General Terms of Sales and Delivery

General Terms of Sales and Delivery of
Stroever GmbH & Co. KG
Auf der Muggenburg 11, 28217 Bremen
Phone: ++49-421-386130
Fax: ++49-421-38613-44
Local Court Bremen
Commercial register # HRA
VAT ID # DE 114 628 047
1.         General terms and range of application
1.1       The following terms of sales and delivery (hereinafter called the “terms”) apply to all contracts executed between Stroever GmbH & Co. KG (hereinafter called the “supplier) and clients (hereinafter called “customers”) in which the supplier acts as seller. They apply to contracts executed through the Onlineshop of the supplier (hereinafter called the “Onlineshop”) and also apply to contracts executed outside this Onlineshop. The word customer as used in these terms includes consumers as well as entrepreneurs. For the purpose of these terms, “consumer” means every natural person who executes a contract for a purpose other than his or her commercial or self-employed professional activities (§13 BGB = German Civil Code) and “entrepreneur” means every natural or legal person who when executing a contracts acts in performance of their commercial or self-employed professional activities (§§14, 310 I BGB). Terms of the customer that oppose or differ from these terms are not part of the contract unless the supplier explicitly accepted their application in writing. These terms shall also apply if the supplier, aware that the terms of the customer oppose or differ from these terms, performs the delivery to the customer without reservation or without objection.
1.2       All stipulations for performance of the contract agreed between the supplier and the customer are defined in this contract in writing. There are no oral agreements on the side.
1.3       Modifications, cancellations and/or supplements to any of these clauses do not prejudice the validity of the remaining clauses. This also applies if one or several of these clauses are or become invalid.
1.4       Contracts with the customer are executed exclusively in German or English language, regardless of whether the customer places his order through the German or the English site of the Onlineshop. If the customer places his order through our German site of the Onlineshop, the contract shall be governed by the German version of these terms. If the customer places his order through our English site of the Onlineshop, the contract shall be governed by the English version of these terms.
2.         Proposals and contract execution
2.1       The proposals of the supplier are non-binding. Interim selling-off is reserved. A contract is created only if the supplier accepted applications of the customer with two weeks’ notice in writing (by letter or fax) or by e-mail to the customer, or if he confirmed a written declaration of acceptance from the customer in writing, or if he dispatches the goods. If the customer orders goods, he declares bindingly that he wants to acquire the goods specified in the order. Immediately upon receipt of an order through the Onlineshop, we will send the customer an electronic confirmation about receipt of the order. This is not an acceptance of the proposal. Every customer who is a consumer is entitled to revoke the proposal according to the special instruction on rescission according to section 9.2 of these terms, which will be brought to his knowledge when ordering order via the Onlineshop, and to return the goods.
2.2       If the customer who is an entrepreneur does not object to an order acknowledgement differing from the order as customary in the industry within ten business days as of receipt of the order acknowledgement, the customer’s consent to these differences is considered granted. If the customer is a consumer, the supplier shall inform him especially about the relevance of his silence at the beginning of the notice term. As far as the customer in his orders or letters of confirmations differs from the supplier’s proposals, the customer has to highlight these differences visibly. They will become contents of the contract only if the supplier explicitly consented to them.
2.3       As far as documents or other statements of the supplier give information on characteristics and features of the goods, these are only approaching descriptions, but not warranties of characteristics or durability as defined under §443 BGB. Characteristics and features which are to be object of the contract have to be agreed separately between supplier and customer. Unless otherwise agreed, the supplier is entitled to modify or alter the contractual service in the limits of tolerances of quantity and quality as customary in the industry. If the customer is a consumer, this applies only if the modification or difference is reasonable for the customer under consideration of the best interest of the supplier, and provided there is an important cause for the modification or difference. Such a cause is given if the modification or difference is in the nature of the ordered goods, or if the reservation of self-delivery according to section 5.4 applies.
