General Conditions of Business of STANGL Funktechnik GmbH
1. General Provisions; Scope; Conclusion of Contract; Documentation Provided
STANGL Funktechnik GmbH ("Contractor") shall provide to the Customer ("Customer") goods as well as services and assembly services (hereinafter referred to as "deliveries") in the area of radio technology.
The mutual rights and duties in connection with the provision of deliveries, and in particular the exact scope and quality of deliveries shall be based exclusively on the mutual written declarations of the parties and on the provisions of these conditions ("GCB") in the applicable current version. This shall also apply to all future deliveries of the Contractor to the Customer.
The general conditions of business of the Customer shall become an element of any contract only if the Contractor expressly agrees to such in writing; this shall also apply if the Contractor undertakes a delivery unconditionally despite knowing of conditions of the Customer which are at variance hereto.
The contract shall come into force only after a written declaration of acceptance of order by the Contractor.
The Contractor reserves all exploitation rights in relation to title and copyright to the full extent in relation to all quotations, drawings and other documentation (hereinafter called: "documentation"). The documentation shall not be made available to any third party without the prior approval of the Contractor and shall be returned without undue delay if the order is not granted to the Contractor. This shall apply correspondingly to the documentation of the Customer; such may, however, be made available to those third parties to which the Contractor was authorised to transfer deliveries.
2. Delivery; Part Delivery
The duty to delivery shall be subject to the condition that the necessary export permits have been issued, that no other export regulations prevent such and that the Customer has fulfilled all of its duties to assist.
Part deliveries are possible; this shall not apply if such is unreasonable for the Customer.
3. Prices; Transfer of Risk; Payment Conditions; Delay in Payment; Set Off
The prices are, subject to other individual agreements, ex works or ex store plus packing costs, plus the respective applicable turnover tax as well as other taxes, customs duties or fees which the Contractor is subject to, plus any costs resulting from any money transfer.
Risk shall always transfer to the Customer upon the goods leaving the works or store of the Contractor. This shall apply even if conditions have been agreed between the parties (Incoterms) which normally involve a transfer of risk provision at variance hereto.
If there is a period of more than three months between the time of the conclusion of the contract and the delivery time requested by the Customer, the Contractor may undertake a reasonable adjustment of the agreed price.
Invoices shall be due immediately after the concluding of the contract if and insofar as the parties have not agreed to anything to the contrary.
Payments shall be in cash or by way of cheque, bank transfer or postal transfer.
In case of any delay in delivery, interest for delay shall be due at the rate of eight percentage points above the respective base lending rate of the European Central Bank.
In case of any delay in payment by the Customer, the Contractor shall not be obliged to undertake any further deliveries based on any contractual relationship until such time as all outstanding claims have been settled.
If the Customer is in delay with payments or if circumstances exist which, when considered objectively, would indicate a material deterioration in the assets of the Customer or its creditworthiness, the Contractor shall be entitled at its discretion and regardless of the agreed payment conditions to demand advance payment for all completed and future deliveries or payment at delivery or the issuing of a customary bank security. Any agreed rebates, discounts for prompt payment or bonus agreements shall be deemed to have been withdrawn upon the occurrence of any delay in payment, also in relation to any future deliveries.
Furthermore, the provisions of law shall apply in relation to any delay in payment.
The Customer shall be able to set off any claims only insofar as such have been determined to be undisputed or binding in law.
4. Retention of Title
The subject matter of any delivery ("goods subject to retention of title") shall remain the property of the Contractor until all claims by the Contractor in relation to the Customer have been satisfied in relation to the business connection.
The Customer shall handle the subject matter of the delivery with all due care and shall insure such to a reasonable extent against destruction or damage insofar as title has not yet transferred to the Customer. Insofar as title has not yet transferred, the Customer shall notify the Contractor in writing without undue delay, if the subject matter delivered is pledged or made subject to any other third party claims.
The Customer shall be entitled to resell any goods subject to retention of title to a third party in accordance with normal commercial activities. The claims of the Customer arising from the resale of the goods subject to retention of title are hereby assigned to the Contractor. The Contractor hereby accepts such an assignment. This assignment shall apply regardless of whether or not the subject matter of the delivery is resold without any or only after processing. The Customer shall remain entitled to collect any moneys claimed even after such assignment. The authority of the Contractor itself to collect such moneys claimed shall not be affected hereby. The Contractor shall, however, not collect any moneys claimed insofar as the Customer satisfies its payment obligations from the moneys collected, is not in delay with payment and no circumstances exist which objectively indicates any material deterioration in the assets of the Customer or its creditworthiness.
