1. General provisions
1.1 The present General Terms and Conditions of Business shall be applicable for business conducted with merchants where the Contract shall attach to the operation of a commercial enterprise, legal entities under public law or a special fund under public law.
1.2 The present General Terms and Conditions of Business shall also be applicable specifically for all future deliveries performed within the framework of ongoing business relations, namely, to the exclusion of any requirement that their transmission be repeated.
1.3 All quotations shall be subject to confirmation in so far as they shall not have been classified as firm. Amendments and additions to the Contract shall be required to have been effected in written form in so far as circumstances shall not be such that the Parties, acting in good faith, shall have waived the requirement that written form be adhered to.
2. Price and payment
2.1 Our prices shall be taken to apply ex-works, location Legden, exclusive of freight, customs and import duties, ancillary charges and packaging, plus Value Added Tax.
2.2 There shall be an additional forwarding charge where we shall be required to organise delivery to the Customer or to a given sales premises.
2.3 The price agreed for delivery and, where applicable, assembly be strictly subject to the delay-free conduct of delivery and assembly procedure. Where it shall transpire that we shall incur waiting time due to prior conditions attributable to the Customer, costs arising therefrom shall be invoiced
2.4 The following terms of payment shall apply in so far as nothing to the contrary shall have been specifically agreed:
- 60 % of the purchase price upon issuance by Stapelbroek GmbH of the written confirmation of order,
- a further 30 % of the purchase price following execution of delivery by Stapelbroek,
- the remaining 10 % of the purchase price following acceptance.
The payments shall be due and owing without deduction at 30 days following receipt.
2.5 We shall be at liberty in the event of default in payment to demand and assert default interest in
amount equivalent to 8 % above the base rate of interest of the LZB unless, that is, the Customer
shall be in a position to furnish evidence to the effect that we shall not have incurred loss/damage
caused by delay.
2.6 Acceptance of bills of exchange by ourselves shall be strictly subject to prior pertinent written
agreement pending discharge in full of the debt and further subject to their being discountable.
2.7 The Customer shall not be at liberty to implement offset against counterclaims unless, that is, such claims shall be in favour of the Customer itself, shall be undisputed or shall be non-appealable in law.
2.8 Where it shall transpire that the Customer shall not adhere to the terms and conditions of payment, and/or the creditworthiness of the Customer shall deteriorate following conclusion of Contract, we shall be entitled to demand immediate payment and implement collection of amounts owing to us. In such event, we shall likewise be entitled to insist upon payment in advance or an
appropriate level of security (deposit of cash or banker's guarantee). We shall then also be entitled, having stipulated a reasonable period of grace, to withdraw from the Contract or to demand compensation for non-performance.
3. Business documentation, illustrations, quotations Any and all such business documentation as shall have been made available to the Customer
(quotations, illustrations, etc.) shall remain our property and shall be protected under copyright; duplication of such material, whether partial or in its entirety, or its being rendered accessible to third parties, shall be subject strictly to our express and prior written approval. Where called upon in writing to do so in the event of non-conclusion of Contract, the Customer shall undertake and be
obliged to surrender this documentation to us.
4.1 Partial deliveries of reasonable amount shall be deemed admissible.
4.2 Deadlines specified for delivery and assembly shall be taken to be approximate and non-binding only in so far as we shall not have expressly agreed firm and non-extendable deadlines.
4.3 Where we shall make illustrations, sketches or measurement documentation available to the Customer with the request for firm approval, delivery/performance periods agreed in connection therewith shall not be deemed to have commenced until said approval shall have issued.
4.4 Where we shall become aware of the fact prior to delivery/assembly that the financial circumstances of the Customer shall have deteriorated significantly, we shall be at liberty to demand an appropriate amount of security in advance of performance of delivery/assembly. Where such security shall not be forthcoming, we may not be held to be in default.
4.5. Events such as force majeure (natural catastrophes, strike, lockout or similar circumstances) shall entitle us to extend the lead-time for performance of delivery or service by the duration of the obstruction in question.
5. Passage of risk
5.1 Risk shall pass to the Customer upon collection by the Customer or handover to the forwarding agent or haulier; same shall apply even where partial deliveries are carried out.
5.2 Risk shall pass to the Customer upon readiness for despatch where despatch shall be delayed for reasons for which we may not be held responsible (for example, refusal on the part of the Customer to take delivery or suchlike).
6. Material defect and warranty
6.1 Where it shall transpire that our delivery or service are found to be defective as to quality within the period of warranty as provided under Subsection 2, we shall be entitled at our own discretion to
effect repair at no charge, to deliver replacement goods or to perform the services in question afresh.
6.2 Any and all claims against us and deriving from defective quality shall become statute-barred upon expiration of a period of 12 months as of delivery in so far as prevailing law shall not stipulate periods of longer duration.
