GTC
General Terms and Conditions of Delivery and Business of ST QUADRAT Fall Protection S.A. [Status: February 2017]
§ 1 Contractual content - scope of application
[1] In addition to these General Terms and Conditions of Delivery and Business, the technical conditions and specifications set out in the contract and the documents made available to the customer, to which we expressly refer, shall expressly apply. Individual agreements on the rights and obligations of the contracting parties shall take precedence over these terms and conditions.
[2] These General Terms and Conditions of Delivery and Business shall also apply to contract extensions, supplements and ancillary agreements without the need for an express reference to this in each case.
[3] All agreements made between us and the customer for the execution of the contract must be in writing in order to be legally binding. Unilateral legal declarations concerning the contractual relationship, in particular notices of termination, must be made in writing in order to be valid.
§ 2 Offer/offer documents, conclusion of contract
[1] Our offer is always subject to change and non-binding, unless expressly stated otherwise. Representations belonging to our offer, such as illustrations and drawings, as well as information on the subject matter of the delivery and service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) are only approximate unless they are expressly designated as binding in the order confirmation.
[2] Our written order confirmation shall be exclusively authoritative for determining the type and scope of the delivery and service.
[3] We reserve the right to make changes to the delivery item in terms of design and production technology and due to statutory regulations, provided that the delivery item is only changed insignificantly and the changes are reasonable for the customer. We will inform the customer of such changes as early as possible.
[4] The Seller reserves the right of ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Buyer. The Buyer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of the Seller. At the Seller’s request, the Buyer shall return these items to the Seller in their entirety and destroy any copies made if they are no longer required by the Buyer in the ordinary course of business or if negotiations do not lead to the conclusion of the contract.
[5] The business secrets of the other party which may have become known to the customer and to us may not be disclosed to third parties.
[6] If contractual services are promised whose execution is dependent on official approvals, changes may be made for the purpose of obtaining official approvals. All changes to the contract after conclusion of the contract can only be taken into account if any additional costs incurred as a result are borne by the customer and the customer grants us sufficient time for execution. The customer undertakes to ensure that the necessary official approvals and acceptance are available; he undertakes to obtain them and shall bear the costs and fees incurred as a result.
§ 3 Prices and payments
[1] Our prices apply to the scope of performance and delivery specified in the order confirmation. The prices are quoted in euros ex works plus the statutory value added tax applicable on the day of invoicing as well as costs for packaging, transportation and unloading and, in the case of export deliveries, customs duties and other fees and other public charges. The same applies to all-inclusive price offers.
[2] If the agreed prices are based on our list prices and delivery is to take place more than four months after conclusion of the contract, the list prices valid at the time of delivery shall apply; any percentage or fixed discounts agreed at the time of conclusion of the contract shall remain valid.
[3] Our invoices are due for payment without deduction within 15 days of the invoice date. Payment shall only be deemed effected upon receipt in our account. If a discount agreement has been made in individual cases, the customer shall be entitled to deduct the discount from the invoice amount if the agreed discount period is observed.
[4] If the customer defaults on a payment, interest shall be charged on the relevant claim at 7% points above the applicable base interest rate in accordance with the law of April 18, 2004 on payment periods and default interest, unless we can prove that we have incurred a higher interest loss. Reminder letters shall be charged at EUR 10.00 each. We reserve the right to assert further claims for damages caused by default.
[5] Insofar as we receive checks from the customer, these shall be accepted by us on account of performance subject to final encashment. Payment shall only be deemed to have been made after the check has been finally credited to our account and thus without the possibility of a chargeback by the bank. Insofar as we accept bills of exchange from the customer after prior special written agreement, this shall also be on account of performance. Our claim shall only expire upon final payment of the bill of exchange and final crediting of the equivalent value of our claim to our account. All collection and discount charges shall be borne separately by the customer.
[6] The customer shall only be entitled to set-off rights insofar as his counterclaims have been legally established, are undisputed or have been recognized by us.
[7] In the event of non-compliance with the terms of payment or in the event of circumstances which become known to us after conclusion of the contract and which call into question the creditworthiness of the customer from a banking point of view, such as an application for the opening of insolvency proceedings or a suspension of payments or circumstances which significantly reduce the creditworthiness of the customer and which jeopardize our claim to the consideration owed, all claims shall become due immediately after a reminder. In this case, we shall be entitled to perform outstanding deliveries and services only against advance payment or provision of security or to withdraw from the contract after expiry of a reasonable grace period and to claim damages. Proof of the circumstances relevant to creditworthiness shall be deemed to have been provided by information from a reputable credit agency or bank.
