GENERAL TERMS AND CONDITION OF SALE SCHWARZWÄLDER TEXTIL-WERKE HEINRICH KAUTZMANN GMBH
I. General Provisions
1. These general terms and conditions of sale (hereinafter referred to as “Terms and Conditions“) apply to all offers and agreements for deliveries and services (hereinafter referred to as “Deliveries“) of goods and other services (hereinafter collectively referred to as “Goods”) made by Schwarzwälder Textil- Werke Heinrich Kautzmann GmbH as seller or service provider (hereinafter referred to as the “STW”) to customers. These Terms and Conditions shall also apply for future Deliveries by the STW to customers, even if they are not agreed again.
2. These Terms and Conditions shall apply exclusively. Deviating, contradicting or supplementary terms and conditions of the customer shall not apply unless and only to the extent STW expressly agreed to their applicability. This requirement of consent as well as these Terms and Conditions shall apply in any case, even if STW execute a Delivery without any reservation in the knowledge of deviating or conflicting terms and conditions of the customer.
3. Individual agreements between STW and the customer (including, but not limited to, subsidiary agreements, additions, and amendments) shall prevail over these Terms and Conditions.
4. Any legally binding declarations and notices of the customer after entering into a contract (e.g. setting deadlines, warning notices, declaration of recession) shall be made in writing. Written form within the meaning of these Terms and Conditions includes the written and the text form.
Statutory provisions on form and further evidence, in particular in case of doubts about the legitimacy of the declarant, shall remain unaffected.
5. These Terms and Conditions shall only apply for business relationships with entrepreneurs (§ 14 German Civil Code (Bürgerliches Gesetzbuch, BGB), legal persons under public law and a special fund under public law.
II. Offer, Offer Documents
1. Unless expressly otherwise agreed, STW’s offers are non-binding.
2. Supplements and amendments to relevant agreements including these Terms and Conditions require written form to be effective. STW’s employees are not entitled to make oral agreements deviating from the written agreement, except for managing directors and persons with general commercial power of representation (Prokuristen). Telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement.
3. STW reserves its property rights to offers, images, drawings, calculations, specifications, brochures, catalogs, models and instruments and other documents and tools; the same shall apply to its copyrights as far as copyright ability is given.
4. Without prior written approval of STW, the customer is not entitled not made documents, especially such ones mentioned in section II.3 above, accessible to third parties or disclose, use or reproduce such by the customer itself or by third parties. Any documents shall be used exclusively for the purposes according to STW´s offer. The customer shall return the documents in full and destroy any copies made thereof, (i) if STW and the customer do not conclude a contract or (ii) if the customer no longer requires the documents in the ordinary course of business and furthermore (iii) at any time upon STW´s request. The customer shall keep the documents at any time secret and confidential from third parties.
III. Prices and Payment
1. Unless otherwise agreed in textform, STW’s prices quoted for Goods are net, ex-works, including packaging and plus applicable VAT; in case of export deliveries, the prices are also plus customs duties as well as fees and other public charges.
2. STW shall be entitled to make reasonable price adjustments considering the changed price factors if deliveries are to be made more than four (4) months after conclusion of the contract and significant changes in raw materials, wage, energy or other product procurement and / or product manufacturing costs occur after the date of STW´s offer or after the conclusion of the contract. In such cases, STW shall notify the customer of the respective changes prior to delivery.
3. STW shall invoice on the day of delivery or other handover of the goods.
4. The customer shall pay each invoice without deduction within thirty (30) days after its date of issue and regardless whether Delivery have already taken place respectively property has passed to the customer, unless otherwise agreed. In case of recurring deliveries, STW shall be entitled to demand advanced payment for future deliveries at any time.
5. Payments by the Customer shall always be used to settle the oldest debt items due plus the default interests accrued thereon.
6. The final credit entry on the STW’s bank account shall be decisive for the timeliness of the payment.
7. Customer shall have the right to set-off and / or retention only on the basis of counterclaims that have been assessed in a legally binding judgement or are undisputed or arise from the same contract.
8. Without limitation to STW’s other rights and remedies pursuant to a contract or the applicable law, any payment which is not made by the customer on its due date shall be subject to default interest at an annual rate of nine per centage points above the respective basic rate of interest in accordance with Section 247 German Civil Code (Bürgerliches Gesetzbuch, BGB). Section 288 German Civil Code (BGB) shall apply.
