GTC – Download
GTC – STOBER Switzerland AG – Download
TERMS OF SALE AND DELIVERY
STÖBER Antriebstechnik GmbH + Co. KG
1. Scope of validity
1.1 These General Terms of Sale and Delivery shall only apply to entrepreneurs within the meaning of §14 BGB (German Civil Code).
1.2 STÖBER Antriebstechnik GmbH + Co. KG – hereinafter referred to as “the Supplier” – shall provide all its deliveries and services exclusively in accordance with these Terms and Conditions of Sale and Delivery. The Supplier shall not recognize any conflicting or deviating terms and conditions of the Purchaser, unless the Supplier has expressly agreed to their validity.
2. Offer and order
2.1 The Supplier’s offers are subject to change and non-binding unless they are expressly designated as a binding offer.
2.2 The written order confirmation of the Supplier shall be decisive for the order. This order confirmation can also be made by sending an invoice. If the Purchaser has any objections to the content of the order confirmation, it must object to the order confirmation without delay. Otherwise, the contract shall be concluded in accordance with the order confirmation.
2.3 Oral agreements or agreements made by telephone shall only become part of the contract if they are confirmed in writing by the Supplier.
2.4 Drawings, illustrations, dimensions, weights and other performance data outside the offer and the order confirmation shall only be binding if this is agreed.
2.5 The Supplier reserves the property rights and copyrights to samples, cost estimates, drawings and similar documents, information of a physical and non-physical nature, including in electronic form; they may not be made accessible to third parties. The Supplier undertakes to make information and documents designated by the Purchaser as confidential available to third parties only with the Purchaser’s consent.
3. Machining, processing and assembly of sent-in parts
3.1 Parts sent in for processing and assembly shall be sent ex works to the Supplier and, if necessary, in good packaging, accompanied by a consignment note and delivery bill. A notice of dispatch to the Supplier shall be sent stating its order number.
3.2 The material or the technical condition of sent-in parts shall be stated. Pre-machined parts or parts ready for assembly are to be continually delivered with accurate dimensions and within the required tolerances. Parts to be reamed must not be completely machined and must have an allowance for re-turning.
3.3 If these conditions are not met, the Supplier may charge the costs for additional work as well as the replacement of prematurely worn or damaged tools or withdraw from the contract, in which case the Purchaser shall compensate the corresponding part of the contract price as well as the aforementioned additional costs. Tools and gauges that do not correspond to the normal range of the Supplier as well as special devices and models will be charged additionally. They remain property of the Supplier. Defective parts that have been pre-machined or made available for assembly may be reworked or returned at the Purchaser’s expense without further inquiry.
3.4 Waste material from the parts sent in for machining or processing shall become the property of the Supplier.
4.0 Prices and terms of payment
4.1 The prices stated in the order confirmation shall be decisive. They are ex works and do not include packaging, freight, postage, value assurance and VAT.
4.2 Transport insurance shall only be provided at the request and at the expense of the Purchaser. For packaging that is returned with freight paid and undamaged, half of the calculated price will be reimbursed.
4.3 Unless otherwise agreed, payments shall be made as follows:
a) Within 14 days from the invoice date with a 2% discount or 30 days net in the case of an ongoing business relationship.
b) In advance or when the goods are ready for shipment in the case of initial business relations and in the case of repairs. Assembly costs are payable upon receipt of the invoice. Partial deliveries will be charged immediately.
4.4 Insofar as cost increases that are unforeseeable for the Supplier occur after conclusion of the contract until execution of the order, e.g. due to increases in wage or material costs, the Supplier shall be entitled to adjust the prices within the scope of the changed circumstances and without charging any additional profit.
4.5 If it is agreed that a contract is canceled, the stipulated price shall be due and payable immediately after deduction of the direct costs for the partial work still to be performed by the Supplier until the ordered parts are fully completed.
5. Retention of ownership
5.1 The Supplier shall retain title to all goods delivered by it until all claims arising from previous contracts have been paid in full. Claims also include receivables from checks and bills of exchange as well as receivables from current invoices. If, in connection with the payment, liability is established for the Supplier under a bill of exchange, the retention of title shall not expire until the Supplier’s claim under the bill of exchange is excluded.
