Terms and conditions
General Terms and Conditions
For the exclusive use in commercial transactions with business persons, legal entities under public law or special funds under public law
General Sales, Delivery and Payment Terms and Conditions of >stockbig® Germany, a division of STOCK - B.I.G. GmbH
- 1 General information - scope of application
- Our supplies, services and offers are based exclusively on these General Terms and Conditions. They also apply to all future business relationships, even if they were not once more explicitly agreed upon. Any terms and conditions of our contractual partners are only effective to the extent that they do not contradict these General Terms and Conditions or are accepted in writing. Our General Terms and Conditions also apply if we execute the delivery to the customer without reservations in the knowledge that the customer's terms and conditions conflict with or deviate from our General Terms and Conditions. Counter confirmations on the part of the customer under reference to his conditions are hereby rejected. The following General Terms and Conditions are considered accepted at the latest upon receipt of our delivery by the customer, even if the customer has previously referred to his conditions.
- The following sections regulate these General Terms and Conditions between Contractor and Principal. In this context, STOCK – B.I.G. GmbH is the Contractor and the Principal is the customer of STOCK – B.I.G. GmbH.
- It is pointed out that supplemental/special general terms and conditions apply for other business divisions of STOCK – B.I.G. GmbH (e.g. leasing/maintenance and other services).
- Individual agreements with the Principal concluded in isolated cases (including subsidiary agreements, supplements and amendments) take precedence over these Sales and Delivery Terms and Conditions in any event. A written contract or our written confirmation is decisive for the content of such agreements.
- Legally relevant declarations and notifications to be issued to us by the Principal after the formation of a contract (e.g. deadlines, notices of defect, declarations of withdrawal or reductions) require the written form to be effective.
- These Sales and Delivery Terms and Conditions only apply to a business person, a legal entity under public law or a fund under public law in accordance with Section 310 (1) sentence 1 BGB (German Civil Code).
- 2 Offer and formation of contract
- Our offers – including in advertisements, brochures and other documents – are subject to change. Measurements, weights, illustrations and drawings as well as other documents associated with the offers are only a more detailed description of the subjects of the contract and do not constitute assurances/warranties, unless explicitly agreed upon in writing.
- Contracts are formed by written declarations of acceptance/order confirmations or the delivery/handover of the ordered goods or services. Verbal agreements or understandings shall not apply.
- We reserve proprietary rights and copyrights to drawings, calculations and other documents; these may not be made accessible to or transmitted to third parties without our express written consent.
- If we manufacture and deliver goods based on drawings, models, samples, manufacturing instructions and/or other order documents provided to us by the Principal, the Principal guarantees that the manufacturing and delivery of the ordered goods does not violate industrial property rights and copyrights. If, contrary to sentence 1, such third-party rights are violated, the Principal has to exempt us from third party claims without undue delay.
- 3 Scope of delivery obligation
- The written agreement or our written order confirmation is decisive for the scope of the delivery.
- Our specifications regarding the delivery item are not guaranteed quality features, but rather descriptions or characteristics of the delivery. We reserve the right to minor deviations due to production-related reasons or technical improvements or customary deviations, which do not limit the contractually agreed-on utilization and which is reasonable for the customer.
- 4 Prices and payment conditions
- Prices apply ex warehouse/works of the Contractor. All prices specified in the price list are subject to change and non-binding. Statutory sales tax is not included in the prices; it is specified in the invoice in its legal amount on the day of invoicing. Ex-works/warehouse prices do not include packaging and transport or shipping costs.
- The price is due and payable immediately without deductions, unless otherwise confirmed in our offer/order confirmation. The statutory regulations regarding the consequences of default of payment apply.
- The Contractor is only entitled to offsetting or right of retention if his claim is established as final and absolute or uncontested. Rights of retention apply only to the extent that they are based on the same contractual relationship.
- In the event of noncompliance with the payment deadlines, or if it becomes obvious after the conclusion of the agreement that our claims are jeopardized due to the Principal's lack of ability to perform, we are entitled to render all claims against the Principal due and payable immediately. Furthermore, we are entitled to refuse performance and – if applicable after granting a grace period – to withdraw from the agreement. Statutory regulations regarding the dispensability of granting a grace period and setting a final deadline remain unaffected.