9. In the event of default in payment, STW shall have a claim for payment of a lump-sum in the amount of 40 EUR.
10. Before full payment of due invoice amount including interests, STW shall not be obliged to make any further deliveries under current contracts. STW´s right to claim damages caused by delay remain unaffected.
11. In the event of non-compliance with the terms of payment or if STW becomes aware after conclusion of a contract that payment could be at risk due to the customer’s lack of ability to pay, STW shall be entitled to carry out outstanding Deliveries only against corresponding advance payment or other securities; section 321 German Civil Code shall apply.
IV. Delivery Period and Transfer of Risk
1. Delivery shall be executed on the dates specified by STW (day or a specific calendar week). Unless a delivery date has been expressly agreed as binding, all delivery dates shall only be deemed as estimated delivery dates. STW shall be deemed to have complied with a delivery time/period if the delivery has left STW’s factory or the STW has notified the customer that the goods are ready for dispatch by the expiry of such period. If dispatch or delivery to another place has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport, unless expressly stated otherwise by STW.
2. STW’s compliance with the delivery period is under the condition that STW and the customer have clarified all commercial and technical matters and that the customer has properly and timely fulfilled all obligations incumbent on it. In case that one or more outstanding points, the delivery period shall be extended accordingly, unless STW is solely responsible for the delay.
3. In the customer is in default in acceptance or breaches its obligations to cooperate (e.g. handover necessary products and materials for production of the Goods), STW shall be entitled (i) to demand an extension of the delivery and performance period or to postpone the delivery and performance dates by the period during which the customer does not fulfil its obligations towards STW and (ii) to demand compensation for the damage incurred in this respect, including any additional expenses (such as storage and transport costs). Further claims or rights of STW remains unaffected.
4. STW shall not be liable or responsible for failure or delay of its Deliveries and / or performances to the extent that such failure or delay results from an event of force majeure or any other event that was not foreseeable at the moment of conclusion of an individual contract (including without limitation any occurrences leading to a break or disruption in operation, difficulties in materials or power supply, transport delays, war, strike, lawful lock-outs, shortages of manpower, energy or raw materials, difficulties in obtaining necessary official approvals, administrative acts, or missing, non-conforming or belated supply from suppliers, pandemic and epidemic events) for which STW is not responsible. STW shall inform the customer as soon as possible, if STW is affected by a force majeure event. If such an event makes it significantly more difficult or impossible for STW to deliver the Goods and the obstacle is not only of temporary nature, STW shall be entitled to withdraw from the individual contract. If the obstacle is of temporary nature, the delivery times or dates for delivery or performance by STW shall be postponed by the duration of the obstructive event plus a reasonable warm-up period. If the customer cannot reasonably be expected to accept the delivery of the Goods as a result of the delay, the customer may withdraw from the individual contract by immediately notifying STW in writing.
5. STW shall be entitled to early and partial deliveries of the customer ordered Goods, provided that the early / partial delivered Goods are usable for the customer within the scope of the contractual purpose, delivery of the remaining Goods is ensured and the customer does not incur significant additional expenses or additional costs, unless the STW agrees to bear these costs.
6. The prerequisite for compliance with all delivery time is the proper and timely self-supply of STW by its suppliers with whom STW has concluded a corresponding transaction with regard to STW´s obligations towards the customer. STW shall inform the customer if circumstances arise that could jeopardize compliance with the delivery time agreed with the customer due to improper or untimely self-supply.
7. Unless otherwise agreed, STW‘s Deliveries shall be „ex works“ STW´s nominated facility. This shall also be decisive for the transfer of risk, even if STW assumes additional services, e.g. transport or shipping costs. In the case of an agreed dispatch purchase, the risk shall pass to the customer upon handover to the forwarder, the carrier or the person designated to carry out the dispatch.
