- Scope: Sales and deliveries by Stanley Engineered Fastening Industrial Deutschland GmbH (hereinafter referred to as “SEF”) shall be made exclusively to Customer in accordance with the following General Terms and Conditions of Sale and Delivery (hereinafter referred to as "Terms of Delivery"), which shall be accepted by Customer by its order or the receipt of delivery, and shall also apply to all future transactions with Customer. The application of Customer's conflicting or supplementary terms and conditions shall be excluded even if such terms and conditions are not expressly objected to by SEF.
- Conclusion of Contract:
2.1: Offers by SEF shall be non-binding. A contract shall not become effective until Customer’s order has been accepted by SEF in writing and shall be governed exclusively by the contents of the confirmation of order and these Terms of Delivery.
2.2: Field representatives of SEF have no authority to conclude contracts or to give binding confirmations with respect to the goods or to agree upon any other obligations.
2.3: SEF reserves all rights in any sales material (in particular descriptions and drawings) as well as samples. They shall not be made available to third persons and are to be returned to SEF immediately upon its request.
- Prices, Terms of Payment:
3.1: Unless the parties have agreed upon a certain price, the price shall be determined by the price list of SEF as applicable at the date of the conclusion of this Contract.
3.2: All SEF prices shall be exclusive of VAT in the respective applicable amount. Unless otherwise agreed in writing, prices apply ex works and do not include any forwarding and packaging costs, which will be charged separately. Customer shall bear any public charges such as customs duties which may arise in connection with the import of goods.
3.3: The parties agree that all payment obligations based on this Contract are in the EURO currency.
3.4: Unless otherwise agreed in writing, each invoice of SEF shall be due for payment without any deductions within 15 days of the date of invoice; if this period for payment lapses unsuccessfully Customer shall go into default. Payments by Customer shall not be deemed to have been made until SEF has received such payment.
3.5: In the event that Customer is in default (cf. para. 3.4) SEF shall be entitled to demand default interest in the applicable statutory amount. The assertion of a claim for further damages shall remain unaffected thereby.
3.6: Bills of exchange and cheques shall only be taken on account of performance upon special arrangement and without any bank charges or other costs for SEF.
3.7: Customer is only entitled to a set-off if his counterclaim is uncontested or has been finally adjudicated.
3.8: Customer is only entitled to assert a right of retention to the extent that his counterclaim is based on the same contract and is uncontested or has been finally adjudicated.
3.9: If SEF becomes aware of the risk of Customer's impossibility to perform ("mangelnde Leistungsfähigkeit") after the conclusion of this Contract, SEF shall be entitled to only make any outstanding deliveries against prepayment or the provision of security. If such prepayments or security have not been rendered even after the expiration of a reasonable grace period granted by SEF, SEF may, notwithstanding any further rights, partially or totally cancel this Contract.
3.10: The prices agreed between SEF and Customer shall apply to Customer only. Customer shall not be entitled to pass on those prices to third parties. The prices shall be subject to the confidentiality obligation according to para.
3.11. SEF shall not be obliged to offer goods to third parties at similar prices.
- Shipment, Passage of Risk, Insurance:
4.1: Delivery deadlines and delivery periods are only binding if they have been confirmed by SEF in writing and Customer has provided SEF in a timely manner with all of the information or documentation required for the performance of such deliveries and any advance payments agreed by the parties have been paid. Delivery periods agreed by the parties shall begin on the date of the confirmation of order. In the event of additional or supplementary contracts, the delivery periods shall be extended accordingly.
4.2: Events which are unforeseeable, unavoidable and beyond the sphere of influence of SEF and any events for which SEF does not bear responsibility such as acts of God, natural catastrophes and labour disputes shall release SEF for the duration of such event from its obligation to make timely delivery or service. Delivery periods agreed between the parties shall be extended by the length of such disturbance, Customer shall be informed of the occurrence of such disturbance in a reasonable manner. If the end of such disturbance is not foreseeable, or should it continue for more than two months, each party is entitled to cancel the Contract.