5.2 The Supplier taking back the delivery item shall not constitute a withdrawal from the contract, unless the Supplier has expressly declared this.
5.3 The Purchaser may neither sell nor pledge the delivery item nor assign it as security. In the event of seizure or confiscation or other dispositions by third parties, the Supplier shall be notified of this without delay.
5.4 The Purchaser shall be entitled to dispose of the delivery item in the ordinary course of business, subject to revocation permissible for good cause. In the event of resale, the Purchaser hereby assigns to the Supplier all claims arising from the resale, in particular claims for payment but also other claims in connection with the sale, in the amount of the final invoice amount (including VAT). This shall apply regardless of whether the delivery item has been resold without or after processing.
The Purchaser shall be entitled to collect the assigned claims in trust until revoked by the Supplier for good cause. For good cause, the Supplier shall be entitled to notify the third-party debtors of the assignment of the claim also on behalf of the Purchaser. Upon notification of the assignment to the third-party debtor, the Purchaser’s right to collect shall expire. In the event of revocation of the right to collect, the Supplier may demand that the Purchaser informs the Supplier of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents, and informs the debtors of the assignment.
5.5 Processing and transformation of the delivery item by the Purchaser shall always be carried out for the Supplier. The Supplier shall be regarded as the manufacturer within the meaning of §950 of the German Civil Code (BGB) without any further obligation. If the delivery item is processed with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the value of the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the item delivered under reservation.
5.6 If the delivery item is mixed or blended with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in the ratio of the final invoice amount of the delivery item to the value of the other mixed or blended items at the time of mixing or blending. If the mixing or blending is carried out in such a way that the Purchaser’s item is to be regarded as the main item, it shall be regarded as agreed that the Purchaser transfers co-ownership to the Supplier on a pro rata basis. The Purchaser shall keep the sole ownership or the co-ownership for the Supplier.
5.7 The Supplier undertakes to release the securities to which it is entitled at the request of the Purchaser at the Supplier’s discretion, to the extent that their realizable value exceeds the claims to be secured by more than 20%.
5.8 The application for the opening of insolvency proceedings shall entitle the Supplier to withdraw from the contract and to demand the immediate return of the delivery item.
6.1 Delivery shall be made at the risk of the Purchaser even if, by way of exception, it has been agreed that the Supplier shall bear the freight costs. If the Supplier selects the mode of shipment, the route or the shipping person, it shall only be liable if it is guilty of gross negligence in making the relevant selection.
6.2 The delivery periods and dates stated by the Supplier are non-binding unless they have been agreed as binding. Even bindingly agreed dates are not fixed dates if they have not been expressly determined as such.
6.3 The delivery time results from the agreements of the contracting parties. Compliance with them by the Supplier presupposes that all commercial and technical questions between the contracting parties have been clarified and that the Purchaser has fulfilled all obligations incumbent upon it, such as providing the necessary official certificates or permits or making a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if the Supplier is responsible for the delay.
6.4 The Supplier shall not be responsible for delays in delivery and performance due to force majeure and events unforeseeable by the Supplier, and for which the Supplier is not responsible and which make delivery or performance significantly more difficult or impossible, even in the case of bindingly agreed deadlines and dates, and even if the Supplier is in default of delivery. The delivery time shall be extended accordingly.
6.5 The Purchaser may withdraw from the contract or claim damages in lieu of performance only if it has previously granted the Supplier a reasonable grace period with the threat of refusal.
6.6 If shipment is delayed for reasons for which the Purchaser is responsible, the costs incurred due to storage shall be charged to the Purchaser for each month after notification of readiness for shipment. In the case of storage at the Supplier’s factory, this shall be at least 0.5% of the invoice amount attributable to the stored parts. The Supplier is also entitled to store the delivery item outside its factory.
6.7 If the Supplier is in default and the Purchaser incurs damage as a result, the Purchaser shall be entitled to demand a lump-sum compensation for default. It amounts to 0.5% for each full week of delay, but in total not more than
5% of the value of that part of the total delivery that cannot be used on time or in accordance with the contract as a result of the delay.
