adapt
their obligations to the changed circumstances in good faith. - Production Rights in Exceptional Situations
17.1 In the event of foreseeable or existent long-lasting delays in delivery, the Supplier shall, with
our prior consent, be under the obligation to find an alternative supplier accepted by us at its own
expense.
17.2 Insofar as it can be foreseen that the Supplier will be unable to meet the deadlines in the
long term, or should we make use of our right to terminate the contract for good cause, the Supplier
shall be under the obligation – at our request and after a reasonable deadline has been set – to return
to us immediately and without charge all tools/equipment required for production owned by us,
including, by derived right, also tools/equipment owned by third parties, and to provide us with the
specific know-how, including a license to any property rights, should such exist, so that we can
manufacture the delivery items ourselves or have them manufactured by a third party for the
duration of the Supplier’s inability to deliver to contract. Relocation costs shall be borne by the
Supplier insofar as the Supplier is responsible for the delay. Claims asserted by the Supplier on
account of relocation shall be excluded. Any additional claims for damages by us shall remain
unaffected.
17.3 After prior consultation with us and with our written consent, the Supplier shall be permitted
to meet its delivery obligations from a site other than the usual production site. - Statute of Limitation
18.1 Unless otherwise stipulated in the following, the mutual claims of the contracting parties shall
become statute-barred in accordance with the provisions laid down by law.
18.2 In derogation from Section 438 [1], number 3, BGB, the general limitation period for claims for
material defects shall be 2 years from the passing of risk. If acceptance has been agreed, the
limitation period shall commence with acceptance. The 2-year limitation period shall also apply
mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for
claims for return in rem of a third party (Section 438 [1], number 1, BGB) shall remain unaffected;
furthermore, claims arising from defects of title shall not become statute-barred under any
circumstances for as long as the third party can still assert the right against us – in particular as it
has not yet become statute-barred.
18.3 The limitation periods stipulated in the sales law, including the above extension, shall apply –
within the scope laid down by law – to all contractual claims for defects. If we are also entitled to
non-contractual claims for damages due to a defect, the statutory standard limitation period
(Sections 195, 199 BGB) shall apply unless the application of the limitation periods stipulated in the
sales law results in a longer limitation period in individual cases. - Compliance with Statutory Provisions
19.1. In connection with each delivery item, the Supplier must ensure compliance with all statutory
provisions, ordinances and other regulations, in particular all safety and environmental regulations.
In particular, all deliveries must comply with the provisions of the European directives.
19.2. The Supplier undertakes to comply in every respect with the requirements and obligations in
connection with substance bans in accordance with statutory provisions and ordinances for each
individual delivery item. This shall apply in particular to requirements and obligations of the REACH
Regulation EC No. 1907/2006, the RoHS Directive 2011/65 EU, as amended, including the respective
amendments and supplements, and their implementation into national law by the EU member
states. At our request, the Supplier will provide us with written product-specific declarations of
conformity, which shall also apply to our suppliers and which we can pass on to our suppliers.
19.3 The Supplier must indemnify us and hold us harmless from and against all and any damage
and expenses (including costs of any legal action) and all claims asserted by any third party based
on or in connection with a breach by the Supplier, for which the Supplier is responsible, of the RoHS
Directive, REACH Regulation or other applicable environmental regulations, or must compensate us
for damages. - Export Control, Customs
20.1 The Supplier shall be responsible for ensuring that the Goods delivered by the Supplier are not
subject to any export restrictions. Should such export restrictions apply or come into consideration,
the Supplier must expressly advise us thereof in text form before delivery.
20.2 On request, the Supplier shall provide us with certificates of origin, supplier’s declarations,
statistical commodity codes and/or references as well as additional documents/data which may be
necessary to comply with export requirements.
20.3 Imported items must be delivered duty paid. The Supplier undertakes to allow inspections by
customs authorities, to submit all required declarations and information and to obtain all necessary
official approvals at its expense.
