General Terms of Sale and Delivery
General Terms of Sale and Delivery of Ströbel GmbH,
Wasenmühlenweg 10, 90579 Langenzenn, GERMANY
For Information about our technical terms of delivery, please click » here
1. Validity, realisation of contracts
1.1. All deliveries, services and the sale of products by our company are exclusively carried out according to these General Terms of Sale and Delivery. We shall not acknowledge differing terms of the customer, unless we explicitly agreed to their validity. Our general terms and conditions shall also be valid if we unconditionally deliver to our customer fully aware of opposing or differing terms of the customer. All agreements which are made between us and the customer for the purpose of executing the placed order shall be put into writing.
1.2. If the order is to be qualified as bid according to § 145 BGB (German Civil Code), we can accept it within 4 weeks.
Our bids are subject to change unless we formally declare them as binding. The specifications such as images, descriptions, technical data and technical specifications contained in bid documents such as brochures, price lists, catalogues, newsletters and other printed matters are subject to change.
A contract shall be formed by acceptance of our written bid at due date or by means of an order confirmation sent by us, which defines the scope of our services.
We reserve property rights on written documents which are specified as "confidential", they must not be made accessible to other parties. We shall not assume liability for the correctness of technical data and other specifications in manufacturer's brochures.
1.3. Technical specifications are subject to change. Possible deviations have to be accepted as long as they are reasonable for the customer. We reserve the right to modify products and services, which do not affect the functionality.
2. Subject matter of the contract
2.1. In addition to these general terms and conditions, the content of our written bid is authoritative for the content and scope of the services to be provided by us.
2.2. Our order confirmation shall specify the deliveries and services to be provided by us in detail. Furthermore, our order confirmation shall define the remuneration to be paid by the customer as well as the delivery and acceptance of the services and shipments by the customer.
3. Services not covered by the contract, service modifications
3.1. The services to be performed by us in accordance with this contract are documented in our order confirmation.
3.2. Should the customer wish to modify our services as defined in the order confirmation after the conclusion of the contract, we shall examine the feasibility of this change request upon written request by the customer. Then, we shall notify the customer within reasonable time if we can realise the change request and, if applicable, draw up a bid which reflects the changes in the conditions and the order processing in comparison with the order confirmation.
3.3. Separate contractual agreements are required for all changes. If the change request cannot be realised in a reasonable way or if the customer does not accept our order confirmation for the realisation of the change request within 5 work days, we will continue with our services in accordance with our order confirmation, if the customer does not terminate the contract by declining the order confirmations or within 5 days after notice that the change request cannot be realised. In this case, the remuneration until the time of termination is regulated according to clause 4.
4. Prices, terms of payment
4.1. Type, amount and time of the remuneration to be paid shall result from our order confirmation and applies "free domicile" including packaging, unless otherwise agreed upon in writing.
4.2. Our prices do not include value-added tax, it is shown separately at the time of invoice. All prices do not include possible other costs and charges in the respectively valid statutory amount.
4.3. We reserve the right to reasonably increase our prices if a change in material costs and/or wages should incur between the time of placing the bid and rendering the services. We will provide the customer with evidence if requested.
4.4. Should it become known that the customer's financial situation deteriorates after conclusion of the contract, we shall be able to refuse our advance obligations until completion of counter-performance or an according security. We reserve the right to withdraw from the contract if the customer refuses to remove the endangerment of the contract due to the deterioration of his financial situation by means of contemporaneous performance or security within a reasonable period of time. The costs which have incurred in the meantime are assessed and are due immediately.
4.5. Invoices shall be paid strictly net within 30 days of the invoice date or within 14 days with a discount of 2%. A discount is not permitted if a balance is due at the time of payment. Payments first redeem any interest and costs, then the oldest debt.
4.6. Should the customer default in payment, we shall be entitled to charge default interest in the amount of 4% p.a. above the respective discount rate of the Deutsche Bank. Should we be able to prove higher default damage, we shall be entitled to claim this.
4.7. The customer is only entitled to set-off rights if his counterclaims have been assessed undisputed and legally effective or acknowledged by us. Furthermore, the customer is not entitled to execute the lien due to contested claims.
5. Deliveries
5.1. All terms of delivery shall be in writing. Delivery periods shall start with the date of our order confirmation, but not before clarification of all technical data. If not confirmed explicitly, delivery periods shall be non-binding reference values.
5.2. If we fall behind regarding delivery for reasons that we are responsible for, the liability for compensation in case of common negligence is excluded in commercial commerce. In non-commercial commerce, our liability is limited to an amount of 50% of the predictable damage in case of a delay due to slight negligence. Further compensation implies that the cause for the delay is based on intention or gross negligence.
5.3. Our periods of delivery and performance shall extend by a reasonable time in case of failure due to Force Majeure and other obstacles which we are not responsible for, especially delays during creation of required advance performances of other entrepreneurs, strikes, lock-outs, equipment failures, etc. which have a significant influence on our delivery and performance. If delivery and performance become permanently impossible or economically unreasonable for our company due to aforementioned failure, we shall ultimately be freed from our contractual obligations.
