General Terms and Conditions of Sale STUV Prison Solutions
I. General provisions
1. These General Terms and Conditions of Sale (GTCS) apply to all business relationships between STUV Prison Solutions GmbH, Parkstraße 11, 42579 Heiligenhaus, Germany (hereinafter referred to as the Supplier) and its customers (hereinafter referred to as the Customer). The GTCS shall only apply if the Customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
2. The GTCS shall apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as: goods), irrespective of whether the Supplier manufactures the goods itself or purchases them from suppliers (Sections 433, 651 BGB). The GTCS shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Customer, without the Supplier having to refer to them again in each individual case. 3.
3 These GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only become part of the contract if and insofar as the Supplier has expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the Supplier carries out the delivery to the Customer without reservation in the knowledge of the Customer's GTCS.
II. Conclusion of contract
1. The supplier's offers are subject to change and non-binding. This shall also apply to orders accepted by representatives of the Supplier. Supplements, amendments or verbal collateral agreements require written confirmation by the Supplier to be effective.
2. The information contained in the Supplier's offer, such as illustrations and drawings, stage plans, software, weights and dimensions, contain only approximate values, unless they are expressly designated as binding.
3. The order of the goods by the Purchaser shall be deemed a binding offer of contract. Unless otherwise stated in the order, the Supplier shall be entitled to accept this contractual offer within four weeks of its receipt.
4. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
III. Orders on call
1 Unless otherwise agreed, call-off orders must be accepted within six months of the first delivery.
2. If the Purchaser fails to call off the goods in due time despite a reminder and the setting of a grace period, the Supplier shall be entitled to invoice the entire order without prior delivery and without the goods having to be fully completed, but which must be completed with full payment by the Purchaser. Under the above conditions, the Supplier shall also be entitled to refrain from completing the goods in whole or in part and - if the Supplier does not fulfil the order thereafter - to claim damages for loss of profit up to 10% of the agreed price. The right to claim higher damages remains reserved. However, the Purchaser shall be entitled to prove to the Supplier that the latter has suffered no loss or a significantly lower loss. If ordered goods are not called off despite a reminder and the setting of a grace period, the Purchaser shall bear the storage costs incurred.
IV. Tools
The Supplier undertakes to store tools for one year after the last delivery. If the Purchaser informs the Supplier before the expiry of this period that orders will be placed within a further year, the retention period shall be extended by a further year. After this period and in the absence of repeat orders, the supplier may freely dispose of the tools. For orders that are cancelled in the development stage or in the start-up period, the supplier reserves the right to invoice the costs incurred. The costs incurred for the initial tool set shall be invoiced before the samples are released and the costs incurred for the entire series tools, special equipment and gauges shall be invoiced after the samples have been released. The tools invoiced shall be available to the customer for inspection for four weeks and shall be scrapped after this period has expired. Completed press part drawings, stage plans and design drawings of the tools are not subject to inspection by the customer in order to protect the processes used.
V. Prices, payment
1. Unless otherwise agreed in individual cases, prices are ex works excluding packaging, transport and insurance.
2. The prices are exclusive of the applicable statutory value added tax. Insofar as sales from intra-Community deliveries are exempt from VAT under German VAT law, the Purchaser is obliged to co-operate in the issue of any proof of delivery (such as an entry certificate) and other documents required under German VAT law in this connection at the request and in accordance with the specifications of the Supplier. Such an obligation to co-operate shall also apply to the Purchaser if the delivery fulfils the requirements of an intra-Community triangular transaction in accordance with § 25b UStG and the Supplier therefore requires the proof of delivery required under German VAT law (such as an entry certificate or other equivalent proof).
3. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
4. Transport packaging and all other packaging in accordance with the Packaging Ordinance shall not be taken back by the Supplier; they shall become the property of the Purchaser.
5. If the supplier has taken over the installation or assembly and unless otherwise agreed, the customer shall bear all necessary ancillary costs in addition to the agreed remuneration, in particular travelling expenses, costs for the transport of tools and personal luggage of the persons employed by the supplier as well as allowances.
6. In the case of customised products, the price shall be calculated on the basis of the calculated production costs.
7. Payments are to be made free to the supplier's paying agent.
8. Invoices are to be paid net within 30 days, unless a shorter payment period is specified in the invoice documents (e.g. in the case of repairs). A cash discount deduction is only permitted by special agreement and if all older invoices have been paid beforehand. Agreements on special terms of payment are only binding after written confirmation by the supplier. Such terms shall only be granted if all due payment obligations from previous deliveries have been fulfilled and the invoice amount has been paid punctually on the aforementioned due date.
