Sale and Delivery

Stock Konstruktion GmbH (Stand 01.2010)

1. General
1.1 Our goods and services are exclusively based on our following sales and delivery. The validity of any conditions used by the customer is excluded, unless we expressly agree to such conditions. Variations and additions by the customer are effective only with our expressed written consent. They only apply to the business for which they were taken.
1.2 The following conditions apply to all future transactions with the customer.
2. Contract
2.1 Information to be made before the order during order processing, especially on performance, consumption or other data items are only binding if they were afterwards confirmed by us with the order confirmation or in writing. In flyers and advertisements contained do not constitute a warranty. Custom made agreements remain in effect.
2.2 Our offers are subject to change. According to customer’s order, the contract is a written order confirmation or, if an order confirmation is issued, through our delivery has been made.
2.3 To cost estimates, drawings and other documents we reserve ownership and copyright; it may not be made available for third parties. Standard software, the purchaser shall have the non-exclusive right to use the agreed features in unaltered form on the agreed equipment. The buyer may make two backup copies without expressed agreement.
2.4 Our travelers and representatives shall have no full say to quality or durability or other guarantees or to make agreements that deviate from the terms and conditions. Such eventual agreements require our written confirmation.
3. Prices
3.1 Delivery prices are, unless otherwise agreed, ex works, excluding packing (duty to international deliveries).
3.2 Sales tax is charged separately at the rates in effect on the date of delivery bill.
3.3 Occur between contract and delivery or performance unpredictable increases in material prices, labor costs, transportation costs, taxes or charges, then we are entitled to make any of these factors to adjust prices accordingly, if not to be delivered within 4 months after signing the contract. If the purchaser adds changes after the contract, we can adjust the prices accordingly imposed by the change in costs.
3.4 In the event that the intended delivery date for reasons that we are not responsible for shifts longer than 3 months, we reserve the right to change the price according to changes of labor and material costs between order confirmation and the actual delivery date.
4. Packaging, Labelling
4.1 Transport packaging must be returned to us free of charge to our factory.
4.2 From distributors we take back packaging by the manufacturer only.
4.3 Does the customer fix additional markings on our product, or he connects it with other products, he is obligated to indemnify us for claims by state authorities, or other person or entity by reason of breach European rules on labeling of all obligations hereunder.
5. Partial deliveries, appointments, default
5.1 Partial deliveries and partial services are permitted unless it is reasonable for the customer.
5.2 The terms and deadlines specified by us are not binding unless expressly agreed otherwise in writing. The time or date shall be deemed to be met if the consignment brought within the period or on the date of shipment, announced their readiness for delivery to the purchaser or has been picked up. We are only committed to execution and delivery obligation if the buyer has made all the agreed payments. If payments, particularly agreed payments or obligations of collaboration purchaser made late or not met in time, all delivery shall be extended accordingly.
5.3 Delivery and service delays due to force majeure or unexpected events that complicate the delivery or make it impossible, we are not responsible even if binding deadlines and dates are set. They entitle us to postpone delivery or performance for the duration of the obstruction plus a reasonable start-up period. This also applies in cases of unforeseen events that affect the operations of suppliers and neither he nor we are responsible.
5.4 If the time limits or deadlines that are binding as per clause 5.2, are exceeded by us, the customer are entitled to terminate the contract consequence of the delayed delivery withdraw if a reasonable grace period set by the purchaser, it expires with penalty.
5.5 The purchaser is obliged to declare at our request within a reasonable period of time whether he recalls the contract, due to the delay in delivery of the contract or insists on delivery.
5.6 Both compensation claims arising out of delay in delivery and claims for damages in lieu of performance in all cases of delayed delivery, even after expiry of a deadline set for delivery is excluded. Notwithstanding, claims of the customer in case of intent, gross negligence or culpable injury to life, limb or health, and in cases where we have provided a guarantee for the delivery time or other reasons, we, for example, liability is mandatory under the Product Liability Act or the General Equal Treatment Act. A change in the burden of proof to the detriment of the purchaser is not connected.
6. Transfer of risk, acceptance
6.1 In case of deliveries, the risk shall pass to the customer once the shipment has been handed over to the person performing the transport, or has left our warehouse. If shipment is delayed at the request of the purchaser or for reasons within his control, the risk passes to the notification of readiness for shipment to the customer.
6.2 For other services, the risk passes to the buyer as soon as we give due notice of the finishing. Formal acceptance will only take place if it is agreed or we explicitly request it.
