General Terms and Conditions for Businessmen

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General Terms and Conditions

General Terms and Conditions for Entrepreneurs
General Terms and Conditions of Sale and Delivery of ST-Vitrinen Trautmann GmbH & Co. KG

1. Scope
1.1 The following general terms and conditions of sale and delivery (hereinafter: GTC) apply to the processing of all our deliveries and services to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB (German Civil Code). Conditions that conflict with our GTC are not recognized unless we have expressly agreed to their validity in writing. Our AVLB shall also apply if we carry out the delivery to the purchaser subject to knowledge of the customer’s terms and conditions that conflict with or deviate from our GTC.
1.2 Our GTC become part of the contract at the latest upon acceptance of the delivery. In the case of permanent business relationships, our GTC also apply to future business in which no express reference is made to it, provided that the customer has received it in an earlier order confirmed by us.

2. Orders and Subsequent Changes
2.1 All our offers are subject to change until the order is confirmed in writing. Our written order conformation, with which the contract is concluded, is decisive for the scope of the service. No verbal agreements are made. Agreements deviating from these conditions are only binding upon our written confirmation.
2.2 Orders placed by the customer are binding. We can accept them within 2 weeks of receipt either in writing or by delivering the goods to the customer. If the order is placed electronically and an access confirmation is created, this access confirmation does not constitute a binding acceptance by the customer. The order confirmation can be combined with the access confirmation.
2.3 Subsequent requests for changed by the customer are only binding for us if we have expressly agreed to them in writing.
2.4 If the production has to be carried out according to the dimensions specified by the customer, we will only consider subsequent changed requested by the customer if they are made in such a timely manner that production-related implementation is still possible, or if production has not yet started.
2.5 The customer bears the costs causes by changing the order.

3. Prices and Terms of Payment
3.1 Unless otherwise agreed, our prices are in euros ex works, excluding freight, customs, import taxes and packaging. These will be invoiced separately. The statutory sales tax is not included in our prices. It will be shown separately on the invoice at the statutory rate on the day the invoice is issued.
3.2 Unless expressly agreed otherwise, payments for delivered goods must be made without deduction within 30 days of the invoice date, for payments within 10 days of the invoice date with a 2% discount. This also applies to goods that we keep in stock at the request of the customer or for a reason for which we are not responsible. Discount deductions are only permissible to the extent that there are not outstanding, undisputed invoices.
3.3 Pure contract work as well as tool costs and reusable packaging are payable immediately without deduction.
3.4 The purchaser is only entitled to set-off rights if his counterclaims have been legally established, are undisputed, ready for decision or have been recognized by us in writing. The same applies to the exercise of rights of retention.
3.5 Checks are only accepted as conditional payment.
3.6 In the case of a delay in payment or deferral, we are entitled to charge default interest or deferral interest in the amount of 8 percentage points above the respective base rate in accordance with § 247 BGB (German Civil Code). This does not exclude the assertion of further damage cause by delay. The customer is free to prove that we have incurred no or (substantially) lower interest damage.
3.7 The sustained non-compliance with payment terms or circumstances that become apparent after the conclusion of the contract, which give rise to serious doubts about the creditworthiness and performance of the customer, result in the immediate due date of all our claims regardless of the agreed payment method. In addition, in this case we are entitled to demand prepayment or other security payments for deliveries that are still open and to withdraw from all contracts concluded with the customer in whole or in part after a reasonable period has expired without success and / or to claim damages.

