General Conditions of Business of the Stolzenberg GmbH & Co. KG

  1. Retention of title
    1. All delivered goods remain the property of Stolzenberg up to complete payment of all outstanding claims from the business relationship with the customer including all current account balance claims. Insofar as the value of all security interests that accrue to Stolzenberg according to this clause exceeds all secured claims by more than 20%, then, at the wish of the customer, Stolzenberg will release a corresponding part of the security rights.
    2. The customer is entitled to process and sell the retained goods in ordinary business traffic as long as he does not fall into arrears. Pledging or assignment as security are not permitted. The claims from resale or due any other legal reason (insurance, not-permitted handling) regarding the retained goods are ceded already now to Stolzenberg for safety. This assumes assignment Stolzenberg authorizes the customer to irrevocably collect the assigned claims for their account and in his own name. The collection authorization can only be recalled if the customer does not meet his payment obligations properly.
    3. In the case of access by third parties to the retained goods, the customer will point out the ownership of Stolzenberg and inform them immediately.
    4. In the case of breach of contract behaviour by the customer, especially in the case of arrears of payment, Stolzenberg is entitled to take the goods subject to retention back. The customer is obligated to the return In the return or enforcement of the ownership right or pledging of the delivered goods by Stolzenberg, there is no retirement from the contract unless this has been explicitly announced. Stolzenberg is entitled after earlier threat to sell the returned goods and to retain for itself the amount of the open claims.
    5. In deliveries outside the Federal Republic of Germany for which the above security rights cannot be effectively agreed to, there applies that for all open claims from the business relationship between the customer and Stolzenberg those tangible security rights are agreed that are nearest to the meaning of the above security rights and are permissible and possible according to the respective legal system.
  2. Guarantees
    1. Stolzenberg guarantees the freedom from defects of the delivered products for a warranty period of 12 months. The short period of limitations does not apply insofar as Stolzenberg is accused of malice or gross negligence, claims for product liability or assignable injury to life, body or health has occurred. A liability for normal wear as well as damage due to improper or unprofessional use is excluded.
    2. For defects of the goods Stolzenberg will provide at its own choice warranty by means of improvement or replacement delivery (supplementary performance).
    3. If the supplementary performance is ineffective, then the customer, at his choice can demand decrease of payment (reduction) or rescission of the contract (retirement). However, if it is a case of a minor infringement of the contact, especially of a minor defect, then the customer has no right of retirement.
    4. Obvious defects of the goods are to be notified in writing at the latest within a period of a week after receiving the goods. It this notification is not forthcoming, then the enforcement of guarantee claims are excluded. The customer is required to provide full proof as regards all claim conditions, especially with reference to the defect itself, for the determination of the time of the defect as well as for the timely notice of defects.
    5. In the case that the customer, due to a legal or technical defect after unsuccessful supplementary performance selects to retire from the contract, then he has no damage claim due for this defect. In the case that the customer, after unsuccessful supplementary performance, selects claims for damages, then the delivered goods remain with the customer as far as this is reasonable. The claim for damages is limited in this case to the difference between the purchase price and the value of the defective case. Especially claims for damages for loss of profits as well as results from the defects are excluded. This does not apply if the infringement of the contract is due to malice of gross negligence by Stolzenberg or body and health damage or death has occurred.
    6. If operating or servicing instructions have not been followed, changes to the product have taken place, parts have been exchanged or consumables used that do not correspond to the original specifications, then every guarantee is nullified, if the customer does not provide a substantiated refutation that the defect has been caused by these circumstances.
    7. For the case that the customer receives a defective installation instruction, then Stolzenberg is obligated only for the supply of a proper installation instruction. Also this obligation exists only when the defect of the installation instruction is not conductive to a proper installation.
  3. Transfer of risk and acceptance
    1. Unless otherwise agreed upon, the delivery is “Ex works” (EXW/works Georgsmarienhütte according to Incoterms). This applies for part deliveries as well as part performance carried out by Stolzenberg insofar as Stolzenberg is entitled to part performance and part deliveries. The risk passes to the customer as soon as the goods have been handed to the person undertaking the transport, or in case of dispatch, has left the Stolzenberg stores.
