General Terms And Conditions

I. Validity

  1. We deliver exclusively in accordance with the following General Terms and Conditions of Sale and Delivery. These apply to all our offers, deliveries and services, unless expressly agreed otherwise in writing. The following terms and conditions shall only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law (hereinafter referred to as “Purchaser” or “Customer”).
  2. The validity of deviating or supplementary terms and conditions of business of the purchaser is expressly rejected, unless we expressly agree to their validity in individual cases. Deviating terms and conditions of purchase shall not become part of the contract even if an order is accepted.

II Conclusion of contract

  1. Our offers are always subject to change. We expressly reserve the right to sell products which we have previously indicated as being in stock.
  2. If we enclose documents such as illustrations, drawings, weights and dimensions with an offer, these are only approximate unless we expressly designate them as binding in writing. We reserve the right to make changes insofar as these changes are not of a fundamental nature and the contractual purpose of the delivery is not restricted in a way that is unreasonable for the customer. In particular, changes are deemed to be reasonable if they a) are based on a change in the state of the art in science and technology, b) are attributable to new findings regarding material properties, c) do not significantly change the appearance or technical design of the subject matter of the contract. We reserve the right of ownership and copyright to cost estimates, drawings and other documents of a physical and non-physical nature – including in electronic form – and these documents may not be made accessible to third parties.
  3. Orders shall not be deemed accepted until they have been confirmed by us in writing or by telex; receipt of the delivery bill by the customer or execution of the delivery shall also be deemed confirmation. Unless otherwise agreed, the specifications in our offers shall be decisive for the intended use.
  4. Verbal collateral agreements, contract amendments or contract supplements require our written confirmation to be legally effective.

III Prices

  1. Prices are quoted net ex works and do not include any additional taxes, even if these are not expressly stated.
  2. Incidental costs such as packaging costs, transportation costs, insurance charges, customs duties, postage, possible costs of banking and payment transactions are not included in the prices. They shall be invoiced separately to the Buyer.
  3. Unless otherwise agreed, we shall be entitled to adjust the price appropriately in the event of wage and salary increases, increases in raw material or operating material prices, energy costs, freight costs or customs duties.

IV. Terms of payment

  1. Unless otherwise agreed in writing, our invoices are due for immediate payment without deduction. If the customer is in arrears with a due payment from the entire business relationship, the aforementioned payment terms shall lapse and all outstanding claims from the business relationship with the customer shall be due for payment immediately and without deduction.
  2. The customer shall be in default of payment no later than 30 days after receipt of the invoice, unless there are reasons that lead to an earlier default (e.g. a payment reminder or a shorter agreed payment period or a calendar-based payment period). Our claim shall bear interest at a rate of 8 percentage points above the prime rate for the year from the date of default. We reserve the right to assert further damages caused by default and other rights to which we are legally entitled.
  3. We reserve the right to accept bills of exchange and checks. In any case, acceptance shall only be on account of payment. Bills of exchange must be given immediately after receipt of the invoice. The costs of discounting and collection shall be borne by the customer. We accept no liability for timely presentation and protesting. A cash account is not granted for bill of exchange payments.
  4. Payments shall only be deemed to have been effected when we can finally dispose of the amount.
  5. In the event of payment arrears, we are entitled to make further deliveries dependent on the complete elimination of the payment arrears. Furthermore, we shall be entitled to refuse performance if, due to circumstances that become known to us after conclusion of the contract, we fear that we will not receive the consideration from the customer in full and on time, unless the customer pays the consideration or provides sufficient security. This applies in particular if our credit insurer has refused to insure the purchase price for payment of the delivery item after conclusion of the contract for reasons of the customer’s creditworthiness.