4.3: Should Customer be in default of the acceptance of delivery or should it be in breach of any other duties to co-operate with SEF, SEF shall be entitled, notwithstanding any further rights, to reasonably store the goods at Customer's risk and expense.
4.4: SEF may make partial delivery for good reason.
4.5: Unless otherwise agreed in writing, deliveries shall be made ex works. Shipment shall be made using a reasonable method of shipment in the usual packaging. Risk shall transfer to Customer upon the delivery of the goods to the forwarding company or Customer himself. Should the delivery or shipment be delayed on grounds for which Customer bears the responsibility, risk shall transfer to Customer on the date of the notification of the readiness of the goods for shipment.
4.6: Insurance shall be taken out only upon request and at the expense of Customer.
4.7: Risk shall transfer to Customer upon the delivery of the goods to the forwarding company or Customer himself. Should the delivery or shipment be delayed on grounds for which Customer bears the responsibility, risk shall transfer to Customer on the date of the notification of the readiness of the goods for shipment.
- Quality and Documentation:
5.1: Any changes to the object of delivery require prior written consent of Customer.
5.2: SEF shall control the quality of the objects of delivery regularly. The parties shall inform each other about potential quality improvements.
5.3: If and to the extent that the competent public authorities demand access to information about the production process of Customer and its testing documents for testing purposes, SEF shall, upon Customer's request, grant these public authorities access to its existing Testing Documents related to such objects of delivery which were delivered to Customer.
5.4: Deliveries of SEF products to Customer are made according to the technical drawings and specifications of SEF and/or according to the initial sample test reports verified by Customer and SEF. 5.5: Customer agrees to accept overruns or underruns on specified delivery volumes of up/down to 10%.
5.6: The 250 ppm rate shall be considered as standard maximum margin of error for SEF rivets. However, product-specific ppm rates can be also agreed separately with Customer.
- Characteristics, Rights of Customer due to Defects, Duty to Inspect Goods:
6.1: Statements in catalogues, price lists and other information material as well as goods descriptions made available to Customer by SEF shall not be understood as a specific guarantee for the characteristic of the object of delivery; such specific guarantees must be expressly agreed upon in writing.
6.2: Customer's rights due to defects of the objects of delivery shall require that he inspects the goods upon delivery and notifies SEF in writing of defects without undue delay, but no later than two weeks after delivery; hidden defects shall be notified to SEF in writing without undue delay upon their discovery.
6.3: In the event of any notification of defect SEF shall have the right to inspect and test the objectionable good. SEF may also demand from Customer that it returns the objectionable good to SEF at SEF's expense. Should Customer's notice of defect prove to be unjustified in an intentional or grossly negligent manner, Customer shall be obligated to render compensation for all of the costs incurred in this respect. The statutory obligations for examination and notification of defects pursuant to Article 377 German Commercial Code (HGB) shall apply to Customer.
6.4: SEF shall at its option remove the defect or deliver a replacement of the defective part or the whole object of delivery, both free of charge for Customer.
6.5: Customer shall only have the right -upon previous consultation and written approval by SEF- without undue delay to remedy the defect itself or have the defect remedied by a third party and demand compensation of its necessary expenses in instances of emergency in which the safety of operations is endangered or in order to avoid disproportionately large damages or if SEF is in default of removing the defect.
6.6: Parts replaced by SEF or delivery items entirely replaced by SEF shall be returned to SEF upon request within four (4) weeks. If Customer fails to return them within the aforementioned period SEF shall be entitled to invoice the full price of the respective parts replaced or delivery items entirely replaced to Customer. Customer hereby declares to consent to it.
6.7: SEF shall not assume any liability for damages caused by inappropriate or improper use, faulty storage, faulty safekeeping, faulty transport (unless otherwise specified by the applicable Incoterms), faulty assembly, incorrect start-up of operation, faulty maintenance, faulty treatment or incorrect installation by Customer, the use of inappropriate accessories or inappropriate spare parts or by natural wear and tear, provided that SEF does not bear the responsibility for such damages.
