I. Applicable Conditions und Scope of Application
The following terms and conditions shall apply exclusively to all deliveries and services of STENFLEX® unless otherwise expressly agreed in writing. Any terms and conditions of the Customer shall only apply if and insofar as STENFLEX® expressly recognises them in writing.
II. Conclusion and contents of the contract
- The offers of STENFLEX® are always subject to change, unless STENFLEX® states a binding period of validity. A contract shall only come about if STENFLEX® expressly confirms the Customer’s order in writing. The content of the contract is governed by the order confirmation of STENFLEX®. Verbal declarations are unbinding in each case.
- The details and information contained in the valid product catalogues and price lists of STENFLEX® are only binding provided the contract expressly refers thereto. All details with respect to the products of STENFLEX®, in particular, the diagrams, drawings, quality, volume, weight, measurement and performance data contained in the offers and publications of STENFLEX®, only indicate approximate values and are not quality descriptions. The right to make any necessary technical changes is reserved. Provided no limits have been set for permissible deviations in the order confirmation and no limits for permissible deviations are stated in expressly recognised customer specifications, deviations which are customary in the trade are allowed in each case. The quality, suitability, qualification and function as well as the application of the goods of STENFLEX® is determined exclusively according to the performance specifications and technical qualifications of STENFLEX®. Public statements, sales talk or advertising by STENFLEX® or third parties do not constitute a quality description of the goods.
- Guarantees with regard to the quality or durability of the goods of STENFLEX® must be expressly labelled as such in the order confirmation. In the case of the delivery of samples or specimens their quality is not deemed guaranteed unless otherwise expressly determined in the order confirmation. The same applies to details of analyses.
- Goods shall be invoiced at the price stated in the order confirmation excluding packaging. Should any changes have occurred with respect to VAT, prices of materials, wages, freight or other cost factors which cannot be influenced by STENFLEX® between the date of the order confirmation and dispatch ex works, STENFLEX® shall reserve the right to adjust the price accordingly.
- The prices are “ex works” from the Norderstedt factory in accordance with Incoterms 2000. All forwarding costs must be borne by the Customer unless otherwise agreed in writing. The freight rates, customs tariffs and other charges incurred during dispatch which are valid on the date of delivery shall apply.
- The Customer shall neither be entitled to set off claims from STENFLEX® against counterclaims or to assert the right of retention, unless the counterclaims or the right of retention have been recognised in writing by STENFLEX® or have become res judicata nor to assign claims from this contract to third parties without the written consent of STENFLEX®.
- The purchase price is payable within 30 days after the invoice date. The Customer shall be in default upon expiry of this time period. Should payment deadlines be exceeded, STENFLEX® shall charge interest in the amount of 8 percentage points above the respective base rate p.a., further statutory rights remain unaffected.
- The claims of STENFLEX® shall be due immediately irrespective of the term of bills of exchange received as conditional payment if contractual agreements are not adhered to by the Customer. In the event of payment default, protest of a bill of exchange and cessation of payments by the Customer, STENFLEX® may demand immediate payment of the total claim – including any claims arising from bills of exchange in circulation – without taking into account the agreed due date. The same shall also apply if circumstances come to the attention of STENFLEX® which give rise to justified and considerable doubt as to the Customer’s ability to pay or creditworthiness, even if these circumstances already existed when the goods were ordered, but STENFLEX® was not aware of them or did not have to be aware of them. In all the aforesaid cases STENFLEX® shall also be entitled to carry out any deliveries which are still outstanding only against cash with order or by way of security and withdraw from the contract without setting another deadline if the prepayment or security is not furnished within two weeks. The right to assert further claims is reserved. Upon acceptance of bills of exchange the banking and discount charges will be invoiced to the Customer. STENFLEX® shall be entitled to withdraw from the contract without granting an extension if, after conclusion of the contract, the Customer's ability to pay deteriorates significantly, ownership of the Customer’s company changes, the Customer defaults in the payment of earlier deliveries or a bill of exchange is protested and/or a cheque turns out to be uncovered.
IV. Retention of title
- All goods delivered shall remain the property (reserved goods) of STENFLEX® until the Customer has settled all existing claims and those arising after conclusion of the contract.
