GENERAL TERMS AND CONDITIONS OF SALE (AGB)
1. Sales Agreement. The sale of products and services (“Products”) by Stresstech GmbH (“Stresstech”) to persons and entities who are not consumers is governed by these terms and conditions (“Terms and Conditions”). Stresstech’s offer to sell Products to the buyer (“Buyer”) is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, as evidenced by (i) Buyer’s issuance of an Order (as defined below) for Products, (ii) Buyer’s acceptance of any Products under an Order, or (iii) Buyer’s payment for any Products under an Order. These Terms and Conditions apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate or which could be implied by trade, custom, practice or course of dealing. Any terms included on any Order, acknowledgment form or other documents issued by or on behalf of Buyer shall not apply and are hereby voided, except to the extent that any such terms are expressly agreed to in writing by Stresstech.
Any offers to sell Products by Stresstech must be in writing to be valid, and all such offers shall be valid for thirty (30) days from the date of issuance, unless otherwise set forth in such offer. Offers shall be deemed accepted only upon Stresstech’s receipt of Buyer’s written acceptance of such offer (an “Order”), provided that Stresstech receives such Order prior to the offer’s expiration date. Stresstech shall not be liable for any errors or miscalculations in Buyer’s Orders.
Except where Buyer is entitled to rescind an Order under statutory law (including warranty provisions), or where the parties have agreed on a right to rescind an Order beforehand, Buyer may not cancel an Order without Stresstech’s prior written approval and such approval shall be at Stresstech’s sole discretion. In the event Stresstech agrees to permit Buyer to cancel an Order, Buyer will pay Stresstech, as a cancellation fee, all direct costs attributable to the cancellation plus fifteen percent (15%) of the value of the Order.
2. Prices. All prices include air freight packing, or packing for other methods of delivery, unless otherwise noted, but exclude (and Buyer shall be solely responsible for) costs of loading, shipping, delivery, insurance, installation and commissioning. Prices do not include any fees, taxes or duties relating to the shipment and delivery of the Products, including without limitations value-added tax (VAT), duty, import and export tariffs and other forms of taxes and excise duties in Germany and/or the recipient country.
3. Payment. Payment shall become due and payable within 14 days from the date of Stresstech’s invoice, or upon receipt of a reminder (Mahnung) from Stresstech (or in the event that a reminder is not required under statutory law, upon such event). Buyer will be in default, and Stresstech may charge interest at the statutory default interest rate of 9 pp. above the base interest rate published by the German Federal Bank (Bundesbank) plus a fixed amount of 40 EUR for any late payments. The right of Stresstech to claim higher damages (including actual higher interest rates and legal costs incurred, provided that the aforementioned fixed amount shall be credited to any damages resulting from legal costs) as well as any other statutory rights of Stresstech such as the right to rescind the Order shall remain unaffected.
4. Delivery. The estimated date of delivery shall be stated in Stresstech's Order Acknowledgment to Buyer, and Stresstech will use commercially reasonable efforts to deliver the Products within the estimated time. However, Buyer expressly acknowledges and agrees that delivery dates are estimates only, not a binding undertaking, and that the time of delivery is not “of the essence;” Stresstech does not guarantee delivery on or by any estimated delivery date. In no event shall Stresstech be liable to Buyer for any costs, fees, penalties or price reductions as a result of any failure to deliver the Product(s) in accordance with any estimated delivery dates. Partial deliveries and partial invoicing by Stresstech are permitted unless otherwise agreed upon in writing by the parties.
Delivery shall be made Ex Works (EXW Incoterms 2010), Stresstech’s shipping point. Unless otherwise agreed upon by the parties in writing, Buyer shall arrange for transportation and transport insurance. If Buyer fails to arrange for transportation, Stresstech will choose a method of transportation that it reasonably deems appropriate as a mandate (im Auftrag) of Buyer; Buyer shall reimburse Stresstech for all costs reasonably deemed necessary by Stresstech associated with said transportation; however, Stresstech does not represent or guarantee it will always select the most economical or reliable method of transportation, and Stresstech shall not be held liable for any costs, damages or delays associated with transportation arranged on behalf of Buyer. In all cases, Buyer is solely responsible for all expenses involved in the shipment and delivery of the Products (including without limitation loading, freight, shipping, insurance, forwarding and handling charges).