6.8: Should the remedy of a defect by way of repair or delivery of a replacement fail, should such remedy be unreasonable for Customer or has SEF refused such remedy according to sec. 439 subsec. 3 BGB, Customer may demand, at its option and in accordance with the statutory provisions, the rescission of this Contract, a reasonable reduction of the purchase price or the compensation of his damages in accordance with para. 7 or the reimbursement of his futile expenses.
6.9: The limitation period for claims of Customer based on defects of the goods shall be 12 months from the date of passage of risk.
- Compensation of Damages and Restriction of Liability:
7.1: SEF accepts liability in cases of intent and gross negligence on the part of SEF, one of its representatives or agents as well as culpably incurred injury of life, limb or health in accordance with statutory legislation. In case of gross negligence, however, SEF shall only be liable for typical damages, which were reasonably foreseeable if none of the other exceptional cases listed in sentences 1 or 3 of this para. 7.1 applies at the same time. Moreover, SEF will be liable only in accordance with the Product Liability Act, culpable breach of essential contractual duties or in as far as SEF fraudulently concealed the defect or if SEF granted guarantee of the qualities of the goods hereunder. Claims for damages for culpable breach of contractual duties, however, shall be limited to typical damages, which were reasonably foreseeable if none of the other exceptional cases listed in sentences 1 or 3 of this para. 7.1 applies at the same time.
7.2: The conditions of above para. 7.1 are valid for all claims for damages (in particular claims for damages in addition to the performance and damage claims instead of performance), and irrespective of the legal grounds, in particular for impossibility, default, defective or incorrect deliveries, breach of contract, breach of obligations in contract negotiations and/or tort. They shall also apply to a claim for reimbursement of futile costs.
7.3: The above rulings shall not constitute any change in the burden of proof to the disadvantage of Customer.
- Retention of Title:
8.1: The delivered goods shall remain the property of SEF until any and all claims of SEF arising under the business relationship with Customer have been fully paid.
8.2: In the case of current accounts this retention of title shall be deemed to be security of the claim for the balance to which SEF is entitled.
8.3: Customer shall only be allowed to sell goods subject to this retention of title within normal and proper business transactions. Customer is not entitled to pledge the goods subject to retention of title, grant chattel mortgages on them or make other dispositions endangering SEF's title to such goods. Customer hereby assigns its claim under the resale of the goods to SEF, and SEF hereby accepts such assignment. Should Customer sell the products subject to retention of title after processing or transformation or joining of such products with other goods or together with other goods, this assignment of claim shall only be agreed to in the amount of the portion equivalent to the price agreed to between SEF and Customer plus a safety margin of 10 % of this price. Customer is granted the revocable authorization to collect in trust the claims assigned to SEF in its own name. SEF may revoke such authorization and the right to resell the products if Customer is in default of the performance of material obligations such as providing payment to SEF; in case of revocation, SEF is entitled to collect the claims itself.
8.4: Any processing or transformation of the products subject to retention of title by Customer shall always be for SEF. If products subject to retention of title are processed with other goods, SEF shall acquire joint ownership of the new goods in the ratio of the value of the products subject to retention of title to the other processed goods at the time of processing. The same regulations applying to the products delivered under retention of title shall otherwise apply to the new goods created by processing.
8.5: Should the products subject to retention of title be joined with other goods, SEF shall acquire joint ownership of the new goods in the ratio of the value of the products subject to retention of title to the other goods at the date of joining. Should the joining of the goods occur in such manner that Customer's goods are to be viewed as the main goods, it shall be deemed to have been agreed that Customer shall assign proportionate joint ownership to SEF. Customer shall hold the joint ownership created in such manner in custody for SEF.
8.6: Customer shall provide SEF at all times with all desired information concerning the goods subject to the retention of title or claims assigned to SEF under this Contract. Attachments of or claims by third parties to the goods subject to the retention of title shall be immediately reported to SEF by Customer and accompanied by the necessary documents. Customer shall at the same time advise the third party of SEF's retention of title. The costs of the defence against attachments and claims shall be borne by Customer.
