1. Scope of application, exclusion of the customer’s general terms and conditions
stilum shall perform deliveries and services towards compa-nies, legal entities under public law and special funds under public law only subject to the following General Terms and Conditions. stilum shall not accept customer’s terms and conditions differing from or conflicting with these General Terms and Conditions, unless stilum explicitly confirms their validity in writing. The Terms and Conditions of stilum and the rejection of differing or conflicting terms and conditions of the customer will also be applicable if stilum, aware of differing or conflicting terms and conditions or the customer, performs deliveries and services to this customer without reservation. In case of litigation, the German version of the General Terms and Conditions will exclusively prevail.
2. Conclusion of a contract
Quotations by stilum shall be without engagement and not binding, unless otherwise explicitly specified in the quotation. stilum shall be entitled to accept quotations made by the customers within a period of time of four weeks after their submittal. Declarations of acceptance as well as acknowledgements of order shall need to be in writing. In case of an execution of the order within the time limit for acceptance, the delivery note and/ or the commercial invoice shall also be considered to be declarations of acceptance and/or akknowledgements of order.
3. Prices, terms of payment, default in payment
Deliveries and services for which fixed prices are not explicitly agreed shall be charged at the list prices applicable at the day of the conclusion of the contract; prices stated in catalogues, price lists etc. of stilum do not include the statutory value-added tax. This tax shall be stated separately to the statutory amount applicable at the day of invoicing. If an essential change in the price factors decisive for price calculation (e. g. increase in or lowering of prices of material, labour costs, freight charges or rates of customs) occurs, either contract party will be entitled to request the revision of prices by negotiation. Payments of purchase prices shall become due immediately.
Claims for compensation under a service contract shall become due at acceptance of the service. Default shall occur in case of a warning upon maturity, in any case, however, 20 days after maturity and receipt of an invoice or equivalent request for payment. If the customer is in default of payment, stilum shall be entitled – notwithstanding further rights – to perform further deliveries to the customer only against advance payment.
4. Offsetting, retention
The customer will only be allowed to offset against own claims if these claims are uncontested or have been finally determined. The same shall apply for the exercise of rights of retention unless the right of retention is due to an intentional or grossly negligent
breach of contract by stilum. Besides, the customer will only be allowed to exercise a right of retention if its rights are founded on the same contractual relationship as the claims of stilum against which the customer asserts these rights.
5. Place of performance, passing of risks, storage
Place of performance shall be the registered office of stilum. Unless otherwise agreed, the delivery shall be performed ”ex
works”. The customer shall be responsible for loading. If the pick-up or shipment is accomplished by a forwarding agent or a carrier, the loading will be performed by this person as a vicarious agent of the customer. The risks of accidental loss or accidental deterioration shall pass to the customer upon handing-over at the place of performance. If the goods or the services are ready for collection and the pickup
is delayed for reasons stilum is not responsible for, risks will pass to the customer upon receipt of the notice of readiness for pickup. If the goods or services are sent to the customer at the customer’s request, the risks of accidental loss and of accidental deterioration will pass to the customer upon their delivery to the forwarding agent or the carrier, at the latest, however, upon leaving the works or the warehouse of stilum, regardless of who will bear the forwarding expenses. Unless otherwise agreed, the customer shall bear all costs of transport, transport insurance as well as customs duties. The customer shall have to make sure that the goods or services can be sent to it at the indicated address. If the delivery is not possible for impassability of the shipping point or similar obstacles, the customer will have to bear the additional expenditure arisen through the failed shipping.