    2. If the good are ready for dispatch and the dispatch is delayed at the customer’s request or for reasons that are attributed to the customer, then the risk passes to the customer with the notification of readiness to dispatch.
    3. If the customer does not accept the goods after notification of readiness to dispatch or if he is in arrears with the fulfilment of other obligations under the contract, then Stolzenberg after setting a reasonable deadline with refusal threats, is entitled to demand damage for non-fulfilment and to withdraw from the contract. Insofar it can demand the actual damage caused or a fixed amount in the sum of 15% of the invoiced amount if the customer does not prove lesser damage.
  4. Price and payment
    1. Unless otherwise agreed to, the prices are ex works excluding packing, loading transport and possibly customs duties in Euro. Value Added Tax is added to the prices at the currently legal level. The determination in §4 apply as regards the extra performance costs. For the case that the delivery occurs more than 4 months after the closing of the contract, then the prices ruling on the day of dispatch will be charged.
    2. An agreed to discount is impermissible for new invoices when older due invoices remain unpaid.
    3. In the case of several due receivables, Stolzenberg retains the right to use a payment, instalment payment or pre-payment of the customer first for the repayment of the debt, which provides the lowest security under several equally secure repayments of the older debt und balancing of comparable repayment.
    4. The customer only has a right for offsetting when his counter-claims have been legally confirmed or are ready for a decision or are recognized by Stolzenberg. The customer can activate his right of retention when his counter-claim refers to the same contract relationship.
    5. Stolzenberg reserves the right, on becoming aware of circumstances which are liable to reduce the creditworthiness of the customer, especially for violation of payment conditions, to make its claims already before the payment date falls due, to stop further deliveries, to set a deadline for claims and advance payment and, after the end of the deadline to retire from the contract in part or in whole. Arrears occurs for non performance despite reminder. During the arrears the customer is obligated to pay interest on the money owed in the amount of 9% points above the basic rate of interest. The proof and the enforcement of a higher arrears damage remains reserved.
    6. Exchange, cheques and other securities are accepted for payment only after previous written agreement. The customer is required to immediately pay all costs involved in the acceptance (e.g. collection and discount charges). The period of exchange is limited to 90 days from the date of invoicing. A discount for exchange payment is excluded.
  5.  General
    1. These General Conditions of Business are applicable to all current and future business relationships. This also applies in the case when Stolzenberg does not draw the customers attention to the General Conditions of Business in follow-up businesses. in no case are the General Conditions of Business of the customer contents of a contract. This also applies in the knowledge or if Stolzenberg does not explicitly contradicts this again unless the applicability is explicitly agreed to in writing.
    2. These General Conditions of Business do not apply when the customer is a user in the sense of § 13 BGB [German Civil Code].
    3. The currently valid version of Incoterms apply in the case of doubt in the meaning of trading clauses .
  6. Offer and closing of a contract
    1. Offers are always non-binding. Technical changes as well as changes in shape, colour and/or weight remain reserved within the scope of reasonableness. Pictures, drawings, dimensions, weights and other performance data are only binding when they have been explicitly agreed to in writing. Stolzenberg retains the ownership and copyright to price proposals, drawings and other documentation. This documentation may not be made accessible to third parties without explicit written agreement.
    2. The contract attains validity with the written order confirmation by Stolzenberg or failing that with the implementation of the contract.
    3. All supplements, changes or subsidiary agreements of the contract require a written confirmation in order to become valid. Stolzenberg sales employees are not entitled to make subsidiary agreements or to provide assurances that apply beyond the content of the written agreement.
    4. If an order by the customer is to be qualified as order according to § 145 BGB then Stolzenberg can accept this within 2 weeks after receipt of the order at Stolzenberg.
  7. Payment and dispatch
    1. Packing is charged separately. Basically Stolzenberg makes use of boxes, containers and palettes possibly with shrink film. Wooden boxes are provided only at extra request.
    2. The costs of insurance, packing, dispatch, payments traffic and customs duties are charged separately to the customer. In this Stolzenberg can charge either a fixed amount or the effective costs. The fixed amount is 5% of the invoiced amount. The customer is entitled to make Stolzenberg aware of lower costs.
