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

I. Validity/Offers

  1. These General Terms and Conditions of Business apply to all – including future – contracts with entrepreneurs, legal entities under public law and special funds under public law for deliveries, services and other services, including contracts for work, consultancy, proposals and other ancillary services, even if the General Terms and Conditions of Business are not expressly agreed again.  In the case of drop shipments, the terms and conditions of the price list of the commissioned supplier plant shall apply in addition. The buyer’s terms and conditions of purchase shall not be recognised even if we do not expressly object to them again after receipt. The company Stommel + Voos Marking Technologies GmbH may have its affiliated companies enter into the contract with the Buyer in its place.
  2. Our offers are subject to change without notice. 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. Verbal agreements, promises, assurances and guarantees made by our employees in connection with the conclusion of the contract shall only become binding upon our written confirmation. We reserve the right of ownership and copyright to all documents belonging to the order and offer; they may not be made accessible to third parties without our express written consent and must be returned immediately on request if the order is not placed. Development work and designs for the production of marking systems and equipment and other products remain our intellectual property and may not be made accessible to third parties or used by the purchaser for his own purposes. The purchaser is obliged to maintain comprehensive confidentiality. The customer shall receive a non-exclusive and non-transferable right of use for the internal operation of each individual delivery for programs or associated documentation belonging to the appropriate use of our systems as well as updates/upgrades. Further rights to programs and documentation and, if applicable, subsequently supplied supplements shall not be made accessible to third parties without our prior written consent, nor shall they be copied or otherwise reproduced, source code shall not normally be made available, the transfer shall only take place on the basis of a separate written agreement.
    Contracts are concluded by our order confirmations12
  3. In case of doubt, the Incoterms in their latest version shall be decisive for the interpretation of trade terms.
  4. “Buyer” in the sense of these terms and conditions is also the “purchaser” in the case of contracts for work and services.

II. Prices and terms of payment

  1. The prices are ex works or warehouse Solingen plus freight and value added tax.
  2. Unless otherwise agreed, the prices and conditions of our price list valid at the time of conclusion of the contract shall apply. The packaging costs are calculated at cost price. Installation, training or other additional services are not included in the price.
  3. If taxes or other external costs included in the agreed price change later than four weeks after conclusion of the contract, or if they arise anew, we are entitled to change the price to the corresponding extent.
  4. We reserve the right to increase the agreed price for quantities not yet delivered if, due to a change in the raw material and/or economic situation, circumstances arise which make the production and/or purchase of the product concerned significantly more expensive than at the time of the price agreements. In this case, the customer may cancel the orders affected by the price increase within four weeks of notification of the price increase.

III. Payment and offsetting, assignment of the claim, creditworthiness

  1. Unless otherwise agreed or stated in our invoices, the purchase price is due immediately after delivery without discount and is payable in such a way that we can dispose of the amount on the due date. Costs of payment transactions shall be borne by the purchaser. The buyer shall only be entitled to a right of retention and offsetting insofar as his counterclaims are undisputed or have been legally established.
  2. If the payment deadline is exceeded or in case of default, we charge interest at a rate of 8 percentage points above the base rate of the European Central Bank, unless higher interest rates have been agreed upon. We reserve the right to assert further damages caused by delay.
  3. The buyer is in default at the latest 10 days after the due date and receipt of the invoice/payment schedule or receipt of the service.
  4. We are entitled to assign the claims arising from our business relationship. The assignment of claims against the company STOMMEL + VOOS Marking Technologies GmbH to third parties is excluded, unless the company STOMMEL + VOOS Marking Technologies GmbH has expressly agreed to it.
  5. If, after conclusion of the contract, it becomes apparent that our payment claim is endangered by the buyer’s lack of ability to pay, we shall be entitled to the rights under § 321 BGB (German Civil Code) (plea of uncertainty). We shall then also be entitled to demand payment of all non-barred claims from the current business relationship with the buyer. In all other respects, the plea of uncertainty extends to all other outstanding deliveries and services from the business relationship with the purchaser.
  6. An agreed discount always refers only to the invoice value excluding freight and presupposes the complete settlement of all due liabilities of the buyer at the time of the discount.

IV. Execution of deliveries, delivery periods and dates

  1. Our delivery obligation is subject to correct and timely delivery to ourselves, unless we are responsible for the incorrect or late delivery to ourselves.
  2. Information on delivery times are approximate. Delivery periods shall commence on the date of our order confirmation and shall only apply subject to timely clarification of all details of the order and timely fulfilment of all obligations of the purchaser, such as provision of all official certificates, provision of letters of credit and guarantees or payment of down payments.
  3. The time of dispatch ex works or ex warehouse shall be decisive for compliance with delivery periods and dates. They shall be deemed to have been complied with upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of ours.
  4. Events of force majeure entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up time. This also applies if such events occur during an existing delay. Force majeure shall include currency, trade policy and other sovereign measures, strikes, lock-outs, operational disruptions for which we are not responsible (e.g. fire, machine or roller breakage, shortage of raw materials or energy), obstruction of transport routes, delays in import/customs clearance and all other circumstances which, through no fault of ours, make delivery significantly more difficult or impossible. It is irrelevant whether these circumstances occur with us, the supplier or a sub-supplier. If, due to the aforementioned events, the execution of the contract becomes unreasonable for one of the contracting parties, in particular if the execution of the contract is delayed in essential parts by more than 6 months, this party may declare the contract cancelled.

