General terms and conditions of delivery and service

General terms and conditions of delivery and service
Stadler + Schaaf Mess- und Regeltechnik GmbH
(hereinafter: Stadler + Schaaf)

for the exclusive use with companies who on the conclusion of the contract exercise their commercial or independent professional activities (hereinafter: Customer).

Structure of the following terms and conditions:

  1. Scope
  2. Terms of payment
  3. Legal effects of information on product quality, samples and specimens
  4. Rights of Stadler + Schaaf and the Customer to cost estimates, drawings and other documents, standard software and firmware
  5. Infringement of the intellectual and property rights of third parties
  6. Partial deliveries
  7. Retention of title
  8. Delivery and service periods
  9. Modalities of delivery and transfer of risk, validity of Incoterms
  10. Rights of the Customer in case of defects
  11. Liability
  12. Offsetting
  13. Place of fulfilment
  14. Jurisdiction
  15. Prohibition of assignment
  16. Applicable law

1. Scope
The legal relationships between Stadler + Schaaf and the Customer, as related to Stadler + Schaaf’s goods, services or work services for the customer (hereinafter referred to as goods, services and/or works individually and collectively also: Subject Matter of the Contract), are based on Stadler + Schaaf’s General Terms and Conditions of Delivery and Service. Any inclusion of terms and conditions by the Customer, in particular with regard to the conditions of purchase, is not permitted.

2. Terms of payment
The invoices provided by Stadler + Schaaf are payable as net cash within 30 days of the invoice date. A payment is deemed to be received if Stadler + Schaaf has full access to the invoice amount. If Stadler + Schaaf grants a discount deduction on the invoiced amount after a special agreement with the Customer, the following requirement must be met: all invoices must have been settled whose date of issue is older than 45 days.

3. Legal effects of Information on product quality

3.1
Details on quality and shelf-life/durability as well as other information on technical specifications only constitute warranties if they have been agreed and designated as such.

3.2
Statements and information provided by Stadler + Schaaf on the suitability and application of goods, works and/or services, and on work results based on the provision of goods and/or the provision of services and/or works do not release the Customer from its own obligations to test suitability and application.

4. Stadler + Schaaf´s rights to technical concepts, drawings, specifications and elaborations, Standard software and firmware

4.1
Stadler + Schaaf fully reserves its property and copyright exploitation rights to any technical concepts, drawings, specifications and elaborations. Technical concepts, drawings, specifications and elaborations relating to the (possibly also future) Subject Matter of the Contract, may only be made accessible to third parties with the prior consent of Stadler + Schaaf and must be returned to Stadler + Schaaf immediately upon request. After any transfer to Stadler + Schaaf, the Customer shall retain its ownership, copyrights and exploitation rights to any of its own documents without restriction. Stadler + Schaaf may, however, make such documents available to third parties which Stadler + Schaaf has legitimately involved for the purposes of fulfilling its delivery and payment obligations according to the agreement reached with the Customer.

4.2
The Customer shall have the non-exclusive right to use the standard software and firmware of Stadler + Schaaf with the agreed performance characteristics on the devices that Stadler + Schaaf provides according to the contract concluded with the Customer. The Customer may not create a backup copy of the standard software without the express permission of Stadler + Schaaf. Furthermore, the Customer is not entitled to reproduce the software without the express permission of Stadler + Schaaf.

5. Infringement of property rights of third parties, exploitation of the Customer’s property rights by Stadler + Schaaf

5.1
In the event of Stadler + Schaaf’s infringement of property rights of third parties, Stadler + Schaaf may, at its own discretion, demand and obtain from the Customer a right of usage at its own cost which is sufficient for the agreed or assumed usage, or make an offer to the Customer to change the contract, according to which the property right would not be violated or the delivered goods would be exchanged. The Customer is obliged to accept the offer if the change or exchange does not impair the Customer’s use of the Subject Matter of the Contract. If Stadler + Schaaf is not able to do this, or if Stadler + Schaaf refuses to react to an infringement of property rights of third parties, the Customer shall be entitled to assert his legal claims and rights. Claims for damages and reimbursements for expenses are regulated in item 13. If the Customer does not accept Stadler + Schaaf’s offer for alteration or exchange, even though he may be obliged to do so under the above provisions, Stadler + Schaaf shall be entitled to withdraw from the contract.

5.2
If deliveries are made according to drawings or other information provided by the Customer, and if this violates the industrial property rights of third parties, the Customer shall indemnify Stadler + Schaaf against all claims.

5.3
License claims of the Customer arising from industrial property rights for scanned models or production facilities manufactured or procured on its behalf are excluded wherever they are used by Stadler + Schaaf in accordance with the agreement made with the Customer.