One reason to assume the Principal's lack of creditworthiness particularly exists if insolvency proceedings are requested/initiated or declined due to lack of assets or if the Principal is in default with two consecutive installments or a significant part of the due installment in the event that installment payments have been agreed on.
- Default interest is calculated at 10% above the respective base interest rate. This does not exclude the assertion of greater damages.
- The Purchaser's authorization to assign claims and particularly demands from this Agreement to third parties or to authorize third parties to collect demands or assert claims from this Agreement is excluded; however, this does not apply to the assertion of monetary claims.
- 5 Delivery time
- The delivery time is based on the agreements between the Parties. Their compliance implies that all commercial and technical issues between the Parties were clarified and that the Principal has fulfilled all obligations on his part, such as the procurement of required certificates or permits or the payment of a deposit upon the conclusion of the respective agreement. If this is not the case, the delivery time is extended appropriately. This does not apply if we are responsible for the delay.
- The delivery time is extended proportionally if the noncompliance with the delivery deadline is attributed to force majeure, industrial disputes or other events outside of our sphere of influence. We shall inform the customer immediately of any emerging delays as a result of these events.
- The delivery period is deemed to be complied with once the delivery item has left the Contractor's warehouse or the manufacturer's workshop and/or if the Principal was informed of the readiness for dispatch/collection.
- If the Principal is in default of acceptance or violates other obligations to participate, we are entitled to demand compensation for incurred damages, including any additional expenses. Further claims or rights remain reserved. In the event of default of acceptance, the risk of accidental destruction or accidental deterioration of the item is transferred to the Principal at the time he enters into default of acceptance or debtor's default.
Upon the expiration of a futile period of grace, the Contractor is entitled to otherwise dispose over the delivery item and supply the Principal anew with an appropriate extension of the time limit; compensation claims of the Principal are excluded in this case.
- Partial deliveries are admissible if they are feasible for the Principal and unless otherwise agreed.
- If the delay in delivery is attributed to an intentional or grossly negligent breach of contract by the Contractor, he is liable in accordance with statutory regulations. In the event of a grossly negligent breach of contract, the liability for compensation is limited to the foreseeable, typical damage that might have occurred, whereby a change in the burden of proof at the detriment of the Principal is not associated with this provision.
If the delay in delivery is the fault of the Contractor, his liability is limited to compensation of 0.5% for each completed week of delay, however to a maximum of 5% of the price for the part of the delivery which is not usable due to the delay.
- 6 Transfer of risk and acceptance of delivery item
- The risk of accidental destruction and accidental deterioration of the goods is transferred to the Principal upon provision of the goods for transport ex works/warehouse at the latest. In the case of a dispatch sale (sale involving the carriage of goods), the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay is transferred to the forwarding agent, the carrier, or other persons or institutions commissioned with the execution of the dispatch at the time the goods are handed over.
- Unless otherwise agreed, the Contractor is entitled to determine the type of dispatch (particularly also the transport company, packaging) according to reasonable discretion.
- In the case of a dispatch sale (sale involving the carriage of goods), the Principal is responsible for the transport costs ex work and the costs of transport insurance if requested by the Principal. The Principal is also responsible for other costs associated with the dispatch (fees, customs, taxes or other levies).
- The dispatch occurs principally uninsured. The freight is only insured by the Contractor as far as possible upon explicit agreement at the expense of the Principal.
- If the Contractor unloads the goods in accordance with a respective agreement, the Contractor shall charge for waiting times of more than 20 minutes, if the delays are due to the Principal. Unloading by crane occurs at the risk of the Contractor and has to be agreed on separately.
- Transport and all other packaging are non-returnable. The Principal is obligated to ensure the disposal of the packaging at his expense.
Costs for Euro pallets, wire crates, etc. can be credited if the Principal returns them in reusable condition at his expense.
- 7 Reservation of title / extended reservation of title
- Until full payment of all claims based on the business relationships between the Contractor and the Principal, the goods remain the property of the Contractor. The suspension of individual claims of a current account as well as account balancing and their recognition do not affect the reservation of title/extended reservation of title. Payment shall only be deemed to have been made upon receipt of the equivalent value by the Contractor.