V. Retention of title

  1. All delivered goods remain our property (reserved goods) until all claims have been settled, in particular also the respective balance claims to which we are entitled within the scope of the business relationship (balance reservation) and the claims which are unilaterally established by the insolvency administrator by way of the choice of performance. This shall also apply to future and conditional claims, e.g. from acceptor’s bills of exchange, and also if payments are made on specially designated claims. This reservation of balance shall finally expire upon settlement of all claims still open at the time of payment and covered by this reservation of balance.
  2. Treatment and processing of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating us. If the purchaser processes, combines or mixes the goods subject to retention of title with other goods, we shall be entitled to co-ownership of the new product in proportion to the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the buyer shall already now transfer to us the ownership rights to which he is entitled to the new stock or object to the extent of the invoice value of the reserved goods and shall keep them in safe custody for us free of charge. Our co-ownership rights shall be deemed to be reserved goods within the meaning of No. 1.
  3. The buyer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions of business and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with nos. 4 to 6. He is not entitled to dispose of the reserved goods in any other way.
  4. The claims arising from the resale of the reserved goods, together with all securities which the buyer acquires for the claim, are already now assigned to us. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the claim from the resale is assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods sold. In the case of the sale of goods in which we have co-ownership shares according to No. 2, a part corresponding to our co-ownership share is assigned to us. If the reserved goods are used by the buyer to fulfil a contract for work and services, the claim from the contract for work and services is assigned to us in advance to the same extent.
  5. The buyer is entitled to collect claims from the resale. This collection authorisation shall expire in the event of our revocation, but at the latest in the event of default of payment, dishonour of a bill of exchange or application for the opening of insolvency proceedings. We shall only make use of our right of revocation if it becomes apparent after conclusion of the contract that our claim for payment from this or other contracts with the buyer is jeopardized by the buyer’s lack of ability to pay. At our request, the buyer is obliged to inform his customers immediately of the assignment to us and to provide us with the documents necessary for collection.
  6. An assignment of claims from the resale is not permitted, unless it is an assignment by way of real factoring, which is notified to us and in which the factoring proceeds exceed the value of our secured claim. With the crediting of the factoring proceeds, our claim becomes due immediately.
  7. The buyer must inform us immediately of any seizure or other impairments by third parties. The buyer shall bear all costs which must be incurred to remove the attachment or to return the reserved goods, unless they are reimbursed by third parties.
  8. If the buyer is in default of payment or if he does not honour a bill of exchange when due, we are entitled to take back the goods subject to retention of title and, if necessary, to enter the buyer’s premises for this purpose. The same shall apply if, after conclusion of the contract, it becomes apparent that our payment claim from this or other contracts with the buyer is jeopardised by the buyer’s lack of ability to pay. Taking back the goods does not constitute a withdrawal from the contract. Regulations of the Insolvency Code remain unaffected.
  9. If the invoice value of the existing securities exceeds the secured claims including ancillary claims (interest, costs or similar) by more than 50% in total, we are obliged to release securities of our choice at the request of the purchaser.

VI. Approvals

  1. If acceptance has been agreed, it can only take place in the supplying factory or our warehouse immediately after notification of readiness for acceptance. The personal acceptance costs shall be borne by the Buyer, the material acceptance costs shall be charged to him in accordance with our price list or the price list of the supplying factory.
  2. If the acceptance does not take place, not in time or not completely without our fault, we are entitled to dispatch the goods without acceptance or to store them at the expense and risk of the buyer and to charge him.

VII. Shipping, transfer of risk, packaging, partial deliveries

  1. We determine the dispatch route and means as well as the forwarding agent and carrier.
  2. If, through no fault of our own, transport on the intended route or to the intended place in the intended time becomes impossible or considerably more difficult, we shall be entitled to deliver on another route or to another place; the additional costs incurred shall be borne by the purchaser. The buyer shall be given the opportunity to comment beforehand.
  3. 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 carriage paid delivery has been agreed. This also applies to deliveries with installation/assembly/start-up. The risk shall also pass to the customer if he does not accept the ordered and already separated goods from us despite our readiness and ability to perform. If dispatch is delayed at the request of the customer despite our readiness to perform and due date, the risk in the purchased items 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.
  4. We are entitled to make partial deliveries to a reasonable extent. We are entitled to exceed or fall short of the agreed delivery quantities by a reasonable amount. The specification of an “approx.” quantity entitles us to exceed/undercut the agreed quantities and to invoice accordingly up to 10%.

VIII. Call orders

  1. In the case of call-off orders, goods reported as ready for dispatch must be called off immediately, otherwise we are entitled, after issuing a reminder, to dispatch them at the expense and risk of the purchaser at our discretion or to store them at our discretion and invoice them immediately.
  2. In the case of contracts with continuous delivery, call-offs and classification of types are to be given to us for approximately equal monthly quantities; otherwise we are entitled to make the provisions ourselves at our reasonable discretion.
  3. If the individual calls exceed the total contractual quantity, we are entitled but not obliged to deliver the additional quantity. We may invoice the excess quantity at the prices valid at the time of the call or delivery.