9. Upon expiry of the above payment period in accordance with clause V.10, the Purchaser shall be in default. In the case of cashless payment, the time of crediting shall be decisive. The risk of the payment method shall be borne by the customer.
10. Interest shall be charged on the purchase price during the period of default at eight percentage points above the base interest rate, but at least 12 per cent p.a. The Supplier reserves the right to claim further damages caused by default. The Supplier's claim against merchants for commercial maturity interest (§ 353 HGB) remains unaffected.
11. The purchaser shall only be entitled to set-off rights insofar as his claim has been legally established or is undisputed. The same applies to the right of retention, the effective exercise of which is also dependent on the Purchaser's counterclaim being based on the same contractual relationship.
VI. Delivery time and delay
1. A binding delivery period shall be agreed individually and expressly at least in text form. Otherwise the deadlines stated are non-binding.
2. Compliance with deadlines for deliveries requires the exact specification of the ordered products (regularly by designation in the data sheet provided for this purpose) as well as the timely receipt of all documents, necessary authorisations and approvals, in particular of plans, to be supplied by the customer, as well as compliance with the agreed terms of payment and other obligations by the customer. If these conditions are not fulfilled in good time, the Supplier shall be entitled to extend the deadlines appropriately; this shall not apply if the Supplier is responsible for the delay.
3. If non-compliance with the deadlines is due to force majeure, e.g. mobilisation, war, riot, or similar events, e.g. strike, lockout, the supplier shall be entitled to extend the deadlines appropriately.
4. If binding delivery deadlines cannot be met for reasons for which the supplier is not responsible (non-availability of the service), the supplier shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Supplier shall be entitled to withdraw from the contract in whole or in part; the Supplier shall immediately reimburse any consideration already paid by the Purchaser. A case of non-availability of the service in this sense shall be deemed to be in particular the non-timely self-delivery by suppliers if the supplier has concluded a congruent hedging transaction, neither the supplier nor the supplier is at fault or the supplier is not obliged to procure in individual cases.
5. The occurrence of default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the purchaser is required. If the Supplier is in default of delivery, the Purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, up to a maximum of 5% of the delivery value of the goods delivered late. The Supplier reserves the right to prove that the Purchaser has suffered no damage at all or only significantly less damage than the above lump sum.
6. The rights of the Purchaser pursuant to Section XII. and the statutory rights of the Supplier, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected.
7. Partial deliveries are permissible.
VII. Dispatch and transfer of risk
1. The supplier shall dispatch the goods at his discretion by rail, post or forwarding agent.
2. If the customer requests that the goods be dispatched to him or to another location, the risk of accidental loss or accidental deterioration of the goods shall pass to him as soon as they leave the supplier's works. If dispatch is delayed for reasons for which the customer is responsible, the risk shall pass on the day on which the goods are ready for dispatch.
3. The shipping costs shall be calculated according to the scope (weight/size) of the goods ordered and shall be borne by the customer.
VIII. Acceptance
If the Supplier demands acceptance of the delivery, the Purchaser must carry this out within two weeks of delivery. If this is not done, acceptance shall be deemed to have taken place unless the Purchaser notifies the Supplier in writing of precisely specified defects or malfunctions within this period; receipt of the notification of defects by the Supplier shall be decisive for compliance with the deadline. Acceptance shall also be deemed to have taken place if the delivery has been put into use - if applicable after completion of an agreed test phase.
IX. Material defect claims
1. The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them (supplier recourse pursuant to §§ 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product.
2. Deliveries which show a material defect within the limitation period - irrespective of the period of operation - shall, at the Supplier's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the material defect already existed at the time of the transfer of risk.
3. The basis of the liability for defects is primarily the agreement reached on the quality of the goods. If the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). However, the Supplier assumes no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the Purchaser has not drawn the Supplier's attention as being decisive for the purchase.
4. Quantitative deviations of 5% upwards and downwards are permissible for deliveries.
5. Claims for material defects shall become statute-barred 12 months after delivery. This shall not apply if longer periods are prescribed by law pursuant to §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (building defects) BGB, as well as in cases of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty by the supplier and in the event of fraudulent concealment of a defect. The statutory regulations for suspension of expiry, suspension and recommencement of the time limits remain unaffected.
6. The purchaser must notify the supplier immediately in writing of any material defects (including incorrect and short deliveries). In the case of goods intended for installation or other further processing, an inspection must always be carried out immediately before processing. If a defect is discovered during delivery, inspection or at any later time, the supplier must be notified immediately in writing. In any case, obvious defects must be reported in writing within eight working days of delivery at the latest and defects not recognisable during the inspection must be reported in writing within the same period from discovery. If the Purchaser fails to carry out the proper inspection and/or report defects, liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions.