§ 4 Delivery periods, delay in performance
[1] Our delivery dates and deadlines are for information purposes only and are only binding if expressly confirmed in writing. The delivery periods shall commence when all commercial and technical questions have been clarified and the customer has fulfilled all obligations incumbent on him, such as the procurement of necessary documents, technical information, official approvals or certificates, releases, etc.. If this is not the case, the delivery period shall be extended accordingly.
[2] Compliance with the delivery period is subject to correct and timely delivery to us. We shall inform the customer immediately of any delays that become apparent. The delivery deadline shall be deemed to have been met if the delivery item has been handed over to the carrier commissioned by us by the time it expires or, if transportation is arranged by the customer, readiness for dispatch has been given and the customer has been notified.
[3] If dispatch or acceptance of the delivery or service is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay. During the period of delay in acceptance by the customer, calculated from notification of readiness for dispatch of the goods, we may demand compensation for the costs of storage, warehousing etc. for each week or part thereof at a flat rate of 0.5% of the net value of the stored goods. If the customer does not accept the goods within 14 days of notification of readiness for dispatch, we may set the customer a reasonable deadline for acceptance of the goods with the declaration that we will withdraw from the contract if the customer does not carry out the necessary acceptance procedure by the expiry of the deadline set. If we withdraw from the contract, we shall be entitled to demand 15% of the net order value from the customer as liquidated damages without proof of the actual damage incurred. In the case of special designs which have been manufactured in accordance with the customer’s special requirements and whose sale is not otherwise possible, we shall be entitled to compensation amounting to 100% of the order value. The customer has the option of proving that we have not suffered any damage or reduction in value as a result of his default in acceptance or that this is significantly lower than the aforementioned contractual penalty.
[4] We shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us – including, in particular, strikes, lockouts, official orders, shortages of raw materials – even in the case of bindingly agreed deadlines and dates. In the aforementioned cases, the delivery periods shall be extended appropriately by the duration of the disruption/impediment plus a reasonable start-up time. We shall inform the customer immediately of the beginning and end of such hindrances. In the aforementioned cases, we have the right to withdraw from the contract in whole or in part due to the part of the contract that has not yet been fulfilled.
[5] In the event of a delay in delivery for which we are responsible, the customer may claim demonstrable damages for delay – to the exclusion of further claims and rights with the exception of the statutory right of withdrawal – for each full week of delay up to 0.5% of the price of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay, but in total up to a maximum of 5% of the contract price. This limitation of liability shall not apply if the delay is due to intentional or grossly negligent behavior on our part.
§ 5 Transfer of risk, shipping and insurance
[1] In the case of deliveries, the risk of accidental destruction or loss and accidental deterioration of the goods shall pass to the customer as soon as the consignment is handed over to the person carrying out the transportation (first carrier) or leaves our works for the purpose of shipment. The risk shall likewise pass to the customer if the shipment is made by means of transportation or by our company’s employees or from a place other than the place of performance, and irrespective of the question of who bears the freight costs.
[2] If shipment of the subject matter of the contract or parts thereof is delayed or does not take place as a result of circumstances for which we are not responsible, the risk specified in paragraph 1 shall pass to the customer upon notification that the subject matter of the contract is ready for shipment.
[3] Shipment shall be at the expense and risk of the customer. Unless we receive written instructions from the customer, we shall be entitled to determine the appropriate means of transportation and the appropriate transportation route at our discretion. The costs of packaging shall be charged at cost price. Recyclable packaging and transportation materials (e.g. Euro pallets) will be taken back by us, provided they are not damaged or unusable. Otherwise, unless otherwise agreed, we do not take back packaging.
[4] We are not obliged to take out insurance against theft, breakage, transport, fire and water damage. Insofar as we take out insurance at our own reasonable discretion or at the express request of the customer, the customer shall reimburse the amounts disbursed for this.
[5] Partial deliveries and partial services are permissible.
§ 6 Retention of title
[1] The delivered goods shall remain our property as reserved goods until the purchase price has been paid in full and all claims resulting from the business relationship and the claims still arising in connection with the delivery item have been settled.
[2] The customer is not entitled to dispose of the reserved goods in any other way. In particular, he is not entitled to pledge the reserved goods or to assign them as security. This is only permissible with our prior consent. In the event of a credited resale of the reserved goods, the customer must secure our rights. The customer is obliged to inform us immediately of any kind of access by third parties to the reserved goods or to the assigned claims and to provide us with the information and documents required for legal prosecution.
[3] We are entitled to insure the goods subject to retention of title against theft, breakage, fire, water and other damage at the customer’s expense, unless the customer has demonstrably taken out the insurance himself at our request.
