General Terms and Conditions
Stadler + Schaaf Mess- und Regeltechnik GmbH
(hereinafter: Stadler + Schaaf)
for exclusive use vis-à-vis companies who are concluding the contract in the course of their commercial or independent professional activity (hereinafter: Client).
Structure of the following General Terms and Conditions:
1. Application
The legal relationships under the contract between Stadler + Schaaf and the Client, which relate to the purchase of goods, services or work from Stadler + Schaaf for the Client (goods, services and/or work hereinafter individually and collectively referred to as: subject of the contract), are based on these General Terms and Conditions of Delivery and Service of Stadler + Schaaf. The inclusion of the Client’s terms and conditions, in particular the Client’s purchasing conditions is contradicted.
2. Terms and conditions of payment
The payments by the client shall be performed within 30 days from the receipt of invoice in cash. A payment will be deemed to have been received once Stadler + Schaaf can dispose of the invoice amount. Should, upon special agreement with the Client, Stadler + Schaaf grant a cash discount deduction on the invoice amount, the following requirement must be met: All invoices with an issuance date older than 45 days are paid.
3. Legal effects of information on product quality
3.1
Information as to quality and product life and other information on technical specifications shall only constitute a guarantee if it has been agreed and designated as such.
3.2
Details and information provided by Stadler + Schaaf on the suitability and application of goods, work and/or services and on work results based on the transfer of goods and/or the provision of services and/or work do not release the Client from the Client’s own testing of suitability and application.
4. Rights of Stadler + Schaaf and the Client to technical concepts, drawings, specifications and elaborations, standard software and firmware
4.1
Stadler + Schaaf reserves without restriction its property and copyright exploitation rights to technical concepts, drawings, specifications and elaborations. Technical concepts, drawings, specifications and elaborations that relate to the subject of the contract, if applicable, also in the future, may only be made accessible to third parties with Stadler + Schaaf’s prior consent and must be returned to Stadler + Schaaf immediately on request. The Client retains its property rights, copyrights and exploitation rights to the Client’s documents even after the transfer to Stadler + Schaaf. Stadler + Schaaf may, however, make these documents accessible to third parties, which Stadler + Schaaf is permitted to include in the fulfilment of its delivery and performance obligations, in accordance with the agreement with the Client.
4.2
For standard software and firmware of Stadler + Schaaf, the Client has the non-exclusive right to use the agreed performance features in unmodified form on the devices to be supplied by Stadler + Schaaf in accordance with the existing contract with the Client. The Client may not make a backup copy of the standard software without express agreement. Furthermore, the Client is not authorized to reproduce the software without the express permission of Stadler + Schaaf.
5. Infringement of third-party property rights, use of property rights of the Client by Stadler + Schaaf
5.1
In the event of an infringement of third-party property rights for which Stadler + Schaaf is responsible, Stadler + Schaaf may, at its own discretion, either obtain a right of use sufficient for the agreed or presumed use and transfer it to the Client or make an offer to the Client to amend the contract such that no property-right infringement exists or the delivered goods are to be exchanged. The Client is obliged to accept the offer if the modification or the exchange does not impair the Client’s use of the contractual object. If Stadler + Schaaf is unable to do this or refuses this response to an infringement of third-party property rights, the Client has statutory claims and rights. Clause 13 applies to claims for damages and reimbursement of expenses. If the Client does not accept the offer of Stadler + Schaaf for modification or exchange, despite being obliged to do so according to 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 Client and this violates third-party property rights, the Client shall indemnify Stadler + Schaaf from all claims.
5.3
License claims of the Client based on industrial property rights to scanned models or models produced or acquired on the Client’s behalf are excluded insofar as these are used by Stadler + Schaaf in accordance with the agreement made with the Client.
6. Partial deliveries
Partial deliveries are permitted if reasonable for the Client.
7. Retention of title
7.1
Stadler + Schaaf retains ownership of the contractual item until payment has been received (so-called simple retention of title).
7.2
If the Client has paid the purchase price for the manufactured and/or delivered item, but if other liabilities from other contractual relationships between Stadler + Schaaf and the Client have not yet been fully paid, Stadler + Schaaf also retains ownership of the manufactured and/or delivered items until full payment of all liabilities (so-called extended retention of title).
