General Terms and Conditions of Business of STOMMEL+VOOS Marking Technologies GmbH

§ 1 General terms and conditions

The following terms and conditions of these GTC apply to all transactions of STOMMEL + VOOS Marking Technologies GmbH. They also apply to future business relations, even if the GTC are not expressly agreed again. Deviating terms and conditions of the purchaser shall not be valid unless STOMMEL + VOOS Marking Technologies GmbH has expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if STOMMEL + VOOS Marking Technologies GmbH carries out deliveries to the purchaser without reservation in the knowledge of conflicting or deviating conditions of the purchaser. The aforementioned sentences 1 and 2 of this paragraph of the GTC shall also apply to the acceptance of partial deliveries.
No further agreements have been made between us and the customer and no promises have been made. 3. STOMMEL + VOOS Marking Technologies GmbH may have its affiliated companies enter into the contract with the purchaser in its place. In this case these General Terms and Conditions shall continue to apply in their entirety.

§ 2 Offers, Conclusion of Contract, Copyright

Our information and offers are subject to change without notice, i.e. they are not contract applications, but merely requests for the submission of contract applications on the part of the customer. They are non-binding unless expressly assured. With regard to the constant technical development and improvement of our products, we reserve the right to make changes in design and execution against the information given in our offers, provided that this does not impair the value of the products offered. This also applies to changes which serve to maintain the ability to deliver the products offered by us. In this respect, we are also entitled to make changes to the service to the extent that they are reasonable for the purchaser to be able to carry out the order in the best possible way.
Contracts are concluded by our order confirmation.
We reserve the right of ownership and copyright to all documents belonging to the offer and order; they may not be made accessible to third parties without our prior written consent and must be returned immediately upon request if the order is not placed. Development work and designs for the production of marking systems and equipment and other products shall remain our intellectual property and may not be made accessible to third parties or used for the purchaser’s own purposes. The customer is obliged to maintain comprehensive secrecy, even if no order is placed.

§ 3 Prices, terms of payment

Unless otherwise agreed, we shall be bound by the prices contained in our offers for 90 days from the date of the offer. The prices stated in the order confirmation plus the currently valid statutory value-added tax are decisive. Our prices apply ex company headquarters in Solingen excluding packaging and insurance. Packaging costs shall be charged at cost price. Installation, training or other ancillary services are not included.
Unless otherwise stated in the order confirmation, our invoices are payable 14 days after the invoice date without deduction. The deduction of a discount requires a special written agreement.
Cheques shall in any case only be accepted on account of performance. All actual collection charges will be charged to the customer.

§ 4 Default in payment, assignment of the claim, creditworthiness

If a fixed payment date or the 30-day payment period is exceeded, we shall be entitled to charge interest on arrears at a rate of 5% above the respective discount rate of the Deutsche Bundesbank, but at least 8% p.a. We expressly reserve the right to assert further claims for damages. We are entitled to assign the claims arising from our business relationship.
The assignment of claims against STOMMEL + VOOS Marking Technologies GmbH to third parties is excluded, unless STOMMEL + VOOS Marking Technologies GmbH has expressly agreed.
In the event of justified doubts about the creditworthiness of the purchaser, e.g. non-redemption of cheques and bills of exchange, suspension of payments, application for the opening of composition or bankruptcy proceedings, fruitless seizure, we are entitled to make the entire remaining debt due, even if we have accepted cheques. In this case, we shall also be entitled to demand advance payment or the provision of security.
The customer is only entitled to a right of retention if it is based on the same contractual relationship. The customer may only offset counterclaims which are either undisputed or have been legally established.

