Terms of delivery
I. Scope of validity
These terms of delivery apply to all purchase and work performance contracts as well as to contracts for work and labor, including to consulting services and other contracted services rendered by STILL. The customer's conditions of purchase as well as any modifications to or deviations from these terms of delivery or any ancillary agreements are only binding for STILL to such an extent as they have been confirmed by STILL in writing. If declarations must be made in writing according to these Conditions, the text form (as described in § 126b BGB (German Civil Code)) shall suffice.
II. Conclusion of contract
Both contracting parties are bound by the content of the purchase order and its written confirmation. If a deadline is set to the customer to accept the offer, the contract will only materialize when it has been accepted within the period stipulated. Should the customer not accept the contract in the stated form or within the period stipulated, the contract will only materialize when the written order confirmation conforms to the offer. The customer shall be bound to the purchase offer for four weeks, this period commencing on the day when the written order has been received by STILL.
III. Deliveries and services
The documents accompanying the offer, such as illustrations and drawings, as well as details as to the weight and the measurements, such as speeds, the fuel consumption and operating costs, are deemed to be approximate values with tolerance ranges and do not represent guaranteed quality features.
The quality and nature of the delivery items are specified in the contract and will not be guaranteed. Deviations require the written form. The supplier shall point out in writing if the required operating and ambient conditions of the items delivered deviate from the standard conditions laid down in the purchase documents (especially when specific ambient conditions and locations are required). The above standard conditions of STILL shall be applicable in the absence of any such notification.
Cost data, drawings and technical documents or any other technical information shall neither be used without the approval of STILL, except for the purpose of assembling, putting into operation, operating and servicing the delivery item, nor be copied, reproduced, made available to third parties or disclosed in any other way. STILL reserves the right of ownership of and the copyrights on all these documents.
STILL is entitled to constructive modifications as part of the ongoing further development of the delivery items and as a result of internal procurement policy decisions taken.
IV. Prices and payments
Unless agreed otherwise, the prices for the delivery item are ex works, excluding statutory sales tax (VAT) and packaging, but including loading in the factory. The packaging will only be taken back if agreed so by special agreement. STILL shall be entitled to raise the price to the level of the new sales price, if the sales prices relevant for the customer change until the delivery is made.
2) Due date
Unless any specific agreements have been concluded, the price shall be due in cash and without any deductions, i.e. one third of the total price within 14 days after the date of the order confirmation and two thirds of the total price within 14 days after the customer has been notified that the delivery is ready for shipment. The discount costs as well as the charges made on bills and cheques shall be borne by the customer. In the event of defaulting the agreed payment period, the statutory interest after the due date will be charged until the default date and the statutory penal interest thereafter, without any further reminder being issued to the customer concerned. In case of a delayed payment STILL may claim ten Euro as charges for every dunning letter. The right to assert any further claims for damages shall not be affected.
3) Default in payment
The customer shall not be entitled to retain payments on the grounds of disputed and not legally established counterclaims, i.e. offsetting any such claims shall thus be excluded.
If STILL believes that it will not receive the full purchase price from the customer or not on time, STILL shall be entitled to refuse the contractual performance by pleading insufficient security, until the consideration due has been effected or the security been provided. If the customer does not effect the consideration due or provide the relevant security within a reasonable period demanded in writing, STILL may cancel the contract.
STILL shall also be entitled to withdraw from the contract after having set a reasonable period in writing, if the customer does not make an agreed downpayment on time or if he seriously and finally refuses to accept the ordered goods.
In the event of cancelling the contract, STILL shall also be entitled to demand damages including lost profits amounting to at least 20 % of the purchase price, unless it can be proved that the damage is lower.
4) Sales tax
The sales tax is based on the applicable sales tax law. In the event of cross-border deliveries, STILL will make use of the existing tax exemptions. The customer shall notify STILL immediately about the relevant turnover ID number if cross-border deliveries are made within the EU and furnish all other proof to such an extent as necessary to obtain a tax exemption under the German or foreign sales tax laws. Any German or foreign sales tax to be paid over by STILL will be invoiced in addition to the net price and shall be borne by the customer. If sales tax is generated on the basis of payments made before the delivery has been effected (or the service rendered), it will be invoiced separately. The sales tax is due for payment together with the net price.
V. Delivery period, Reservation of fulfilment
The delivery period begins when the order confirmation has been dispatched, but not before all documents to be furnished by the customer have been received, all technical details have been clarified and the agreed downpayment has been remitted.