V. Delivery time

  1. The delivery time is determined by the agreements between the contracting parties. Compliance with the delivery time by us presupposes that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent on him, such as the provision of the necessary official certificates or approvals or the payment of a deposit. If this is not the case, the delivery time shall be delayed appropriately. This shall not apply if we are responsible for the delay.
  2. Compliance with the delivery period is subject to correct and timely delivery to us. We will inform you as soon as possible of any delays that become apparent.
  3. The delivery deadline shall be deemed to have been met if the delivery item has left our factory by the time it expires or if we have notified the customer that the goods are ready for dispatch.
  4. If non-compliance with the delivery period is due to force majeure, labor disputes or other events beyond our control, the delivery period shall be extended accordingly. In such cases, we shall inform the customer of the beginning and end of such circumstances as soon as possible. If the delivery period is unreasonably extended due to such circumstances, the customer shall be entitled to withdraw from the contract or, if the customer is interested in a partial delivery, from the unfulfilled part of the contract after expiry of a reasonable grace period to be set by the customer. If we have already fulfilled part of the services incumbent on us, the customer may only withdraw from the entire contract if he can prove that he has no interest in the partial services rendered. Other statutory or contractually agreed rights of withdrawal remain unaffected by this.
  5. If unforeseen events within the meaning of the above clause (4) significantly change the economic significance or the content of our performance or have a significant impact on our operations, we shall be entitled to withdraw from the contract. In this case, the customer shall only be entitled to restitution claims; any further claims, in particular claims for damages, shall be excluded.
  6. The customer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for us before the transfer of risk. The customer may also withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and the customer has a justified interest in rejecting the partial delivery. If this is not the case, the customer must pay the contract price for the partial delivery. The same shall apply in the event of our inability to perform. If the impossibility or inability to perform occurs during the delay in acceptance or if the customer is solely or predominantly responsible for these circumstances, he shall remain obliged to provide consideration.
  7. We are entitled to partial performance, which we can invoice separately in each case
  8. If we are in default and the customer suffers damage as a result, he shall be entitled to demand a lump-sum compensation for default. This shall amount to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. The contracting parties shall have the right to prove a higher or lower damage caused by the delay. If the customer sets us a reasonable deadline for performance after the due date – taking into account the statutory exceptions – and if the deadline is not met, the customer shall be entitled to withdraw from the contract within the framework of the statutory provisions. If the delay is limited to a partial performance, the customer may only withdraw from the entire contract under the above conditions if he has no interest in the partial performance. At our request, the customer must declare without delay whether he wishes to withdraw from the contract despite the delay in delivery or whether he wishes to adhere to the contract. Further claims arising from delayed delivery shall be determined exclusively in accordance with Section VIII. of these terms and conditions.

VI Transfer of risk, acceptance

  1. The risk shall pass to the customer at the latest when the delivery item is dispatched; this shall also apply if partial deliveries are made, if we bear the shipping costs or if we assume the transportation of the delivery item. Insofar as acceptance is required by law, i.e. not merely in the case of an agreed acceptance, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after our notification of readiness for acceptance. The customer may not refuse acceptance in the event of a minor defect.
  2. If dispatch or acceptance is delayed or does not take place as a result of circumstances for which we are not responsible, the risk shall pass to the customer from the day of notification of readiness for dispatch or acceptance. We undertake to take out any insurance requested by the customer at the customer’s expense.
  3. Delivered items, even if they are defective, are to be accepted by the customer without prejudice to the rights under clause VII.

VII Claims for defects

We shall be liable for material defects and defects of title of the delivery item already existing at the time of the transfer of risk in accordance with the following provisions. Unless otherwise stipulated below, the statutory provisions shall apply.Material defects

  1. Certain properties shall only be deemed to have been guaranteed by us if we have expressly confirmed this in writing. We shall only be deemed to have given a guarantee if we have designated a property as “guaranteed” in writing.
  2. Our warranty for material defects is limited to subsequent performance. Within the scope of our obligation to provide subsequent performance, we are entitled to choose between repair or replacement. If we do not fulfill this obligation within a reasonable period of time or if rectification fails despite repeated attempts, the customer is entitled to reduce the purchase price or withdraw from the contract. Claims, in particular claims for reimbursement of expenses or damages, shall only exist within the framework of the provisions of Section VIII below. Replaced parts shall become our property or remain our property and must be returned to us at our expense upon request.
  3. After consultation with us, the customer shall give us the necessary time and opportunity to carry out all repairs or replacement deliveries that we deem necessary. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, in which case we must be notified immediately, shall the customer have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from us.
  4. We shall bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs; however, transport costs shall only be borne from the place to which the purchased goods were delivered as intended and up to a maximum of the purchase price.
  5. Within the framework of the statutory provisions, the customer has the right to withdraw from the contract if we – taking into account the statutory exceptions – allow a reasonable deadline set for us for rectification or replacement delivery due to a material defect to expire fruitlessly. In addition, if we have made defect-free partial deliveries, the entire contract may only be rescinded if the customer’s interest in the partial deliveries made has demonstrably ceased to exist. If there is only an insignificant defect, the customer shall only be entitled to a reduction of the contract price. Further claims shall be determined in accordance with Section VIII. of these terms and conditions.
  6. We accept no liability for defects that have arisen for the following reasons: Unsuitable or improper use, modifications or repair work carried out without our prior consent, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling – in particular excessive strain – unsuitable operating materials, replacement materials, chemical, electrochemical, electronic and electrical influences – unless we are responsible for them.
  7. If the customer or a third party carries out improper repairs, we shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without our prior consent.
  8. Further claims by the customer, in particular for personal injury, for damage to goods that are not the subject of the contract or for loss of profit, consequential costs, etc. are excluded, unless otherwise stipulated in Section VIII below.
  9. Our warranty does not extend to the suitability of the delivery item for the purpose intended by the customer which deviates from the usual purpose, unless this has been agreed in writing.
  10. In the case of an item that has been used for a building in accordance with its customary use and has caused its defectiveness, claims for defects shall become time-barred 5 years after delivery of the delivery item. Otherwise, claims for defects shall become time-barred 12 months after the transfer of risk.