- Processing and finishing of the reserved goods shall be effected for STENFLEX®, as manufacturer, within the meaning of section 950 German Civil Code (BGB) without putting STENFLEX® under obligation. Processed and finished goods shall be deemed reserved goods pursuant to sub-section IV. 1. If the reserved goods are processed and finished, combined or mixed by the Customer with goods of a different origin into a new item or a mixture, STENFLEX® shall be entitled to ownership thereof in proportion to the invoice value of the reserved goods at the time of delivery compared with the value of the other finished or mixed goods. The co-ownership share shall be deemed reserved goods pursuant to sub-section IV. 1. If the reserved goods are mixed with other items and an item belonging to the Customer can be seen as the main item within the meaning of section 947 German Civil Code (BGB), it shall herewith already be agreed that a co-ownership share in proportion to the invoice value of the reserved goods compared to the value of the main item shall be transferred to STENFLEX® and the Customer shall hold the item in safe custody for STENFLEX® free of charge. The co-ownership share shall be deemed reserved goods pursuant to sub-section IV. 1.
- The Customer must hold the reserved goods in safe custody for STENFLEX®. Upon request, STENFLEX® must be permitted stocktaking and adequate labelling at any time at the respective storage site. The Customer must notify STENFLEX® immediately if the goods have been seized or rights of STENFLEX® have otherwise been impaired by third parties, giving all the details which will allow STENFLEX® to take action against the seizure or impairment using all legal means.
- The Customer may only sell the reserved goods in the ordinary course of business on its normal terms and by agreeing a retention of title corresponding to the retention of title agreed with STENFLEX® if it is guaranteed that its claims from the resale pursuant to sub-section IV. 4. to IV. 5. pass to STENFLEX®. The Customer shall herewith already transfer to STENFLEX®, with all subsidiary rights, the claims arising from the resale of the reserved goods, also within the scope of service contracts or contracts concerning the delivery of mobile goods to be manufactured or created. They shall serve on the same scale as security for STENFLEX® with respect to the reserved goods. The Customer shall only be entitled to transfer the claims to third parties with the prior written consent of STENFLEX®. The Customer shall be entitled to collect claims from the resales pursuant to section IV. 4 to IV. 5. until further notice.
- Should the Customer sell the reserved goods together with other goods not supplied by STENFLEX®, the assignment of claims from the resale shall only apply to the sum of the invoice value of the reserved goods of STENFLEX® at the time of delivery. In the event of the sale of goods to which STENFLEX® has co-ownership pursuant to sub-section IV. 2, the transfer of claims shall apply to the sum of this co-ownership share. If the assigned claim is included in a current invoice, the Customer shall herewith already assign to STENFLEX® part of the balance corresponding to the sum of this claim, including the final balance from the current account.
- Should the Customer not meet its obligations arising from this contract or other contracts with STENFLEX® or should circumstances come to the notice of STENFLEX® which reduce the Customer’s its creditworthiness, then STENFLEX® may (a) prohibit the resale, the processing and finishing of the reserved goods as well as their mixing or combination with other goods; (b) rescind from this contract; in such case the Customer’s right to own the reserved goods expires and STENFLEX® may reclaim the reserved goods; STENFLEX® shall then be entitled to enter the Customer’s company premises and take possession of the reserved goods at the Customer’s expense and to sell them for the best possible price, irrespective of the payment or other obligations of the Customer, by private sale or by means of an auction; STENFLEX® shall offset the proceeds of the sale against the Customer’s liabilities after deducting any costs incurred; STENFLEX® shall pay the Customer any surplus; the Customer (c) must give STENFLEX®, upon request, the names of the debtors of the claims assigned to STENFLEX®, so that STENFLEX® can disclose the assignment and collect the claims; all proceeds to which STENFLEX® is entitled from assignments must be forwarded to STENFLEX® immediately after receipt if and as soon as the claims of STENFLEX® visà- vis the Customer become due; STENFLEX® shall (d) be entitled to revoke the granted direct debit mandate.
- Insofar as the value of the security to which STENFLEX® is entitled exceeds the claims by more than 20% in total, STENFLEX® shall in this respect be obliged at the Customer’s request to release security at the discretion of STENFLEX®.
