Terms & Conditions
Stucke Elektronik GmbH — General Terms and Conditions of Business (GTC)
(Revised 04 August 2017)
I. General (General Terms and Conditions of Sale and Delivery)
A. Scope of Application
1. Stucke Elektronik GmbH (hereinafter also known as the “Seller”) sells and supplies its products solely and exclusively on the basis of these General Terms and Conditions of Sale and Delivery (hereinafter: “TOS”). The TOS apply to any and all business relationships with customers (hereinafter also known as “Buyers”) who are entrepreneurs as defined in Section 14 BGB [Civil Code], a legal entity under public law or a public-law special fund.
2. Objection is hereby raised to the application of any other terms and conditions to the extent that they include provisions deviating from these TOS.
B. Conclusion and Content of Contract, Limitation Period
1. Legally binding contracts shall not be deemed concluded until the Buyer has received the order confirmation from Stucke Elektronik GmbH and the Buyer has not revoked the contract immediately, i.e. no later than within 7 days. Any and all “offers” (including catalogue and/or product descriptions, drawings, plans, calculations etc.) previously sent by the Seller are non-binding requests for the submission of an offer by the Buyer.
2. To the extent the performance includes utilization rights to software/firmware, the Buyer or its customers are granted a non-exclusive right to utilize the provided software/firmware solely and exclusively for the intended use of the product. The utilization of the software/firmware independently of the product is prohibited. The Buyer or its customers shall require its end customers buying the product to accept these obligations.
3. No declarations (including, but not limited to, order confirmations) are legally binding on the parties unless in written or text form. The validity of any and all oral subsidiary agreements, warranties of characteristics and amendments or modifications of the contract is subject to the same requirement of written form.
4. Unless shorter limitation periods are established by law, any and all claims of the parties, regardless of their legal basis, are subject to a limitation period of twelve months upon expiration of the year in which they arise. Statutory limitation periods apply to legal claims based on actions in tort or the Product Liability Act.
C. Prices, Quantities, Characteristics, Delivery Periods
1. Information regarding quantities and prices contained in the “offers” issued by Stucke Elektronik GmbH (cf. Part B., Section 2) are valid for 30 days as of the date of issue of the written offer. Prices and quantities specified in the order confirmations are legally authoritative.
2. The provision of performance data and the content of any other performance descriptions may not be construed as guarantees of characteristics or durability. Solely characteristics of the products expressly designated in the order confirmation as “warranted” are guaranteed characteristics.
3. The dates offered by Stucke Elektronik GmbH are non-binding unless they are expressly confirmed as “binding” in the order confirmation.
4. If and when Stucke Elektronik GmbH is accountable for the failure to comply with periods and dates that have been designated as binding, the contract partner has a claim to a lump-sum compensation for default in the amount of no more than 0.5 % of the net consignment value for each and every full week of default; however, the compensation shall not in the aggregate exceed 5 % of the net delivery value of the products that are delivered late. The Seller is entitled to provide proof that the actual damage or loss was lower.
5. The binding agreement of a fixed date transaction requires notification of Stucke Elektronik GmbH by the Buyer prior to conclusion of the contract, either in writing or text form, that compliance with the performance period is significant for the Buyer because of the purpose of the contract and the existing interest in the performance of the contract.
D. General Terms and Conditions of Payment, Retention of Title, Offset
1. Invoices of Stucke Elektronik GmbH are due and payable without deductions immediately upon receipt. It is agreed that the Buyer will be deemed to have received the invoice no later than 3 days after its submission to the postal service. The Buyer is entitled to refute the above fictional receipt in specific cases.
2. Stucke Elektronik GmbH is entitled to apply initially the Buyer’s payments to previous debts despite contrary payment instructions by the Buyer. If expenses and interest have accrued, Stucke Elektronik GmbH is entitled to apply the payment initially to the expenses, then to the interest and finally to the principal debt.
3. If and when the Buyer is in default of payment, Stucke Elektronik GmbH is entitled to charge default interest in the amount of no less than 8% above the basic interest rate as of the commencement of the default in addition to asserting any more extensive loss or damage claims because of the default.
4. If and when the Seller becomes aware of circumstances that cast doubt on the Buyer’s creditworthiness — in particular, but not solely, if the Buyer does not fulfil its payment obligations in timely fashion — Stucke Elektronik GmbH is entitled to declare that any and all payment obligations, including those that are not yet due, are payable immediately.