Defects of title

  1. If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, we shall procure the right to further use for the customer at our expense or modify the delivery item in a way that is reasonable for the customer so that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. We are also entitled to withdraw from the contract under the aforementioned conditions. In addition, we shall indemnify the purchaser against undisputed or legally established claims of the respective owners of the property rights. The aforementioned obligations of the supplier are final, subject to Section VIII. of these terms and conditions in the event of an infringement of property rights or copyrights. They shall only apply if

    a) the Purchaser informs us immediately of any asserted infringements of industrial property rights or copyrights;
    b) the Purchaser supports us to a reasonable extent in the defense against the asserted claims and
    c) we reserve the right to take all defensive measures including out-of-court settlements;
    d) the defect of title is not based on an instruction of the customer and
    e) the infringement of rights was not caused by the fact that the customer has modified the delivery item without authorization or used it in a manner not in accordance with the contract.

VIII. Liability

  1. We shall only be liable for damages, on whatever legal grounds, insofar as we, our legal representatives or vicarious agents
    a) are guilty of intent or gross negligence
    b) in the event of culpable injury to life, limb or health
    c) in the event of culpable breach of material contractual obligations
    d) in the event of defects which we have fraudulently concealed or the absence of which we have guaranteed
    e) insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.

    We shall not be liable for any further claims for damages.
  2. An essential contractual obligation is an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
  3. However, in the event of culpable breach of material contractual obligations, our liability shall be limited to reasonably foreseeable damage typical of the contract.
  4. The foreseeable damage typical for the contract shall be set at the contractual value of the service concerned.

IX. Transferability of rights

The customer may only transfer his rights under this contract in whole or in part to third parties with our written consent.

X. Offsetting, right of retention

Offsetting against counterclaims is only permitted if the counterclaim is undisputed or has been legally established. The customer may only assert a right to refuse performance or a right of retention if the customer’s counterclaims on which the right to refuse performance or right of retention is based are based on the contract or are undisputed or have been legallyestablished.

XI. Retention of title

  1. We reserve title to the goods delivered by us until full payment of all claims arising from the business relationship with the customer, including all ancillary claims, and until the checks and bills of exchange issued have been honored. The retention of title shall also extend to the products resulting from processing. If our goods are processed, combined or mixed with other material, we shall acquire co-ownership of the resulting product in the ratio of the value of our goods to the value of the other material. The transfer of ownership shall be replaced by the customer storing the goods for us free of charge with the diligence of a prudent businessman.
  2. All claims arising from the sale of goods to which we are entitled to ownership rights shall be assigned to us by the customer in the amount of our co-ownership share in the goods sold, including all ancillary rights.
  3. Insofar as the customer is in a position to meet his obligations to us and he ensures the extended reservation of title, he shall be entitled to sell the goods subject to reservation of title in the ordinary course of business.
  4. The customer is only authorized to collect the assigned claims in the ordinary course of business and only revocably. The revocation may only take place if the customer does not properly fulfill his obligations under this contract, in particular his payment obligation, is insolvent or over-indebted or insolvency proceedings have been applied for against his assets. In such cases, we shall be entitled to withdraw from the contract after the unsuccessful expiry of a reasonable period and to take possession of the reserved goods. The customer is obliged to surrender the goods. Any proceeds from the utilization of the goods subject to retention of title taken back shall be credited against the customer’s liabilities – less reasonable utilization costs. In the event of revocation, the customer is obliged to inform us immediately of the name or company of the debtors of the assigned claims.
  5. In the cases of paragraph 4, the customer must notify the debtor of the assignment at our request; we are likewise entitled to disclose the extended retention of title to the customer’s debtor.
  6. The customer must inform us immediately in writing of any imminent or completed access by third parties to the reserved goods or to the assigned claims, handing over the documents necessary for an intervention. Intervention costs, including any legal costs, shall be borne by the customer in the internal relationship between us and the customer.
  7. We are entitled to insure our goods delivered subject to retention of title against theft, fire, water and other damage at the customer’s expense, unless the customer has demonstrably taken out appropriate insurance himself.
  8. We undertake to release securities to which we are entitled at the request of the customer, subject to selection, to the extent that the value of the security exceeds the claims to be secured by more than 20%.