If the subject matter of any delivery is processed, such shall always take place in the name of and on behalf of the Contractor. In such case the expectant rights of the Customer to the subject matter of the delivery shall continue in relation to the transformed object. The Contractor shall become owner or co-owner of the new object in proportion to the invoice value of its goods subject to retention of title in relation to the processed goods.
The Contractor shall release any securities to which it is entitled at the request of the Customer insofar as the value of such exceeds the claims to be secured by more than 20 per cent.
5. Contact Person
Each party shall name to the other party a contact person able to either make relevant decision on the performance of the contract by himself / herself or able to arrange for such decisions to be made.
6. Deadlines; Force Majeure; Delay; Amendments to Deadlines and Performance
Deadlines shall be binding only if such is agreed expressly and in a written form.
The duty to comply with deadlines for delivery agreed to in a binding manner shall be subject to the timely receipt of all documentation and approvals from the Customer, and in particular all plans and drawings, technical and commercial consultations between the parties as well as the fulfilment of the duty of the Customer to provide assistance. If such conditions are not satisfied in good time, the deadline shall be extended by a reasonable period; this shall not apply if the Contractor is responsible for any delay.
If the failure to meet any deadline results from force majeure, e.g. mobilisation, war, unrest or any similar event e.g. strike or lock out, such deadline shall be extended by a reasonable period. The same shall apply in case of late or incorrect supply by the Contractor. If any disruption of the performance of the contract as a result of force majeure is longer than six weeks, both parties shall be entitled to withdraw from the contract.
If the Contractor is in delay, the Customer - insofar as it can establish that it has suffered any damage as a result - may claim compensation for each complete week of delay 0.5 per cent, but totalling no more than a maximum amount of 5 per cent of the price for the respective part of delivery with which the Contractor is in delay.
Any right to claim further compensation by the Customer due to delay of performance as well as any right to claim compensation instead of performance which go beyond the limits set out in section 6.4 shall be excluded in all cases of late delivery even after the setting of any deadline for delivery for the Contractor. This shall not apply in cases involving wilful acts, gross negligence or death, injury to body or health which are subject to mandatory liability. The Customer may withdraw from the contract in terms of the provisions of law only insofar as any delay is the fault of the Contractor. Any change in the burden of proof to the disadvantage of the Customer is not connected with the above provision.
The Customer shall, at the request of the Contractor and within a reasonable period, declare whether or not it is intending to withdraw from the contract as a result of the delay in deliveries or whether it shall insist on such deliveries.
Any amendments to the scope of delivery in terms of quality or quantity may be agreed to between the parties in writing whereby the delivery periods and the remuneration shall be adjusted accordingly.
If the delay of any delivery results from reasons for which the Customer is responsible, the Contractor may, commencing one month after the notice of readiness to delivery, charge for storage costs incurred - even in case of storage in its own works - of at least, however, at 0.5 percent of the invoice value for each week of delay of the delivery subject matter. Any further or additional rights to claim compensation, in particular as a result of delay in acceptance, shall not be affected thereby; the Customer is free to prove that the Contractor has suffered either no or only minor damage in relation to such delay.
7. Duties of the Contractor
The actual details, scope and procedures for deliveries shall be agreed by the parties separately in writing.
The Contractor shall execute any order in accordance with the generally-recognised state of the art.
8. Duties of Customer
The Customer shall accept and support all reasonable measures necessary for the provision of deliveries. The Customer is, in addition, obliged to undertake all reasonable measures necessary for the performance of the contract which are not included in the scope of performance of the Contractor.
The Customer shall make available on the agreed dates and at its own expense the necessary information, data and documentation for the Contractor to perform this contract in the form required by the Contractor and upon request shall support the Customer in analysing problems and rectifying any faults. Any changes in work procedures with the Customer which could have an effect on the deliveries to be provided by the Contractor shall require prior consultations with the Contractor.
Insofar as any services or erection work on site at the Customer is to be provided, the Customer shall make available at no charge the necessary connections, network components, emergency power supplies, areas for plant as well as any other necessary infrastructure to the extent required and of a suitable quality. Similarly, the Customer shall ensure the provision of facility and building security in particular for protection against water, fire and access by unauthorised persons. The Customer itself is responsible for special security measures in its premises.
9. Receipt; Acceptance
The Customer shall not refuse the receipt or acceptance of deliveries due to minor defects.