6.3 The Customer shall be obliged to advise us of defect in writing and without delay, furnishing where possible, specific detail as to the nature of the defect(s). For the rest, any and all issues of pertinence shall be subject to the provisions of the German Civil Code [BGB] and those of the Uniform
Commercial Code [HGB], and, more specifically, those set forth under §§ 377, 378 Uniform Commercial Code [HGB].
6.4 We shall, in any event, be afforded opportunity to render supplementary performance within a reasonable period of time. It shall also be a requirement to this end that we be afforded access to the sales premises in question.
6.5 Any and all claims for compensation shall be governed by the provisions of Paragraph7 below.
7. Claims for compensation Issues of pertinence to contractual or statutory liability, irrespective as to their legal basis (excluding
claims in accordance with the Product Liability Act [Produkthaftungsgesetz]) shall be subject to the following restrictions: We shall only assume liability as provided for under law in cases of wilful intent or gross negligence and also of such as shall be found to be the case on the part of our executive
employees. For the rest, liability shall be limited to such loss/damage as may be termed typically foreseeable except in cases of physical harm and contravention of contractual obligations of significant content.
8. Retention of title
8.1 All deliveries shall remain our property (goods subject to retention of title) until such time as the purchase price shall have been paid in full. This shall also apply following payment of the purchase price where other such amounts shall be outstanding in our favour as shall have become due and owing earlier. The allocation of individual amounts to current account or the acknowledgement of a balance struck shall not imply nullification of retention of title. We shall be entitled, having duly issued the pertinent reminder, to take back goods delivered (goods subject to retention of title), and the Customer obliged to surrender same, where the latter shall be found to be in default of payment.
8.2 Where our goods subject to retention of title shall be subjected to processing by the Customer, thereby creating new goods, said processing shall be deemed to have been carried out on our behalf and, hence, we shall acquire ownership of said new goods.
8.3 Where such goods subject to retention of title shall be disposed of by the Customer by way of sale, either alone or together with such goods subject to retention of title as shall not belong to us, the Customer does herewith and now assign to ourselves any and all such amounts payable as shall
derive from said disposal by way of sale, namely, in measure equivalent to the value of our goods subject to retention of title together with all ancillary entitlements and ranking with priority over the rest. We do herewith accept said assignment. We do herewith, subject to cancellation, authorise our
Customer to collect the amount payable and duly assigned as per the foregoing provisions. We shall not avail ourselves of our authorisation to collect for as long as the Customer shall honour its payment obligations to us and to third parties. Where called upon to do so, however, the Customer shall be obliged to name the debtors of the claims assigned and to advise such parties of assignment; in such event, we shall ourselves also be at liberty to advise the debtors of assignment.
8.4 Where our goods subject to retention of title, or the claims assigned, shall become the subject of enforcement measures implemented by third parties, the Customer shall be obliged in its dealings with us to notify us in writing and without delay, thereby making available to us any and all such documentation as shall be required to assert appeal. The Customer may, under no circumstances, place in pawn or pledge by way of security the goods subject to retention of title. It shall undertake to notify us in writing and without delay in any and all event of seizure.
8.5 The Customer's right to engage in disposal by way of sale of goods subject to retention of title shall lapse in the event of suspension of payments, submission of application for the opening of insolvency proceedings or the proposed conduct of either judicial or extrajudicial settlement proceedings. The Customer shall, likewise, no longer be entitled to make use of or install the goods subject to retention of title.
8.6 Recovery of goods or assertion of claim under retention of title, as the case may be, shall not require our issuance of declaration to withdraw. Recovery or seizure on our part of the goods subject to retention of title shall not be construed as constituting withdrawal from Contract unless, that is, we
explicitly issue declaration to this effect.
9. Jurisdictional venue and place of performance
9.1 The place of performance shall be Legden.
9.2 The jurisdictional venue for both Contractual Parties shall be Münster where the Customer shall have the status of legal entity under public law or merchant. This shall likewise apply in proceedings involving bills of exchange and cheques.
9.3 All business conducted between us shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
10. Industrial property rights
Where we shall be required to produce and/or deliver on the basis of sketches, illustrations or any other documentation received from the Customer, responsibility shall lie with the Customer to ensure that such documentation shall not breach the industrial property rights of third parties. Should it
transpire nonetheless that we are found to be in breach, the Customer shall undertake and be obliged to indemnify us from the perspective of our internal relationship against any and all claims for compensation.
11. Severability clause
Where it shall transpire that provisions shall be or become ineffective, whether partially or in full, the effectiveness of the remaining provisions shall not be thereby affected. The same shall apply where a corresponding loophole shall be established. The Parties shall undertake to replace the ineffective
provision(s) or rectify the issue of the loophole by opting for such arrangement as may be reasonably held to be most consistent with the objective of the Contract.
© Stapelbroek GmbH June 2004