5. Retention of title:
- a. Stucke Elektronik GmbH retains title to the goods it has delivered until any and all liabilities owed by the Buyer from the current business relationship with Stucke Elektronik GmbH have been settled (reserved goods). If the value of all securities exceeds the secured claims by more than 10%, the Buyer may request release of securities; selection of the securities is at the discretion of Stucke Elektronik GmbH.
- b. Processing or transformation by the Buyer is done solely and exclusively on behalf of Stucke Elektronik GmbH. In the event of processing in combination with goods that do not belong to Stucke Elektronik GmbH, Stucke Elektronik GmbH is entitled to co-ownership of the new product in the ratio of the invoice value of the goods from Stucke Elektronik GmbH to the acquisition price of the other processed goods at the time of the processing.
- c. The Buyer is authorized to sell the reserved goods to third parties in the course of its regular business. The Buyer hereby assigns to Stucke Elektronik GmbH in advance any and all claims against the purchaser resulting from the resale in the amount of the relevant invoice value. Stucke Elektronik GmbH hereby accepts the assignment. The assignment notwithstanding, the Buyer retains the authorization to collect the claims. This collection authorization expires if and when the Buyer does not properly fulfil its payment obligations related to the reserved goods to Stucke Elektronik GmbH or suffers difficulties in making payments; if debt execution measures are initiated against it; if court bankruptcy proceedings are initiated against its assets; or if petition for the initiation of such proceedings is dismissed owing to the lack of assets. Upon request, the Buyer shall inform Stucke Elektronik GmbH of the assigned claims and the debtor in each case and shall provide to Stucke Elektronik GmbH all documents required for the collection of the claims.
- d. The above assignment by way of security applies as well to claims that the Buyer has obtained through the connection of the reserved goods with land or the processing or mixing of the goods.
- e. In the event of attachments on the reserved goods by third parties, the Buyer will refer to the retention of title by Stucke Elektronik GmbH and will notify the latter in writing without delay.
- f. In the event of breach of contract by the Buyer, in particular, but not limited to, the failure to pay the due purchase price, and after previous setting of a subsequent period and its fruitless expiration, Stucke Elektronik GmbH is entitled, after rescinding the contract, to request surrender of the reserved goods or, as applicable, to request assignment of the Buyer’s claims to surrender of the goods against third parties.
6. The Buyer may offset claims solely if and when they are acknowledged, undisputed or have been finally adjudicated by a court of law. The Buyer is entitled to exercise a right of retention solely if and when its counterclaim is based on the same contractual relationship.
E. Passing of Risk of Price and Performance
1. The risk of accidental loss and of accidental worsening passes to the Buyer at the place of performance (cf. Part H., Section 3) or, as appropriate, ex works (if different from place of performance).
2. If and when shipment is not organized by the Buyer itself, Stucke Elektronik GmbH is entitled to determine itself the means of shipment (in particular, but not limited to, the shipping company, the shipping route and the packaging). Transport insurance to be concluded at the Buyer’s expenses will be obtained by Stucke Elektronik GmbH solely if and when expressly requested by the Buyer.
F. Warranty for Defects
No warranty is granted for used products. In all other cases, Stucke Elektronik GmbH recognizes warranty claims for material and legal defects of new products, excluding any further claims (subject to Part G. of these Terms and Conditions) as follows:
1. Complaints of defects and any other complaints must be submitted directly to Stucke Elektronik GmbH in writing or text form immediately, but no later than within an exclusion period of one week after receipt of the goods. In the event of hidden defects, the assertion of claims shall be made mutatis mutandis within an exclusion period of one week from their discovery.
2. Warranty claims for defects are excluded if and when, and to the extent that, the Buyer does not observe the Seller’s instructions for installation, operation and maintenance. The above provision applies as well to defects that are a consequence of unsuitable or incorrect use: of installation, operational startup or repair that has not been performed by Stucke Elektronik GmbH or a service provider it has engaged; and of natural wear and tear.
3. Subsequent performance (in the form of remedy of defects or substitute delivery) includes neither removal of the defective product nor installation of the new product if Stucke Elektronik GmbH was not originally obligated to perform the installation. Stucke Elektronik GmbH is entitled to make substitute performance dependent on the payment of the due purchase price by the Buyer. The Buyer is entitled however, to retain a part of the purchase price that is in reasonable ratio to the defect.