6.3 For sales contracts with pre-contractual fringe benefit, the transfer of risk depends in terms of the delivery items identified in paragraph 6.1 and in terms of performance according to clause 6.2. The provision of § 644 II BGB remains unaffected.
7. Complaints and Warranty
7.1 The Buyer shall inspect goods immediately upon receipt for defects and guaranteed quality. Obvious defects in the consignment must immediately, hidden defects within seven days of discovery to notify us in writing within seven days of receipt of delivery. Otherwise, the delivery shall be deemed approved.
7.2 The customer shall give us the opportunity to verify the complaint, in particular to make damaged goods and their packaging available for us for inspection. If he refuses to do so, we are exempt from liability. In any case, the buyer has to notify us immediately.
7.3 If the Buyer insists due to a defect on rectification, we can choose whether we remedy the defect or deliver defect-free product in exchange. Replaced goods must be returned to us. If repair or replacement is not possible or is refused or otherwise, is not made to reasons for which we determined by the buyer within a reasonable time, or fails, the customer may withdraw after his choice the contract or reduce the purchase price.
7.4 The costs incurred by repair or replacement will be beard by us – if the complaint proves to be justified – the cost of the replacement part, including shipment and reasonable costs of removal and installation will be carried by us. Further costs arising at the purchase will be paid for by him. This also applies to higher expenses incurred because the goods were later transported to a place other than the premises of the customer, unless the transfer is in accordance with its intended use. Required Installation and travel expenses incurred in connection with unauthorized Complaints, the customer has to pay.
7.5 We are not liable for any damages or defects in the goods arising from incorrect operation, negligent maintenance, natural wear, the processing of non-original parts or unusable parts whose dimensions exceed the specified tolerances or below, and the like, provided they do not on our are due at fault.
7.6 Further claims of the purchaser, in particular for damages instead of performance and replacing any other direct or indirect losses – including incidental or consequential damage – irrespective of the legal grounds are excluded. Shall remain unaffected claims of the purchaser, if:
a) We have a legal or material defect fraudulently concealed or a guarantee of durability or quality of the goods;
b) The damage is caused by intent or gross negligence by us, our legal representatives or vicarious agents or essential to an at least negligent breach of contractual obligations by these persons, with an essential contractual obligation whenever the liability relates to an obligation that must be achieved, the proper performance of the contract allows the first place and on whose compliance the customer regularly trust;
c) Has resulted in a breach of duty by us or our legal representatives or agents in physical injuries or damage to health, or
d) We for other reasons, such as liability are mandatory under the Product Liability Act or the General Equal Treatment Act. In the case of negligence, however, our liability is limited by the amount of the typical, foreseeable damage.
7.7 The provisions of Clause 7.6 shall apply accordingly to direct claims against our legal representatives or agents.
7.8 All claims of the customer, including regulated in Section 7.6 and 7.7 Claims for damages expire one year after delivery of the goods to the buyer, unless otherwise agreed in writing. For replacement parts and repairs, the limitation period is 12 months. But it continues at least until the expiration of the original limitation period for the delivery item. The period for defects liability for the delivery shall be extended by the duration of the repair work caused by interruption of operation. The provisions of this paragraph shall not apply if the law pursuant to §§ 438 para. 1, no. 1 (buildings and objects for buildings) and 634a), para. 1, no. 2 (building defects) BGB prescribe longer periods.
7.9 To the extent we provide a sample or a sample is available, thus only the nature of the sample or the sample is not contractually guaranteed.
7.10 The observance of safety rules (VDE, IEC, employers’ liability, etc.) is the sole responsibility of the purchaser.
8. Retention of title
8.1 The goods and services supplied by us remain our property until full payment of all claims from the business relationship between us and the customer (if the customer is a trader) or under the contract (unless the purchaser is not a merchant) is made.
8.2 The purchaser is entitled to resell the reserved goods in the ordinary course of business, insofar as below indicates otherwise.
8.3 The customer hereby assigns all claims arising from the resale of the goods in the amount of the agreed purchase price as security to us, we accept this assignment. With a view to resale, we only agree if pursuant to the preceding assignment statement an effective subrogation can take place. If the reserved goods are resold with other goods, namely matter whether without or after connection, the advance assignment applies only to the invoice value of the goods being sold together with other goods. For contracts for work or services, with the fulfillment of our retention of title expires, the wage claim of the purchaser in the amount of the invoice value of the processed reserved goods have already been assigned to us; we accept this assignment.