7.3
If the goods delivered by Stadler + Schaaf are combined or mixed with an item of the Client in such a way that the Client’s item is to be regarded as the main item, it is agreed that the Client transfers co-ownership of the item to Stadler + Schaaf in the ratio of invoice value of the goods delivered by Stadler + Schaaf at the invoice value or, in the absence of such at the market value of the main item. The Client will hold the resulting sole or co-ownership for Stadler + Schaaf free of charge.
7.4
At the request of Stadler + Schaaf, the Client must provide all necessary information about the inventory of the goods owned by Stadler + Schaaf. Additionally, at the request of Stadler + Schaaf, the Client must mark the items it owns as such.
7.5
In the event that the Client defaults on payment, in the case of simple retention of title, Stadler + Schaaf is entitled to request surrender of the subject of the contract, after issuing a reminder, and the Client is obliged to do so.
7.6
Due to the retention of title, Stadler + Schaaf may only demand surrender of the subject of the contract if Stadler + Schaaf has previously withdrawn from the contract.
7.7
The Client is entitled to resell the goods subject to reservation of title in the normal course of business. The Client hereby assigns the Client’s claims from the resale of the reserved goods to Stadler + Schaaf for the invoice amount agreed with Stadler + Schaaf, including VAT, provided that Stadler + Schaaf accepts the assignment.
As long as the subject of the contract has not been paid in full, the Client must hold it in trust for Stadler + Schaaf and keep it separate from its property and that of third parties, as well as store, secure and insure the goods subject to retention of title and label them as Stadler + Schaaf’s property. Until full payment has been made, the Client may neither use the subject of the contract nor resell it. The Client is not entitled to dispose of the goods subject to retention of title (e.g. transfer by way of security, pledging).
7.8
The Client shall notify Stadler + Schaaf immediately of any seizures or other third-party interference so that Stadler + Schaaf may assert its claims in accordance with Section 771 ZPO (German Code of Civil Procedure). The Client shall be held liable for the damage incurred should it fail to comply with this provision.
7.9
Upon the Client’s request Stadler + Schaaf shall undertake to release the securities it is entitled to immediately insofar as the realisable value of the securities exceeds the amounts payable to the Stadler + Schaaf. Stadler + Schaaf shall exercise discretion in deciding which security interests to release.
8. Delivery and performance deadlines
8.1
Observance of deadlines for deliveries and performance is subject to the proviso that all documents, necessary permits and releases, especially plans which are to be supplied by the Client, are received in time. The dates agreed by the parties are decisive. If these requirements are not met in time, the deadlines will be extended by the period between the agreed time of submission until receipt by Stadler + Schaaf; this does not apply if Stadler + Schaaf is responsible for the delay.
8.2
Stadler + Schaaf will notify the Client as soon as possible of any emerging delays. In any case, to the extent permitted by law, Stadler + Schaaf will assign to the Client Stadler + Schaaf’s claims against its supplier that arise from the non-contractual delivery. Claims for damages and reimbursement of expenses by the Client against Stadler + Schaaf are excluded insofar as Stadler + Schaaf is not at fault for the delay in delivery. The reservation set out in this paragraph does not apply if Stadler + Schaaf is to blame for the delay in delivery. If failure to comply with deadlines is caused by force majeure, e.g. mobilization, war, riot, or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly by the duration event that caused the non-compliance with the agreed deadline and by the period necessary for Stadler + Schaaf to be able to meet its delivery obligations to the Client, taking into account the circumstances of the individual case. The same applies to late or incorrect self-delivery by Stadler + Schaaf.
8.3
In the event of a delay in delivery or performance, unless otherwise stipulated above, the Client is only entitled to assert claims for damages in accordance with the following provision, clause 13.
8.4
If the performance by Stadler + Schaaf becomes definitely impossible before the transfer of risk, the client may withdraw from the contract without setting a deadline. In addition, the Client may withdraw from the contract if the execution of a part of the performance becomes impossible in the case of an order and the Client has a justified interest in rejecting the partial delivery. If this is not the case, the Client shall pay the price agreed for that portion actually delivered. If the impossibility occurs while the Client is in default of acceptance or if the Client is responsible for these circumstances, the Client shall remain obliged to pay our invoice.