4. The following provisions apply to legal defects:
- a) If the use of the product leads to infringement on industrial property rights or copyrights in Germany, Stucke Elektronik GmbH will acquire at its expense the basic right to continued use by the Buyer or will modify the product in a way reasonable for the Buyer so that there is no longer any infringement on industrial property rights. If this is not possible under economically reasonable conditions or within a reasonable period, the Buyer is entitled to rescind the contract. Stucke Elektronik GmbH also has the right to rescind the contract under the aforementioned conditions. Moreover, Stucke Elektronik GmbH will indemnify and hold harmless the Buyer in the internal relationship from and against any and all undisputed claims or claims finally adjudicated by a court of law asserted by the holders of the relevant property rights.
- b) The Buyer is entitled to the aforementioned claims pursuant to lit. a) solely if and when:
- aa) The Buyer notifies Stucke Elektronik GmbH immediately of the assertion of infringements on intellectual property rights or copyrights;
- bb) The Buyer supports Stucke Elektronik GmbH in its defense against the asserted claims and, as applicable, makes it possible to perform the aforementioned modifications pursuant to lit a);
- cc) Stucke Elektronik GmbH retains sole responsibility for any and all defense actions, including out of court regulations;
- dd) The legal defect does not result from instructions given by the Buyer; or
- ee) The legal defect is not caused by the Buyer modifying the product on its own authority or using it in a manner which is not in conformity with the contract.
5. In derogation of the regulations in Part B. Section 4, the Buyer’s claims are subject to a limitation period of one year from the passing of the risk of price and performance pursuant to Part E.
G. Liability and Damages
1. Damage compensation claims against Stucke Elektronik GmbH are excluded. The exclusion of liability does not apply — the legal reason notwithstanding — in the event of willful intent and gross negligence. In the event of simple negligence, Stucke Elektronik GmbH is liable solely for damage or loss from injury to life, body or health resulting from the breach of an obligation by Stucke Elektronik GmbH, its legal representatives or its vicarious agents or for loss or damage caused by the breach of an essential contractual obligation. Essential obligations are those obligations that must be fulfilled if the contract is to be performed properly at all and that the Buyer therefore expects and may reasonably expect to be fulfilled. In the event of liability, the compensation claim is limited to the foreseeable loss or damage typical of the contract.
2. The above provision is without prejudice to any liability pursuant to the Product Liability Act.
H. Proper Law, Place of Performance, Venue, Severability, Confidentiality, Privacy
1. These terms and conditions of business and the legal relationships between Stucke Elektronik GmbH and its contract partners are governed solely and exclusively by the laws of Germany. The application of the United Nations Convention Regarding Contracts for the International Sale of Goods (CISG) is excluded.
2. Stucke Elektronik GmbH retains utilization rights based on title of ownership and copyrights to cost estimates, drawings and other offer documents. Any such documents and the information they contain may be made accessible to third parties solely with the express prior consent of Stucke Elektronik GmbH. The Buyer shall obligate affiliated companies, vicarious agents and other third parties included in the contract to confidentiality in an equivalent manner. If and when no contract is concluded, the offer documents shall be returned to Stucke Elektronik GmbH without delay upon its request. In the event of a breach of the above confidentiality and surrender obligations, the parties agree to a contractual penalty in the amount of 50% of the net list delivery price for each and every breach of obligations. Stucke Elektronik GmbH reserves the right to prove greater loss or damage; the agreed contractual penalty will be offset against the greater amount.
3. Place of performance for any and all contracts concluded on the basis of these terms and conditions is headquarters of Stucke Elektronik GmbH in Hamburg.
4. If and when the Buyer is a merchant within the sense of commercial law, a legal entity under public law or a public-law special fund, the parties agree to Hamburg as venue for any and all disputes arising directly or indirectly from the contractual relationship.
5. If and when any of these provisions are invalid or unenforceable, they will be replaced by valid and enforceable regulations that Stucke Elektronik GmbH would recognizably have wanted in accordance with the meaning and purpose of these terms and conditions if it had been aware of the invalidity or unenforceability.
6. The Buyer grants its consent to Stucke Elektronik GmbH for the collection, processing and utilization of all customer data from the business relationship within the framework of the intended purpose.