XII. Installation and commissioning

Insofar as installation and commissioning are the subject matter of the contract, the prices quoted for this are based on the assumption that a smooth installation process is guaranteed. If we incur additional expenses due to the circumstances listed below, these shall be invoiced to the customer at the then applicable installation rates, unless we are responsible for these circumstances:

  1. a) Overtime;
    b) Interruption of the installation, so that new arrivals and departures are necessary;
    c)Interlinking with equipment that is not part of our scope of delivery; d)Erection of foundations and work on the foundation;
    e) Air and electrical supply of the equipment;
    f) Waiting times;
    g) Necessary work that has to be carried out on site or by the customer and cannot be carried out by us.customer and not carried out on time or incorrectly;
    h) unprepared or untidy workplace;
    i) if components, machines or equipment of the system cannot be unloaded at the installation site on time and as agreed;
    j) if we do not have a sufficient number of components available for commissioning and acceptance of the system after installation and assembly of the system at the customer’s plant (sufficient quantities shall be understood to mean that continuous operation can be carried out under production conditions);
    k) if we are provided with defective or non-dimensionally accurate components or components deviating from drawings for testing.

XIII Assembly conditions

If the subject matter of the contract is assembly services, the following additional conditions shall apply:

  1. The customer shall ensure that the assembly site is made available to our personnel in a clean condition in the event of a work assignment.
  2. The customer’s maintenance personnel and machine operators must be available to support our personnel.
  3. The customer shall provide additional manpower (helpers), tools, equipment, lubricants, power supply, water and the like free of charge if this is necessary for the work assignment.
  4. The customer shall provide our personnel with a lockable room for the storage of our equipment or the equipment of our personnel. Insurance against fire and water damage is the responsibility of the customer.
  5. The customer guarantees that the work assignment on site will not be carried out under dangerous or unhealthy conditions and shall take all necessary measures to protect our personnel from any safety or health risks.
  6. The customer further guarantees that our personnel will be correctly informed about safety regulations at the place where the work is to be carried out.
  7. The stated delivery time is only approximate.
  8. The customer shall bear full responsibility for the operation of the machine during remote maintenance. The customer must check that the operation requested by us does not conflict with the situation in the machine. This also applies during the warranty period of the system. An exception exists if the operation is carried out at the place of work by our personnel.
  9. The customer must draw our attention to the statutory, official and other regulations relating to the execution of the work and operation as well as to the prevention of illness and accidents.
  10. The customer shall support our personnel in carrying out the work at his own expense.
  11. The customer shall take the special measures necessary to protect persons and property at the place of work. The customer shall also inform our operations manager of any special safety regulations in force, insofar as these are of importance to our personnel.
  12. The customer is obliged to provide technical assistance at his own expense, in particular to:
    a) Provide the necessary suitable assistants (bricklayers, carpenters, fitters and other skilled workers, handymen) in the number required for the work assignment and for the required time; the assistants must follow the instructions of our operations manager.We assume no liability for the customer’s assistants.
    b) Carrying out all earthworks, construction, bedding and scaffolding work, including the procurement of the necessary building materials.
    c) Providing the necessary equipment and heavy tools (e.g.lifting equipment, compressors) as well as the necessary commodities and materials (e.g. scaffolding timbers, wedges, underlays, cement, plastering and sealing materials, lubricants, fuels, driving ropes and belts).
    d)Provision of heating, lighting, operating power, water, including the necessary connections.
    e) Provision of necessary, dry and lockable rooms for the storage of our personnel’s tools.
    f)Transportation of the service parts at the place of use, protection of the service site and materials against harmful influences of any kind, cleaning of the installation site.
    g) Provision of suitable, theft-proof recreation rooms and work rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for our assembly personnel.
    h) Provision of materials and performance of all other actions necessary for the adjustment of the object to be assembled and for the performance of a contractually agreed test.
  13. The customer’s technical assistance must ensure that the work can begin immediately after the arrival of our personnel and can be carried out without delay until acceptance by the customer.
  14. If the customer does not fulfill his obligations, we are entitled, but not obliged, to carry out the actions incumbent on the customer in his place and at his expense after setting a deadline. Otherwise, our statutory rights and claims shall remain unaffected.
  15. The customer shall not be entitled to engage our personnel for non-contractual work without our prior written consent.
  16. The customer is responsible for regularly backing up his data. In the event of a loss of data for which we are responsible, we shall therefore be liable, subject to Section VIII above (Liability), limited to the amount of the costs that would have been incurred if the customer had properly backed up the data, in particular the costs of duplicating the data from the backup copies to be made by the customer and for restoring the data that would have been lost even if the data had been properly backed up.
  17. The customer guarantees the proper disposal of the material (components, lubricants, etc.), which must be removed after completion of the work assignment.