The delivery deadline is deemed to have been met when the delivery item is available for acceptance at the supplier's premises before the delivery period expires or when such notification is made that the goods are ready for shipment within this period. Meeting the delivery deadline requires the customer to fulfil his duty to cooperate and to perform the contract.
The delivery period will be reasonably extended in the event of industrial actions, especially strikes and lockouts, and when unforeseen events are encountered (e.g. operation disturbances, governmental interference, delays in the supply of important raw materials, attachments, difficulties with the energy supply, war, riots, embargoes, military requisitions and natural catastrophes), that will evidently and considerably affect the completion or supply of the delivery item. This shall also apply if these circumstances affect a subcontractor. Nor shall STILL be responsible for the above circumstances if they occur during the delay that has already been existing. STILL shall inform the customer about the beginning and the end of any such major obstacles as soon as possible.
If the customer requests a delay of the shipment, he will be charged the storage costs or at least 0.5 % of the invoiced amount for each month or parts thereof if the goods are stored at the supplier's premises, commencing one month after the customer has been notified that the goods are ready for shipment. The right to claim higher storage costs shall be reserved, while the customer has the right to prove that the storage costs are lower. However, STILL is entitled to dispose of the delivery items otherwise after having set a reasonable period in writing and to arrange for a new delivery to the customer on the basis of the agreed terms of delivery and after having agreed a new delivery period.
The contract fulfilment shall be under the reservation that the delivery is not being restricted by any national or international regulations, particularly export control regulations and embargoes or any other sanctions. The contracting parties shall be obliged to provide all information and documentation needed for the export/ domestic shipment/ import. Delays caused by export checks or licensing procedures shall override any lead times or deadlines stipulated. If any required licenses for certain items cannot be obtained, the contract shall be considered as not concluded regarding the items in question. Any claims for damages related to this or to the above mentioned exceeding of deadlines, shall be excluded.
VI. Transfer of risk
Deliveries are made from the supplier's premises, where goods can be collected or from where they may be dispatched. If the customer or his appointed representative does not collect the goods on the specified delivery date, which will have to be agreed with STILL at least one week in advance, STILL shall be authorized to dispatch the delivery item at the customer's risk and expense. In both cases, the risk passes to the customer as soon as STILL has handed over the delivery item to the customer or his authorized representative, or to the freight carrier or haulage company.
If the shipping is delayed for reasons for which the customer is responsible, the risk shall pass to customer on the day when he is notified that the goods are ready for shipment. The risk also passes to the customer when partial deliveries are dispatched or when STILL has been commissioned with other services (e.g. the dispatch, the shipment, the installation, the assembly or the instruction/familiarization of the staff). Shipments are basically made on the customer's account, and the customer also bears the risk when he defaults the acceptance of the delivery items.
Irrespective of the rights referred to in Article VIII below, goods supplied to the customer shall also be accepted by the latter if they have minor defects.
As for the rest, the agreed delivery clauses shall be construed in accordance with the incoterms valid at the time of signing the contract. If a specific agreement is missing, the incoterm "ex work" shall apply.As for the rest, the agreed delivery clauses shall be construed in accordance with the incoterms valid at the time of signing the contract. If a specific agreement is missing, the incoterm "ex work" shall apply.
VII. Reservation of ownership
1) STILL reserves the right of ownership of the delivery items until all payments from the business relation with the customer have been received. If payment by cheque or bill has been agreed, the reservation of ownership shall also cover the payment of the bill as accepted by STILL and shall not expire when the check is credited by STILL. The reservation of ownership shall continue when the account receivable hDer Besteller ist berechtigt, die Liefergegenstände im ordentlichen Geschäftsgang seinerseits unter Eigentumsvorbehalt weiter zu verkaufen oder deren Gebrauch entgeltlich Dritten zu überlassen. Er tritt bereits jetzt alle Forderungen gegas been charged to an open account and when the account has been balanced and acknowledged.
2) The customer shall treat the delivery items with utmost care and carry out any necessary repair, maintenance and inspection work right in time and at his own expense. STILL is entitled to insure the conditional commodities against theft, a breakdown of the machine, water, fire and other damage, unless the customer can prove that he has taken out the relevant insurance himself.
3) The customer must neither pledge nor assign the delivery items as a security.
4) The customer shall immediately inform STILL about any attachments, seizures or other acts of disposition effected by third parties. The costs of lifting such measures shall be borne by the customer.