V. Notice of Defects, Warranty Claims
1. Only characteristics specified in the STW‘s offer, the data sheet and the STW‘s order confirmation shall be deemed as agreed characteristics of the Goods. Other or more extensive characteristics of the Goods shall only deemed to have been agreed if STW has expressly promised this in writing. All information provided by STW regarding the subject matter of the Goods and / or the Delivery (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. photographs, drawings and illustrations), for example in brochures, catalogs or in correspondence preceding STW‘s offer as well as in other documents, are not binding and are only approximately unless they are expressly declared to be binding in the STW‘s offer or in STW´s order confirmation; such information are no characteristics of quality and do not constitute a guarantee or warranty of suitability for a particular purpose. Such information are only non-binding descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or technical improvements are permissible insofar as they do not affect the usability for the contractually intended purpose; the same applies in case of replacements of equivalent parts.
2. Any complaint about obvious defects is excluded after intermixture or other processing of the delivered Goods.
3. Goods sold under the description „in principle, etc.“ may contain admixtures of other fibrous material. STW does not give any guarantee or warranty is this regard.
4. Defective Goods shall, at the STW‘s option, either be repaired or replaced. The customer shall give STW a reasonable time and opportunity for subsequent performances. STW shall be entitled to make the subsequent performance dependent on the Customer pay the purchase price; the Customer is entitled to retain a part of the purchase price which is reasonable in relation to the defect.
5. The customer shall have the right to withdraw from the contract according the statutory provisions if STW fails to meet a reasonable deadline set for subsequent performance due to a defect. In case of only insignificant defects, the customer shall only have the right to reduce the price.
6. The customer shall only be entitled to claim damages or reimbursement of expenses in accordance with Section VI. Other claims for damages, indemnification and / or reimbursement shall be excluded.
VI. STW´s Liability
1. STW shall be liable for a culpable breach of material contractual obligations (wesentliche Vertragspflichten) in accordance with the statutory provisions. Material contractual obligations are obligations which characterize the purpose of the contract, the fulfillment of which is a prerequisite for the proper performance of the contract and compliance with which the customer may regularly rely on. Insofar as STW is neither culpable of gross negligence nor intentional conduct, STW shall, however, only be liable for the typically occurring, foreseeable damage.
2. In all other cases, STW shall only be liable if damages has been caused by STW or by his vicarious agent due to intent or gross negligence acting. In the event of the assumption of a guarantee as well as for damages resulting from injury to life, body or health, STW shall be liable in accordance with the statutory provisions. Otherwise, claims against the STW for damages from breaches of obligations shall be excluded.
3. STW´s liability according to the German Product Liability Law (Produkthaftungsgesetz, ProdHaftG) remains unaffected.
4. Claims for damages according to this clause shall lapse within the statutory periods.
VII. Limitation Period
1. Deviation from Section 438 para. 1 No. 3 German Civil Code (BGB), the limitation period for claims arising from defects (material and legal defects) shall be one (1) year as from delivery. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance. The above limitation periods of the purchase law of the German Civil Code (BGB) shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the delivered Goods, unless the application of the general limitation period according to the statutory provisions of §§ 195, 199 of the German Civil Code (BGB) justifies a shorter limitation period in individual cases. For claims of damages according to Section VI. 2, the limitation periods according to the statutory provisions shall apply. The statutory limitation period shall apply in the case of supplier recourse.
VIII. Retention of Title
1. STW shall retain title to the delivered Goods until STW has received payment in full of all sums due and/or owing in connection with the supply of the Goods and the business relationship (secured claims). In the event of breach of contract by the customer, in particular in the event of default in payment, STW shall be entitled to take back the delivered Goods and the repossession of the delivered Goods by STW shall constitute a withdrawal from the contract. STW shall be entitled to liquidate the Goods in case of taking back and the proceeds of realisation shall be set off against the customer‘s liabilities (minus reasonable realisation costs).
2. The customer shall be obliged to handle the Goods delivered under retention of title by STW with the utmost care. Furthermore, the customer shall insure the delivered Goods under retention of title by STW at its own expense against fire, water and theft damages sufficiently at replacement value.
3. The delivered Goods under reservation of title by STW may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer shall notify STW immediately in writing in the event of an application for the opening of insolvency proceedings and seizures or other interventions by third parties against the customer. Insofar as a third party is not able to reimburse STW for the judicial and extrajudicial costs in connection with a legal remedy of STW, the Customer shall be liable for the loss incurred by the Seller.
