General Terms and Conditions of Delivery
§ 1 Validity
- (1) All deliveries, services and offers of Steffans Biotechnische Analysen GmbH (hereinafter referred to as “Seller”) shall be made exclusively on the basis of these General Terms and Conditions of Delivery. These shall form an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as “Customer”) for the deliveries or services offered by the Seller (hereinafter also referred to as “Contract Products”). They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their application in individual cases. Even if the Seller refers to a letter which contains or refers to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
§ 2 Offer and Conclusion of Contract
(1) All offers made by the Seller are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or contracts can be accepted by the Seller within (14) days after receipt.
(2) The legal relationship between the Seller and the Customer shall be governed solely by the written purchase contract, including these General Terms and Conditions of Delivery. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the Seller prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless expressly agreed otherwise between the contracting parties in each case.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing to be effective. With the exception of managing directors or authorized signatories, the Seller’s employees are not entitled to make verbal agreements deviating from the written agreement. Transmission by e-mail shall be sufficient to comply with the written form.
(4) Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) shall only be approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) The Seller retains ownership and / or copyright of all offers and cost estimates submitted by the Seller as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Customer. The Customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them itmself or through third parties, or reproduce them without the express consent of the Seller. At the request of the Seller, the Customer shall return these items in full to the Seller and destroy any copies made if they are no longer required by the Customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of usual data backup.
§ 3 Prices and payment
(1) The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are quoted in EUR ex works plus packaging, the statutory value added tax, in the case of export deliveries customs duties as well as fees and other public charges.
(2) Invoice amounts shall be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Payment by check is excluded, unless it is agreed separately in individual cases. If the Customer fails to make payment when due, the outstanding amounts shall bear interest from the due date at a rate of 5% p.a. above the base interest rate; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(3) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible to the extent that the counterclaims are undisputed or have become res judicata or arise from the same order under which the relevant delivery was made.
(4) The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known to the Seller which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the Seller’s outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized. The same shall apply if the Customer has not paid for previous deliveries in due time.
§ 4 Delivery and delivery time
(1) Deliveries shall be made EXW […] Incoterms 2020.
(2) Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport, unless expressly stated otherwise by the Seller.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Customer – demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations towards the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the failure of suppliers to deliver or to deliver correctly or on time despite a congruent hedging transaction concluded by the Seller) for which the Seller is not responsible. If such events make it substantially more difficult or impossible for the Seller to provide the delivery or service and the hindrance is not only of temporary duration, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to the Seller.
(5) The Seller shall only be entitled to make partial deliveries if
– the partial delivery is usable for the Customer within the scope of the contractual intended purpose
– the delivery of the remaining ordered goods is ensured and
– the Customer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear such costs).
(6) If the Seller defaults on a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
§ 5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) Place of performance for all obligations arising from the contractual relationship is […], unless otherwise specified.
(2) The mode of dispatch and the packaging shall be subject to the Seller’s dutiful discretion.
(3) If shipment of the goods has been agreed and the Seller has not assumed transport or installation, the risk shall pass to the Customer at the latest upon handover of the delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. If the shipment or the handover is delayed due to a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the delivery item is ready for shipment and the Seller has notified the Customer of this.
(4) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the Seller, the storage costs shall amount to 0.25 % of the invoice amount of the delivery items to be stored per expired week. The right to claim and prove further or lower storage costs is reserved.
(5) The Seller shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer’s expense.
(6) Insofar as acceptance is to take place, the object of sale shall be deemed to have been accepted when
– the delivery and, if the Seller is also responsible for the installation, the installation has been completed,
– the Seller has notified the Customer thereof with reference to the deemed acceptance pursuant to this § 5 (6) and has requested the Customer to accept the goods,
– the Customer has refrained from acceptance within this period for a reason other than a defect notified to the Seller which makes the use of the purchased item impossible or significantly impairs it.
§ 6 Warranty, material defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
(2) The delivered items shall be inspected carefully immediately after delivery to the Customer or to the third party designated by the Customer. With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful examination, they shall be deemed to have been approved by the Customer if the Seller does not receive a written notice of defect within seven working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if the Seller does not receive a written notice of defect within seven working days of the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect. At the request of the Seller, a delivery item which is the subject of a complaint shall be returned to the Seller carriage paid. In the event of a justified notice of defect, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects of the delivered items, the Seller shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the contract or reasonably reduce the purchase price.
(4) If a defect is due to the fault of the Seller, the Customer may claim damages under the conditions specified in § 8.