    3. In the case that the dispatch or the acceptance is delayed due to the action of the customer, then he is required to pay for the costs caused by the delay. Stolzenberg has the choice of charging either a fixed amount or the effective costs. The fixed amount is 0.5% of the invoiced amount for each started month. The fixed amount is limited to 5% of the invoiced amount. The customer is entitled to prove lower costs. After the fruitless expiration of a reasonable period, Stolzenberg is further entitled to dispose of the goods in another manner and to deliver to the customer with a reasonable longer period of delivery.
  8. Delivery times
    1. The delivery times are according to the contractual agreement. Binding delivery times or deadlines require the written confirmation by Stolzenberg to be effective. Adherence to the delivery deadline presupposes that the customer fulfils his contractual obligations. If this is not the case, then the delivery time is extended accordingly, unless the responsibility for this is with Stolzenberg.
    2. The observance of the delivery time is under the condition of proper and timely self-delivery insofar as Stolzenberg has not contributed purposely or due to gross negligence to the incorrect or not timely self-delivery. This only applies for the case that the non-delivery is not the responsibility of Stolzenberg, especially in the closing of a congruent cover business with its supplier. Stolzenberg will immediately inform the customer on the non-availability of the performances. A counter-performance will immediately be paid back.
    3. Delivery times of deadlines are postponed or extended accordingly in the case that Stolzenberg, due to Force Majeure, work disputes or circumstances beyond the control of Stolzenberg is hampered in the implementation of its performances. This applies also if corresponding circumstances occur in their suppliers. Stolzenberg accepts no liability for damage caused by this. If the delay lasts more than 3 months then the customer, after setting a reasonable further time period, is entitled to withdraw from the non-fulfilled part of his contract.
    4. In the case that the customer suffers damage due to a delay caused by Stolzenberg, then the legal regulations apply. If Stolzenberg is required to pay damage due to this, then it is limited to the assumed damage at the time of the closing of the contract. For every full week of the delay this is 0.5%, but at the most 5% of the value of that part of the overall delivery that could be used in that time or according to the contract due to the delay. Further claims are excluded. The abovementioned limitations do not apply in the case that Stolzenberg is responsible for deliberate and gross negligence. Unless this is atypical and unforeseeable damage. The liability for guilty injury to body or life or health as well as important contractual obligations remains untouched by the abovementioned limitations. This applies also to the mandatory liability according to the product law.
    5. Stolzenberg is entitled to part delivery and part performance at any time unless the part-fulfilment of the contract is not of interest to the customer. Delivered goods must b accepted by the customer even if they contain unimportant errors
  9. Liability
    1. Claims for damages, for whatever legal reasons, for light negligent damage of unimportant contractual obligations are excluded. This applies also for light negligent obligations of representatives or fulfilment or vicarious agents of Stolzenberg.       Anything different applies only insofar as light negligent damage concerns important contractual obligations or body and health damage or death has occurred.
    2. Claims by the customer for product liability and other claims of produced liability remain untouched.
    3. The liability is limited to foreseeable damage.
    4. Claims for damage by the customer due to defects lapse a year after the delivery of the goods. Anything different applies only insofar as Stolzenberg can be accused of malice or gross negligent damage or body and health damage or death has occurred
  10. final determination
    1. The law of the Federal Republic of Germany applies exclusively. The applicability of UN sale of goods is explicitly excluded also for the case that an application in the General Conditions of Business of the customer is provided for.
    2. Insofar as the customer is a trader, legal person of the public body or public legal special entity, the exclusive place of jurisdiction for all disagreements from this contract is the main premises of Stolzenberg The same applies when the customer has no legal jurisdiction in Germany, or the premises or the normal abode at the time of the filing of action is unknown. However, Stolzenberg is entitled to take action against the customer at the place of his business premises or his business affiliate.
    3. The place of fulfilment for all obligations from the business relationship is Georgsmarienhütte
    4. In the case that individual determinations of the contract including these General Conditions of Business are, or will be ineffective in whole or in part it will not affect the validity of the remaining determinations. The whole or part regulation is to be replaced with a regulation whose commercial success comes as near as possible to the ineffective one.

Stolzenberg GmbH & Co. KG