4. Delivery
4.1 Only explicitly agreed delivery dates are binding for us. Our written order confirmation is decisive. Delivery times stated outside the contract, in particular in catalogs or other documents, are purely for information purposes and do not bind us. Due to subsequent changes, agreed delivery dates are postponed for a reasonable period of time, depending on the scope of the change requests, unless we have confirmed that the originally agreed date has been expressly confirmed in writing again.
4.2 Compliance with deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the customer, the necessary approvals and releases, as well as compliance with the agreed terms of payment and other obligations by the customer. If these requirements are not met, the deadlines will be extended to a more reasonable timeframe. This does not apply if we are responsible for the delay.
4.3 In the vent of force majeure or other unpredictable, extraordinary circumstances that occur to us or a pre-supplier for which are not responsible, e.g. difficulties in procuring materials, operational disruptions, strikes, lockouts, lack of means of transport, official interventions, energy supply difficulties, we are allowed to postpone the delivery by a reasonable amount of time that is required to fix the issue. We immediately inform the purchaser of the aforementioned circumstances. If the delivery delay lasts longer than 3 months for the aforementioned reasons, the customer is allowed to withdraw from the contract. If the delivery or service becomes impossible or unreasonable due to the circumstances, we will be released from the delivery obligation. If the delivery time is extended for the aforementioned reasons or if we are released from the delivery obligation, the customer cannot derive any claims for damage from this. Partial deliveries that have already been made and to which we are entitled are deemed to be an independent business. Payment for successful part deliveries may not be withheld on account of quantities of material still outstanding.
4.4 The call-off of individual part deliveries must be requested by the purchaser in time to allow for proper manufacture and delivery within the contract period, otherwise the delivery period will be extended by a reasonable extent.
4.5 If a delivery date has been expressly agreed and is postponed by the customer, we have the right to request payment in the amount of the invoice amount for the service or the goods already provided.
4.6 When delivering the goods, we reserve the right to make appropriate deviations in weights, quantities and dimensions due to manufacturing reasons. With regard to the weight and the number of pieces, a deviation of 10% is permitted.
4.7 Possible inspection and acceptance costs are to be borne by the customer.

5. Product Returns
5.1 In the case of voluntary returns, we charge a processing fee of 20% of the invoice amount. We reserve the right for further deductions for impairment of goods that have been voluntarily taken back. The purchaser is free to prove that the return of the goods has caused us no or significantly less impairment than we have asserted.
5.2 Goods that have been specially manufactured or procured for the customer are generally excluded from the voluntary return.

6. Shipment and Risk Taking
6.1 Unless otherwise agreed, delivery is “ex works”. The risk is transferred to the customer even when the delivery is free of charge when it leaves the delivery plant. In the event of a delay in dispatch for which the customer is responsible, the risk passes to the customer on the day the delivery is made available. The delivery is then stored in the name and at the expense of the customer.
6.2 Unloading the delivery is the responsibility of the customer. It must be carried out immediately and properly by the customer. Any unloading by the wagon staff or their assistance in unloading is only carried out at the risk and expense of the customer.
6.3 Should the customer culpably fail to meet his obligation to unload, we are entitled to have the delivery unloaded and stored at the customer’s nearest place. In this case, the customer does not have the right to refuse acceptance or to claim that the delivery was delivered damaged.

7. Packaging
7.1 The packaging is determined at our choice. Simple packaging as well as boxes and crates are charged at cost price. The customer is obliged to dispose of the packaging at his own expense.
7.2 Due to the unobjectionable acceptance of the delivery by a carrier, our liability for improper packaging or loading is excluded unless we are liable due to intent or gross negligence.