IX. Liability for material defects

  1. Material defects of the goods must be reported in writing without delay, at the latest seven days after delivery. Material defects which cannot be discovered within this period even with the most careful examination must be reported in writing immediately after discovery, at the latest before the expiry of the agreed or statutory period of limitation – with the immediate cessation of any processing or treatment. In the event of an insignificant reduction in the value or suitability of the goods, our liability for material defects is excluded. If goods have already been resold, processed or redesigned, the buyer shall only be entitled to the right to reduce the price.
  2. After execution of an agreed acceptance of the goods by the purchaser, the notification of material defects which were detectable during the agreed type of acceptance is excluded.
  3. In the event of a justified, timely notification of defects, we may, at our discretion, remedy the defect or deliver a defect-free item (subsequent performance). If subsequent performance fails or is refused, the buyer may reduce the purchase price or withdraw from the contract after setting and unsuccessful expiry of a reasonable period of time. If the defect is not substantial, he is only entitled to the right to reduce the purchase price.
  4. If the buyer does not immediately give us the opportunity to convince ourselves of the material defect, in particular if he does not immediately make the rejected goods or samples thereof available upon request, all rights due to the material defect shall lapse.
  5. In the case of goods which have been sold as declassified material – e.g. so-called IIa material – the buyer shall not be entitled to any rights arising from material defects with regard to the stated reasons for declassification and those which he usually has to expect. In the case of the sale of IIa material, our liability for material defects is excluded.
  6. We shall only assume expenses in connection with subsequent performance to the extent that they are reasonable in individual cases, in particular in relation to the purchase price of the goods, but in no case more than 150% of the value of the goods. Excluded are costs in connection with the installation and removal of the defective item, as well as costs incurred by the purchaser for the self-correction of a defect without the legal requirements being met. We shall not assume any expenses incurred because the goods sold have been taken to a place other than the buyer’s registered office or branch, unless this would be in accordance with their contractual use.
  7. Rights of recourse of the buyer according to § 478 BGB remain unaffected.
  8. We do not give a warranty for a specific purpose or a specific suitability of the goods, unless otherwise expressly agreed in writing; otherwise the risk of application and use lies exclusively with the buyer.

X. General limitation of liability

  1. We shall only be liable for breach of contractual and non-contractual obligations, in particular due to impossibility, default, culpa in contrahendo and tortious acts – also for our executives and other vicarious agents – in cases of intent and gross negligence, limited to the typical contractual damage foreseeable at the time the contract was concluded.
  2. These restrictions shall not apply in the case of culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is endangered, in cases of mandatory liability under the Product Liability Act, in the case of damage to life, body and health and also not if and insofar as we have fraudulently concealed defects of the item or guaranteed their absence. The rules on the burden of proof remain unaffected by this. 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 occurred on the object of delivery and service itself. In this respect the Stommel + Voos Marking Technologies GmbH shall not be liable for loss of profit or other financial losses of the customer.
  3. Unless otherwise agreed, contractual claims which the buyer has against us as a result of or in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods, unless they include compensation for physical injury or damage to health or typical, foreseeable damage or are based on intent or gross negligence on the part of the seller. This shall not affect our liability for intentional and grossly negligent breaches of duty or the limitation of statutory recourse claims. In cases of subsequent performance, the period of limitation shall not begin to run again.

XI. Place of performance, place of jurisdiction and applicable law

  1. The place of performance for our deliveries is the supplying factory in the case of ex works deliveries, and our warehouse in the case of other deliveries. Place of jurisdiction is Solingen,
  2. German law applies exclusively to all transactions between the contracting parties (excluding international sales law). The application of commercial law to the contractual relationship is excluded.

XII. Miscellaneous

  1. If a purchaser resident outside the Federal Republic of Germany (foreign customer) or his representative collects goods or transports or dispatches them abroad, the purchaser must provide us with the export certificate required for tax purposes. If this proof is not provided, the Buyer shall pay the value added tax on the invoice amount applicable to deliveries within the Federal Republic of Germany.
  2. In the case of deliveries from the Federal Republic of Germany to other EU member states, the purchaser must inform us of his VAT identification number under which he is taxed within the EU before delivery. Otherwise, he must pay for our deliveries, in addition to the agreed purchase price, the value added tax amount legally owed by us. For each tax-free intra-community delivery from the Federal Republic of Germany to another EU member state, the purchaser of the goods is obliged, in accordance with §§ 17a and 17c of the Value Added Tax Implementation Regulation, to provide us with proof of the actual arrival of the goods (confirmation of arrival). The proof is provided on a form provided by us. If this proof is not provided, the purchaser shall pay the VAT rate applicable to deliveries within the Federal Republic of Germany in relation to the previous (net) invoice amount.
  3. Should any provision of these General Terms and Conditions of Delivery and Payment be or become invalid, this shall not affect the validity of the remaining provisions.