3.         Samples, specimen, technical consulting, measures, weights and packaging
3.1       Samples and specimen of goods is likewise subject to section 2.3.
3.2       The supplier provides information and technical consulting about processing or application of the goods of the supplier as well as other information based on his experience, but any of such information is non-binding, and he assumes no liability so ever. Such information does not discharge the customer of making his own tests and trials. The customer always remains responsible for compliance with statutory and regulatory provisions when using the supplied goods.
3.3       Calculation of the purchasing price is governed by the measures and weights of the goods as determined by the supplier.
4.         Prices and payment terms
4.1       Unless otherwise explicitly agreed in writing, the prices of the supplier apply ex works or ex warehouse in Bremen; packaging included, excluding any other ancillary costs, in particular costs for transport of the goods to the customer as well as any customs duties and fees incurred for export deliveries. If it was agreed that the delivery shall take place more than four months after contract execution to the customer or to a person appointed by him, the supplier reserves the right of increasing the price reasonably by the increased distribution, material, energy and wage costs if the increased costs are not compensated by cost reductions in other areas. If the adjusted price is more than 120% of the contractually agreed price, the customer is entitled to terminate the contract.
4.2       VAT in the statutory rates is included in the price of contracts executed through the Onlineshop. It is not included in the price of contracts executed outside of the Onlineshop with customers who are entrepreneurs, in which case it will be charged and billed separately in the statutory rates in the invoice to the customer.
4.3       Deduction of cash discounts is subject to special separate agreement prior to contract execution.
4.4       In case of orders outside of the Onlineshop, even after contract execution but prior to delivery to the customer, the supplier is entitled to request separately a reasonable down payment. If the customer refuses a down payment, the supplier is entitled to rescind from the entire contract.
4.5       Orders outside of the Onlineshop are subject to the following: Unless otherwise explicitly resulting from the order acknowledgement or the invoice, invoiced amounts are due for immediate cash payment upon date of invoice without deduction or by cost-free bank transfer to one of the accounts of the supplier. Timeliness of the payment depends on the date of receipt of the payment. Checks and bills of exchange are taken in only for performance and only under explicit prior agreements. Taking in bills of exchange or checks does in no way oblige the supplier with regards to protesting or in-time presentation. All costs or fees incurred for the cashing of bills of exchange or checks go on account of the customer. Fulfilment is created only upon cashing of the bill of exchange or check. Payments through bills of exchange do not entitle the customer to deduct cash discounts. Incoming payments redeem debts in the order of creation.
4.6       For orders via Onlineshop, the type of payment is agreed at contract execution, and the order form of the supplier standardizes the possible payment mode.
4.7       If the customer is in default with payment, the supplier is entitled to claim default interest in the statutory rates. Payment default entitles the supplier in his own discretion after fruitless expiry of a reminder period of ten days either to rescind from the contract or to claim indemnification in the amount of 10% of the total price or in the amount of the actually incurred damage. The customer bears the burden of proof that the supplier did not suffer damage or suffered damage much lower than the flat-rate indemnification.
4.8       If the customer is in default with his payment obligations, or if there is reason to doubt the solvency of the customer before or after contract execution, and this became visible to the supplier only after contract execution and threatens the supplier’s claim for performance, the supplier shall be entitled to rescind from the contract. If payment by instalments was separately agreed in writing, the supplier shall have a right to rescind if the customer is in default since four days with paying an instalment. In which case the supplier has the alternative option to adhere to the contract but prior to delivery of the goods request presentation of a bank guarantee or the confirmation of another banking institution stating that the customer deposited a payment order there to the benefit of the supplier which will be performed irrevocably as soon as the supplier notified the banking institute about dispatch or pick-up of the goods. If the customer fails to fulfil this request of the supplier, the supplier shall be entitled to rescind from the contract. Furthermore the supplier shall be entitled in the event of default with adherence to the contract to make the full pending payable remainders due in total.
4.9       Setting-off by the customer is permissible only with counterclaims which have been legally defined or which are not disputed by the supplier.