[4] If the customer sells the reserved goods or incorporates them into a property, he hereby assigns to us the resulting claims to the value of the reserved goods with all rights including the right to grant a security mortgage with priority over the rest.
§ 7 Claims for defects
[1] The customer is advised that not all of the products in our product list have been approved by the German Institute for Building Technology (DIBt). Our products are not all subject to approval and in some cases there is the possibility of mathematical verification in accordance with the applicable technical building regulations and the notifications on building regulations lists issued by the DIBt. An updated list of our products with the associated information on the approvals received, current applications, the mathematical verifiability of the products and their need for approval is available on request. The lack of approval of one of our products is not considered a defect and we do not recognize any claims against us due to the lack of approval of one of our products.
[2] The customer is obliged to inspect the delivered goods within 30 days of receipt. The customer shall lose the right to invoke a lack of conformity of the goods if he does not notify us in writing within one week of the time at which he discovered or should have discovered the lack of conformity, specifying the nature of the lack of conformity.
[3] The above provision shall also apply in the event of incorrect delivery or quantity errors. In the event of excess delivery, the customer shall be obliged to accept the delivery in its entirety in the absence of a timely complaint and to pay according to the contract price units.
[4] If there is a defect in the delivery, we shall be entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item. We shall not bear the installation and removal costs incurred due to the replacement of a defective item. Replaced parts shall become our property. In all other respects, the rights of the customer shall be governed by the standardized UN Convention on Contracts for the International Sale of Goods.
[5] For essential third-party products, our liability shall initially be limited to the assignment of our liability claims against the supplier of the third-party product. If the claims so assigned against our supplier/third party are not enforceable after extrajudicial recourse, we shall be liable in accordance with these terms and conditions.
[6] The customer shall grant us the time and opportunity required to carry out all subsequent performance actions we deem necessary; otherwise we shall be released from liability for the resulting consequences. If the subsequent performance fails after a reasonable period of time, the customer may, at his discretion, reduce the price, withdraw from the contract or demand compensation. If only a part of the delivery of goods is defective, the customer may only withdraw from the entire contract if he has no interest in the remaining part of the delivery.
[7] We provide no warranty for defects which are attributable to measures or designs which the customer has expressly requested or which occur in materials or products which the customer has provided and we have expressed our concerns in this regard to the customer. In particular, we accept no liability for unsuitable or improper use, faulty assembly or commissioning by the customer himself or third parties, natural wear and tear, improper maintenance, faulty or negligent handling or other influences for which we are not responsible. We are also not liable for defects or damage caused by improper modifications or repair work carried out by the customer or third parties.
§ 8 Statute of limitations
[1] The limitation period for claims for breach of contract, due to a delivery not conforming to the contract or a defect is two years.
[2] The limitation period of the customer begins with the delivery of the subject matter of the contract.
§ 9 Liability
[1] We shall only be liable for damages caused by us, one of our legal representatives or one of our vicarious agents through gross negligence or willful misconduct, unless a material contractual obligation has been breached. The above limitation of liability applies to both contractual and non-contractual claims. Liability under the law on defective products remains unaffected by this.
[2] Except in cases of intent and/or gross negligence or breach of a material contractual obligation, liability shall be limited to the amount of damages typically foreseeable at the time of conclusion of the contract. The amount of liability is limited to the compensation payment of our insurance. The insurance policy provides for the following maximum compensation per claim: € 5,874,313.73 for all claims The maximum annual amount is agreed to be twice the stated amounts.
[3] Liability for loss of profit and business interruption/loss is excluded.
[4] Liability for consequential damages is excluded
§ 10 Assembly
[1] If we are commissioned to assemble the goods ordered from us, this is purely the installation of purchased items. The assembly services are to be regarded as ancillary to our main services, which consist of the sale of materials and goods.
[2] We shall notify the customer in writing of the completion of the performance of assembly services.
In this case, the limitation period specified in § 8 shall commence upon our notification of completion.
§ 11 Place of performance, place of jurisdiction, applicable law
[1] The place of performance for deliveries and payments is our registered office.
[2] The place of jurisdiction, also for actions on checks and bills of exchange, is the court responsible for our registered office. However, we are entitled to bring an action against the customer at its general place of jurisdiction.
[3] The law of the Grand Duchy of Luxembourg shall apply.
§ 12 Miscellaneous
[1] All declarations that serve to establish, safeguard or exercise rights must be made in writing.
[2] The customer is not entitled to transfer his contractual rights to third parties without our prior written consent.
[3] We collect and store personal and company-related data for the purpose of our internal data processing.
[4] Should individual provisions of these General Terms and Conditions of Delivery and Business violate mandatory law in whole or in part or be void or ineffective for other reasons, the validity of the remaining provisions shall remain unaffected.