(5) In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. In the event of such defects, warranty claims against the Seller shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the Customer against the Seller shall be suspended.
(6) The warranty shall lapse if the Customer modifies the delivery item or has it modified by a third party without the consent of the Seller and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the modification.
(7) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
§ 7 Industrial property rights
(1) In accordance with this § 7, the Seller shall be responsible for ensuring that the Contract Products delivered by the Seller do not infringe any third-party property rights in Germany. There shall be no further examination as to whether the Contract Products commissioned by the Customer infringe patents or other industrial property rights of third parties.
(2) Orders based on drawings, sketches or other information provided to the Seller shall be executed at the risk of the Customer. If, as a result of the execution of such orders, the Seller encroaches upon the property rights of third parties, the Customer shall indemnify the Seller against any claims of such holders of rights.
(3) Liability for infringements of property rights by the Seller in connection with the use of the delivery items or objects of performance or with the connection or use of the delivery items or objects of performance with other products is excluded (except in the case of para. 1 sentence 1 above). Should a claim be made against the Seller in this respect by a third party, the Customer shall indemnify the Seller against such claims.
(4) In the event of such defects in title, the Seller shall be entitled to procure the necessary licenses or to remedy the defects by modifying the object of delivery or service to a reasonable extent at the expense of the Customer.
(5) Unless otherwise agreed, the Seller’s liability for the infringement of third party industrial property rights shall be limited only to those industrial property rights which are registered and published in Germany.
(6) The aforementioned obligations of the Seller shall only exist insofar as the Customer has notified the Seller in writing of the claims asserted by the third party without undue delay after becoming aware of them and has not acknowledged an infringement and the Seller reserves the right to all defensive measures and settlement negotiations. If the Customer ceases to use the Contract Products in order to mitigate damages or for other good cause, it shall be obliged to point out to the third party that such cessation of use does not constitute an acknowledgement of an infringement of the property rights.
(7) The Customer is prohibited from rebuilding the Contract Products of the Supplier himself or having them rebuilt by a third party. It is also prohibited to pass on technical or commercial documents for the purpose of comparing or rebuilding the contractual products.
§ 8 Liability for damages due to fault
(1) The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as fault is involved in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in good time, to ensure that the delivery item is free from defects of title and material defects which impair its functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations which are intended to enable the Customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from significant damage.
(3) Insofar as the Seller is liable on the merits for damages pursuant to para 2 above, this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose. The above provisions of this paragraph 3 shall not apply in the event of intentional or grossly negligent conduct on the part of members of the governing bodies or executive employees of the Seller.
(4) The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Seller.
(5) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of performance owed by the Seller, this shall be done free of charge and to the exclusion of any liability.
(6) The limitations of this § 8 shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 9 Retention of title
(1) The retention of title agreed below shall serve to secure all respectively existing current and future claims of the Seller against the Customer arising from the delivery relationship existing between the contracting parties concerning the contractual products of the Seller (including balance claims arising from a current account relationship limited to this delivery relationship).
(2) The goods delivered by the Seller to the Customer shall remain the property of the Seller until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions shall hereinafter be referred to as “goods subject to retention of title”.
(3) The Customer shall store the goods subject to retention of title free of charge for the Seller.
(4) The Customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the case of realization (para. 9 below) arises. Pledges and transfers of ownership by way of security are not permitted.
(5) If the goods subject to retention of title are processed by the Customer, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer and that the Seller shall acquire direct ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Customer shall already now transfer its future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item, so that the Seller or the Customer acquires sole ownership, the party to whom the main item belongs shall transfer to the other party pro rata co-ownership of the uniform item in the ratio specified in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the Customer hereby assigns to the Seller by way of security the resulting claim against the purchaser – in the event of co-ownership of the Seller in the goods subject to retention of title, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorizes the Customer to collect the claims assigned to the Seller in its own name. The Seller may revoke this collection authorization only in the event of realization.
(7) If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the Customer shall immediately notify them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the court or out-of-court costs incurred in this connection, the Customer shall be liable for these to the Seller.
(8) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them to the extent that their value exceeds the amount of the secured claims by more than 10%. The choice of the items to be released thereafter shall lie with the Seller.
(9) If the Seller withdraws from the contract in the event of a breach of contract by the Customer – in particular default of payment – the Seller shall be entitled to demand the return of the goods subject to retention of title.
§ 10 Final Provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be the court at the registered office of the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11. 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.