§ 5 Retention of title

The products shall remain the property of STOMMEL + VOOS Marking Technologies GmbH until all claims, bills of exchange and cheques have been paid in full and shall not be considered as payment until they have been honoured.
The customer must retain our ownership until full payment has been made. The pledging or transfer of ownership by way of security is forbidden to the customer in this respect. Resale is only permitted within the framework of a proper course of business. In the event of the resale of goods subject to retention of title, the customer hereby assigns to STOMMEL + VOOS Marking Technologies GmbH his purchase price claims against the purchaser in full.
Extended retention of title arises in commercial transactions for goods which are resold or handed over to third parties by the purchaser. The customer has to inform the third party about his payment obligation and about the existing retention of title of STOMMEL + VOOS Marking Technologies GmbH. The customer hereby assigns to STOMMEL + VOOS Marking Technologies GmbH the claims he is entitled to from the resale of the goods subject to retention of title against his customers with all ancillary rights, namely in the case of processing, combining and mixing to the amount of the value of the products delivered by STOMMEL + VOOS Marking Technologies GmbH.
For the duration of the retention of title, the equipment owned by STOMMEL + VOOS Marking Technologies GmbH shall be insured by the purchaser against fire, water, theft and burglary. The rights from this insurance are assigned to the company STOMMEL + VOOS Marking Technologies GmbH. The latter accepts the assignment.

§ 6 Transfer of risk, dispatch, freight

The risk shall pass to the customer as soon as the consignment has been handed over to the company carrying out the transport or has left our warehouse for the purpose of dispatch, even if freight-free delivery has been agreed. This shall also apply in the case of delivery with installation/assembly/commissioning. The risk shall also pass to the customer if he does not accept the ordered and already separated goods from us despite our willingness and ability to perform. If the shipment is delayed at the request of the customer despite existing readiness to perform and due date, the risk of the purchased goods shall pass to the customer. In addition, we are entitled to charge a monthly flat rate of 10% of the invoice amount as storage costs as damage caused by delay.
Shipment shall be at the expense of the customer. If no shipping instructions are given by the customer, the choice of the means of transport and route is left to us.
STOMMEL + VOOS Marking Technologies GmbH is entitled, but not obliged, to insure deliveries in the name and on account of the customer against transport risks.

§ 7 Delivery time, delivery periods

Agreed delivery periods only begin after complete clarification of all execution details and order confirmation by STOMMEL + VOOS Marking Technologies GmbH. Delivery periods are always understood to be exclusively transport times.
We are entitled to make partial deliveries and premature deliveries.
Delays in delivery and performance due to force majeure and due to circumstances and events which significantly complicate or prevent delivery shall release us from the obligation to deliver and shall not be our responsibility even in the case of bindingly agreed deadlines and dates. The same applies to non-delivery by an upstream supplier for which STOMMEL + VOOS Marking Technologies GmbH is not responsible. In these cases we are entitled, at our discretion, to postpone our deliveries and services with a corresponding delay plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the non-fulfilled part of the contract.
Force majeure is an extraordinary, unforeseeable and unavoidable event (e.g. natural disasters, war, revolution, fire), the consequences of which cannot be averted by economically reasonable precautions. This also includes strikes, lockouts and government interventions, insofar as these are unforeseeable or are not caused by actions or omissions attributable to the Supplier.
If our delay in delivery exceeds three months, the customer shall be entitled, after setting a reasonable period of grace and threatening to refuse performance, to withdraw from the unfulfilled part of the contract. The customer may not derive any further claims for damages from a delay in delivery if we have informed him immediately.
Proper and timely fulfilment of the customer’s obligations is a prerequisite for compliance with our delivery and service obligations. If the customer is in default of acceptance, he undertakes to reimburse the expenses incurred by us.
In the event of a breach of ancillary obligations, no liability shall be assumed in the event of slight negligence.

§ 8 Installation and assembly

The following provisions shall apply to any type of installation or assembly: The customer shall assume responsibility at his own expense and provide it in good time: Suitable skilled workers as assistants, as well as the tools required by them in the required quality and number.
All necessary preparatory and ancillary work (additional work) so that assembly can be started quickly and carried out without interruption.
All necessary equipment (electricity, compressed air, etc.) including the necessary connections up to the point of use.
If the installation, assembly or commissioning is delayed due to circumstances within the Purchaser’s sphere of risk, the Purchaser shall bear all costs for waiting time and further travel expenses of our assembly personnel.