If the Purchaser grants the Supplier a reasonable period of time for performance, considering the statutory exceptions, and if the period of time is not observed, the Purchaser shall be entitled to rescind the contract within the scope of the statutory provisions.
7. Transfer of risk
The risk shall pass to the Purchaser at the latest upon dispatch of the delivery parts ex works, even if carriage paid delivery and assembly have been agreed. However, if pricing is agreed for which Incoterms 1990, including the supplements valid at the time of the conclusion of the contract, provide for a different regulation of the passing of risk, this deviating regulation shall apply.
If shipment is delayed due to circumstances for which the Supplier is not responsible, the risk shall pass to the Purchaser on the date of readiness for shipment.
Any discrepancies arising from the shipment must be reported to the Supplier in writing immediately after receipt of the goods.
Partial deliveries are permissible insofar as they are reasonable for the Purchaser.
8. Material damage
8.1 The Purchaser is obliged to inspect each delivery immediately upon acceptance or receipt and to notify the Supplier of any defects, in writing and without delay. Hidden defects must be notified in writing immediately after their discovery. Otherwise, the delivery shall be regarded as approved.
8.2 In the event of a defect for which the Supplier is responsible, the Supplier shall be entitled to remedy the defect or to deliver a defect-free item at its discretion within a reasonable period of time. If the Supplier refuses subsequent performance or if subsequent performance is impossible, fails or is unreasonable for the Purchaser, the Purchaser may, at its option, rescind the contract or demand a reduction of the purchase price.
8.3 The Purchaser’s claims for defects shall become time-barred as follows from the date of delivery or, if acceptance is required, from the date of acceptance:
• Variable speed gear units / variable speed geared motors: 12 months in multi-shift operation
• Power transmission gear units / asynchronous geared motors / asynchronous motors and accessories:
36 months in single-shift operation or 18 months in multi-shift operation
• Servo gear units / servo gear units with brake / two-speed gearboxes / rack and pinion drives / synchronous servo geared motors / synchronous servomotors and accessories:
24 months in single-shift operation and 12 months in multi-shift operation
• Electronic products: 24 months in single-shift operation and 12 months in multi-shift operation
• Goods purchased by the Supplier itself: 12 months
• Replacement parts or replacement products: 12 months
8.4 Excluded from the above limitation periods are the cases mentioned in 10.1, cases of §438 (1) 2. BGB (buildings and objects for buildings) as well as claims in supplier recourse in case of final delivery to a consumer. For these cases, the statutory limitation periods shall apply in each case.
8.5 No warranty shall be assumed in particular in the following cases: unsuitable or improper use after the transfer of risk, faulty assembly including faulty installation of motors as well as commissioning and use of substitute materials by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, non-compliance with the Supplier’s terms and conditions for remote maintenance, unsuitable equipment, unsuitable operating conditions, in particular in the case of chemical, electrochemical or electrical/electromagnetic influences as well as in the case of weather or natural influences or excessively high ambient temperatures – unless the Supplier is responsible for them.
8.6 If the Purchaser or a third party carries out improper repairs, the Supplier shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of the Supplier.
8.7 Claims for damages arising from material defects shall be governed by Clause 10.
9. Defects of title
In the event that the delivery item infringes an industrial property right or copyright of a third party, the Supplier shall, at its discretion and at its expense, procure for the Purchaser the right to continue using the delivery item or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement of the industrial property right no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract. In addition, the Supplier shall indemnify the Purchaser against undisputed or legally established claims of the owners of the property rights concerned. Claims for damages arising from defects of title shall be governed by Clause 10.
10.1 The Supplier shall be liable without limitation
• in the event of intent or gross negligence,
• for fraudulently concealed defects,
• for injury to life, limb, or health,
• in accordance with the provisions of the Product Liability Act as well as
• in the case of defects for the absence of which it has accepted a guarantee.