5) The customer is entitled to resell the delivery items in the ordinary course of business with the title to the ownership being reserved or to allow third parties to use them for valuable consideration. He assigns herewith to STILL all claims against his customers or third parties arising from the resale of the goods or the transfer of use, such claims amounting to the sum invoiced for the initial sale of the conditional commodity plus 20 %, irrespective of, whether the delivery items are passed on without being processed or after the processing, and without the transaction requiring any specific notice of assignment in individual cases. The customer is authorized to collect these accounts also after the assignment has been made, although it does not affect STILL's power to collect these accounts itself. STILL may exercise this right if the customer does not meet his payment commitment towards STILL or if insolvency proceedings against the customer have been applied for. If a default in payment occurs STILL can demand that the amounts due to STILL shall be paid into an agency account named by STILL. Moreover, STILL can also demand that the customer's debtors make their payments to STILL, that the customer shall inform STILL about the names of the debtors of the assigned accounts for this purpose and that the assignment be disclosed to the debtors.
6) If the account receivable from the re-sale cannot be assigned to the above extent, because the amount involved comes under a current account agreement between the customer and his customer, the balance of the current account relationship shall be deemed to have been assigned after the netting out in as much as the receivables from the resale are to be assigned in accordance with the above provisions. This security shall continue to exist until all claims of the customer against the third party have been settled.
7) Should the customer process, connect, mix or blend the conditional commodity with other goods not belonging to STILL, STILL shall acquire the co-ownership of the new commodity in the proportion of the conditional commodity's value compared with that of the other goods processed. As for the rest, the same provisions referring to the conditional commodity shall apply to the new goods as well, which become a conditional commodity in the sense of these terms of delivery.
8) If the customer violates the contract, especially by defaulting the payments, STILL shall be entitled to claim the goods back after a written notice has been issued. Although the customer is under the obligation to hand the goods over, taking them back does not automatically imply a withdrawal from the supply agreement. In this case, the delivery period is suspended and STILL reserves the right to resume the supplies after the cause of the frustration has been removed or the customer has provided a security, with the delivery period then being reconfirmed and reinstated.
9) At the customer's request, STILL shall undertake to release any securities to which STILL is entitled in excess of 20 % of the value of the claims to be secured.
10) If the law governing the territory where the delivery items are located does not allow the implementation of the above agreement on the provision of collateral, and if the law allows STILL to secure other rights of the delivery item, STILL may exercise all rights of this kind.
11) The customer shall assist STILL with the implementation of all measures that STILL may take to protect its property rights or any other right as regards the delivery item.
VIII. Liability for defects, warranty period
1) Warranty period
STILL warrants for any defects existing at the time of the risk transfer as well as for any repairs carried out on the delivery items. The warranty period is 12 months, but restricted to a total of 1800 operating hours. If the acceptance or the dispatch is delayed through no fault of STILL, the warranty shall expire not later than 12 months after the transfer of risk.
There is no separate warranty for items being reworked or replaced during the original warranty period. However, the warranty period shall be extended by the downtime caused by the repair work or the replacement.
Used items are not under warranty.
2) Duty to inspect
The customer can only assert claims concerning redhibitory defects, except any such claims resulting from contracts for work and labor, if he has duly performed his duty to inspect and to give notice of defects as imposed on him according to Article § 377 of the [German] Commercial Code (HGB). He shall immediately notify STILL in writing of any defects found.
3) Scope of warranty
If the delivery item does not conform to the agreed conditions at the time of risk transfer, the customer's claim for performance shall cover the replacement or the reworking of those parts free of charge that are useless or the usefulness of which is substantially impaired, with the option being left to STILL.
The customer shall grant the required time and opportunity to STILL, after having made the necessary arrangements with STILL, so that STILL can either replace or rework the faulty parts at its own discretion. The failure to make these arrangements releases STILL from its obligations in this respect.
When satisfying the customer's warranty claims, STILL shall bear all necessary and reasonable expenses, especially the shipping, transportation, labor and material costs. This shall not apply to extra costs that have been incurred if the delivery items have been moved to another place than the contractually agreed place of performance. At STILL's option, the reworking is carried out either at the supplier's premises or at the premises of the end customer. If the customer requests that the reworking is not be carried out at the supplier's premises, he shall bear the costs for dispatching the personnel to his premises. Replaced parts become the property of STILL.
4) Additional obligation and patent rights
If the customer cannot use the delivered item due to STILL's fault, either as a result of the incorrect advice given before or after concluding the contract or the failure to give advice at all, or as a consequence of violating other contractually agreed additional obligations, especially the instructions how to operate and maintain the delivery item, Articles VIII and IX of these terms of delivery shall apply, with all further claims on the part of the customer being excluded.