§ 9 Warranty

We guarantee warranted properties and freedom from defects in accordance with the current state of the art. The warranty period begins with the transfer of risk and is 12 months for mechanical and electronic parts. Possible repair work does not set a new warranty period in motion. We reserve the right to make changes in the design or execution which do not impair the functionality or the value of the product ordered and which do not entitle the customer to make a complaint. The assurance of properties requires our written declaration or confirmation in any case.
If the delivered item lacks a warranted characteristic or if there is a defect in the product for which we are responsible which more than insignificantly impairs the value or usability, we shall be entitled, at our discretion, to rectify the defect or deliver a replacement.
If, at the Buyer’s request, warranty work is to be carried out at the Buyer’s place of performance and delivery address and we comply with this request, the Buyer shall bear the costs for travel time and travel expenses at our standard rates, while the parts and working hours covered by the warranty shall not be invoiced. Replaced parts shall be returned to us free of charge upon request.
Warranty obligations only come into force for STOMMEL + VOOS Marking Technologies GmbH if the customer has notified us in writing of recognizable defects within a period of 14 days after receipt of the products. Defects occurring later must be notified in writing immediately after discovery. This does not affect the duties of examination and notification of defects of § 377 HGB concerning merchants.
If our operating or maintenance instructions are not followed, changes are made to the product, parts are replaced or consumables are used which do not correspond to the original specifications, any warranty shall lapse. A warranty obligation for self-contained device systems exists only if these systems were delivered by us at the same time and completely (all parts). Commissioning of the machine part or parts is prohibited until all requirements of the EC Machinery Directive (EC 89/392) regarding safety and health have been fulfilled after installation in a main machine or after the necessary safety devices have been installed. Warranty claims of the purchaser do not exist if he himself or a third party makes changes to his operating procedures which go beyond the necessary adaptation of the delivery items without our written consent and the defect is based on these changes.
A warranty for optical elements and normal wear and tear is generally excluded.
Warranty claims against us are only due to the direct purchaser and are not transferable.
If we do not fulfil our warranty obligation within reasonably set periods for reasons for which we are responsible, the customer shall be entitled to withdraw from the contract or demand a reduction in the purchase price.
Further claims, in particular liability claims for consequential damages of any kind or claims for damages on any legal grounds whatsoever, do not exist and cannot be asserted by the customer.

§ 10 Warranty for software

We guarantee that the software essentially works in accordance with our program specifications, provided that the software is installed on the device systems provided by us in accordance with our guidelines. The warranty only applies to software defects that can be reproduced at any time. The warranty for software is limited to 6 months.
We undertake to remedy all defects which are not insignificant for the contractual use, but reserve the right, depending on the significance of the defect, to remedy the defect at our discretion either by installing an improved software version or by providing instructions on remedying or circumventing the defect.
If we make software and adaptation components (e.g. interfaces, etc.) available to the customer as third-party products, we shall not assume any warranty or liability for them. In this case, the limited license and warranty provisions of the respective manufacturer shall apply as supplementary agreements. The customer must be made aware of this use and warranty provision and must be given the opportunity to acquire knowledge of these provisions in a reasonable manner.
We do not guarantee that the software will work faultlessly in all combinations selected by the customer but not specified by us.
According to the current state of the art, it is possible that original diskettes of software manufacturers are also affected by so-called computer viruses. STOMMEL + VOOS Marking Technologies GmbH warrants that all necessary care will be taken to ensure that ordering devices are not infected with such computer viruses by STOMMEL + VOOS Marking Technologies GmbH. However, it is not possible to detect and fight all mutations of these viruses according to the current state of knowledge. However, if a computer virus has demonstrably been transmitted by STOMMEL + VOOS Marking Technologies GmbH to an ordering device, STOMMEL + VOOS Marking Technologies GmbH shall only be liable to the extent that it has spread the virus intentionally or through gross negligence. The customer releases STOMMEL + VOOS Marking Technologies GmbH from the obligation to check the original packaged software for viruses and releases it from any liability for damages caused by viruses in this software. The above exclusion of liability does not apply if the damage was caused intentionally or by gross negligence.