8.4 Until a cancellation by us the customer is authorised to collect the prepayment to us for our account in his own name. The right shall expire without our expressed revocation if the customer fails to meet its obligations to us, the conditions in the following paragraph 8.7 occur or are to be feared that amounts collected cannot be transferred to us. For down payment which is assigned to us as wage claim the buyer is obliged to deposit the down payment first as stated in the invoice. Between us and the purchaser shall be collected by the customer down payments always starts with that which is not assigned to us as a partial amount repaid. The customer is obliged on request to provide the whereabouts of our retention of title rights should be subject to written information. He shall appoint us as well as other property authorised the debtors of the receivables assigned to us and provide us with all the information necessary to collect the assigned claims to provide the necessary information and notify the debtor at our request the assignment. The purchaser shall make available any time the notice of assignment available. He is obliged to notify us of any impairment of our reservation of property rights or other securities, in particular seizure, without delay.
8.5 In the case of the compound of the reserved goods with other goods not belonging to us things (installation) belong to us for the resulting co-ownership of the new object in proportion of the contract value of the reserved goods to the value of the other goods at the time of connection. If the purchaser acquires sole ownership of the new product, where the partners are now agreed that the purchaser grants us the ratio of the contract value of the associated conditional item to the value of the other goods ownership of the new item. The purchaser is obliged to disclose to us any time at the request of our co-ownership to determine the necessary documents open. A gratuitous custody of the goods in our joint ownership for us by the customer is hereby agreed.
8.6 For payments by check or bill of exchange procedure our retention of title and security rights remain unaffected and will continue to exist until our liability from exchange or check has ended.
8.7 Breach of contract by the customer, especially in case of default with a claim arising from the business relationship, or if the purchaser is insolvent and thus us are threatened, his payments, insolvency proceedings are filed or he asks his creditors for an out of court settlement we may, without prejudice demand the immediate return of our property or, where appropriate, the assignment of the claim of the purchaser to our other rights. Taking back the goods does not constitute withdrawal from the contract, unless the §§ 358, 359 BGB apply and we do not offer the buyer to pay him the usual sales value of the item at the time of removal.
8.8 The redemption of the purchased item or the assertion of property rights does not require that we withdraw from the contract.
8.9 We undertake to release the securities due to us according to the customer’s request; the value of our collateral exceeds the secured claims by more than 10%, the choice of the collateral to be released.
9. Invoices and payment
9.1 Invoices are issued upon shipment. If the shipping of goods delays for reasons which fall within the area of risk of the purchaser, the invoice will nevertheless be payable.
9.2 Our invoices are payable within the framework of an agreed credit within 30 days without any deductions. Cash discounts are allowed only by expressed agreement. Also in this case, they are allowed only if the customer has any open invoiced amounts with us offset or compensate simultaneously.
9.3 If invoices are not paid within 30 days of receipt of invoice not later than 35 days after delivery, the buyer will fall into arrears and default interest, and we can make claim for any further damage caused by delay.
9.4 Bills of exchange are taken from us by special arrangement only. Bills of exchange or checks will only be accepted to fulfil the agreed contract.
9.5 The purchaser may only offset undisputed or legally established claims; the same applies to a withholding under § 273 BGB because of claims that are not based on the same contractual relationship.
10. Design changes
We expressly reserve the right to make design changes at any time, but are not obligated to make such changes to products already delivered.
11. Other claims for damages
11.1 Other claims for damages and expenses that are not specified in the contract, including these conditions (hereinafter “claims for damages”), regardless of the legal reason, including infringement of obligations under the contract or in tort are excluded.
11.2 Undisputed stay Claims of the purchaser, where liability is mandatory, e.g. under the Product Liability Act or the General Equal Treatment Act, in case of intent, gross negligence, or injury of life, body or health or culpable violation of essential contractual obligations. An essential contractual obligation exists whenever the liability relates to an obligation, the accomplishment of the proper execution of the contract in the first place and on whose accomplishment the buyer to rely. The claim for damages for breach of contract is limited to the typical, foreseeable damage, unless caused by intent or liability for culpable injury to life, body or health. A change in the burden of proof to the detriment of the purchaser is not connected with the above regulations.
12. Applicable Law, Place of Jurisdiction, Severability
12.1 Es gilt ausschließlich das Recht der Bundesrepublik Deutschland unter Ausschluss des CISG.
12.2 The place of delivery for all obligations and jurisdiction is the seat of our company, if the customer is a merchant, a person under public law or a public special fund. With foreign customers, international jurisdiction is agreed by German courts. We are also entitled to bring an action at the purchaser’s place. The jurisdiction agreement shall also apply for check and exchange processes.