5.         Delivery and delivery time, passage of risks
5.1       Unless otherwise agreed, the ordered goods will be delivered by the supplier to the customer on cost and account of the supplier. The deliveries take place ex works or ex warehouse in Bremen.
5.2       If the customer is an entrepreneur, the risk passes to the customer upon hand-over of the goods to the transporting person, or in case of pick-up ten days upon readiness of the goods and notification of the readiness for pick-up. The latter also applies if the goods are ready for dispatch but the shipment is delayed by reasons not in the control of the supplier. If the customer is a consumer, the risk passes over to him upon delivery of the goods to his attention.
5.3       Delivery dates are not binding unless explicitly defined as binding in writing in the order acknowledgement or declaration of acceptance. A delivery term agreed from time to time in a contract shall commence for shipment orders with the date of receipt of payment by the supplier if the customer is obliged to pay in advance, and the delivery term is considered fulfilled if the goods were handed over to the transporting person by the end of the delivery term. The supplier reserves the right against a customer who is a consumer to deliver not before the expiry of the enforced revocation notice term unless a certain delivery date was agreed.
5.4       Force majeure and other events that may occur after contract execution which are not the fault of the supplier but make delivery impossible for the supplier, or delay or essentially aggravate delivery, discharge the supplier from his obligations under the related contract for the duration of the event and the hindrance. However this applies for no more than 3 weeks to customers who are consumers. The aforementioned circumstances are understood to include: labour unrest, operative disturbance, transport obstacles, lack of raw materials, authoritative acts, uproar, war, delayed self-delivery, strike, lawful lockouts and natural disaster. This also applies if these circumstances occur at the pre-supplier of the supplier, and thereby make in-time delivery harder or impossible for the supplier. The supplier is entitled to rescind from the contract if the goods are not available from the pre-supplier in the foreseeable future. Towards customers who are consumers he has this right only if he underwrote a congruent coverage deal, and is not in fault of the non-delivery. In which case he shall notify the customer immediately about the non-performabilty, and immediately refund to the customer payments already made. This shall not prejudice the customer’s right for delivery default, while he may claim indemnification of damage only as defined under section 6 of these terms.
5.5       The supplier is entitled to make split deliveries from orders of goods which can be used separately, but he bears the additionally occurring shipment costs.
6.         Limitation of warranty and liability
6.1       The warranty rights of the customer who is an entrepreneur are subject to the condition that he properly fulfilled his obligations of investigation and complaining he owes under §377 HGB (=German Trade Code). The customer who is an entrepreneur has to notify the supplier immediately upon receipt and check of the shipment, and prior to processing or consumption of the goods, in writing about any obvious defects, indicating the delivery the goods were included in. The customer who is an entrepreneur has to report any concealed defects to the supplier immediately upon discovery in the manner specified in sentence 1.
In aforementioned cases, the customer has to deliver one specimen of the failure immediately to the supplier. Without consent of the supplier, the customer who is an entrepreneur may not use complained goods. If complained goods are processed regardless of this clause, the customer herewith indemnifies the supplier against any resulting claims.
6.2       Delivery of plus or minus quantities differing from the contract within the tolerances as customary in the industry are not considered a defect. The same applies to discrepancies due to raw materials and/or production.
6.3       In as far as there is a defect of the goods in the responsibility of the supplier; the supplier shall be entitled to eliminate the defect or to deliver replacement. If the customer is an entrepreneur, the supplier shall have the right to choose between the two ways of remedy. Otherwise the customer shall have this right. The supplier may refuse the type of remedy chosen by the supplier if this is possible only with unreasonable costs. In case of elimination of defect, all costs and expenses go on account of the supplier with the exception of the costs incurred by having brought the object of purchase to a place other than the place of performance.
Claims the customer may have against the supplier for defectiveness of the goods cannot be assigned.
6.4       In case of split delivery, the customer has to keep the defective split delivery separate from other deliveries to make sure the supplier can clearly identify his defective delivery. Damages caused by impossibility of identification go on account of the customer who in so far indemnifies the supplier.