6. Partial deliveries are permitted, provided they are reasonable for the Customer.

7. Retention of title

7.1
Stadler + Schaaf retains title to the Subject Matter of the Contract until receipt of payment (so-called simple retention of title).

7.2
If the Customer has paid the purchase price for the manufactured and/or delivered item, but further liabilities from other obligations between Stadler + Schaaf and the Customer have not been paid in full, Stadler + Schaaf shall continue retaining the title of the manufactured and/or delivered goods until full payment of all liabilities (so-called extended retention of title).

7.3
If there is an association or mixing of Stadler + Schaaf delivered goods with items from the Customer in such a way that the items of the Customer are regarded as the main item, it shall be deemed as agreed that the Customer will transfer co-ownership of the item to Stadler + Schaaf in proportion to the invoice value of the items delivered by Stadler + Schaaf or, in the absence of such, in proportion to the market value of the main item. The Customer shall retain the resulting sole or co-ownership free of charge for Stadler + Schaaf.

7.4
At the request of Stadler + Schaaf, the Customer must provide all the necessary information about the stock of goods owned by Stadler + Schaaf. Likewise, upon request of Stadler + Schaaf, the Customer shall designate and label the items in their ownership as such.

7.5
In the event of any payments in arrears on the part of the Customer, Stadler + Schaaf shall be entitled, in the case of a simple retention of title, to demand the Subject Matter of the Contract after a reminder for surrender is issued, and the Customer shall then be obliged to surrender it.

7.6
On the basis of the retention of title, Stadler + Schaaf can only demand the Subject Matter of the Contract if it has previously withdrawn from the contract.

7.7
The Customer is entitled to resell any reserved goods during the normal course of business. The Customer hereby assigns the claims of the Customer from the resale of the reserved goods to Stadler + Schaaf in the amount of the invoiced amount agreed with Stadler + Schaaf, including value added tax, provided the assignment is accepted by Stadler + Schaaf. As long as the Subject Matter of the Contract has not been paid for in full, the Customer must hold it in trust for Stadler + Schaaf and keep it separate from its own property and the property of any third parties, and must properly store, secure and insure the goods as well as label them as the property of Stadler + Schaaf. Until full payment, the Customer may neither use nor resell the Subject Matter of the Contract. The Customer is not entitled to use the reserved goods in any other way (e.g. to transfer ownership as security or to pledge the goods).

7.8
In the event of seizure or other interventions by third parties, the Customer must notify Stadler + Schaaf without delay so that Stadler + Schaaf can initiate an action on the basis of Section 711 of the German Code of Civil Procedure (ZPO). If the Customer fails in fulfilling this task, he will be liable for any damages.

7.9
Stadler + Schaaf shall undertake to release the securities to which it is entitled at the request of the Customer to the extent that the realisable value of the securities exceeds any claims due to Stadler + Schaaf. The selection of the securities to be released will be at the discretion of Stadler + Schaaf.

8. Supply of Goods and Services Deadlines

8.1
The observance of supply of goods and services deadlines requires the timely receipt of all documents to be supplied by the Customer, as well as all necessary approvals and clearances (especially of plans) by the Customer. The deadlines agreed between Stadler + Schaaf and the Customer are decisive here. If these conditions are not fulfilled in time, the deadlines shall be extended by the period between the agreed date of submission and the date of receipt by Stadler + Schaaf; however, the ruling shall not apply if Stadler + Schaaf is responsible for the delay.

8.2
Stadler + Schaaf shall inform the Customer of any delays that have become apparent as soon as possible. In any case, Stadler + Schaaf will assign to the Customer any of Stadler + Schaaf’s claims against its supplier for non-contractually compliant supply, insofar as this is legally permissible. Damage and reimbursement claims of the Customer against Stadler + Schaaf are excluded, insofar as Stadler + Schaaf is not responsible for the delay in supply. The reservation in this paragraph does not apply if Stadler + Schaaf is at fault for delays in supply. If non-compliance with the deadlines is due to force majeure, e.g. mobilisation, war, rioting or similar events, e.g. strikes or lockouts, the deadlines shall be reasonably extended by the duration of the event causing the non-compliance and the period of time that is necessary for Stadler + Schaaf to fulfil its supply obligations vis-à-vis the Customer, taking into account the circumstances of the individual case. The same applies in the event of a non-timely or improper self-supply on the part of Stadler + Schaaf.

8.3
The Customer is otherwise entitled to assert any claims for damages in the event of a default in supplying goods or services, unless stipulated otherwise above, but is entitled to do so only in accordance with the provisions of clause 13 below.