§ 11 Rights to software

The customer shall receive a non-exclusive and non-transferable right of use for the internal operation of each individual delivery for programs and associated documentation which belong to the appropriate use of our systems as well as updates/upgrades. The customer is not entitled to any further rights to programs and documentation.
STOMMEL + VOOS Marking Technologies GmbH remains the sole owner of the copyrights. The customer does not acquire ownership of the programs and is not entitled to reverse engineer, decompile or disassemble the software.
The customer shall not be permitted to make programs, documentation and any supplements supplied subsequently accessible to third parties, to copy or otherwise reproduce them without our prior written consent.
As a rule, source code is not made available; it is only made available on the basis of a separate written agreement.

§ 12 Limitation of liability

Further claims, in particular claims for damages from warranty including warranty claims in the absence of warranted characteristics, culpa in contrahendo, tort etc. are excluded, unless they are based on at least gross negligence of the legal representatives or executive employees of STOMMEL + VOOS Marking Technologies GmbH. If the purchaser is not a merchant within the meaning of the German Commercial Code (HGB), claims for damages are excluded unless they are based on intent or gross negligence on the part of STOMMEL + VOOS Marking Technologies GmbH or its vicarious agents. As far as STOMMEL + VOOS Marking Technologies GmbH has to pay damages, the obligation, as far as legally permissible, is limited to the compensation of the direct damage, which has arisen at the delivery and service object itself. In this respect, STOMMEL + VOOS Marking Technologies GmbH is not liable for loss of profit or other financial losses of the customer.

§ 13 Industrial property rights

If goods are to be manufactured or supplied according to specifications, drafts, drawings, models or samples provided by the customer, the customer shall guarantee that industrial property rights or copyrights are not infringed by the manufacture or supply. If the manufacture or delivery by third parties is prohibited with reference to an industrial property right or copyright, we shall cease manufacture or delivery. We are not obliged to review the legal situation. At the same time, we exclude claims for damages by the customer insofar as he is responsible for the infringement of the industrial property right or copyright.

§ 14 Compensation in the event of termination of contract

If a contract is cancelled for reasons for which the customer is responsible, he must pay STOMMEL + VOOS Marking Technologies GmbH a compensation of 25% of the net order value, irrespective of the possible assertion of a higher actual damage.

§ 15 Data protection and data storage

STOMMEL + VOOS Marking Technologies GmbH is entitled to process data from customers, regardless of whether these originate from the customer himself or from third parties, within the meaning of the Federal Data Protection Act and the EU Data Protection Basic Regulation. Customer data shall be stored in accordance with the statutory provisions.

§ 16 Place of jurisdiction, place of performance, applicable law

If the customer is a registered trader or legal entity under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of our company.
Place of performance for delivery and payment is our registered office in Solingen.
German law shall apply exclusively to all transactions between the contracting parties (excluding international sales law). The applicability of foreign law to the contractual relationship is excluded.

Severability clause

Should provisions of these General Terms and Conditions be or become invalid in whole or in part, they shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision. The remaining contractual provisions shall remain unaffected.

Alternative Streitbeilegung nach Art. 14 (1) ODR-VO und § 36 VSBG:

The European Commission provides a platform for online dispute resolution (OS), which you can find at https://ec.europa.eu/consumers/odr We are not obliged or prepared to participate in a dispute resolution procedure before a consumer arbitration body.

Status 07/2019