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General Terms and Conditions of Delivery and Performance

General Terms and Conditions of Delivery and Performance
Stadler + Schaaf Mess- und Regeltechnik GmbH
(hereafter referred to as: Stadler + Schaaf)

  • For exclusive use with companies, which act upon conclusion of the contract in the exercise of their commercial or self-employed professional activity (hereafter referred to as: customer).

    Structure of the following General Terms and Conditions:

    1. Scope
    2. Terms of payment
    3. Legal effects concerning information on product characteristics
    4. Rights of Stadler + Schaaf and the customer regarding cost estimates, diagrams and drawings, and other documentation, standard software and firmware
    5. Infringement upon third-party property rights
    6. Partial deliveries
    7. Reservation of ownership
    8. Periods of delivery and performance
    9. Arrangements for delivery and passing of risk, applicability of Incoterms
    10. Customer's rights in the event of defects
    11. Liability
    12. Offsetting
    13. Place of fulfillment
    14. Place of jurisdiction
    15. Prohibition of assignment
    16. Applicable law


    1. Scope
    The legal relationships arising from the contract between Stadler + Schaaf and the customer concerning the procurement of goods, services, or work performances by Stadler + Schaaf for the customer (hereafter referred to as the procurement of goods, services, or work performances, if mentioned individually, and together referred to as: the subject matter of the contract) shall follow these General Terms and Conditions of Delivery and Performance of Stadler + Schaaf. We object to the inclusion of the customer's terms and conditions, especially the conditions of purchase.

    2. Terms of payment
    The invoices submitted by Stadler + Schaaf shall be paid net cash and in full within 30 days after the issue date. Payment shall only deemed received if and when Stadler + Schaaf is able to dispose of the amount invoiced. Should Stadler + Schaaf, upon special agreement with the customer, grant a discount on the payable amount,
    the following condition applies: All invoices with an issue date older than 45 days must be paid in full.

    3. Legal effects concerning information on product characteristics

    3.1
    Information on product characteristics or life period as well as other information on technical specifications shall only be considered a guarantee if they have been agreed upon and designated as such.

    3.2
    Any information Stadler + Schaaf gives the customer concerning suitability and usage of our products, services, work performances, and results deriving from the release of goods or the rendering of services or work performances shall not release the customer from his obligation to carry out his own assessment of the suitability and usage.

    4. Rights of Stadler + Schaaf and the customer regarding technical concepts, diagrams and drawings, specifications, elaborations, standard software, and firmware

    4.1
    Stadler + Schaaf reserves, without limitation, the property rights and copyrighted patent rights regarding technical concepts, diagrams and drawings, specifications, and elaborations. Technical concepts, diagrams and drawings, specifications, and elaborations that bear on the (future, if applicable) subject matter of the contract may only be made accessible to third parties with the previous consent of Stadler + Schaaf and must be returned immediately upon request. The customer reserves, without limitation, his property rights, copyrights, and patent rights regarding his documentation even after they have been made available to Stadler + Schaaf. However, Stadler + Schaaf may make this documentation available to those third parties that Stadler + Schaaf has permissibly involved in the fulfillment of their obligation of delivery and performance in accordance with the agreement with the customer.

    4.2
    The customer shall have the non-exclusive right to use standard software and firmware of Stadler + Schaaf with the agreed-upon characteristics in unamended form on the devices that Stadler + Schaaf has to deliver in accordance with the contract with the customer. The customer may not without the express consent create backup copies of the standard software. Furthermore, the customer may not duplicate the software without express consent of Stadler + Schaaf.

    5. Infringement of third-party property rights, usage of the customer's property rights by Stadler + Schaaf

    5.1
    Should Stadler + Schaaf be responsible for an infringement of third-party property rights, Stadler + Schaaf may, at its own option and at its own expense, purchase that right of use, which is sufficient for the agreed-upon or presupposed usage, and transfer this right of use to the customer or offer the customer an amendment to the contract, stating that the right of use shall not be infringed upon or that the delivered goods shall be replaced. The customer is obligated to accept this offer if the amendment or the replacement does not result in curtailing the usage of the subject matter of the contract by the customer. If this is not possible for Stadler + Schaaf or if Stadler + Schaaf does not react accordingly to the infringement of third-party property rights, the customer shall be entitled to assert the statutory claims and rights. All claims for damages and compensation of expenses are covered by paragraph 13. Should the customer reject the offer by Stadler + Schaaf to amend or to replace, even though the customer is obligated to do so in accordance with the above-mentioned terms, Stadler + Schaaf shall be entitled to withdraw from the contract..

    5.2
    Should a delivery based on diagrams and drawings or other information from the customer infringe upon third-party property rights, the customer shall indemnify Stadler + Schaaf from
    all claims.

    5.3
    License claims of the customer on the basis of commercial property rights regarding scanned or (on the authority of the customer) created or procured models and production facilities are excluded as long as the above-mentioned material is used by Stadler + Schaaf in accordance with the agreement with the customer.