4. The customer shall revocably be entitled to sell the Goods subject to the reservation of title in the ordinary course of business provided the customer is not in default. The customer hereby assigns to STW by way of security all claims against third parties arising from the resale or any other legal grounds (insurance, tort) in respect of the goods subject to retention of title in the full amount of the final invoice amount (including VAT) of STW, irrespective of whether the purchased goods have been resold without or after processing. STW revocably authorize the customer to collect all accounts receivable assigned to STW in its own name but for STW´s account, but, however, STW´s own authority to collect the claims remains unaffected. However, STW undertakes not to collect the claim as long as the customer fulfill his payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. In this case, the customer shall disclose the assignment to third parties and shall inform STW of the claim and the debtor and to provide STW all information and documents required for the collection of the claims.
5. If the Goods subject to the retention of title are combined with other objects or if they are part of a processing, intermixture or other combing with other objects, the retention of title of STW shall continue to the full extent and amount of the newly created product. STW shall be deemed the legal manufacturer. If in the event of processing, intermixture or combining with objects of third parties, the latter‘s right of ownership remains, STW shall acquire co-ownership in the ratio of the value of the goods supplied by us (invoice value) to the value of the other processed, intermixed or combined objects. For the resulting newly products the same applies as to the Goods delivered under retention of title.
6. The customer also assigns to STW the claims to secure the STW‘s claims against him which arise against a third party through the connection of the object of sale with a property.
7. STW undertakes upon the customer‘s request to release the securities to which STW is entitled to the extent that the realisable value of its securities exceeds STW´s claims to be secured by more than ten (10) %. The selection of the securities to be released shall be incumbent on STW.
8. In the event that the law applicable in the country, in which the subject matter of the delivery is located, does not permit the agreement of a reservation of title, or does so only in a limited form, STW may reserve other rights over the delivered Goods. The customer shall be obliged to assist with all measures (e.g. registration) necessary for effecting the reservation of title or rights in substitution of a reservation of title, and to assist in the safeguarding of such rights.
IX. Applicable Law, Place of Jurisdiction
1. These Terms and Conditions and all business relations between STW and the Supplier shall be governed by the laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
2. Exclusive and international place of jurisdiction for all disputes arising out of or in connection with the relationship between STW and the customer shall be the court of the registered office of STW, if the customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch, HGB), a legal person under public law and or a special fund under public law. In addition, STW shall be entitled to sue the customer at the it´s registered office or the the place of performance of the delivery or service.
State: April 2023
GENERAL TERMS AND CONDITIONS OF PURCHASE SCHWARZWÄLDER TEXTIL-WERKE HEINRICH KAUTZMANN GMBH
I. General Provisions
1. These general Terms and Conditions of purchase (hereinafter referred to as “Terms and Conditions”) shall apply to all contracts for the purchase and deliveries of goods and services (hereinafter referred together to as “Deliveries” and “Goods”) performed by seller, contractor or service provider (hereinafter referred in general to as the “Supplier”) to the Schwarzwälder Textil-Werke Heinrich Kautzmann GmbH (hereinafter referred to as the “STW”). These Terms and Conditions shall also apply for future Deliveries by the Supplier to STW, even if they are not agreed again.
2. These Terms and Conditions shall apply exclusively. Deviating and / or supplementary terms and conditions of the Supplier shall not apply unless and only to the extent STW expressly agreed in writing. This requirement of consent as well as these Terms and Conditions shall apply in any case, even if STW accepts a Delivery of the Supplier without any reservation in the knowledge of deviating or conflicting terms and conditions of the Supplier.
3. These Terms and Conditions shall only apply for business relationships with entrepreneurs (§ 14 German Civil Code (Bürgerliches Gesetzbuch, BGB), legal persons under public law and a special fund under public law.
4. Individual agreements between STW and the Supplier (including, but not limited to, subsidiary agreements, additions, and amendments) shall prevail over these Terms and Conditions.
5. Any legally binding declarations and notices of the Supplier after entering into a contract (e.g. setting deadlines, warning notices, declaration of recession) shall be made in writing. Written form within the meaning of these Terms and Conditions includes the written and the text form.
1. Supply agreements (by order and acceptance), call-offs as well as any additions and amendments shall be made in writing.