5. Factory Acceptance Test. Where Stresstech is modifying or manufacturing Products to Buyer’s specifications, Stresstech will, at the option/request of Buyer, perform a factory acceptance test (FAT) to ensure that the Products conform to Buyer’s specifications. The FAT will occur at Stresstech’s facilities prior to delivery; Buyer may attend and observe the FAT at Buyer’s sole costs and expense as well as any other charges imposed by Stresstech, such as a daily allowance or hosting fee. Both Stresstech and Buyer will sign off on the successful completion of the FAT, upon which Buyer shall waive the right to claim that the Products do not conform to Buyer’s specifications. Upon completion of the FAT, Stresstech will prepare the Goods for delivery.
6. Title Transfer/Risk of Loss. Risk of loss to the Products shall pass to Buyer upon placement of the Products with a transport agent. Title to the Products shall pass to Buyer upon Buyer providing payment, in full, to Stresstech.
7. Use of Products. Buyer acknowledges and agrees that the Products must be used and maintained in accordance with all instructions provided by Stresstech and, where stated, Products must be operated only by personnel who have received the appropriate training. Any Stresstech Products that are to be connected to an electrical supply must be operated only by appropriately trained and qualified personnel and must not be made available to any personnel without the proper training and qualifications.
8. Drawings, Descriptive Documents. Stresstech reserves the right to alter measurements and dimensions as well as the design and description of any Products. All data included in catalogues, prospects, circulars, advertisements, illustrated matter, price lists and on the company’s website are approximate and shall not be binding unless otherwise agreed upon in writing by the parties. Drawings, descriptive documents, parts lists and other documentation provided or made available to Buyer by Stresstech is Confidential Information and is subject to the restrictions and obligations outlined in the Confidential Information section contained in these Terms and Conditions.
9. Intellectual Property Rights. Notwithstanding that title to the Products may pass to Buyer, Stresstech shall remain the exclusive owner of all intellectual property rights of whatever nature including, without limitation, copyrights, patents, patentable inventions, know-how, trade secrets, trademarks and design rights (whether registered, registrable or otherwise) embodied in or otherwise relating to the Products (including any software contained therein). Unless otherwise expressly agreed in writing by Stresstech, all rights (including all intellectual property rights) in and to any customizations, modifications or enhancements made by Stresstech to the Products or the software and any design or development work undertaken by Stresstech, whether for or on behalf of Buyer, shall be the exclusive property of Stresstech. Other than as permitted by applicable law, Buyer shall not reverse engineer, decompile or disassemble the Products or any part thereof. Buyer shall not remove any proprietary notices and/or branding contained in or otherwise affixed to the Products.
To the extent software is either incorporated into the Products or purchased separately, Buyer shall not copy said software other than as is necessary for permitted use (including for error correction) and back-up copies. Buyer shall not license, rent, assign any rights in or otherwise deal in the software. Stresstech grants to Buyer a limited, non-exclusive license to use the software provided with the Products solely for the purpose of operating the Products in accordance with Stresstech’s written documentation.
10. Confidentiality. Confidential Information means any and all information disclosed by Stresstech to Buyer whether or not such information is marked confidential, including information relating to the matters which are the subject of these Terms and Conditions and all other information regarding Stresstech’s past, present or future research, technology, know-how, ideas, concepts, designs, inventions (whether patentable or not), products, markets, computer programs, prototypes, processes, machines, manufacture, compositions of matter, business plans and operations, technical information, drawings, schematics, specifications, and the like (“Confidential Information”).