    6. Partial deliveries shall be permissible insofar as they are reasonable for the customer.

    7. Reservation of ownership

    7.1
    Stadler + Schaaf reserves the right of ownership to the subject matter of the contract until complete payment of all claims (so-called simple reservation of ownership).

    7.2
    If the customer has fully paid for the manufactured or delivered goods, but has not completely paid for other claims by Stadler + Schaaf, Stadler + Schaaf reserves the right of ownership of the manufactured or delivered goods until complete payment of all claims (so-called overall reservation of ownership).

    7.3
    Insofar as a connection or mixing of the goods delivered by Stadler + Schaaf with the property of the customer occurs in such a way that the customer's property is to be regarded as the main item, it shall be considered agreed that the customer transfers co-ownership to Stadler + Schaaf in relation to the value of the goods' invoice value to the invoice value or, in the absence of such value, to the commercial value of the main item. The customer shall hold the sole or co-owned item arising therefrom in custody on Stadler + Schaaf's behalf.

    7.4
    The customer shall, on request by Stadler + Schaaf, provide all requisite information on the status and inventory of Stadler + Schaaf's property. Also on request by Stadler + Schaaf, the customer shall label all of Stadler + Schaaf's property as such.

    7.5
    In case of default in payment by the customer, after notice is given, Stadler + Schaaf shall be, in the case of simple reservation of ownership, entitled to demand surrender and the customer shall be obligated to surrender.

    7.6
    Due to the reservation of ownership, Stadler + Schaaf may only demand surrender after prior withdrawal from the contract.

    7.7
    The customer is entitled to and authorized to resell the retained goods subject to reservation of ownership in the ordinary course of trade. The customer shall now assign all of his claims out of such a resale of the retained goods subject to reservation of ownership to Stadler + Schaaf in the amount of the invoice value agreed upon with Stadler + Schaaf incl. value added tax, insofar as this assignment is accepted by Stadler + Schaaf. As long as all claims concerning the subject matter of the contract have not been fully paid, the customer shall store the goods for Stadler + Schaaf in trust, properly and separately from his own property and the property of third parties, keep them secure and insure them and label them as property of Stadler + Schaaf. Until payment in full, the customer may neither use nor resell the subject matter of the contract. The customer is not authorized to make other dispositions regarding the retained goods subject to reservation of ownership (e.g. transfer by way of security, pledging).

    7.8
    In case of distraint or other third-party interventions, the customer shall notify Stadler + Schaaf immediately so that Stadler + Schaaf may bring suit in compliance with ยง 711 ZPO (article 711 of the German Code of Civil Procedure). Where the customer fails to perform this obligation, he shall bear liability for the losses incurred as a result.

    7.9
    Stadler + Schaaf shall insofar be obligated to release the securities to which it is entitled, insofar as the realizable value exceeds the claims Stadler + Schaaf is entitled to. Stadler + Schaaf shall be entitled to choose the securities to be released.

  • Periods of delivery and performance

    8.1
    Adherence to periods of delivery and performance is conditional upon the timely receipt from the customer of all documentation, necessary permits, and approvals, approvals of plans in particular. The deadlines agreed upon between Stadler + Schaaf and the customer are binding. If these conditions are not fulfilled in due time, the deadlines shall be extended by the time between the agreed-upon time of delivery with the customer and the receipt at Stadler + Schaaf. This shall not apply if Stadler + Schaaf is liable for the delay.

    8.2
    Stadler + Schaaf shall inform the customer as soon as possible of any prospective delays. In any event, Stadler + Schaaf will transfer , as far as legally permissible, their claims towards their supplier resulting from the delivery not in keeping with the terms of the contract to the customer. Claims for damages and reimbursement of expenses against Stadler + Schaaf are excluded insofar Stadler + Schaaf is not liable for the delay in delivery. The reservation in this paragraph shall become ineffectual if Stadler + Schaaf is liable for the delay in delivery. Should non-compliance with the periods of delivery and performance be due to force majeure, e.g. mobilization, war, riot, or similar events, e.g. strike, lockout, the periods shall be extended adequately by the duration of the event causing non-compliance with deadlines and the duration which is necessary for Stadler + Schaaf to comply with their obligation towards the customer to deliver in light of the particular circumstances of the case. The same shall apply in the event of delayed or incorrect supply to Stadler + Schaaf.

    8.3
    The customer shall be entitled to claims for damages in the case of delay in delivery or default in performance solely in accordance with the more detailed provisions in paragraph 13, unless otherwise stated above.

    8.4
    The customer may withdraw from the contract without setting a period of grace if it is impossible for Stadler + Schaaf to fulfill their entire obligations before passing of risk. Furthermore, the customer may withdraw from the contract, if the execution of a part of the performance shall become impossible and the customer has a legitimate interest in refusing a partial delivery. If this is not the case, the customer must pay the contract price apportionable to the partial delivery. If the impossibility occurs during the delay in acceptance by the customer, or if the customer is responsible for this situation, Stadler + Schaaf shall be entitled to consideration.