2. STW shall be entitled to cancel an order, if the Supplier does not accept the order within five (5) working days as of the receipt.
3. STW may request changes to construction and execution of the delivery item, insofar as the changes are reasonable for the Supplier. In this context, all effects, in particular additional and reduced costs and the delivery dates, shall be regulated between STW and the Supplier in a reasonably mutually agreeable manner.
4. STW reserves its property rights to images, drawings, calculations, specifications and all other of its documents. The same applies to copyrights as far as copyright ability is given. The Supplier shall under no circumstances make such aforementioned documents and rights accessible to third parties without the express written approval of STW nor shall the Supplier reproduce such itself or by third parties. The Supplier shall use the mentioned documents and rights only and exclusively for production of the STW´ orders and shall return the documents and rights immediately after completion of the order and Delivery and before that upon STW´s request at any time. The Supplier shall destroy any duplicates, copies and data backups. The documents and rights must be kept secret from third parties at any time; Section XIV (Confidentiality) applies. Supplier shall have no right of retention to these documents.
III. Prices, Payment
1. Prices stated in the orders are binding. The prices include delivery to STW’s premises (free delivery, “frei Haus”), including packaging, transport and insurance costs and VAT, unless otherwise agreed in writing.
2. Unless otherwise agreed in writing, payment will be made by STW within a period of fourteen (14) days after delivery and receipt of a proper invoice with a discount of two (2) % or net within thirty (30) days after receipt of a proper invoice. In case of acceptance of early delivery, the due date shall be based on the agreed delivery date.
3. STW reserves all rights to set-off and retention rights as well as the right to the defense of unperformed contract according to the law.
4. Payment shall be made by bank transfer and payment shall be deemed in due time if the STW’s transfer order is received by its bank before the expiry of the payment deadline; STW shall not be responsible for any delays caused by the banks involved in the payment process.
5. The Supplier shall be entitled to set-off and / or retention rights only if and to the extent that its counterclaim is acknowledged by STW, undisputed or assessed in a legally binding judgement.
6. The Supplier shall not be entitled to assign its claims against STW or to let them collected by third parties without prior written approval of the STW.
IV. Delivery, Delivery Dates and Periods, Default in Delivery, Default in Acceptance
1. Dates and deadlines specified by STW in its order or, if made, agreed between the parties are binding. The receipt of the goods by STW at the delivery address specified in the order shall be decisive for compliance with the delivery date or the delivery period. To the extent ex works is not agreed, the Supplier shall make the goods available in good time and consider the usual time for loading and shipment.
2. The Supplier shall be obligated to immediately inform STW in text form if any circumstances occur or become apparent to the Supplier which are likely to cause delays in delivery. However, this shall not affect the Supplier’s responsibility to comply with the agreed delivery time.
3. The Supplier shall specify in all order confirmations, delivery documents and invoices STW’s order number, article number, delivery quantity and delivery address. If such information is missing, STW´s payment deadlines shall be extended by the period of the delay.
4. If the delivery of the Products has not taken place by the delivery date, STW reserves all rights under applicable law. In addition, the Supplier shall pay to STW as liquidated damages for each day of delay a sum of one (1) % of the net price of the goods delivered late up to a maximum amount of five (5) % of the net price of the goods delivered late. STW reserves the right to prove that a higher damage has been incurred. However, the Supplier have the right to prove that no damage or only significantly less damage has been incurred.
5. For STW´s default in acceptance the statutory provisions shall apply. However, the Supplier must expressly offer its Delivery and performances to STW even if a specific calendar date has been agreed.
V. Weights, Quantities
1. Without prejudice to further claims of STW, in the event of deviations of weight, the weight determined by STW upon receipt of the Delivery shall decisive. This does not apply if the Supplier proves that he has correctly determined the weight was in accordance with a generally accepted method at the time of the transfer of the risk. The same applies in case of deviations in quantities.
VI. Notice of Defects, Warranty
1. With regard to the obligation to inspect incoming goods and to report defects the statutory provisions shall apply within the following: STW´s obligation to inspect incoming goods shall be limited to defects that become apparent during external inspection including the delivery documents (e.g., transport damages, incorrect delivery, incomplete delivery) or during a during quality control in the random sampling procedure. No obligation to inspect incoming goods shall apply, if acceptance has been agreed. Furthermore, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to report defects discovered later remains unaffected. Notwithstanding the complaint (notice of defect) shall be deemed to have been made without undue delay and in good time if it is sent within five (5) working days of discovery or, in the case of obvious defects, of delivery.