10.2 The Supplier shall only be liable for simple negligence if it concerns the violation of essential contractual obligations that result from the nature of the contract or the violation of which endangers the achievement of the purpose of the contract. Even then, compensation for damages shall be limited to the foreseeable damage typical for the contract.
10.3 There shall be no further liability.
10.4 The above limitation of liability shall also apply to the personal liability of the Supplier’s employees, vicarious agents, bodies and representatives.
10.5 The provisions under 8.3 and 8.4 shall apply accordingly to the limitation period for claims for damages due to material defects.
10.6 The Supplier shall be free to raise the objection of contributory negligence. Contributory negligence shall exist in particular if the Supplier’s instructions, such as the terms and conditions for remote maintenance, are not observed.
11. Liability for defects during processing of sent-in parts
The Supplier shall not be liable for defects resulting from the behavior of the material during processing of parts sent in for cutting and heat treatment, grinding, etc. If sent-in parts become unusable due to material defects or other deficiencies during processing, the Supplier shall be reimbursed for the processing costs incurred. If workpieces become unusable due to circumstances for which the Supplier is responsible, the Supplier shall undertake the processing of similar replacement workpieces.
12. Call-off orders
Unless otherwise agreed, a period of 12 months from the date of the order confirmation shall be binding for both parties in the case of a call-off order. If the ordered quantity has not been accepted by the end of the 12 months, the Supplier shall grant a grace period of four weeks with prior notice. Unless otherwise agreed, the Purchaser shall be obliged to accept and pay for the parts not called off after expiry of the grace period. The Supplier shall also be entitled, after expiry of the grace period, to invoice the actual number of units purchased in accordance with its quantity discount scale, with subsequent debiting of the excessively granted discount.
13. Offsetting and retention
The Purchaser may only offset with an undisputed or legally established counterclaim. The Purchaser may only assert a right of retention if it is based on the same contractual relationship.
14. Ownership and copyright
All offer documents, drawings, cost estimates and the like shall remain the property of the Supplier and must be returned upon request. There shall be no right of retention for any reason whatsoever. The documents may not be made accessible to third parties.
15. Software usage
Insofar as software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
The Purchaser may only reproduce, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§69 a ff. UrhG, German Copyright Act). The Purchaser undertakes not to remove manufacturer’s details, in particular copyright notices, or to change them without the Supplier’s prior express consent.
All other rights to the software and the documentation, including copies, shall remain with the Supplier or the software supplier. The granting of sublicenses is not permitted.
16. Supplies provided [Beistellung durch Kunden]; goods inspection
16.1 The Purchaser shall deliver the provided goods no later than 14 days before the confirmed delivery date. The article designation, quantity and order number of the order for which the goods are provided must be clearly recognizable so that a clear assignment to the respective order confirmation is possible. Goods provided without labeling will be returned to the sender.
16.2 Goods provided shall be inspected upon receipt only for external damage to the packaging, carton, and the goods themselves. Any damage detected will be reported to the Purchaser within 10 working days.
16.3 Goods provided, in particular engines, shall not be painted.
16.4 If damage occurs during production to the goods provided by the Purchaser that is attributable to a breach of the aforementioned obligations, the Supplier shall not be liable for this. If the Supplier incurs damages as a result, the Purchaser shall compensate the Supplier for such damages.
16.5 The Supplier shall not check the interaction of goods provided, in particular engines and gear units. Only the interaction of the gear unit with a motor of the Supplier is checked. The Supplier shall not be liable for defective or incomplete supplies or for the interaction of the Purchaser’s supplies with the Supplier’s services/deliveries.
16.6 The Supplier shall not assume any warranty for goods provided.
17. Place of performance, place of jurisdiction, applicable law
17.1 The place of performance for delivery and payment for both parties shall be exclusively the registered office of the Supplier.
17.2 For both parties, the place of jurisdiction for all legal disputes arising from the contractual relationship as well as regarding its creation and effectiveness shall be, in the case of merchants, the court responsible for the registered office of the Supplier. The Supplier may, at its option, also bring an action at the Purchaser’s place of business.
17.3 German law shall apply to the contractual relationship. The International Contract for the International Sale of Goods (CISG) shall not apply.
As of: February 2017