6. Delivery times, force majeure, labour dispute
Terms for delivery and execution shall not be binding. Agreements on binding delivery dates need to be in writing. The delivery time will be complied with if by the end of the delivery period the readiness of the goods or the service for pick-up has been reported to the customer or the goods or services have been handed over for dispatch to the forwarding agent or the carrier. Correct and timely self-supply out of concordant covering transactions of stilum shall be reserved. stilum shall be entitled to carry out partial deliveries and to invoice them separately. The compliance with the obligation of delivery by stilum shall require the timely and proper fulfilment of the obligations of the customer. A default of stilum on account of a warning will only occur if this warning is in writing. A time limit for subsequent performance must be reasonable and must be fixed in writing. In case of doubt, a time limit of at least four weeks shall be considered to be reasonable. stilum will not be responsible for delays in delivery and service due to force majeure and due to events making it more difficult or impossible for stilum to deliver or to perform the service through no fault of stilum – including but not limited to subsequently occurred difficulties in the procurement of materials, breakdowns, strike, lockout, shortage of staff, shortage of means of transport, administrative orders etc, – even if they occur with suppliers, their sub-supplier or subcontractor, even in case of definitely agreed time limits and dates. They shall entitle stilum to postpone the delivery or the service by the term of the impediment plus a reasonable preparatory period or to completely or partly withdraw from the contract for the part not yet fulfilled. If the impediment persists for more than three months, the customer will be entitled to withdraw from the contract regarding to the part not yet fulfilled after fixing of a reasonable final deadline in writing. If the delivery or service becomes impossible for stilum due to the above-mentioned circumstances, it will be exempted from its obligation of delivery or service.
7. Rights of stilum in case of breach of obligations by the customer
If the customer violates an obligation arising under the contractual relationship, as e. g. regarding the acceptance or pick-up of the goods or services or the acceptance of the service under the service contract, stilum will be entitled to withdraw from the contract after unsuccessful fixing of a reasonable time limit. If the client is responsible for the breach of duty, it will have to compensate stilum for the damages arisen due to that breach of duty or for the additional expenditure arisen (e. g. storage costs) in addition without a prior fixing or a time limit being necessary.
8. Reservation of title
stilum shall reserve the right of property of the goods until the complete fulfilment of the purchase price as well as the complete
settlement of all claims under the business relationship with the customer. The treatment and processing of the reserved goods shall be accomplished for stilum without obliging it. The customer shall be authorised and entitled to the sale, adjunction and confusion of the reserved goods only in the usual and proper course of business provided that the claims described in the following effectively pass over to stilum. The customer shall not be entitled to dispose otherwise of the reserved goods, in particular to pledging and assignment as security. The customer shall assign to stilum already now all claims arising from the sale of the reserved goods or the adjunction or confusion of the reserved goods with other goods (including any balance claims from current accounts) to the amount of the value of the reserved goods together with any ancillary rights and any priorities in rank in relation to any other claims. stilum shall accept this assignment. As the value of the reserved goods shall be agreed the amount invoiced by stilum plus a security of 10 % which is, however, not taken into account as far as third-party rights are conflicting with it. In case of default in payment of the customer stilum shall be entitled to demand the goods back after unsuccessful fixing of a reasonable time limit for the payment. After the taking back of the goods, stilum shall be entitled to the best possible realisation. The realisation proceeds shall be charged up against the liability
of the customer – minus reasonable realisation costs. In this case, the claim to performance of the customer shall become void.
The taking back as well as the seizure of the reserved goods shall not constitute a withdrawal from the contract. stilum shall confer the revocable right on the customer to collect the claims assigned to stilum for invoices of stilum on its own behalf as long as the customer fulfils its obligations towards stilum, does not make default and no application for the opening of insolvency proceedings or composition proceedings has been filed. On request, the customer shall have to communicate to stilum the names of the debtors of the claims assigned to stilum, to announce to assignment to them, to give all information on the claims assigned necessary for collection as well as to remit the documents required for collection. stilum shall be allowed as well to announce the assignment to the debtors. stilum will be obliged to release securities if and as far as they exceed the claims to be secured by at least 20 %. If third parties seize the goods reserved, the customer will be obliged to point to the privileged property and to inform stilum immediately on the seizure.
9. Warranty, product description
The warranty period for the purchase of new goods shall be two years beginning from delivery, unless a longer period is provided
by law according to §§ 438 clause 1 no. 2 BGB (German civil code) (constructions or goods for constructions) or 479 clause 1
and/or clause 2 BGB (right of recourse). Rights to warranty in case of purchase of used goods shall be excluded.