7. The supplier must first be given the opportunity for subsequent fulfilment within a reasonable period of time. If the subsequent fulfilment has failed or a reasonable deadline to be set by the Purchaser for the subsequent fulfilment has expired without success or is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of cancellation.
8. The supplier is entitled to make any subsequent fulfilment owed dependent on the purchaser paying the purchase price due. In this case, however, the Purchaser shall be entitled to withhold a reasonable part of the purchase price in proportion to the defect. If the notification of defects is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred from the Purchaser.
9. The purchaser must give the supplier the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item in accordance with the statutory provisions. The subsequent fulfilment includes neither the removal of the defective item nor the re-installation if the supplier was not originally obliged to install it.
10. The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, shall be borne or reimbursed by the Supplier in accordance with the statutory provisions if a defect actually exists. Otherwise, the Supplier may demand compensation from the Purchaser for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the Purchaser.
11. In urgent cases, e.g. if operational safety is jeopardised or to prevent disproportionate damage, the purchaser has the right to remedy the defect himself and to demand compensation from the supplier for the expenses objectively necessary for this purpose. The Supplier must be notified immediately, if possible in advance, of any such self-remedy. The right to self-remedy does not exist if the supplier would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
12. Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling (in particular by untrained personnel), excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, as well as in the event of non-reproducible software errors. If improper modifications or repair work are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.
13. Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been taken to a place other than the customer's branch office, unless the transfer corresponds to its intended use.
14. Recourse claims of the purchaser against the supplier in accordance with § 478 BGB (recourse of the entrepreneur) shall only exist insofar as the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects. Furthermore, Section IX.13 shall apply accordingly to the scope of the Purchaser's right of recourse against the Supplier pursuant to Section 478 (2) BGB.
15. Section XII (Other claims for damages) shall also apply to claims for damages. Further claims or claims other than those regulated in this Section IX. of the Purchaser against the Supplier and its vicarious agents due to a material defect are excluded.
X. Industrial property rights and copyrights; defects of title
1. Unless otherwise agreed, the supplier is obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) only in the country of the place of delivery. If a third party raises justified claims against the Purchaser due to the infringement of industrial property rights by deliveries made by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser within the period specified in Section IX.5 as follows:
a) The Supplier shall, at its own discretion and at its own expense, either obtain a right of use for the deliveries concerned, modify them in such a way that the property right is not infringed, or replace them. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of cancellation or reduction.
b) The Supplier's obligation to pay damages shall be governed by Section XII.
c) The aforementioned obligations of the Supplier shall only apply insofar as the Purchaser immediately notifies the Supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and all defence measures and settlement negotiations remain reserved to the Supplier.
If the customer ceases to use the delivery in order to minimise damages or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
2. Claims of the purchaser are excluded insofar as he is responsible for the infringement of property rights.
3. Claims of the customer are also excluded if the infringement of property rights is caused by special specifications of the customer, by an application not foreseeable by the supplier or by the fact that the delivery is modified by the customer or used together with products not supplied by the supplier.
4. The Supplier reserves its unrestricted property and copyright exploitation rights to cost estimates, drawings, manuals and other documents (hereinafter referred to as "Documents"), in particular, but not only, if they are labelled "confidential". If the Purchaser discloses such information, it shall forfeit an appropriate contractual penalty in each case of infringement, which shall be at the reasonable discretion of the Supplier and may be reviewed by the competent court in the event of a dispute. In addition, the Supplier reserves the right to claim the actual damage incurred. The documents may only be made accessible to third parties with the prior consent of the supplier and must be returned to the supplier immediately upon request if the order is not placed with the supplier.
5. Sentences 1 and 2 of clause X.4 shall apply mutatis mutandis to documents of the Purchaser; however, these may be made accessible to third parties to whom the Supplier has legitimately transferred deliveries.
6. Against payment of the agreed remuneration, the Purchaser shall have the non-transferable, non-exclusive right to use the software handed over by the Supplier with the agreed performance features in unchanged form on the agreed devices, unless otherwise regulated by the licence conditions of the respective software. This right of use shall only apply to the customer's own use. Passing on and copying, in whatever form, are not permitted. However, the Customer may make two backup copies without express agreement.
7. The supplier does not guarantee the uninterrupted, timely, secure and error-free functioning of the software supplied. Furthermore, the Supplier does not warrant that the software fulfils the specific requirements of the Purchaser.
8. The Purchaser shall bear sole responsibility for the selection, installation and use of the software as well as for the intended results. Unless otherwise agreed between the parties, the warranty for delivered software shall lapse if the Purchaser has modified or processed it or has had it modified or processed.