V. Information and consultations, documents
- Information and consultations with respect to the products of STENFLEX® shall be effected on the basis of previous experiences of STENFLEX®. Values stated in information and in the course of consultations, in particular also with respect to the possible applications of the goods of STENFLEX®, are only average values and do not constitute any quality description of the goods. An obligation to exactly adhere to the values and possible applications is not accepted. Should the Customer nevertheless be entitled to claims for damages, sub-section VII. shall apply.
- All documents and objects, such as, for example, drawings, samples or models which STENFLEX® makes available to the Customer in connection with its offers, shall remain property of STENFLEX®. STENFLEX® shall be entitled to the copyrights and related industrial property rights with respect to these documents and items within the meaning of German Copyright Law. The Customer is not authorised to inform third parties of the documents made available to it without the prior written consent of STENFLEX®.
VI. Delivery and passing of risk
- In the case of delivery times and dates which are not expressly specified as guaranteed in the order confirmation, but are only deemed approximate, the Customer may set STENFLEX® a reasonable delivery deadline of two weeks after expiry of these delivery times and dates. STENFLEX® shall only be in default upon expiry of the additional period of time. Delivery times shall on no account start to run before the Customer has provided the documents which its has to procure, such as, for example, permits or releases of product drawings, and a deposit has been received by STENFLEX®, if a deposit has been agreed upon in writing.
- In the event of delivery default or impossibility, STENFLEX® shall be liable for claims for damages only in accordance with sub-section VII. The default damage to be replaced by STENFLEX® according to sub-section VII. shall be limited to 0.5% of the value of the non-punctual delivery or partial delivery for each full week and shall not exceed a maximum of 5% of the value of the delayed (partial) delivery, unless a lower amount of damage has been incurred.
- In the event of force majeure, for example, operational disruptions, transport delays, measures within the context of industrial disputes, or in the event of non-delivery, incorrect or delayed delivery by suppliers of STENFLEX®, for whatever reason (reservation as to oneself obtaining the supplies), and in the event of other service impediments for which STENFLEX® is not responsible, STENFLEX® may postpone delivery by the duration of the impediment and a reasonable set-up time thereafter. If the impediment is likely to be long-lasting, STENFLEX® shall be entitled to refuse to deliver the goods in whole or in part. In this case the Customer shall not be entitled to assert any claims for damages against STENFLEX®. The Customer shall not be obliged to render the counterperformance and the deposit it has paid will be returned.
- STENFLEX® shall be entitled to part-deliveries. The place of performance is always Norderstedt. If delivery on call is agreed, calls must take place within three months after conclusion of the contract unless otherwise agreed in writing. If delivery is not called in time, sub-section VI. 7. shall apply accordingly.
- Transportation and Forwarding shall be effected at the reasonable discretion of STENFLEX®, unless otherwise prescribed or agreed and shall always take place at the risk of the Customer. In this case the risk, also in the case of part-deliveries, shall pass to the Customer as soon as the consignment has been handed over to the person carrying out transportation – irrespective of whether the person belongs to STENFLEX® or is an outside person – or as soon as the consignment has left the STENFLEX® factory for the purpose of forwarding, unless sub-section VI. 5. applies. Transport insurance will only be taken out at the request and to the account of the Customer.
- Should the Customer refuse to accept the goods or should forwarding of the delivery be delayed for other reasons for which the Customer is responsible, the passing of risk shall take place upon commencement of the default of acceptance on the part of the Customer. The Customer shall bear the storage costs after the transfer of risk. STENFLEX® shall be entitled to invoice storage costs as a lump sum with 0.5% of the invoice amount for each month or the actual damage unless the Customer proves a smaller amount of damage. In addition, STENFLEX® may grant the Customer a grace period of 14 days and rescind from the contract after the abortive expiry of the time period and demand compensation instead of performance.
VII. Warranty claims/liability
- The Customer must examine the delivered goods carefully immediately after they have arrived at the destination, even if samples or specimens have been sent beforehand. In this case, the goods must especially be examined for their quality. Should crates, boxes or other containers be delivered, spot checks must be made. Delivery shall be deemed authorised if notice of defect has not been received by STENFLEX® within three (3) days following receipt of the goods at the destination or, if the defect was not visible during inspection, within three (3) days after its discovery in writing or by fax with an exact description of the defect. Notices of defect must always be sent directly to STENFLEX®. Transport damage must be notified to the forwarder immediately; in this respect the obligations to notify of the General German Forwarding Terms (ADSp) apply.