9. Modalities of delivery and transfer of risk, validity of Incoterms
9.1
Delivery shall be effected in accordance with the commercial clause agreed in the contract, which shall be interpreted in accordance with the respective INCOTERMS applicable on the date the contract is concluded.
9.2
If the individual contract does not contain a commercial clause, the delivery is EXW ex works Incoterms 2010.
10. Rights of the Client in case of defects
10.1
Defects in the goods, services or work must be reported in writing, stating the type and extent of the defects.
10.2
If the goods, the service, or work are defective and the Client has properly notified Stadler + Schaaf of this, the Client may avail itself of the legal rights with the following stipulations:
10.2.1
Stadler + Schaaf initially has the right, at its discretion, either to remedy the defect or to provide the buyer with a defect-free product, service, or work (supplementary performance).
10.2.2
Stadler + Schaaf reserves the right to make two attempts at subsequent performance. If the subsequent performance fails or is unreasonable for the Client, the Client may either withdraw from the contract or demand a reduction in the agreed remuneration.
10.2.3
Clause 11 shall apply to claims for damages and reimbursement of frustrated expenditure due to a defect.
10.3
Warranty claims of the Client expire after one year from the statutory start of the limitation period. This does, however, not apply to the following cases:
10.3.1
in the event Stadler + Schaaf is liable for intent;
10.3.2
in the event of defects that Stadler + Schaaf, its organs and/or vicarious agents maliciously concealed or the absence of which Stadler + Schaaf, its organs and/or vicarious agents have guaranteed;
10.3.3
for claims against Stadler + Schaaf due to the defectiveness of a product, service or work performance if it was used for a building in accordance with its normal use and caused its deficiency;
10.3.4
for claims arising from injury to life, limb or health based on an intentional or negligent breach of duty by Stadler + Schaaf, an organ or a vicarious agent of Stadler + Schaaf. In the cases 10.3.1 to 10.3.4 listed above, the statutory limitation period applies.
11. Liability
11.1
Stadler + Schaaf is only liable for damages–on whatever legal grounds–
11.1.1
in the case of intent or gross negligence on the part of Stadler + Schaaf, its organs and/or vicarious agents;
11.1.2
in the event of culpable violation of cardinal obligations, including in the case of slight negligence, however limited to contractually typical, reasonably foreseeable damage; cardinal obligations are such, the fulfilment of which enables the proper execution of the contract in the first place and on which the Client can regularly rely;
11.1.3
in the event of injury to life, limb or health which is based on an intentional or negligent breach of duty by Stadler + Schaaf, a legal representative or vicarious agent of Stadler + Schaaf;
11.1.4
in the event of defects that Stadler + Schaaf has maliciously concealed or of which Stadler + Schaaf has guaranteed the absence;
11.1.5
in the event of defects in the delivered object, to the extent that the product liability regulations for injury to persons or property cover damage to privately used objects.
11.2
Insofar as the Client is entitled to compensation claims against Stadler + Schaaf, these expire 12 months after the statutory limitation period begins. This does, however, not apply to the following cases:
11.2.1
in the case of intent, its organs, and/or vicarious agents,
11.2.2
in the event of defects that Stadler + Schaaf, its organs, and/or vicarious agents maliciously concealed or the absence of which Stadler + Schaaf, its organs and/or vicarious agents have guaranteed;
11.2.3
in the event of defects in the delivered object, to the extent that the product liability regulations for injury to persons or property cover damage to privately used objects.
11.2.4
for claims against Stadler + Schaaf due to the defectiveness of a product, service or work, if it was used for a building in accordance with its normal use and caused its defectiveness. In the cases 11.2.1 to 11.2.4 listed above, the statutory limitation period applies.
12. Offsetting
The Client may only offset claims from Stadler + Schaaf against an undisputed or adjudicated counterclaim.
13. Place of performance
The place of performance is the registered office of Stadler + Schaaf.
14. Place of jurisdication
Exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Landau Local Court and Landau District Court, within the scope of their material competence.
15. Prohibition on assignment
The Client may only assign claims against Stadler + Schaaf from the contractual relationship to third parties with Stadler + Schaaf’s written consent.
16. Applicable law
This contract shall be governed by the law applicable at the registered office at Stadler + Schaaf
Version 1.2020