8. Defect Rights
8.1 Our liable shape of the contractual item is made of contractual agreements with the customer. Samples, brochure details or information derived from other advertising material are non-binding and do not constitute a guarantee of durability or procurement in the sense of § 443 BGB (German Civil Code), but serve the description and are only intended to provide a general idea of the products described therein. The reference to technical standards only serves to describe the performance and is also not to be interpreted as a guarantee of quality. We reserve the right to make changes to the design, choice of materials and design, profile design and other changes that serve technical progress within reasonable limits, even without prior notice.
8.2 We provide advice to the best of our knowledge based on our experience, but excluding any liability. Details and information about the suitability and application or use of our goods such as written, calculative, graphic and oral proposals, drafts and the like, which deal with the assembly, construction, arrangement, processing, finishing, assembly, statics, tendering and help with calculations, are neither main – still as an ancillary obligation subject of our performance obligation and in any case non-binding. They do not exempt the purchaser from his own examinations, unless a separate additional order is placed against payment.
8.3 The customer is obliged to check the delivery immediately upon receipt for transport damage, completeness and freedom from defects. Transport damage, defects, incorrect or short deliveries as well as deviations from the delivery note or invoice must be reported to us in writing immediately, at the latest within 7 days. Otherwise the shipment is considered approved. If the customer processes the delivered goods after discovery of a defect, all claims of the customer due to the defectiveness of the goods are excluded.
8.4 If there is a defect in the delivery for which we are responsible at the time of transfer of risk, we are obliged to remedy the defect or deliver a replacement. The customer must allow us reasonable time and opportunity to remedy the defect. If this is refused, we are released from liability for defects.
8.5 If the supplementary performance fails several times, the purchaser is subject to the provisions under no. 9 and entitled to make use of the otherwise statutory rights to defects.
8.6 Claims due to liability for defects do not exist if there is only an insignificant deviation from the agreed quality, if there is only an insignificant impairment of usability, in the case of natural wear and tear, or damage that occurs after the transfer of risk as a result of incorrect or negligent handling or storage, excessive stress, faulty assembly or commissioning by the customer or third parties, unsuitable equipment, the use of replacement materials, defective construction work, unsuitable building ground or which arise due to special external, in particular chemical electrochemical or electrical influences, which are not required by the contract.
8.7 If the purchaser or third parties improperly carry out changes or repair work, there are no claims for liability for defects and the resulting consequences if the purchaser fails to provide evidence that the improper modifications or repair work were not the case of the defect.
8.8 Claims by the purchaser due to the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as they are increased expenses because the object of the delivery is brought to a different location than the company of the purchaser, unless the transfer corresponds to its intended use. In any case, the amount of the compensation is limited to the purchaser’s own costs (e.g. transport – and material costs) and does not record their profit margin to their customer.
8.9 Statutory recourse claims on the part of the purchaser only exist if the purchaser has not made any agreements with his customer that go beyond the statutory claims based on liability for defects.
8.10 The warranty period is one year, calculated from the transfer of risk. As far as used goods are the subject of the purchase, the warranty period is six months. A rectification of defects by repair or replacement according to 8.1 will under no circumstances lead to an extension of the original warranty period.

9. Liability
9.1 We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence on our part, including intent and gross negligence on the part of our representatives. Insofar as we are not accused of willful breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
9.2 In the event of a culpable violation of an essential contractual obligation, we are liable in accordance with the statutory provisions. In this case, liability for damages is limited to the foreseeable, typically occurring damage. In this case in particulary we are not liable for lost profit of the customer and unforeseeable indirect consequential damage. These limitations of liability apply in the same way to damage caused by intent or gross negligence on the part of our employees or vicarious agents, unless these belong to our managing directors executives.
9.3 Unless otherwise stated above, claims for damages on the part of the purchaser, regardless of the legal reason, are excluded. This applies in particular to claims for damages due to breach of obligations from the contractual relationship and from unlawful acts.
9.4 The above limitations of liability do not apply insofar as our liability is mandatory based on the provisions of the Product Liability Act (Produkthaftungsgesetz), if life or health have been injured or if claims for damages due to the lack of a guaranteed quality in the sense of § 443 BGB (German Civil Code) can be asserted against us or a defect has been maliciously concealed. In case a guaranteed quality is missing, we are only liable for the damage that the absence caused. Statutory claims for damages due to impossibility for which we are or our vicarious agents are responsible remain unaffected.
9.5 Insofar as our liability is excluded or limited, this also applies to the benefit of our employees, representatives and vicarious agents in the event of direct claims by the customer.