20.4 In case of deliveries and services effected out of an EU country other than Germany the EU VAT
identification number must be stated. - Confidentiality
21.1 The contracting parties undertake to keep confidential the terms and conditions of the order
execution as well as any other information made available to them for this purpose, including but
not limited to information of a technical and commercial nature, intentions, experience, findings,
designs and records, which become known to them as a result of the collaboration under this
contract (collectively referred to as “Confidential Information”), with the exception of information
which is in the public domain, for a time period of 3 years after conclusion of the contract and not
to make such information accessible to any third party, to protect it from third-party access and not
to make it the subject-matter of their own property-right application. Affiliated companies of the
contracting party within the meaning of Sections 15 et seq. of the German Stock Corporation Act
(AktG) shall not be deemed to be third parties.
21.2 Furthermore, the contracting parties undertake to keep confidential all and any business, operational or technical matters of the respective other contracting parties that have become
known or will become known to them in connection with the delivery or service, even beyond the
term of the contract.
21.3 The foregoing obligations shall not apply to such Confidential Information that was already
known prior to its disclosure under this agreement, was independently developed or otherwise
lawfully obtained by the other contracting party, or that is generally known or becomes part of the
public domain without breach of these provisions.
21.4 The contracting parties shall ensure in an appropriate manner that the employees,
freelancers and subcontractors engaged by them in the execution of the contract also maintain the
above confidentiality.
21.5 After termination of this contract, the Confidential Information contained in records etc.,
including all and any copies thereof, that are in the possession or under the control of one of the
contracting parties, must be returned by the latter to the other contracting party upon request in
full and without delay, unless such is barred by agreed or statutory retention obligations. Excluded
herefrom shall also be Confidential Information contained in records etc., including all and any
copies thereof, and other Confidential Information the destruction or return of which is technically
not possible (e.g. because such Confidential Information has been saved in a backup file by an
automated electronic backup system); this shall also include the technically necessary retention of
master data (e.g. personnel or customer numbers) required to establish a link to the archived
information.
21.6 In other respects, the provisions for the protection of trade secrets (implemented in
Germany by the Trade Secrets Act and in the other EU member states by implementing Directive
2016/943) as well as the agreements made in non-disclosure agreements shall apply to the handling
of trade secrets. - Place of Performance, Place of Jurisdiction, Applicable Law
22.1 Place of performance for all and any obligations arising out of the contract, in particular for
delivery and payment, shall for both parties be the principal place of business of our company or
the place of performance specified by us.
22.2 Exclusive place of jurisdiction – also internationally – for all and any disputes arising out of the
contractual relationship, either directly or indirectly, including its creation and effectiveness, shall
for both parties be our principal place of business in Pforzheim provided that the Supplier is a
merchant within the meaning of the German Commercial Code with seat in the European Union,
Iceland, Norway or Switzerland when the proceedings are initiated. The same shall apply if the
Supplier is an entrepreneur within the meaning of Section 14 BGB. In all cases, however, we shall
also be entitled to take legal action at the place of performance of the delivery obligation in
accordance with these GTCP or in the event of an individual agreement taking precedence, or at the
general place of jurisdiction of the Supplier. Any statutory provisions taking priority, in particular
with regard to exclusive jurisdiction, shall remain unaffected thereby.
22.3 If the above item 22.2 is not applicable, all and any legal disputes arising out of the contractual
relationship, including its creation and effectiveness, shall be settled by final and binding decision in
accordance with the Rules of Arbitration of the German Arbitration Institute (Deutsche Institution
für Schiedsgerichtsbarkeit e.V. (DIS)), excluding the jurisdiction of the courts. Place of arbitration
shall be Karlsruhe; Germany. The language of the arbitration proceedings shall be German.
22.4. The contractual relationship shall be governed by German law exclusively, excluding the
provisions of international private law and the UN Convention on Contracts for the International
Sale of Goods (CISG).