9. In the event of infringements of industrial property rights, the provisions of clause IX. shall apply accordingly to the claims of the customer regulated in clause X.1 a).
10. Further claims or claims other than those regulated in this section X. of the purchaser against the supplier and his vicarious agents due to a defect of title are excluded.
XI. Impossibility, contract adjustment
1. If delivery is impossible, the purchaser is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the Purchaser's claim for damages shall be limited to 10 % of the value of that part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply if liability is mandatory in cases of intent, gross negligence or injury to life, limb or health; this does not imply a change in the burden of proof to the detriment of the customer. The right of the customer to withdraw from the contract remains unaffected.
2. If unforeseeable events within the meaning of Section VI.3 significantly change the economic significance or the content of the delivery or have a significant impact on the supplier's operations, the contract shall be adapted appropriately in good faith. If the latter is not economically justifiable, the supplier shall have the right to withdraw from the contract. If he wishes to exercise this right of cancellation, he must inform the purchaser of this within three weeks of becoming aware of the event. If he does not make the declaration within this period, his right of cancellation shall lapse.
3. The purchaser may only withdraw from the contract due to a breach of duty that does not consist of a defect if the supplier is responsible for the breach of duty. A free right of cancellation of the purchaser (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
XII. Other claims for compensation
1. Unless otherwise provided for in these GTCS, including the following provisions, the supplier shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
2. The supplier shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, the Supplier shall be liable, subject to statutory limitations of liability (e.g. care in its own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, the Supplier's liability shall be limited to compensation for foreseeable, typically occurring damage.
3. The limitations of liability resulting from clause XII.2 shall also apply in the event of breaches of duty by or in favour of persons whose fault the supplier is responsible for in accordance with statutory provisions. They shall not apply if the Supplier has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods and for claims of the Purchaser under the Product Liability Act.
XIII. Retention of title
1. Until full payment of all present and future claims of the supplier arising from the purchase contract and an ongoing business relationship (secured claims), the supplier retains title to the goods sold.
2. The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The Purchaser must inform the Supplier immediately in writing if and to the extent that third parties seize the goods belonging to the Supplier.
3. The purchaser is entitled to sell these goods in the ordinary course of business as long as he fulfils his obligations arising from the business relationship with the supplier in good time. However, he may neither pledge the reserved goods nor assign them as security. In the event of resale, the Purchaser hereby assigns to the Supplier all claims arising from such resale, irrespective of whether this takes place before or after any processing of the goods delivered under retention of title. Irrespective of the Supplier's authority to collect the claim itself, the Purchaser shall remain authorised to collect the claim even after the assignment. In this context, the Supplier undertakes not to collect the claim as long as and insofar as the Purchaser fulfils its payment obligations, no application for the opening of insolvency or similar proceedings has been filed and there is no suspension of payments.
Any treatment or processing of the goods subject to retention of title shall always be carried out by the Purchaser on behalf of the Supplier. If the reserved goods are processed or inseparably mixed with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed or mixed items at the time of processing or mixing.
If the Supplier's goods are combined or inseparably mixed with other movable items to form a substantive item and if the other item is to be regarded as the main item, the Purchaser shall transfer co-ownership to the Supplier on a pro rata basis insofar as the main item belongs to it. The Purchaser shall hold the property or co-ownership for the Supplier. In all other respects, the same shall apply to the item created by processing or combining or mixing as to the goods subject to retention of title.
The Purchaser must inform the Supplier immediately of any enforcement measures by third parties against the goods subject to retention of title, the claims assigned to the Supplier or other securities, handing over the documents necessary for an intervention. This shall also apply to impairments of any other kind.
If the value of the existing securities exceeds the secured claims by more than 10% in total, the supplier shall be obliged to release securities of the supplier's choice upon request.
XIV. Confidentiality
1. For the duration of the contract and for a period of three years after termination of the contract, the Purchaser undertakes to keep secret all confidential information and trade secrets of the Supplier, drawings, design details and functional features of products of which it becomes aware in connection with the performance of the contract, not to make them accessible to third parties, not to make any illustrations or copies and to use them only within the scope of the intended purpose and/or fulfilment of the contract and otherwise not for commercial purposes.
This also applies in particular to ordered product samples which are made available free of charge or against a deposit for viewing or for the preparation of products and services of the customer.
The confidentiality obligation also covers the Purchaser's own findings or documents if these contain information provided by the Supplier. The Purchaser is obliged to inform its employees of the duty of confidentiality and to impose the same obligation on them.
