General Terms and Conditions of Sale
Stopfix brake Schröter & Co GmbH
§ 1 General – Scope of application
Our Terms and Conditions of Sale shall apply exclusively; we shall not recognize 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 make 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
If the order is to be qualified as an offer according to § 145 BGB (German Civil Code), we may accept it within 2 weeks.
We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The customer must obtain our express written consent before passing them on to third parties.
§ 3 Prices – Terms of Payment
Unless otherwise stated in the order confirmation, our prices are “ex works”, excluding packaging; this will be invoiced separately.
The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing. The deduction of a discount requires a special written agreement. Unless otherwise stated in the order confirmation, the net purchase price (without deductions) is due for payment within 30 days of the invoice date. The legal regulations concerning the consequences of default in payment shall apply.
The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
If the customer defaults on a payment, all claims shall become due for payment immediately, even if bills of exchange have been accepted for settlement, payment terms have been agreed or other deferral arrangements have been made.
§ 4 Delivery time
The start of the delivery period stated by us shall be subject to the clarification of all technical questions.
Compliance with our delivery obligation is subject to the timely and proper fulfillment of the customer’s obligation. We reserve the right to plead 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 object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date 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 consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further performance of the contract has ceased to exist.
Furthermore, we shall be liable in accordance with the statutory provisions insofar as the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributed 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.
We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
Further legal claims and rights of the customer remain reserved.
§ 5 Transfer of risk – packaging costs
Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. Separate agreements shall apply to the taking back of packaging.
If the customer so desires, we shall cover the delivery by transport insurance; 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 in the case of carriage paid delivery. Claims for damages by the customer are to be asserted against the carrier. In the case of drop shipments, the risk shall pass to the customer when the goods leave the supplying plant.
Shipment shall be made at the customer’s own risk and expense (delivery by forwarding agent, parcel service, etc. freight collect).
§ 6 Liability for defects
Claims for defects by the customer presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
If the purchased item is defective, the customer shall be 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 the defect or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
If the supplementary performance fails, the customer shall be entitled, at its option, to demand withdrawal from the contract or a reduction in the purchase price.
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. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, too, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
Unless otherwise stipulated above, liability is excluded.
The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated from the delivery of the defective item.
§ 7 Joint and several liability
Any further liability for damages than provided for in § 6 shall be excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damage to property pursuant to § 823 BGB.
The limitation according to subsection (1) shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for compensation for damages.
Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 8 Retention of title
We retain title to the purchased goods until receipt of all payments under the delivery contract. In the event that the customer acts in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realize it; the proceeds of realization shall be credited against the customer’s liabilities – less reasonable costs of realization.
The customer shall be obliged to treat the object of sale with care; in particular, he shall be obliged to insure it adequately at his own expense against damage by fire, water and theft at its replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its 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 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, 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 not been suspended. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects 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 shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
We undertake to release the securities to which we are entitled at the customer’s request insofar as the realizable value of our securities exceeds the claims to be secured by more than 20%; the choice of the securities to be released shall be ours.
9 Place of Jurisdiction – Place of Performance
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 the court of his place of residence. Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.
The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply.
Unless otherwise stated in the order confirmation, our registered office 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 – firstname.lastname@example.org – www.stopfix.de
Status February 2019