2. The statutory claims for defects shall apply without limitation. In any case, product descriptions which, in particular by designation or reference in the order of the STW, are the subject matter of the respective contract or have been included in the contract in the same way as these Terms and Conditions shall be deemed an agreement on the quality; it has no influence whether a product description originates from the Supplier, STW, or a manufacturer.
3. STW shall be entitled whether the Supplier shall remedy the defect or deliver a new good. STW´s right to claim damages, in particular damages in lieu of performance, is expressly not be limited.
4. If the Supplier fails to meet its obligation to remedy the defect or to deliver a new good within a reasonable period of time set by STW, STW shall be entitled to remedy the defect itself and to demand reimbursement of the expenses incurred respective a corresponding advance payment from the Supplier. In the event that subsequent performance by the Supplier has failed or is unreasonable for STW (e.g., due to particular urgency, danger to operational safety or impending disproportionate damage), no deadline for subsequent performance needs to be set.
5. The warranty period shall be thirty-six (36) months, calculated from the date of transfer of risk, unless statutory provisions provide a longer warranty period.
6. Services under a contract to produce a work must be formally accepted by STW. The Supplier shall notify STW in good time in text form of the finalization of its work and the readiness for acceptance. Implied and notional acceptances are excluded.
VII. Spare Parts
1. The Supplier shall be obligated to store spare parts for the delivered goods for a period of at least five (5) years after delivery.
2. If the Supplier intends to discontinue the production of spare parts for the goods delivered to STW within or after the expiry of the above-mentioned period, the Supplier shall notify STW immediately, but at least three (3) months before the discontinuation of production.
VIII. Retention of Title
1. Any retentions of title by the Supplier shall only apply to the extent as it relates to STW’s payment obligation for the respective good to which Supplier retains title. In particular, all and any extended or prolonged retentions of title (erweiterte Eigenumsvorbehalt und verlängerte Eigentumsvorbehalt) of the Supplier shall excluded. STW shall be entitled to resell the goods in the ordinary course of business even prior to payment of the purchase price, subject to advance assignment of the claim arising therefrom.
2. The Supplier shall carry out any processing, intermixture or combination or other further processing of STW´s provided items for STW. The same shall apply in the event that STW further process delivered goods, so STW shall be deemed manufacturer of the product and shall acquire ownership of the product.
IX. Quality and Documentation
1. At any time the Supplier shall comply with accepted rules of technology, the relevant statutory provisions, safety regulations, agreed specifications and agreed technical data. Changes to the goods require STW´s prior written approval. The Supplier shall at every time check the quality of the delivered goods and services. STW and the Supplier shall inform each other about possibilities of quality improvement.
2. To the extent that type and scope of the quality test, equipment and methods are not agreed between the Supplier and STW, STW will, at request of Supplier, discuss such points with the Supplier within the scope of its knowledge experience and possibilities in order to determine the required state. In addition, STW will, upon Supplier´s request, inform the Supplier about relevant safety regulations.
X. Hazardous Substances, Product Information
1. Goods must be manufactured and labelled in accordance with the regulations of the Hazardous Substances Ordinance and the EC / EU Directives for Hazardous Substances / Preparations.
2. The Supplier undertakes to provide STW in good time before delivery / service with all necessary product information, in particular on composition and durability, e.g., safety data sheets, processing guidelines, labeling regulations, assembly instructions, occupational safety measures, etc., including any changes thereto.
3. The Supplier warrants that the goods do not contain gold, tin, tantalum, tungsten or compounds of the mentioned substances originating from the Democratic Republic of the Congo or its neighboring states. The Supplier shall provide STW Upon request with information on the origin of the substances and / or compounds of its goods.
XI. Compliance, Energy Management
1. The Supplier warrants that he and its delivered goods comply with all applicable regulations in the European Union and with STW´s „ Supplier Code of Conduct“ (published on STW website). Upon request, the Supplier shall provide STW with evidence if conformity by submitting suitable documents.