6.5       The supplier shall be liable according to the statutory regulations in as far as the customer (for which legal cause so ever) asserts claims for indemnification due to intent or gross negligence of the supplier himself or one of his agents or helpers. Beyond intentional breach of contract, the supplier shall be liable in the limits of damage indemnification only for the predictable, typically occurring damage or in as far as he maliciously concealed a defect or assumed a warranty of characteristics. Any other liability beyond that for any kind of intentional breach of duty by the supplier is excluded unless it is a breach of essential contract duties that endangers the purpose of the contract.
6.6       Liability for hurt of life, body or health by fault is not prejudiced. The same applies to liability under the product liability law. If nothing else has been agreed, liability of the supplier shall be excluded.
6.7       Claims for defects shall be time-limited 12 months after passage of risk. This does not prejudice the time-limit in case of supplier recourse under §§478, 479 BGB.
7.         Reservation of property title
7.1       The supplier reserves the property title of the delivered goods (hereinafter called reserved goods) until full and final settlement of all receivables following from the ongoing business relationship towards customers who are entrepreneurs, or until full payment of the purchasing price (including VAT and shipment costs) towards customers who are consumers. The customer who is a consumer is not entitled to resell the reserved goods, or otherwise to dispose over the property, without prior explicit written consent from the supplier. If he infringes against this prohibition the regulations under §7 shall apply. The supplier authorizes the customer who is an entrepreneur to process, combine and mix the goods and to resell them in the normal course of business operations, and as far as receivables resulting from the disposal over the reserved goods have not already been assigned to third parties. Otherwise disposal over the reserved goods is not permissible.
7.2       The customer herewith already assigns all receivables resulting from resales, including all ancillary rights, to the supplier, and the supplier herewith accepts this assignment.
7.3       The supplier authorizes the customer revocably to collect the assigned receivable. The customer has to transfer collected amounts immediately to the supplier. If he fails to do so, the authorization to collect receivables expires. In this case, the customer has to notify the supplier immediately about all data of the debtor the supplier needs to collect the receivable. The supplier is authorized to notify third party debtors about the assignment of the receivable, and to collect the receivable, or to claim hand-over of the reserved goods.
7.4       If the customer processes, refines, combines or mixes reserved goods with goods of foreign property, the supplier acquires co-ownership of the thus created goods in the ratio of the value of the reserved goods to the value of the newly created goods. The customer has no right to claim compensation for processing and refining. During the term of the property reservation, the customer has to store reserved goods properly and free of charge for the supplier, and to protect them against damage. Upon request, the customer has to inform the supplier about the place of storage. The supplier has to be given opportunity to mark and label his reserved goods.
The customer is obliged to insure the reserved goods on his own cost and account against theft, water, fire, breakage or other damages. Claims from the insurance policy are herewith assigned to the supplier as security in the amount of the value of the reserved goods. The supplier accepts this assignment.
7.5       If a third party accesses the reserved goods, the customer has to inform the third party immediately about the existing property reservation, and to notify the supplier immediately about the efforts of the third party to access the reserved goods. Any costs of access of third parties to the reserved goods go on cost and account of the customer as far as not refunded by the third party.
7.6       The supplier shall release the securities to which he is entitled upon request of the customer. They shall be released in as far as the realizable value of the securities exceeds the receivable to be secured by at least 20%.
7.7       If the property reservation may not be agreed with the same effect as under German law for deliveries to foreign countries, but the reservation of other rights in the reserved goods is permissible, these rights under foreign law shall fall to the supplier. In order to safeguard the supplier’s rights, the customer has to support as required.
8.         Other clauses and other obligations of the customer
8.1       The business relationships and the entire legal relationships between the supplier and the customer are exclusively governed by the law of the Federal Republic of Germany under reservation of any compulsory international private law regulations. Application of the Treaty of the United Nations about Contracts on the international Purchas of Goods (CiSG) is excluded.
8.2       If the customer is a business: Place of jurisdiction for all legal disputes arising under the contractual relationship, also for cross-frontier deliveries, shall be Bremen, Federal Republic of Germany. The supplier may take legal action against the customer also on the customer’s main business residence. The supplier reserves the right to appeal to any other court of competent jurisdiction.