10. Retention of Title
10.1 We reserve ownership of the delivery items until all payments from the business relationship with the customer have been received. In the event of behavior contrary to the contract, in particular in the event of delayed payment, we are entitled to take back the delivery item after withdrawing from the contract. We are entitled to inspect the goods subject to retention of title at any time where they are located. If we assert our legal right to recover possession after withdrawing from the contract, the purchaser hereby irrevocably allows us to take the goods in our ownership, and to enter the place where the goods are. In the return and seizure of the item by us, without prejudice to the assertion of claims for compensation, there is a withdrawal from the contract. After the withdrawal, we are authorized to sell the item. The sales proceeds are to be offset against the buyer’s liabilities, without disposal costs.
10.2 The customer is obliged to treat the delivery item with care. In particular, he is obliged to adequately insure it against fire, water and theft damage at its new value at his own expense. If maintenance and inspection work is required, the customer must carry this at his own expense.
10.3 In the event of seizure or other interventions by third parties, the customer must immediately notify us in writing so that we can file a complaint in accordance with section 771 of the ZPO (Code of Civil Procedure). In the case of seizures, the customer must enclose a copy of the seizure record. If the third party is unable to reimburse the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO (Code of Civil Procedure), the customer is liable for the loss we incurred.
10.4 The customer is entitled to resell the delivery item in the ordinary course of business. However, this authorization expires in the event of late payment by the customer. The customer hereby assigns to us all claims in the amount of the invoice amount (including VAT) of our claims that arise from the resale of the reserved goods against his customers or third parties, regardless of whether the delivery item was resold without or after working with it. If, however, other reserved suppliers have joint ownership of the resold delivery item, the purchaser shall only assign his claims from resale to us in the ration in which the final invoice value (including VAT) of our deliveries relates to the total invoice value of the deliveries of the other reserved suppliers. The assignment is made to secure all of our future claims from the business relationship with the customer. The customer remains authorized to collect this claim even after the assignment. The customer is acting as a trustee for us. Our authority to collect the claim ourselves remains unaffected. However, we are not allowed to collect the receivables as long as the purchaser meets his payment obligations from the agreed proceeds, does not fall into arrears and, in particular, there is no request for bankruptcy or settlement or insolvency proceedings to be terminated. If this is the case, however, we can request that the purchaser notifies us of the assigned claims and their debtors, provide all the information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
10.5 The processing of transformation of the delivery item by the customer is always carried out for us as the manufacturer. If the delivery item is processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount, including VAT) to the other processed items at the time of processing. The same applies as for the delivery item delivered under reservation for what results from the processing.
10.6 If the delivery item is mixed with others that do not belong to us and are inseparably mixed, we acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount, including VAT) to the other mixed items at the time of the mixing. If the mixing takes place in such a way that the object of the customer or a third party is to be regarded as the main object, it is agreed that the customer transfers proportional co-ownership to us. The purchaser keeps the resulting sole or co-ownership for us.
10.7 The customer also assigns to us the claims to secure our claims against him, which arise from the connection of the delivery item with a property against a third party.
10.8 In the case of delivery items that the purchaser has to incorporate into a third-party building as a key component based on a work contract, the purchaser assigns to us his contractual right to order a security mortgage in the value of the delivery item (final invoice amount, including VAT).
10.9 We undertake to release the securities to which we are entitled at the request of the customer insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%. It is our responsibility to selecting which securities to release.
10.10 By reimbursing share of costs for tools, the customer does not acquire any right to the tools themselves. These remain our freely available property.

11. Data Collection / Data Storage
We collect, process and use personal data only insofar as it is necessary for the justification, content design, processing, fulfillment and change of the contractual relationship established with the client. The client agrees to the computer-based storage of his data for our customer file. We are not obliged to store further data after the order has ended. This applies in particular to the data developed in connection with the order and the data that were the subject of the order. The legal provisions of the Federal Data Protection Act (BDSG) apply.

12. Other Provisions
12.1 We reserve property rights, patents, design patents and copyrights to illustrations, drawings, drafts, constructions, calculations and other documents. This also applies to documents that are designated as “confidential”. The customer requires our written consent before passing them onto third parties. The customer expressly recognizes all property rights to which we are entitled.
12.2 The rights of the customer from the delivery contract are not transferable with the exception of monetary claims.
12.3 We are entitled to process the data received from the customer on the basis of the business relationship in accordance with the provisions of the Federal Data Protection Act (BDSG), in particular also to the credit insurer, to transmit the data required for credit insurance.
12.4 If the individual provisions of the GTC or a contract based thereon are or become ineffective, this does not affect the effectiveness of the remaining provisions. The contractual partners are obliged to agree on a new provision that comes as close as possible to the purpose pursued by the ineffective provision.
12.5 Unless otherwise agreed, the contracting parties are allowed to advertise with the mutual cooperation permanently, even if the contractual relationship has already ended. Company names, company logos, illustrations of the delivered products at the place of use and the type of cooperation may be shown and named.

13. Place of Performance of Jurisdiction
13.1 Unless otherwise stated in the order confirmation, the place of performance for all obligations from the supply relationship is our place of business.
13.2 Our registered office is the sole place of jurisdiction for all disputes arising from the contractual relationship. However, we are also entitled to file a lawsuit at the customer’s headquarters.

14. Applicable Law
In addition to the terms of the contract, the law of the Federal Republic of Germany applicable to the legal relationship between domestic parties applies exclusively. The applicability of the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods – CISG) is excluded.

ST-Vitrinen Trautmann GmbH & Co. KG
Bielefeld, 06.01.2020