    9. Arrangements for delivery and passing of risk, applicability of Incoterms

    9.1
    Delivery shall be effected in compliance with the trade terms stated in the individual contract whose interpretation shall be subject to the Incoterms edition applicable at the time the contract was concluded.

    9.2
    Should the individual contract not contain trade terms, delivery shall be effected ex works (EXW, Incoterms 2010).

    10. Customer's rights in the event of defects

    10.1
    Assertation of claims regarding defects of goods, services, or work performances must be in writing and state the nature and extent of the defects.

    10.2
    Should the goods, services, or work performance be defective and should the customer duly have asserted his claim regarding the defect toward Stadler + Schaaf, the customer shall be allowed to avail himself of the statutory rights in accordance with the following:

    10.2.1
    Stadler + Schaaf has the right to choose whether to remedy the defect or to supply non-defective goods, services, or work performance to the customer (cure).

    10.2.2
    Stadler + Schaaf reserves the right to two attempts to cure the defect. Should the cure fail or should it be unacceptable to the customer, the customer shall have the right to choose whether to withdraw from the contract or to request a reduction of the agreed remuneration.

    10.2.3
    In case of claims for damages and for reimbursement of frustrated expenditure due to a defect, paragraph 11 shall apply.

    10.3
    All warranty claims shall become statute-barred within one year of the onset of the time of limitation. This does not apply in the following cases

    10.3.1
    in the case of liability of Stadler + Schaaf on grounds of intent.

    10.3.2
    in the case of defects that Stadler + Schaaf, its legal representatives, or vicarious agents have fraudulently concealed or the absence of which Stadler + Schaaf, its legal representatives, or vicarious agents have guaranteed.

    10.3.3
    in the case of claims against Stadler + Schaaf due to defects of goods, services, or work performance, insofar as they were used in a building in conformity with their customary manner of utilization and have thus caused the building's defectiveness.

    10.3.4
    in the case of claims arising from injury to life, body, and health due to a deliberate or negligent breach of duty by Stadler + Schaaf, its legal representatives, or vicarious agents. The statutory limitation period shall apply to the paragraphs 10.3.1 to 10.3.4 above.

    11. Liability

    11.1
    Stadler + Schaaf shall only be liable (on whatever legal grounds):

    11.1.1
    in the case of intent or gross negligence on the part of Stadler + Schaaf, its legal representatives, or vicarious agents.

    11.1.2
    in the case of a negligent breach of cardinal obligations even in the case of slight negligence, but such liability shall be confined to such losses as are typical of the contract and could reasonably be foreseen. Cardinal obligations are such obligations the fulfillment of which enables the proper execution of the contract and the observation of which the customer may regularly trust on.

    11.1.3
    in the case of claims arising from injury to life, body, and health due to a deliberate or negligent breach of duty by Stadler + Schaaf, its legal representatives, or vicarious agents.

    11.1.4
    in the case of defects that Stadler + Schaaf has fraudulently concealed or the absence of which Stadler + Schaaf has guaranteed.

    11.1.5
    in the case of defects of the subject matter of the contract, insofar as liability exists under the Product Liability Act for personal injury or damage to property for private use under the Product Liability Act.

    11.2
    Insofar the customer is entitled to claims for damages against Stadler + Schaaf, these claims shall become statute-barred within one year of the onset of the time of limitation. This does not apply in the following cases:

    11.2.1
    in the case of intent on the part of Stadler + Schaaf, its legal representatives, or vicarious agents.

    11.2.2
    in the case of defects that Stadler + Schaaf, its legal representatives, or vicarious agents have fraudulently concealed or the absence of which Stadler + Schaaf, its legal representatives, or vicarious agents have guaranteed.

    11.2.3
    in the case of defects of the subject matter of the contract, insofar as liability exists under the Product Liability Act for personal injury or damage to property for private use under the Product Liability Act.

    11.2.4
    in the case of claims against Stadler + Schaaf due to defects of goods, services, or work performance, insofar as they were used in a building in conformity with their customary manner of utilization and have thus caused building's defectiveness. The statutory limitation period shall apply to the paragraphs 11.2.1 to 11.2.4 above.

    12. Offsetting
    The customer may offset claims from Stadler + Schaaf only against counterclaims which are uncontested or recognized by declaratory judgment.

    13. Place of fulfillment
    Place of fulfillment is the registered office of Stadler + Schaaf.

    14. Place of jurisdiction
    The municipal court (Amtsgericht) of Landau and the regional court (Landgericht) of Landau shall, within their operational competence, have exclusive jurisdiction for all disputes.

    15. Prohibition of assignment
    The customer may assign his claims against Stadler + Schaaf arising from the contractual relationship to third parties only with the written consent of Stadler + Schaaf.

    16. Applicable law
    The contractual relationship shall be governed by the law applicable at the place of Stadler + Schaaf's head office.