Should a defect in title be established, especially when the delivery violates patent rights of third parties, STILL shall make every effort to remove these clouds from title. If that proves unsuccessful, Article IX of these terms of delivery shall apply. All further claims on the part of the customer shall be excluded, especially the replacement of any kind of damage, including damage not concerning directly the delivery item. As for the rest, Article IX, paragraph 5), of these terms of delivery shall apply.
5) Limitation of liability
STILL's warranty/liability for important products acquired from a sub-supplier and incorporated in the delivery items is limited to the assignment of the warranty and liability claims to which STILL is entitled against the sub-supplier of the product concerned. Otherwise, STILL's liability is restricted to the careful selection of the sub-suppliers. However, any necessary reworking jobs to be done during the warranty period will be carried out by STILL itself.
No warranty is given for defects caused by
- the use of force,
- using the delivery item for any other but the intended purpose,
- repairs carried out by personnel not trained or authorized by STILL,
- the use of oil and fuel with unsuitable specifications, or
- parts not supplied by STILL.
- Nor shall STILL warrant worn out parts or damage caused by natural wear and tear.
IX. The customer's right of cancellation, the reduction of the purchase price and other forms of liability
The customer can withdraw from the contract when STILL is eventually not in a position to render the complete service before the transfer of risk. If STILL is obviously only temporarily prevented from rendering the service, the customer shall only be entitled to withdraw from the contract when STILL does not effect the delivery within a reasonable time after the cause of frustration has been removed.
2) Partial delivery
The customer may also withdraw from the contract when, in the case of having ordered identical delivery items, a partial delivery proves to be impossible in view of the numbers involved and the customer has a vital interest in refusing a partial delivery. If this is not the case, the customer may reduce the consideration accordingly. When calculating the price reduction, Article § 441, paragraph 3 of the [German] Civil Code (BGB) shall be taken into account. The decisive aspect for calculating the decrease in value is the extent to which the customer benefits from the delivery item.
If the customer cannot accept partial deliveries while he has already delayed the acceptance of goods or for any other reason for which he is to blame, he shall still pay in return.
3) Defects not remedied
Furthermore, the customer may also withdraw from the contract if
- STILL allows a deadline for remedying a defect in the sense of these terms of delivery pass to no effect, after this deadline been set in writing and the deadline for remedying the defect has taken into account possible order and delivery periods for the spare parts necessary to carry out the remedial work, or
- remedying the defect has eventually been to no avail, although at least two attempts have been granted.
It is at the customer's discretion in the above cases to demand a reduction of the purchase price rather than to withdraw from the contract.
4) Price reduction
If there are still defects after the remedying work has been completed that are not substantial, which may be refutably assumed if the delivery items are still suitable for the intended use, the customer's right to withdraw from the contract shall be excluded. In this case, he is entitled to a price reduction. The decrease in value shall be calculated on the basis of Article § 441, paragraph 3, of the BGB. The decisive aspect for calculating the decrease in value is the extent to which the customer benefits from the delivery item.
5) Exclusion of liability
Any further claims of the customer, irrespective of the legal grounds on which they are based, shall be excluded, as shall the replacement of damage of any kind, including damage not affecting the delivery item as such (e.g. the loss of use and production, lost profits or any other consequential damage). This exclusion of liability shall not apply in the event of malicious intent or gross negligence on the part of STILL and when major contractual duties have been violated. If major contractual duties have been violated, STILL shall only be liable for the contract-related and reasonably foreseeable damage, except in cases of malicious intent or gross negligence.
The exclusion of liability shall not apply to those cases, where as a result of a faulty delivery item the liability for personal injury or damage to privately used objects is covered in accordance with Articles §§ 1 and 4 of the [German] Product Liability Act (Produkthaftungsgesetz). Nor shall the exclusion of liability apply when certain conditions have been guaranteed and this guarantee is intended to insure the customer against damage not directly affecting the delivery item.
And finally, the exclusion of liability shall not apply if STILL has culpably violated its duties and caused harm to the objects of legal protection, i.e. a person's life, limb and health.
X. Governing law
All contracts are governed by German law, with the UN agreement about contracts for the international sale of goods (CISG) being excluded.
XI. Place of jurisdiction and performance
The civil courts of Hamburg shall be responsible for all and any disputes arising from the contract, also for bill and cheque enforcement proceedings as well as arrest and injunction proceedings. This shall not apply if an exclusive place of jurisdiction is specified. STILL is also entitled to opt for the court that is responsible for the supplier.
The place of performance for the services to be rendered by both contracting parties is Hamburg.