- If the value of the items supplied to the Contractor as security and subject to reservation of title exceeds the Contractor's total claims by more than 20%, the Contractor is obligated to (proportionately) release the securities at the Principal's request. The Contractor is at liberty to select the securities to be released.
- The Principal may neither pledge the delivery item nor offer the item as security prior to payment. The Principal is obligated to secure the Contractor's rights in the case of onselling, installation, intermingling, etc. of reserved goods for credit.
In the case of levies of execution, seizures or other third party interventions, the Principal has to notify us immediately and provide us with all information and documentation necessary to protect the Contractor's rights. Bailiffs and/or third parties have to be notified of the Contractor's property. If the third party is not able to reimburse us for the judicial and extrajudicial costs for filing an action in accordance with Section 771 ZPO (German Code of Civil Procedure), the Principal is liable for the damages we incurred.
- The securities provided for the Contractor also include the liabilities which are unilaterally established by the liquidator by way of the choice of satisfaction in the event of the Principal's insolvency.
- If the Principal pays the purchase price by issuing bills of exchange/checks, payment is considered on account of performance and the reservation of title with regard to this partial claim shall only terminate upon due redemption. The reservation of title is renewed after the settlement of a claim and the establishment of a new liability of the Principal vis-à-vis the Contractor.
- In the event of the Principal's conduct contrary to the contract, particularly in the case of default of payment, the Contractor is entitled to retrieve the goods following the granting of an appropriate grace period. The retrieval of the goods by the Contractor does not constitute a withdrawal from the agreement. Upon retrieval of the goods, the Contractor is entitled to their utilization; the revenue from the utilization is to be offset against the Principal's obligations less any reasonable utilization expenses.
The Principal is obligated to provide the Contractor with any necessary information regarding the whereabouts of the goods. He shall grant the Contractor unrestricted access to the goods and their collection; all associated costs shall be borne by the Principal.
- Upon demand, the Principal is obligated to submit a complete list of his debtors at the end of each quarter.
- The Principal is entitled to onsell the delivered goods in the course of proper business; however, he herewith assigns to the Contractor all claims in the amount of the price negotiated between the Parties, including sales tax, which he accrues from his purchasers or third parties based on the on-selling, regardless whether the delivered goods are onsold with or without processing. The Contractor hereby accepts the assignation.
The Principal is also entitled to collect the claim after the assignation as long as he properly complies with the obligations vis-à-vis the Contractor. The Contractor's authorization to collect the claim himself remains unaffected. Upon demand by the Contractor, the Principal has to provide all information necessary for the collection, supply all associated documentation and inform third parties of the assignation.
- The issues regulated in No. 8 also apply in the event that the delivery items are leased under reservation of title.
- For the duration of the Contractor's reservation of title rights, the Principal is obligated to maintain the goods in a proper, technically fully functional condition. He is furthermore obligated to bear the risks of damage/destruction/theft of the goods and to insure the goods accordingly. Upon demand, he has to verify this to the Contractor. The Principal herewith assigns any performance entitlements against the insurance provider in connection with the goods supplied by the Contractor to the Contractor, who accepts this assignation. If the assignation is inadmissible in accordance with the content of the policy conditions, the Principal grants the Contractor the irrevocable direct debit authorization and instructs his insurance provider to pay the performance amount directly to the Contractor. This also applies for claims with respect to the liable parties or other third parties liable for damages, if these claims were not transferred to the insurance.
- If the delivery items are processed with other goods not belonging to the Contractor, the Contractor acquires co-ownership of the new object in proportion to the value of the delivered goods in relation to the other processed objects at the time of processing. As to the rest, the same conditions apply for the items created by the processing as in the case of goods delivered under reservation. This also applies if the delivery items are intermingled with or connected to other objects. To secure our claims against the Principal, the Principal also assigns to the Contractor any claims against a third party that arise from the intermingling of the merchandise with a property.
- The Principal is obligated to inform the Contractor immediately in the event of suspension of payment/application or initiation of insolvency proceedings, surrender the reserved goods without undue delay, omit the collection of all claims and irrevocably transmit any still incoming amounts to the Contractor. The authorizations granted by the Contractor to sell/utilize or otherwise use the granted authorizations expire with immediate effect.