- In the event of justified and punctual notice of defect STENFLEX® will render at its discretion subsequent performance through remedy of the defect or supply of a replacement. If the subsequent performance or supply of a replacement fails, the Customer may demand a reduction of the purchase price or cancellation of the contract. In the event of only minor defects the Customer is not entitled to withdraw from the contract. Should the customer choose to withdraw from the contract after subsequent performance has failed, it shall not be entitled in addition to any claim for damages due to the defect. If the Customer receives a defective assembly manual, STENFLEX® is only obliged to supply a non-defective assembly manual, if the defect in the assembly manual impedes proper assembly.
- No liability is accepted for damage which has not been caused by STENFLEX® which is due to unsuitable or improper use, defective assembly or start-up by the Customer or third parties, natural wear and tear, defective or negligent handling, unsuitable operating resources, materials, defective construction work, unsuitable subsoil, chemical, electrochemical, magnetic, electrical or other influences. For goods made of rubber which are used for steam or acids notices of defect are customarily excluded after putting them into operation unless the Customer can prove that it observed the approved operating conditions when using the material.
- If the Customer has notified a defect and no defect for which STENFLEX® is liable can be found, the Customer must refund STENFLEX® the expenses (staff, transport, accommodation costs, etc.) which STENFLEX® has incurred due to such a complaint.
- The aforesaid provisions are an exhaustive description of the warranty claims for the goods of STENFLEX®. In particular, STENFLEX® shall be liable exclusively for all other claims for damages to which the Customer may be entitled due to or in connection with any defects pertaining to the goods supplied, for whatever legal reason, according to sub-section VII. 6. and VII. 7.
- STENFLEX® shall only be liable for claims for damages due to negligent actions, for whatever legal reason (apart from liability according to the Product Liability Law) in the case of intent or gross negligence. The liability for slight negligence is excluded, unless the contractual purpose is considerably put at risk due to the breach. STENFLEX® shall be liable in each case only for the foreseeable and typical damage upon conclusion of the contract. This restriction does not apply to loss of life, personal injury or illness suffered by the Customer. Personal liability of the legal representatives, vicarious agents and employees of STENFLEX® for damage they cause due to slight negligence is excluded.
- Warranty and compensation claims of the Customer shall become statute-barred within one year after the goods have been delivered. This shall not apply if STENFLEX® is acting fraudulent.
- Any agreements concluded between the Customer and its clients which extend beyond statutory warranty claims shall not take effect to the detriment of STENFLEX®.
VIII. Taking-back of goods
The taking-back of standard goods out of goodwill only takes place in specially justified exceptional cases after the prior written approval of STENFLEX®. In each case the Customer must bear the forwarding costs carriage paid to the factory in Norderstedt. Carriage forward consignments will not be accepted. A credit note will be sent after inspection and approval of the goods minus administrative costs.
IX. Applicable law/jurisdiction
The relations between STENFLEX® and the Customer are governed by the laws of the Federal Republic of Germany. Neither the UN-Sales Convention (CISG) nor any other existing or future bilateral or international treaties, even if adopted into the German law, shall apply.The place of jurisdiction for all disputes arising from or in connection with the contract shall be at the discretion of STENFLEX® either Hamburg or the Customer’s place of business; for lawsuits filed by the customer the place of jurisdiction will be exclusively Hamburg. Any statutory provisions regarding exclusive jurisdiction remain unaffected.
X. Final provisions
- Any amendments or supplements to this contract, including this written form requirement, are only valid if agreed in writing. The same applies to collateral and supplementary agreements. The preservation of the written form by means of telecommunicative transmission, in particular, by email, is excluded.
- Transactions with legal entities under public law and special funds under public law will be treated the same as transactions with business customers.
- Should any provision of this contract be or become invalid in whole or in part, the validity of all the remaining provisions of this contract shall not be affected by the invalidity of this provision. The invalid provision must be replaced by a legally valid provision which comes as close to the purpose pursued by the invalid provision from an economic point of view as is only admissible by law. The same shall apply to any omissions in the contract.
General information on data processing within the scope of the business relationship can be found at https://www.stenflex.com/fileadmin/B2B-Informationspflicht.pdf.