XIV Acceptance regulations for pre-acceptance and final acceptance

  1. If a preliminary acceptance of individual system parts in our factory has been agreed, this shall be carried out in consultation with the customer. The result of the preliminary acceptance shall be recorded in a preliminary acceptance report.
  2. If a preliminary acceptance does not take place on time for reasons for which the customer is responsible, our internal acceptance report shall serve as the preliminary acceptance report.
  3. If a final acceptance of the individual system parts has been agreed, this shall take place in consultation with the customer at the customer’s plant.
  4. The customer is obliged to accept the work services provided by us as soon as he has been notified of their completion and any contractually agreed testing has taken place.
  5. If the customer discovers deviations from the specifications or the contractually agreed requirements during his inspection, he shall inform us of this immediately in text form. The notification should contain a sufficiently specific description of the deviation found to enable us to identify and rectify the deviation.
  6. The customer may not refuse final acceptance due to insignificant defects. Defects of this type will be rectified by us within the scope of the warranty.
  7. Significant defects shall be rectified by us as soon as possible and then presented to the customer for acceptance; the new acceptance test shall be limited to determining whether the deviation has been rectified. Insignificant deviations shall be recorded by the customer in writing in the acceptance declaration as a defect and rectified by us within the scope of the warranty.
  8. If at the time of final acceptance there are not enough parts for continuous operation, the final acceptance will be carried out with the existing parts.
  9. If the customer refuses acceptance without justification or without giving reasons, we may set him a deadline of 14 days in writing to declare acceptance. Acceptance shall be deemed to have taken place if the customer does not accept the work within this period or specify in writing the significant defects identified by him.
  10. In any case, the work result shall be deemed to have been accepted when the customer uses or could use it productively. From this point in time, the warranty period shall commence and we shall be entitled to payment of the outstanding balance.
  11. The customer is not entitled to refuse final acceptance due to faults during final acceptance for which we are not responsible.
  12. The customer shall provide the trained and qualified operating personnel required for final acceptance on time and free of charge.
  13. Our liability for recognizable defects shall lapse with the final acceptance, unless the customer has reserved the right to assert a claim for a defect known to him.

XV. use of software

If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The customer may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§§ 69 a ff. UrhG). The customer undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without our prior express consent. Other rights to the software and the documentation, including copies, shall remain with the software supplier. The granting of sublicenses is not permitted.

XVI Final provisions

  1. The place of performance for all deliveries and services is D-Memmingen.
  2. If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all legal disputes arising from the business relationship with the customer, including claims arising from bills of exchange and checks, shall be Memmingen. The same place of jurisdiction shall apply if the customer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence out of Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed. We are also entitled to take legal action at the customer’s place of business.
  3. The law of the Federal Republic of Germany shall apply exclusively to all disputes arising from contracts to which these GTC apply and to all disputes arising from the business relationship between us and the customer. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and private international law is excluded.
  4. Should any provision of these Terms and Conditions of Delivery and Payment be or become invalid or unenforceable or should these Terms and Conditions of Delivery and Payment contain a loophole, this shall not affect the validity of the remaining provisions. Instead of an invalid or unenforceable clause or to fill a gap, a legally valid and enforceable provision shall be deemed to have been agreed which we would have agreed with the customer on the basis of the purpose of the contract if we had recognized the invalidity/unenforceability/gap.

stoba Sondermaschinen GmbH Mitterschweg 1 87700 MemmingenStatus: as of December 2020General Conditions of Sales and Supply of stoba Sondermaschinen GmbH, Memmingen

General Terms and Conditions of Sale and Delivery of stoba Sondermaschinen GmbH (stoba), Memmingen

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