8.7: Customer is obligated to treat the goods subject to the retention of title with care for the duration of such retention of title.
8.8: Should the realisable value of the securities exceed all of SEF's claims which are to be secured by more than 10 %, Customer shall be entitled to demand a release to such exor inappropriate spare parts or by natural wear and tear, provided that SEF does not bear the responsibility for such damages.
8.9: Should Customer be in default of material obligations such as payments to SEF, SEF may, if it rescinds the Contract, take back the goods subject to the retention of title and otherwise realise them for the purpose of satisfying its matured claims against Customer without prejudice to any other rights it may have. In such case Customer shall grant SEF or SEF's agents immediate access to the goods subject to the retention of title and surrender the same.
8.10: In the case of deliveries to other jurisdictions in which the foregoing provisions governing the retention of title do not have the same security effect as in Germany, Customer shall do everything to create equivalent security rights for SEF without undue delay. Customer shall co-operate in all measures such as registrations, publication, etc. which are necessary and expedient to the validity and enforceability of such security rights.
8.11: Upon request of SEF Customer shall insure the goods subject to this retention of title, shall present the respective proof of insurance and shall assign the claims from such insurance SEF.
- Product Liability: Should Customer sell the goods in an unchanged state or upon processing, transformation or joining them with other goods, it shall hold SEF harmless within the internal relationship between the parties to this contract from product liability claims of third parties, provided that Customer is responsible for the defect causing such liability.
- Industrial Property Rights:
10.1: If Customer dictates through certain instructions, data furnished, documentation, drafts or drawings, how SEF shall manufacture the goods, Customer gives the warranty that SEF does not violate the rights of third parties such as patents, utility models, trademarks, copyrights and any other intellectual property rights (“Industrial Property Rights”). Customer shall hold SEF harmless from any claims of third parties which these parties may assert against SEF because of such a violation.
10.2: Unless Customer is liable under the terms of para. 10.1, SEF shall be liable for such claims of third parties for the violation of third parties’ Industrial Property Rights, if such Industrial Property Rights are registered at the European Patent Office, in the Federal Republic of Germany, in France, in Great Britain, in Austria or in the United States of America if and to the extent that such claims are based on the use of the objects of delivery in accordance with the contract by Customer.
10.3: SEF holds Customer harmless from and against all claims related to the violation of Industrial Property Rights as defined by para. 10.2.
10.4: Para. 7 of these Terms of Delivery shall remain unaffected.
10.5: The parties shall inform each other immediately about any circumstances, which indicate the possible violation of Industrial Property Rights of third parties. The parties shall inform each other also about any alleged violation of third parties' Industrial Property Rights in order to jointly avert such third-party claims.
- Confidentiality: The parties agree to treat all non-evident technical and commercial facts, which they get to know due to their business relationship as a business secret and not to use their business relationship for advertising purposes without the other party’s prior written consent.
- Use of Tools and Confidential Information provided by Customer: Models, templates, stencils, samples, tools or any other production material paid in full by Customer as well as confidential information provided to SEF by Customer shall not be used for any deliveries made to third parties unless Customer has given his prior consent to such use in writing.
- Prohibition of Assignment, General Provisions:
13.1: Customer shall not be entitled to assign his claims under this Contract.
13.2: Amendments of and supplements to this Contract and/or these Terms of Delivery and any side agreements must be in writing. The same shall apply to the amendment of this written form requirement.
13.3: If a provision of this Contract and/or these Terms of Delivery is fully or partially invalid, the validity of the remaining provisions shall remain unaffected thereby. The parties undertake in such case to replace the invalid provision by a valid provision coming closest to the commercial purpose of the invalid provision.
13.4: The exclusive venue for all disputes arising under this contractual relationship shall be Giessen/Germany. SEF is entitled, however, to sue Customer at any other court having statutory jurisdiction.
13.5: The laws of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).