5.4. The customer shall only be entitled to compensation claims due to failure of performance to the amount of the predicable damage, if the delay is based on intention or gross negligence. Otherwise, compensation liability is limited to 50% of the incurred damage. If we accept a delivery term required by the customer, we shall be able to request an additional 2% of the agreed net price per year above the discount rate by the Deutsche Bundesbank for the duration of the delay.
5.5. Part deliveries are permitted and can be invoiced separately, unless the customer cannot use them in an economically useful manner.
5.6. Adherence to our delivery obligation requires the customer to timely and orderly meets his obligations.
5.7. If delays incur for reasons that the customer is responsible for, the customer shall compensate us for all additional expenditures and damages in addition to the agreed remuneration.
5.8. Packaging
Disposable packaging: if required by the customer, we will refer an address for disposal. The customer shall cover the costs for disposal.
Reusable packaging: it shall be treated with care and returned to us or an address referred by us within a specified time. Shipping costs shall be covered by the customer.
6. Passage of risk
6.1. If the order confirmation does not specify otherwise, the delivery shall be "ex works".
If delivery to our customer is agreed upon in our order confirmation, we shall transfer our title to our transport insurance benefits or to the transport insurance of the commissioned transport company to the customer.
6.2. If delivery to the customer is agreed upon in our order confirmation, we shall cover the costs of transport insurance ourselves.
7. Acceptance
7.1. Acceptance by the customer shall entail maturity of remuneration and start the warranty period. According to performance to be rendered, partial acceptances may be considered. A partial acceptance is not affected by the result of the final acceptance.
7.2. Delivered performances shall be accepted by unreserved receipt of the delivered object by the customer.
7.3. The customer must not refuse acceptance if only minor deviations from our order conditions have occurred. These insignificant deviations are noted in an acceptance protocol and will be removed by us under warranty coverage.
7.4. Should the acceptance result in a significant deviation from our order confirmation, the customer shall set a reasonable grace period to remove this deviation.
After maturity of this grace period, the acceptance shall be repeated. If it is successful, the customer shall declare acceptance. If after maturity of the grace period, significant deviations from our order confirmation continue to exist, the customer, under exclusion of other claims subject to liability according to clause 10, shall be entitled to rescission from the contract, in case of partial acceptance only regarding the partial performance which is not ready for acceptance, as long as the partially accepted performance can reasonably be used by the customer in an economic manner, or shall be entitled to a reasonable reduction of the agreed remuneration.
7.5. Should the customer not declare acceptance in spite of successful acceptance, he shall default regarding acceptance, or if he does not provide an explanation according to clause 7.4., we shall be entitled to set a grace period of 3 weeks with the notice that after unsuccessful maturity of this grace period, the acceptance shall be considered declared. If the customer does not provide an explanation within this grace period or if he does not take part in the acceptance, we shall consider the performance or the partial performance as accepted.
7.6. If the customer defaults acceptance or neglects other obligations to co-operate, we shall be entitled to claim compensation for damages incurred to us including possible additional expenditures. In case of an acceptance default by the customer, the risk of accidental deterioration or theft of the delivered goods shall pass on to the customer at this time.
8. Warranties
8.1. In the commercial field, the customer's warranty rights require that the customer has fulfilled his duties regarding inspections and complaints in an orderly manner. The warranty period shall start with the day of acceptance, in case of a partial acceptance for the accepted partial performances with this acceptance and amounts to 6 months, if not specified otherwise.
8.2. In case of a warranty, we shall offer either rework or substitute delivery. If we do not remove defects within a reasonable grace period set by the customer in writing, the customer shall be entitled to rescission from the contract, in case of partial acceptance for defects, which refer to performances which can be partially accepted, only regarding this partial acceptance, as long as the partially accepted deliveries alone can be reasonably used by the customer, or shall be entitled to request a reasonable reduction of the agreed remuneration. Further warranty claims of whatever nature shall be excluded, unless something different results from clause 11.
8.3. The customer shall not be permitted to assign claims without our prior written consent.
8.4. If an inspection of a customer's notice of defects shows that it is not a warranty issue, the customer shall be invoiced the cost of the inspection and possible repair at the rate of the current price list as well as the services performed and billed by a third party.
8.5. Excess or short deliveries as well as dimension tolerance to an insignificant, conventional extent as well as delivery of a proportionally low number of faulty goods, if the latter cannot be technically avoided, shall not entitle to object to the delivery.
8.6. We shall not be liable for defects of external products and/or external services, which have not been delivered or rendered by us.
9. Subcontractor
We are entitled to call in sub-contractors at our own discretion to render our contractual services.
10. Limitation of liability
10.1. We shall only be obliged to compensate for damages, for whatever legal ground, if
- the damage can be attributed to the lack of a warranted quality, or
- binding liability is accounted for by the Product Liability Act, or
- we have culpably violated an obligation essential to the contract (cardinal obligation) which may damage the purpose of the contract, or
- the damage can be attributed to gross negligence or intention.