Confidential Information shall not include information which is: (a) at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission by Buyer or its representatives; (b) lawfully in the possession of Buyer prior to disclosure by or on behalf of Stresstech as shown by Buyer’s written records; (c) lawfully disclosed to Buyer by a third party which did not acquire the same under an obligation of confidentiality from or through Stresstech as shown by written records; or (d) independently developed by Buyer without use of, or reference to, Stresstech’s Confidential Information as shown by Buyer’s written records.
Buyer shall not, without the prior written consent of Stresstech, disclose any of Stresstech’s Confidential Information to anyone for any reason at any time or use any of Stresstech’s Confidential Information for any purpose except for the exercise of its rights and performance of its obligations under these Terms and Conditions.
11. Warranty. Stresstech warrants that all new Products that are purchased directly from Stresstech shall be free of material defects at the time the risk passes to Buyer. Buyer’s sole and exclusive remedy, and Stresstech’s sole and exclusive obligation, in the event of any product defect, shall be for Stresstech to, at its option, repair or replace such Products free of charge. Notwithstanding, in case that such repair or replacement fails or is refused by Stresstech, Buyer shall remain entitled, at their option, to reduce the price or to rescind the contract.
All warranty claims of Buyer shall expire (verjähren) within twelve (12) months from delivery of the Products.
If Buyer is acting as a merchant (Kaufmann) within the meaning of § 1 of the German Commercial Code (Handelsgesetzbuch), Buyer must examine the delivered Products immediately upon receipt thereof and report to Stresstech, in writing, any visible defects within ten (10) working days of such receipt in order to get the benefit of the foregoing warranty. Any defects that are not reasonably detected through visible inspection must be reported to Stresstech, in writing, within ten (10) working days after discovery of such defect. Buyer’s failure to report defects within the foregoing time periods will be deemed an unqualified waiver of any and all of Buyer’s rights to warranty claims in view of the respective defects.
For the avoidance of doubt, the foregoing remedies shall not apply to any product failure caused in whole or in part by (i) Buyer’s failure to operate, maintain or service the Products in accordance with Stresstech’s documentation, (ii) any alteration, modification or repair made to the Products other than by Stresstech, or (iii) use of the Products for a purpose other than that for which it is intended. In no event shall ordinary wear and tear be deemed a defect.
Buyer shall not ship Products back to Stresstech for any reason without Stresstech’s prior written consent. Notwithstanding such consent, Stresstech reserves the right to inspect the Products at its facility and to refuse, at its sole discretion, to accept the return of any item if Stresstech determines that the Products’ warranty is not applicable for the reasons set forth above. Buyer must clearly indicate the nature of the defect or shortcoming.
This Warranty Section shall in no way limit Buyer’s statutory rights where Stresstech has fraudulently hidden (arglistig verschwiegen) a defect or in case that Stresstech has furnished a guarantee for the quality of the Products. Furthermore, this Warranty Section shall in no way limit Stresstech’s liability for damages in connection with a defect; such claims for damages of Buyer shall be exclusively governed by Section 12 below. For the avoidance of doubt, the statutory period of limitation (Verjährungsfrist) shall apply in these cases.
12. Limitation of Liability. Stresstech shall be fully liable according to statutory provisions for (a) damages resulting from death, bodily harm or injury to health caused by any intentional or negligent breach of obligations, (b) other damages caused by any intentional or grossly negligent breach of obligations. Furthermore, Stresstech shall be liable according to statutory provisions for other damages resulting from a simply negligent breach of an essential obligation (wesentliche Vertragspflicht), i. e., an obligation compliance with which is a prerequisite for the proper performance of this Agreement (deren Erfüllung die ordnungsgemäße Durchführung des Vertrags überhaupt erst ermöglicht) and on compliance with which the other Party usually relies and can rely (auf deren Einhaltung die andere Partei regelmäßig vertraut und vertrauen darf) to the extent that such damages are not atypical for the respective contract or not foreseeable at the time the breach occurs.
In the case where Stresstech has furnished a guarantee or has assumed any other form of strict liability (verschuldensunabhängige Haftung), it shall be fully liable according to the terms of such declaration or, to the extent that said declaration is silent, statutory provisions.