8.3       Every product which is denaturized with Shellac by the supplier is just allowed to be used by the customer for tax-exempted purposes. The customer has to send the certain proof within the statutory period back to the supplier. The customer is fully responsible for compliance with the valid laws of the country. If the customer does not fulfil the certain proof, he has to pay the then emerging tax to the supplier.
8.4       Customers in foreign European countries have to send the signed Entry Certificate(pursuant to § 17a  Abs. 2 Nr. 2 UStDV in its respective applicable version) within 14 days back to the supplier. If the customer does not fulfil the certain proof, he has to pay the then emerging tax to the supplier.
8.5       The supplier may process and store the data concerning the related purchasing contracts as far as required for performance and handling of the purchasing contract, and as long as he is obliged to store these data due to legal regulations. The supplier reserves the right to transfer personal data of the customer to rating agencies as far as required for the purpose of verifying his creditworthiness, provided the customer explicitly consents from case to case. The supplier shall otherwise not forward personal data of the customer to third parties without explicit consent of the customer unless he is legally obliged to disclose such data. Collection, transfer or other processing of personal data of the customer for purposes other than those specified in this section is not permissible for the supplier.
9.         Costs of return shipment for consumer, instruction on right of rescission for consumer
9.1       The parties herewith agree that the customer has to pay for the costs of the return shipment if the ordered goods are as ordered, and if the price of the goods to be returned does not exceed the amount of € 40.00, or if the customer did not fulfil his compensation service or a contractually agreed instalment per date of rescission if the price of the goods is higher. Otherwise, the return shipment is free of charge for the buyer.
9.2      Instructions for revocation
a)         Right to revocation
You can revoke you contractual declaration within 14 days without stating any reasons in text form (e.g. letter, fax, e-mail) or – if the object is handed over to you before expiry of the deadline – also by returning the object. The deadline begins after receipt of these instructions in a text form, however not before receipt of the goods by the recipient (with the recurring delivery of equivalent goods not before receipt of the first partial delivery) and not either before satisfaction of our obligations for information according to Article 246 § 2 in conjunction with § 1 Par. 1 and 2 EGBGB [Introductory Act to the German Civil Code] as well as our duties according to § 312g Par. 1 Sentence 1 BGB [German Civil Code] in conjunction with Article 246 § 3 EGBGB. The timely despatch of the revocation or the object is sufficient in order to safeguard the deadline for revocation. The revocation is to be sent to:
Stroever GmbH & Co. KG
Auf der Muggenburg 11
28217 Bremen
Fax: +49 (0)421 38613-44
b)         Consequences of revocation
In the event of an effective revocation the services received by both parties are to be refunded and if applicable drawn benefits (e.g. interest) to be handed over.  If you can not or partly not refund us the received service and uses (e.g. benefits of use) or only refund or hand these over in a deteriorated condition you must accordingly compensate us for the value. You must only compensate for the value for the deterioration of the object and for drawn benefits insofar as the use or the deterioration is a result of a handling of the object which goes beyond the examination of the properties and the method of function. You only have to pay compensation for value for drawn benefits insofar as you used the goods in a manner which goes beyond the examination of the properties and the method of function. Under “examination of the properties and the method of function” one understands the testing and trying of the respective goods as it is for example possible and customary in the store business. Objects capable of shipment as packages are to be returned at our risk. You have to bear the regular costs of the shipment if the delivered goods comply with that which was ordered and if the price of the object which is to be returned does not exceed an amount of Euro 40 or if they were provided with a higher price of the object or a contractually agreed instalment payment. Otherwise the return shipment is free of charge for you. Objects which are not capable of shipment as packages will be picked up at your address. Obligations for the reimbursement of payments must be satisfied within 30 days. The deadline shall begin for you with the despatch of your declaration of revocation or the object, for us with its receipt.
End of the instructions on revocation
(Version: April 2014)