Stopfix-Bremse Schröter & Co GmbH

§ 1 General information – Scope of application

Our terms and conditions of sale apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale, unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of sale. All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.

§ 2 Offer – Offer documents

1. If the order qualifies as an offer in accordance with § 145 BGB (German Civil Code), we may accept it within 2 weeks. This also applies to written documents designated as ‘confidential’. The customer requires our express written consent before passing them on to third parties.

§ 3 Prices – Terms of payment

1. Unless otherwise stated in the order confirmation, our prices are ‘ex works’, excluding packaging; which will be invoiced separately. Statutory value added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the date of invoicing. The deduction of discounts requires a special written agreement. Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 30 days of the invoice date. The statutory provisions regarding the consequences of late payment apply. The customer shall only be entitled to set-off rights if their counterclaims have been legally established, are undisputed or have been recognised by us. In addition, they shall be entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
2. If the customer defaults on a payment, all claims shall become due for payment immediately, even if bills of exchange have been accepted for their settlement, payment terms have been agreed or other deferral agreements have been made.

§ 4 Delivery time

1. The start of the delivery time specified by us is subject to the clarification of all technical questions.
2. Compliance with our delivery obligation is subject to the timely and proper fulfilment of the customer’s obligations. We reserve the right to raise the defence of non-performance of the contract. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved. If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or payment.
3. We shall be liable in accordance with the statutory provisions if the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that their interest in the further performance of the contract has ceased to exist. Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; the fault of our representatives or vicarious agents is attributable to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4. We shall also be liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is due to a culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
5. Further statutory claims and rights of the customer remain reserved.

§ 5 Transfer of risk – Packaging costs

1. Unless otherwise stated in the order confirmation, delivery is agreed to be ‘ex works’. Separate agreements apply to the return of packaging. the costs incurred in this respect shall be borne by the customer. The risk for the delivery item shall pass to the customer upon handover to the carrier. This shall also apply to carriage paid delivery. Claims for damages by the customer shall be asserted against the carrier. In the case of drop shipments, the risk shall pass to the customer upon leaving the delivery plant.
2. Shipping is at the customer’s own risk and expense (delivery by freight forwarder, parcel service, etc. carriage forward).

§ 6 Liability for defects

1. Claims for defects by the customer require that the customer has duly fulfilled their obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
2. If the purchased item is defective, the customer is entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of defects or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a location other than the place of performance. If the subsequent performance fails, the customer shall be entitled, at their discretion, to demand withdrawal or a reduction in price.
3. We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4. We shall be liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; in this case, however, liability for damages shall also be limited to the foreseeable, typically occurring damage.
5. Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
6. Unless otherwise specified above, liability is excluded.
7. The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
8. The limitation period in the case of delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from the delivery of the defective item.

§ 7 Total liability

1. Any further liability for damages beyond that provided for in § 6 is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB (German Civil Code). The limitation in accordance with paragraph (1) also applies if the customer demands compensation for useless expenses instead of a claim for compensation for damage in lieu of performance.
2. Insofar as our liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

§ 8 Retention of title

1. We retain title to the purchased item until all payments under the delivery contract have been received. If the customer acts in breach of contract, in particular in the event of default in payment, we are entitled to take back the purchased item. Our taking back of the purchased item constitutes a withdrawal from the contract. After taking back the purchased item, we are entitled to sell it; the proceeds of the sale shall be offset against the customer’s liabilities, less reasonable selling costs. The customer is obliged to treat the purchased item with care; in particular, they are obliged to insure it adequately at their own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is necessary, the customer must carry this out in good time at their own expense. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of legal action in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us. The customer is entitled to resell the purchased item in the ordinary course of business; However, the customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to the customer from the resale against its customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets their payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. The processing or transformation of the purchased item by the customer is always carried out on our behalf. If the purchased item is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. The same shall apply to the item created by processing as to the purchased item delivered under reservation.
2. If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer proportional co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created in safekeeping for us. We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 20%; the selection of the securities to be released shall be at our discretion.

$9 Place of jurisdiction – place of performance

1. If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at their place of residence. Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
2. The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
3. Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.

We are entitled to collect, store, process and use information and data about the customer.

Stopfix-Bremse Schröter & Co. GmbH · Bunsenweg 11 · 82538 Geretsried Tel.: +49 8171 9271-6 · Fax: +49 8171 9271-88 · info@stopfix.de · www.stopfix.de

As of February 2019