8.4
The Customer may rescind the contract without setting a deadline if Stadler + Schaaf is ultimately found to be unable to provide the entire supply before the transfer of risk. In addition, the customer may rescind the contract if, in the case of an order, supply of some of the services becomes impossible and he has a legitimate interest in refusing the partial supply. If this is not the case, the Customer will have to pay the contract price for the partial supply. If any impossibility occurs during an acceptance delay of the Customer or if the Customer is at fault for these circumstances, the Customer shall remain obligated to payment.

9. Modalities of delivery and transfer of risk, validity of Incoterms

9.1
Delivery shall be carried out in accordance with the commercial clause specified in the individual contract, for the interpretation of which the Incoterms in the version valid at the time of conclusion of the contract shall apply.

9.2
If the individual contract does not contain a commercial clause, the delivery shall be ex works according to Incoterms 2010.

10. Rights of the Customer in case of defects

10.1
Defects in goods, services or works must be reported in writing stating the nature and extent of the defects.

10.2
If the goods, services or works are defective and the customer has properly reported this to Stadler + Schaaf, the Customer shall be entitled to its statutory rights with the following proviso:

10.2.1
Stadler + Schaaf initially has the right, at its own discretion, either to remedy the defect or to provide the purchase with fault-free goods, services or works (provision of cure).

10.2.2
Stadler + Schaaf reserves the right to make two attempts at providing cure. Should the cure fail or prove unreasonable for the Customer, the Customer can either withdraw from the contract or demand a reduction in the agreed remuneration.

10.2.3
Paragraph 11 applies to claims for damages and to compensation for futile expenses arising from a defect.

10.3
Warranty claims of the customer expire after one year from the beginning of the statutory limitation period. This does not apply in the following cases:

10.3.1
in the case of any liability of Stadler + Schaaf’s due to intent;

10.3.2
in the event of defects that were fraudulently concealed by Stadler + Schaaf, its organs and/or vicarious agents or whose absence were guaranteed by Stadler + Schaaf, its organs and/or vicarious agents;

10.3.3
for claims against Stadler + Schaaf because of defects in goods, services or works, if it was used for a building according to its usual use and in so doing caused its defectiveness;

10.3.4
for claims arising from injury to life, limb or health due to an intentional or negligent breach of obligations by Stadler + Schaaf, an organ or a vicarious agent of Stadler + Schaaf. In the above-mentioned cases 10.3.1 to 10.3.4, the statutory limitation period applies.

11. Liability

11.1
Stadler + Schaaf – for whatever legal reason – is only liable for damages

11.1.1
in the event of intent or gross negligence on the part of Stadler + Schaaf, its organs and/or vicarious agents;

11.1.2
in case of culpable violation of cardinal obligations even in the event of mild negligence, but restricted to the contractually typical, reasonably foreseeable damage; cardinal obligations are those whose fulfilment renders the proper execution of the contract possible in the first place and whose observance the Customer may regularly rely upon;

11.1.3
in the case of injury to life, limb or health due to an intentional or negligent breach of obligations by Stadler + Schaaf, a legal representative or a vicarious agent of Stadler + Schaaf;

11.1.4
in the case of defects that Stadler + Schaaf fraudulently conceal or whose absence Stadler + Schaaf has guaranteed;

11.1.5
in the case of defects in the Subject Matter of the Contract, insofar as liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects.

11.2
Insofar as the customer is entitled to claims for damages against Stadler + Schaaf, these shall lapse 12 months after commencement of the statutory limitation period. This does not apply in the following cases:

11.2.1
in the event of intent or gross negligence on the part of Stadler + Schaaf, its organs and/or vicarious agents;

11.2.2
in the event of defects that were fraudulently concealed by Stadler + Schaaf, its organs and/or vicarious agents or whose absence were guaranteed by Stadler + Schaaf , its organs and/or vicarious agents;

11.2.3
in the case of defects in the Subject Matter of the Contract, insofar as liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects.

11.2.4
For claims against Stadler + Schaaf because of defects in goods, services or works, if it was used for a building according to its usual use and in so doing caused its defectiveness; In the above-mentioned cases 11.2.1 to 11.2.4, the statutory limitation period applies.

12. Offsetting
The customer can only offset claims from Stadler + Schaaf with an undisputed or legally determined counterclaim.

13. Place of fulfilment
The place of fulfilment is the registered office of Stadler + Schaaf.

14. Jurisdiction
For legal disputes only the local district court of Landau and the county court of Landau may adjudicate within the scope of their jurisdiction.

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

16. Applicable law
The law applicable at Stadler + Schaaf’s registered office applies to the contractual relationship.