10. Defaults; Defects
Defaults in provision of services
If, as a result of circumstances for which the Contractor is responsible, services cannot be carried out or cannot be carried out in accordance with the contract, the Contractor shall provide such services in accordance with the contract within a reasonable subsequent deadline if and to the extent that the Contractor has complained in writing of such default immediately, but no later than within two weeks after the provision of the performance. If such is not successful, the Customer may terminate the contract in writing without any notice period.
Claims under 10.1.1 shall expire twelve months after the complete provision of performance or premature ending of the contract.
In relation to defects the Contractor shall be liable as follows:
Deliveries which prove to be defective shall, at the choice of the Contractor, either be corrected at no charge, redelivered or performed again, provided that the cause of such defect existed already at the time of the transfer of risk.
Any rights to claim subsequent performance shall expire 12 months after the commencement of the legal limitation period; the same shall apply accordingly to any withdrawal or reduction of price. This deadline shall not apply insofar as the law requires longer deadlines in accordance with paragraphs 438 section 1 no. 2, 479 section 1 and 634a section 1 no. 2 Civil Code (BGB) in cases of wilful acts, deceitful concealing of any defect as well as non-compliance with any guarantee as to quality. The legal provisions in terms of interruption of any period, and the interruption and recommencement of deadlines shall not be affected hereby.
Any complaints as to defects by the Contractor must be made without undue delay in writing to STANGL Funktechnik GmbH, Erlanger Str. 9, D-91083 Baiersdorf.
In cases of any notices of complaint being made within in good time, payments by the Customer may be withheld to a reasonable extent in relation to the defect. The Customer may retain any payment only if notice of complaint is made and in relation to which there is no doubt as to the justification of such. There shall be not right of retention by the Customer if the right to claim for defects has expired. If any complaint as to defect is unjustified, the Contractor may demand compensation for any resulting expenses from the Customer.
The Contractor shall be given opportunity to provide subsequent performance within a reasonable deadline.
If the subsequent performance is not successful, the Customer may - notwithstanding any other rights to claim compensation in accordance with section 10.2.10 - withdraw from the contract or reduce the remuneration.
Any right to claim for defects shall not exist in case of minor variations from the agreed specifications, in case of minor limitations in usability, in cases of natural wear or tear or damage which resulted after the transfer of risk as a consequence of incorrect or negligent use, excessive use, unsuitable materials or as a result of particular external influences which were not foreseen in the contract. If any improper changes or maintenance works are undertaken by the Customer or any third party, there shall be no right to claim for defects in relation to such as well as any resulting consequences.
Any claims of the Customer based on expenses necessary for subsequent performance, in particular travel and transportation costs as well as work and material costs are excluded in so far as the expenses have increased by the fact that the subject matter of the delivery has been moved to another place than the branch of the Customer unless such movement corresponds with its normal use.
Any rights of regress of the Customer in relation to the Contactor in accordance with paragraph 478 Civil Code (BGB) (Regress of an Enterprise) shall exist only insofar as the Customer has not entered into any agreement with its customers which extends beyond the statutory liability for defects. In relation to the rights of regress of the Customer in relation to the Contractor in accordance with paragraph 478 section 2 Civil Code (BGB), section 10.2.8 shall also apply correspondingly.
Any rights of the Customer to claim for compensation as a result of defects are hereby excluded. This shall not apply to deceitful concealment of any defect, in case of non-compliance with a guarantee of quality, death, injury to body or health or freedom of movement as well as to any liability in accordance with the Product Liability Act and in cases of wilful acts or gross negligence involving a breach of a duty by the Contractor. Any change in the burden of proof to the disadvantage of the Customer is not connected with the above provisions. Any further or other rights to claim by the Customer based on any defect other than those rights set out in this section 10.2 are hereby excluded.
11. Proprietary Rights and Copyright; Defects of Title
Unless otherwise agreed by the parties in writing, the Contractor shall provide the delivery only in Germany free of any proprietary rights and copyright claims of third parties ("proprietary rights"). Insofar as any third party makes any claim against the Customer on the basis of an infringement of proprietary rights through the delivery, the Contractor shall be liable within the deadline set out in section 10.2.2 as follows:
The Contractor shall at its election and at its own expense for the delivery either obtain a right of use or change the delivery so that the proprietary rights are not infringed, or shall replace such. If such is not possible for the Contractor at reasonable conditions, the Customer is entitled to use the statutory rights of withdrawal or reduction of price.
The duty of the Contractor to pay compensation shall be in accordance with section 13.
The above named duties of the Contractor shall exist only if the Customer has notified the Contractor without undue delay in writing as to any claim of a third party has not recognised any infringement and has reserved for the Contractor all means for the defence and negotiation of a settlement. If the Customer ceases to use the delivery in order to mitigate any damage or for any other important reason, it shall notify the third party that such non-use does not constitute any acknowledgment of an infringement of proprietary rights.