(2) Excluded from paragraph 1 are such information and data which:
a) is or becomes generally known or accessible at the time of its disclosure, unless this is due to a breach of this agreement by the Purchaser;
b) was already lawfully and without breach of a confidentiality obligation in the possession of the Purchaser before the Purchaser received it from the Supplier; or
c) the Purchaser has received from a third party who is authorised to disclose such information without restriction.
(3) The Purchaser hereby warrants that not only the Purchaser itself, but also any employees or other third parties who may gain knowledge of confidential information or trade secrets within its sphere of influence, even by chance, shall keep such information or trade secrets secret in accordance with the provisions of this agreement. The Purchaser hereby assigns to the Supplier all future claims to which it is entitled from any infringement by the aforementioned third parties. The Supplier hereby accepts this assignment.
(4) The Purchaser shall exercise a degree of care for the confidentiality of all information made available to it that goes far beyond what is customary and necessary in the trade. If it becomes aware that information requiring confidentiality has nevertheless become known to an unauthorised third party, it shall inform the Supplier immediately and take all reasonable measures to avert and/or limit any further dissemination and any damage.
(5) Should the Customer violate the provisions of this agreement, it hereby undertakes to pay the Supplier an appropriate contractual penalty for each case of violation, which shall be at the reasonable discretion of the Supplier and shall be reviewed by the competent court in the event of a dispute. Should any damage occur as a result of a breach of the confidentiality provisions provided for herein, the Purchaser shall also be obliged to compensate the Supplier in full, irrespective of the imposition of a contractual penalty.
XV. Data protection
The Supplier is authorised to process and store the personal data of the Customer to the extent necessary for the execution of the contractual relationship. Within the scope of the contractual performance, the Supplier shall comply with the relevant data protection regulations.
XVI. Intended use of the products / export
1. The supplier's products are intended for civilian use. The Purchaser shall not use or resell the Products with the intention of using them in chemical, biological or nuclear weapons or in missiles capable of delivering such weapons.
2. The customer is not permitted to resell the products to persons, companies or other organisations which he knows or has reason to suspect are in any way connected with terrorist activities or narcotics.
3. The products may be subject to legal requirements and restrictions, whereby sales to countries/buyers with import/export restrictions may be subject to conditions. These conditions must be observed when reselling the products to such countries or buyers. The customer is not permitted to resell the products if there is concern or suspicion that the products could be used for the purposes mentioned in the above paragraph.
4. If the Purchaser becomes aware of or suspects that the obligations or conditions set out in this Clause XVI have been breached, it must inform the Supplier immediately.
XVII. Prohibition of re-export to Russia (‘re-export clause’)
1. In order to avoid the direct or indirect import and export of the goods to Russia, the provisions of this clause XVII. must be observed.
2. The Purchaser may not sell or (re-)export the products delivered by the Supplier, if they are listed in accordance with Article 12g of Council Regulation (EU) No. 833/2014 of 31 July 2014 (as amended) or are subject to an export ban under the same Regulation, either directly or indirectly to Russia or for use in Russia.
3. The Purchaser shall use its best endeavours to ensure that the purpose of Clause XVII.2 is not frustrated by third parties in the further chain of trade, including potential resellers.
4. The Purchaser shall establish and maintain an appropriate monitoring mechanism to detect behaviour by third parties in the downstream chain of trade, including potential resellers, which would defeat the purpose of Clause XVII.2.
5. Any breach of Clause XVII.2 to 4 shall constitute a material breach of the Supply Agreement and shall entitle the Supplier to pursue appropriate remedies, including but not limited to:
(a) termination of the relevant Supply Agreement by cancellation without notice for cause
b) a contractual penalty in the amount of 20% of the total value of the respective order or, if this amount is higher, 20% of the price realised for the exported products, whereby the Customer shall be permitted to prove that the actual damage incurred by the Supplier as a result of the breach is lower.
6. The Purchaser shall immediately inform the Supplier of any problems in the application of Clause XVII.2, 3 and/or 4, including any relevant activities of third parties which may be contrary to the purpose of Clause XVII.2. The Purchaser shall provide the Supplier with information on compliance with the obligations under Clause XVII.2 to 4 in text form within two weeks of the simple request for such information.
XVIII. Place of fulfilment, place of jurisdiction, applicable law
1. If the purchaser is a merchant, a legal entity under public law or a special fund under public law, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier. However, the Supplier shall also be entitled to bring an action at the Purchaser's general place of jurisdiction.
2. The legal relationships in connection with this contract shall be governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The conditions and effects of the retention of title agreed above shall be governed by the law at the respective storage location of the goods, insofar as the choice of law made in favour of German law should be inadmissible or ineffective under the respective law.
STUV Prison Solutions GmbH
May 2024