10.2. Should we be liable due to a breach of contractual obligations (cardinal obligations), which has not been committed out of gross negligence or intentional, our liability should be limited to the foreseeable damage.
10.3. If the customer is a merchant in the sense of the German Commercial Code, legal entity under public law or public special assets, our possible liability shall be limited as follows:
We shall not assume liability for indirect damage or lost profits, as long as liability is not accounted for due to intention or lack of a warranted quality.
Each liability on our part shall be limited to damages which were to be reasonably expected at the time of the conclusion of the contract according to the circumstances known to us.
Each liability on our part for simple negligence, for whatever legal ground, including impossibilities, default at conclusion of contract, culpable breach of obligation to remedy defects and illegitimate actions shall be excluded, unless the previous clauses stipulate otherwise.
10.4. The warranty period amounts to 6 months, starting at the passage of risks. This period is a limitation period and is also valid for claims for compensation of consequential harm caused by a defect, as long as no claims from illegitimate actions are asserted.
10.5. As far as compensation claims according to the previous paragraphs are excluded or limited, this exclusion or this limitation also shall include claims from illegitimate actions as well as claims against our employees, workers, agents, vicarious agents and representatives.
11. Reservation of ownership
11.1. We shall reserve the ownership of the delivered goods and services until payments for all claims from our business relationship with the customer have been made, of any kind and legal ground. For all open accounts, the reserved ownership shall serve as security for the balance carried forward. The goods delivered by us or still in our ownership shall be processed by our order, without the possibility that any liabilities may occur for us.
11.2. In case of behaviour contrary to the contract on the part of the customer, especially delay in payments, we shall be entitled to redemption of the delivered goods. Redeeming the delivered goods shall not constitute rescission from the contract unless we have specifically declared this in writing. Attachment of the delivered goods shall always constitute rescission from the contract. After redeeming the goods, we shall be entitled to resell them, the proceeds of the sale shall be assessed against the liabilities of the customer less the reasonable reselling costs.
11.3. The customer shall be obliged to handle the goods with care, he shall be especially obliged to sufficiently insure the goods against damage by fire, water and theft for the nominal value.
11.4. In the event of attachment or other intervention by third parties, the customer must inform us immediately in writing in order that we may take legal action according to § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us with the costs of an action both in court and out of court according to § 771 ZPO, the customer shall be liable for any financial loss that we have incurred.
11.5. The customer shall be entitled to resell the delivered goods in the ordinary course of business. However, he shall already now assign to us all accounts receivable in the amount of the total of the invoice amount (including VAT), which accrue to him from reselling to his buyers or third parties, independent of whether the goods were resold before or after processing. The customer shall be authorised to collect this debt even after assignment. Our authority to recover the debt ourselves shall remain unaffected by this. We shall however be obliged not to recover the debt as long as the customer duly meets his payment obligations and does not default in payment and especially no bankruptcy or insolvency proceedings have been instituted or stoppage of payments exists. If this is the case, we can request that the customer informs us of the account receivable discounted and its creditors, gives full particulars required for collection, hands over the respective documents and informs the debitors (third parties) of the assignment.
11.6. The delivered goods shall always be processes or transformed for us by the customer. If the delivered goods are processed with other objects that do not belong to us, we shall become co-owners of the new object in the ratio of the value of the delivered goods to the other processed objects at the time of processing. For the object resulting from processing, the same shall apply as for the conditionally delivered goods.
11.7. If the delivered goods are inseparably mixed with other objects that do not belong to us, we shall acquire co-ownership of the new object in the ratio of the value of the delivered goods to the other mixed objects at the time of mixing. If the mixing was done in such a way that the object of the customer's object is to be considered as main object, it shall stand as agreed that the customer transfers proportional co-ownership to us. The customer shall hold the resulting sole or joint ownership on our behalf.
11.8. In order to safeguard our claims against the customer, the latter shall also assign to us any claims against a third party which result from a relation between the goods and a property.
11.9. We shall be obliged to release the securities to which we are entitled at the customer's request as far as the value of our securities exceeds the debts to be secured by more than 20%. We shall be entitled to select the securities to be released.
12. Miscellaneous
12.1. Neither party shall be entitled to assign claims under this contract without prior written consent of the other party with the exception of our right to assign remuneration claims.
12.2. This contract shall supersede any previous agreements between the parties in connection with the subject matter of this contract. Additions and changes of the contract have to be made in writing. This is also valid for a possible waiver of this requirement for written form.
12.3. Not exercising a right according to these regulations does not waive the future assertion of this right.
12.4. All legal relations between the parties are subject to exclusive jurisdiction of the Federal Republic of Germany.
13. Jurisdiction
If the customer is a fully qualified merchant, legal entity under public law or public special assets, the sole jurisdiction of all legal actions from or in connection with this contract is Fürth. Any exclusive legal jurisdictions remain unaffected. Furthermore, we shall be entitled to take legal actions or other legal proceedings at the place of general jurisdiction or seat of the customer.