Any rights of the Customer to claim are hereby excluded insofar as it is responsible for the infringement of proprietary rights.
Any rights of the Customer to claim are also excluded if the infringement of proprietary rights results from special requirements of the Customer, a use not foreseeable by the Contractor or is caused by the fact that the delivery has been changed by the Customer or used in connection with deliveries which are not from the Contractor.
In case of any infringement of proprietary rights the claims of the Customer regulated in section 11.1.1 shall also be subject to the provisions of sections 10.2.4 and 10.2.5 accordingly.
In the case of any other defect of title the provisions of section 10.2 shall apply accordingly.
Any additional or other rights to claim by the Customer in relation to the Contractor or its agents other than those set out in this section 11 as a result of defects of title are excluded.
12. Impossibility; Adjustment of Contract
Insofar as any delivery is impossible, the Customer may demand compensation unless the Contractor is not responsible for the impossibility. However, the right of the Customer to claim compensation shall be limited to 10 per cent of the value of the respective part of delivery not provided as a result of impossibility. This limitation shall not apply insofar as such relates to cases of wilful act, gross negligence or as a result of death, injury to body or health where liability is mandatory; a change in the burden of proof to the disadvantage of the Customer is not related hereto. The right of the Customer to withdraw from the contract shall not be affected hereby.
Insofar as any unforeseeable event in terms of section 6.3 substantially change the commercial significance or the content of the delivery or has a substantial effect on the operations of the Contractor, the contract shall be adjusted to a reasonable extent accordingly in terms of the principles of good faith. To the extent that such is commercially not reasonable, the Contractor has the right to withdraw from the contract. If the Contractor intends to use this right to withdraw, it shall notify such to the Customer without undue delay after recognising the significance of the event and such shall apply even if an extension of the delivery times has been initially agreed with the Customer.
13. Other Liability of Contractor; Expiry of Limitation Period
Any further rights of the Customer to compensation or reimbursement of expenses, including in particular any claims for interruption of operations, loss of profit, loss of information or data or consequential damages for defects, other than those expressly named in these GCB are hereby expressly excluded regardless of the legal basis of such rights insofar as such are not subject to mandatory liability as in the case, for example, of the Product Liability Act, or in cases of wilful acts, gross negligence, or as a result of death, injury to body or health or as a result of a breach of a contractual duty the fulfilment of which would be required in order to make the performance of the contract possible and in relation to which the performance may be relied upon by the contract party (so-called substantial contractual duty). Any claims for compensation for the breach of such substantial contractual duties are, however, limited to typical foreseeable damages insofar as no wilful act or gross negligence exists or such relate to death, personal injury or injury to health. Any change in the burden of proof to the disadvantage of the Customer is not connected with the above provisions.
Insofar as the Customer is entitled to claim any compensation, such shall expire with the expiry of the applicable limitation period under section 10.2.2. The same shall apply for any rights of the Customer in connection with measures for avoiding damage (e.g. recall actions). Any rights to claim for compensation in accordance with the Product Liability Act shall be subject to the statutory regulation as to the limitation period.
14. Involvement of Third Parties
The Contractor shall generally perform the deliveries using its own employees. In exceptional cases the Contractor may use third parties for the performance of a contract. Any further obligations than those of the Contractor itself shall not apply to such third parties.
The Customer shall treat as confidential all information provided by the Contractor in connection with this contract. The Customer may use the information only for the purpose of the contract. The duty of confidentiality shall not apply to any information in relation to which the Customer can prove that such was already known or which generally became known without any breach of the duty of confidentiality by the Customer or which was already known to the Customer before receipt without any duty of confidentiality or which was legitimately received from a third party without any obligation of confidentiality or which was independently developed without the application of any information under this contract. The duties of this section 15 shall continue in force even after the ending of the contract regardless of the method by which the contract is ended.
16. Applicable Law; Place of Performance and Jurisdiction
The material law of Germany shall apply to the exclusion of United Nations Sales Law.
The place of performance and jurisdiction shall be Erlangen, if the Customer is a merchant in terms of the Commercial Code (HGB), a legal person of public law or a public asset.
17.1 Any mistakes, unforeseeable omissions or contradictions in this contract shall be dealt with and interpreted in accordance with the principles of the contract and the principles of mutual trust and having regard to the mutual interest of the parties.
17.2 This contract shall continue to be legally effective even if individual provisions become legally ineffective. Such shall not apply if the continuation of the contract would be an unreasonable hardship for any contract party.