If a notice of defects properly reported is justified, stilum will be entitled to proceed to a substitute delivery at its own option. stilum
will not have the right of a subsequent delivery if and as far as the customer asserts claims under a right of recourse according to §§ 479 clause 1 and/or clause 2 BGB. If the substitute delivery fails, the customer will have the right at its own option to withdraw
from the contract or to demand rescission of the contract (cancellation of contract) or the corresponding reduction of the agreed price (diminution) and/or to demand compensation for damages if the legal requirements are met. After having detected a defect, the customer shall not be allowed to make changes to the goods delivered. Otherwise, any warranty shall be excluded. If the defect has to be attributed to the specifications, to instructions made by the customer or to the material delivered or specified by the customer, stilum will be exempted from the warranty for these defects unless stilum failed to perform a communication
incumbent on it on the defects to be expected. Warranties of qualities of the goods or service need to be in writing. Information in advertising brochures shall not be binding and shall not constitute a warranty. Unless otherwise agreed by the contract parties, the contractual use of the goods or services of stilum shall ensue from the intended use indicated in the product descriptions and catalogues.
Defects resulting from the fact that the goods or services are used in a way not complying with the intended use indicated in the product descriptions and catalogues or that the customer chose another product or service than the product or service recommended by stilum for the use intended by the customer despite consultation by stilum, shall be excluded from warranty.
Defects resulting from the fact that the customer did not install the goods or services professionally according to the instructions given by stilum, shall be excluded from warranty. Slight colour deviations between the goods as well as with regard to colour charts are due to the production process and shall not entitle the customer to assert warranty claims. With respect to length and width, dimensional tolerances of +/- 1% are acceptable, with respect to thickness the tolerance is +/- 2mm. Minor deviations in the colours of the goods when comparing them to each other or to colour samples have to be attributed to the production process and do not entitle the customer to claim warranty. The surface cover is subject to wear depending on the sort and way of how it is used. These wear marks, which may lead to visible differences in colour, are inherent in the product and do not represent a fault. Intensive UV-light may lead to minor discolouration of the surface, apart from having a slight chalk effect, which, however, does not interfere with other factors of lasting quality. Impact protection figures measured and certified according to (HIC 1000) EN 1176/77 refer to the quality of the goods or services at the time of delivery. They may be subject to changes, depending on the place of application, the environment and the influence of external factors during their useful life. Using the goods or storage them in a permanently damp environment may lead to changes
in shape, mouldy spots, the development of algae or similar phenomena as results of dampness. They can be subject to changes depending on the type of use, the environment and the influence of external circumstances during use. The proven ingredients (PAK) according to the present audit reports describe the state of the goods or services at delivery. In the event of a notice of defect the customer shall be obliged to a reasonable extent to describe the defect as explicitly as possible. This includes in particular the description of the subsoil, the way of installation, the atmospheric influences and other influences as well as the transmission of significant detailed pictures.
In the case of a special order or product modification commissioned by the customer, the existing certificates lose their validity. Normative testing and approval of the device / goods as well as the associated costs are passed on to the client.
10. Restriction of liability
stilum will only be liable for damages if it or one of its vicarious agents has breached an essential contractual obliga-tion (cardinal
obligation) in a way endangering the purpose of the contract or if the damage is to be attributed to gross negligence or intent by stilum or one of its vicarious agents. If the culpable infringement of an essential obligation (cardinal obligation) is not made grossly negligently or wilfully, the liability of stilum will be limited to the damage reasonably foreseeable for it at the conclusion of the contract.
The customer shall be obliged to inform itself on the qualities, proper use as well as existing risks, in particular with regard to an improper use, of the products and to convey this information to its customers as well. A liability of stilum for damages arising from
improper use of the products shall be excluded. The restrictions of the liability of stilum mentioned above shall apply to contractual and non-contractual claims. The liability under compulsory legal provisions, contractual agreement or warranty as well as for personal injury and its consequences shall remain unaffected.
11. Exclusion of assignment
The assignment of claims of the customer that are no monetary claims shall need the written consent of stilum. stilum shall only refuse its consent in case of material reasons.
12. Place of fulfilment, place of jurisdiction, applicable law
The place of fulfilment for all obligations under the contractual relationship shall be the registered office of stilum.
Unless another exclusive place of jurisdiction is provided by law, the exclusive place of jurisdiction shall be the registered office of stilum GmbH, Gewerbegebiet Larsheck, 56271 Kleinmaischeid (Germany). Besides, stilum shall be entitled to sue
the customer at its general place of jurisdiction. These General Terms and Conditions and the entire legal relations between the contract parties shall be subject to the law of the Federal Republic of Germany, the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) being excluded.
Gewerbegebiet Larsheck – 56271 Kleinmaischeid
as of: 12th October 2016