Finally, Stresstech shall be fully liable for claims under the German Product Liability Act (Produkthaftungsgesetz) or, respectively, applicable laws outside Germany transposing Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. Stresstech shall also be fully liable for claims under any other applicable law that explicitly provides for a liability that cannot be excluded even in a written and individually negotiated contract.
In all other cases, Stresstech shall not be liable under any theory of law, including for breach of contractual or pre-contractual obligations and including for tort.
13. Export Control. Regardless of any disclosure made by Buyer of any ultimate destination of the Products, Buyer will not, directly or indirectly, export, re-export or re-sell any Products, or system incorporating such Products, to any unauthorized end user. An “unauthorized end user” is any person or entity to whom the Products must not be conveyed under EU or U.S. export control laws and regulations. The definition of “unauthorized end user” includes, without limitation: (1) any person or entity for which an authorization to export or transfer the product is required by any governmental body of competent jurisdiction but which authorization has not been obtained; (2) any person or entity located in Cuba, Iran, North Korea, Sudan, Syria or the Crimea region; (3) the governments and government agencies of these countries, wherever they may be located; (4) any person or entity on the U.S. OFAC Specially Designated Nationals list; and (5) any person or entity that Buyer knows, or has reason to know, that such person or entity will export or transfer Products to any of the foregoing persons or entities or use the Products in the development of nuclear, biological or chemical weapons, or unmanned aerial vehicles. Buyer shall cooperate fully with Stresstech in any official or unofficial audit or inspection related to any applicable export or import control laws or regulations and shall indemnify, defend and hold Stresstech harmless from any violation of this Export Control section by Buyer, its employees, agents, consultants or customers.
14. Force Majeure. Stresstech shall not be liable for failure to perform or for delay in performance due to fire, flood, strike, or other labor difficulty, act of God, act of any governmental authority, riot, embargo, fuel or energy shortage, wrecks or delays in transportation, inability to obtain necessary labor, materials or manufacturing facilities from usual sources, or due to any cause beyond Stresstech’s reasonable control. In the event of a delay in performance due to any such cause, the estimated date of delivery or time for completion of performance will be extended by a period of time reasonably necessary to overcome the effect of such delay. If Stresstech reasonably determines that any such delay in performance is likely to extend for a period of ninety (90) days or more, Stresstech shall have the right to cancel the applicable order upon notice to Buyer with no liability or further obligation to Buyer with respect to such order.
15. Governing Law/Venue. These Terms and Conditions and any dispute or claim arising hereunder shall be governed by the material laws of Germany, provided that the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable. The parties irrevocably submit to the exclusive jurisdiction of the courts of Frankfurt, Germany. Notwithstanding, Stresstech shall be entitled to bring an action against Buyer at its place of residence or business.
16. Other Agreements. These Terms and Conditions shall apply to all sales by Stresstech and may only be modified or amended in writing and executed by a Director of Stresstech.
17. Assignment and Subcontracting. Stresstech may at any time assign or transfer all or any of its rights, and subcontract all and any of its obligations under these Terms and Conditions. Buyer may not assign or transfer all or any of its rights or obligations under these Terms and Conditions without the prior written consent of Stresstech. Notwithstanding, if Buyer is acting as a merchant (Kaufmann) within the meaning of § 1 of the German Commercial Code (Handelsgesetzbuch) and assigns or transfers any claims for payment it may have against Stresstech under these Terms of Conditions, such assignment or transfer shall nevertheless be valid, provided that Stresstech shall remain entitled to effect payment to Buyer.
18. Severability. If any court or competent authority finds that any provision of these Terms and Conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the remaining provisions of these Terms and Conditions shall not be affected.
19. Waiver. A waiver of any right or remedy under these Terms and Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20. Entire Agreement. These Terms and Conditions, Stresstech’s offer and the Order (excluding any terms submitted by Buyer with the Order) constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written.