- 8 Rights arising from defects and liability
- The delivery items are free from material defects if they are in the agree-upon condition in accordance with Section 3 of this Agreement at the time of transfer of risk. Any warranty extending beyond the warranty for this Agreement regarding the condition for a certain intended use or certain suitability, duration of use or shelf life after the transfer of risk is only assumed in as far as explicitly agreed upon in writing. Customary deviations of the delivery items are not considered defects.
- The Principal's warranty claims imply that he has complied with his statutory inspection obligations and requirement to give notice of defects (Sections 377, 381 HGB (German Commercial Code)). The delivered items have to be inspected immediately. Defects have to be reported in writing and without undue delay, however at the latest within a period of five days. In the event of obvious defects, the notice period commences with the delivery, in case of hidden defects upon discovery of the defect. This also applies to quantity differences or incorrect deliveries. If the Principal fails to properly inspect the goods or report the defect, the Contractor's liability for defects not reported is excluded.
- The Contractor's liability for the costs of uninstalling or dismantling the defective delivery items and costs for the installation of defect-free material in the event of installation or affixing of the delivered items into/to another item is excluded.
- If the merchandise exhibits a defect, the Principal is entitled, at his discretion, to subsequent fulfilment in the form of remedy of the defect or delivery of a new defect-free item. The Contractor is entitled to decline subsequent fulfilment if it is associated with unreasonably or disproportionately high costs. If the Principal's demand for remedy of defect is apparently unjustified, the Contractor is entitled to demand repayment of the incurred costs from the Principal.
- If the subsequent fulfilment fails, the Principal – regardless of any compensation claims – is entitled to withdraw from the contract or demand a reduction of the purchase price, at his discretion.
- The Principal is obligated to grant the Contractor the time and opportunity necessary to perform the due subsequent fulfilment, particularly to provide the rejected goods for examination purposes; otherwise, the Contractor is exempt from liability for any resulting consequences. In the event of a replacement delivery, the Principal is obligated to return the defect item to the Contractor.
Only in urgent cases and e.g. in case of a threat to operational safety and to prevent disproportionate damages, the Principal is entitled to remedy the defect himself and demand compensation for the objectively required expenditures from the Contractor. The Principal is obligated to inform the Contractor immediately of, if possible prior to, such a self-remedy. The right of self-remedy is excluded if the Contractor would be entitled to refuse a respective subsequent fulfilment according to statutory regulations. The right to withdrawal does not exist in case of an insignificant defect.
- If the Principal or a third party makes any improper modifications or changes, these and any resulting consequences are also excluded from warranty claims.
- In any event, the Contractor is entitled to render his warranty obligations subject to whether an appropriate part of the agreed-on remuneration proportionate to the extent and severity of the defect has already been paid.
- In as far as the Principal asserts compensation claims, the Contractor is liable, in accordance with the statutory regulations, in the event of intent or gross negligence on the part of the Contractor or his vicarious agents. In case of a lack of intentional violation of contract, the liability for compensation is limited to the foreseeable damage typical for this type of contract. This also applies if the Principal is entitled to compensation of the damage instead of the performance.
The liability based on culpable injury to life, body or health remains unaffected.
- A change of the onus of proof to the disadvantage of the Principal is not associated with the above regulations.
- Compensation claims are excluded in case of mere insignificant deviations from the agreed-on condition or delivery amount, unsuitable or improper use, incorrect installation and/or start-up by the Principal or third parties, natural wear, usage of unsuitable fuel, operating supplies, equipment and substitute materials, excess load, disregard of maintenance and operating instructions, or defects based on special external impacts which are not provided for in the agreement.
- Used items are sold as inspected and excluding any warranty.
- All claims of the Principal expire in 12 months. This also applies for claims for the compensation of expenditures according to Section 445 a BGB (German Civil Code).
- 9 Choice of law and place of jurisdiction
- The laws of the Federal Republic of Germany apply; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- Exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is Ahrensburg, Germany; however, the Contractor is entitled to also sue the Principal at his general place of jurisdiction.
A division of STOCK – B.I.G. GmbH
22962 Siek, Germany
Version: September 2019