XII. Product Liability
1. The Supplier shall, upon first request, indemnify STW against claims for damages by third parties based on product defects of the delivered goods to the extent the cause lies within the sphere of control and organization of the Supplier and the Supplier itself is liable in external relation.
2. Within the scope of its liability for damages and its indemnification obligation pursuant to section XII.1 above, the Supplier shall also reimburse any expenses arising from or in connection with a lawful recall carried out by the STW or by a customer of STW. Insofar as practical and reasonable, STW shall inform the Supplier about content and scope of the recall measures and shall give the Supplier the opportunity to comment. Other statutory claims shall remain unaffected.
3. The Supplier shall take out and maintain a product liability insurance with an adequate insurance company and a lump-sum coverage of at least 5,000,000.00 EUR (five million euro) for each event of damage (personal and / property).
XIII. Intellectual Property Rights
1. The Supplier warrants that the delivered goods do not infringe any intellectual property rights of third parties, especially not in countries of the European Union neither countries in which the Supplier manufactures the goods or has them manufactured in the past. The Supplier shall be liable and shall indemnify STW against all claims asserted by third parties against STW due to an infringement of industrial property rights by the goods delivered by the Supplier; the Supplier shall also reimburse STW for all necessary expenses in connection with any claims a third party makes against STW with regard to third-party´s intellectual property rights. This shall not apply if the Supplier is demonstrably not responsible for the infringement of third-party rights.
2. Further statutory claims due to defects in title of the delivered goods remain unaffected.
3. The limitation period shall be thirty-six (36) months, as from the transfer of risk, unless statutory provisions provide a longer warranty period.
4. STW and the Supplier shall inform each other immediately about any risks of infringement and alleged cases of infringement that become known and shall give each other the opportunity to counteract corresponding claims.
5. Upon request, the Supplier shall notify STW of the use of published and unpublished own and licensed intellectual property rights and applications for intellectual property rights relating to the delivered goods.
1. The Supplier is obliged to keep the terms and conditions of STW´s orders as well as all information and documents which STW made available to the Supplier (with exception of publicly available information) secret and confidential for a period of three (3) years after the date of delivery and to use them only for the execution of the order. The Supplier shall immediately return all documents to STW, irrespective of whether they relate to a specific order or whether they are a general handover.
2. The Supplier shall under no circumstances handover any drawings, samples, and similar items to third parties or make such otherwise accessible to unauthorized third parties. The reproduction of such items is only permitted within the scope of operational requirements and only to the extent allowed according the applicable copyright provisions.
3. Any subcontractors of the Supplier shall be obliged accordingly.
4. The Supplier may only advertise the business relationship with prior written consent of STW.
XV. Minimum Wage
1. The Supplier shall pay its employees at least the minimum wage in accordance with the applicable provisions. The Supplier shall indemnify STW against all claims asserted against STW in the event of a violation of the provisions of the Minimum Wage Act (Mindestlohngesetz, MiLoG) by the Supplier or its subcontractors.
2. Notwithstanding any other rights of termination or withdrawal, STW shall be entitled to withdraw from a contract with immediate effect or to terminate the contract, if the Supplier and / or its subcontractors culpably violate the above provisions of section XV.1 or the provisions of the applicable Minimum Wage Acts. The Supplier shall compensate STW for any damage incurred as a result of the withdrawal or termination and any claims of Supplier for non-performance are excluded. In all other respects, the statutory provisions shall apply.
3. STW shall be entitled, at any time, to demand a written confirmation of the payment of the minimum wage from Supplier, Furthermore, STW shall be entitled to demand appropriate evidences (e.g., minimum wage declaration of employees of Supplier, confirmations of the tax advisor or auditor of the Supplier etc.) in order to check compliance with the provisions of this section XV.
1. These Terms and Conditions and all business relations between STW and the Supplier shall be governed by the laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
2. Unless otherwise agreed, the place of performance shall be the registered office of STW (Schenkenzell).
3. Exclusive and international place of jurisdiction for all disputes arising out of or in connection with the relationship between STW and the Supplier shall be the court of the registered office of STW, if the Supplier is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch, HGB), a legal person under public law and or a special fund under public law. In addition, STW shall be entitled to sue the Supplier at the Supplier´s registered office or the the place of performance of the delivery or service.