GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF STUMPP + SCHÜLE GMBH
Status: July 2018
These Terms and Conditions of Sale shall apply to entrepreneurs, legal entities under public law and special funds under public law.
Our deliveries and services are provided exclusively on the basis of the following terms and conditions.
Geschäftsbedingungen des Bestellers, die von uns nicht ausdrücklich anerkannt werden, haben keine Gültigkeit.
2. Offer and conclusion
2.1 Our offers are subject to change and non-binding, unless we have expressly designated them as binding in textual form. Declarations of acceptance by the purchaser, insofar as they are to be qualified as an offer pursuant to § 145 BGB, shall only become binding through our textual order confirmation. We shall endeavor to accept the purchaser’s orders within 5 days of receipt of the order.
2.2 We reserve unrestricted property rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible to third parties. Drawings and other documents belonging to offers shall be returned to us immediately upon request if the order is not placed with us.
2.3 The information and illustrations contained in brochures and catalogs are approximate values customary in the industry, unless they have been expressly designated by us as binding.
3. Long-term and call-off contracts, price adjustment3. long-term and call-off contracts, price adjustment
3.1 Unlimited contracts can be terminated with a notice period of 3 months.
3.2 If, in the case of long-term contracts (contracts with a term of more than 12 months and unlimited contracts), a significant change occurs in the cost of wages, materials or energy, each contracting party shall be entitled to demand an appropriate adjustment of the price taking these factors into account.
3.3 If a binding order quantity has not been agreed, we shall base our calculation on the non-binding order quantity (target quantity) expected by the partner for a certain period. If the partner purchases less than the target quantity, we shall be entitled to increase the unit price accordingly. If the partner purchases more than the target quantity, we shall reduce the unit price appropriately, provided that the partner has given notice of the additional requirement at least 6 months before delivery.
3.4 In the case of delivery contracts on call, binding quantities shall be communicated to us by call at least 6 months before the delivery date, unless otherwise agreed.
Additional costs caused by a delayed call-off or subsequent changes to the call-off with regard to time or quantity by our partner shall be borne by him; our calculation shall be decisive in this respect.
4.1 Each contracting party shall use all documents (including samples, models and data) and knowledge which it obtains from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own documents and knowledge if the other contracting party designates them as confidential or has an obvious interest in keeping them secret.
4.2 This obligation shall commence as of the first receipt of the documents or knowledge and shall end 36 months after the end of the business relationship.
4.3 The obligation shall not apply to documents and knowledge which are generally known or which were already known to the contracting party at the time of receipt without the contracting party being obliged to maintain secrecy, or which are subsequently transmitted by a third party entitled to pass them on or which are developed by the receiving contracting party without exploitation of documents or knowledge of the other contracting party which are to be kept secret.
5. Samples and means of production5. samples and means of production
5.1 Unless otherwise agreed, the manufacturing costs for samples and means of production (tools, molds, templates, etc.) shall be invoiced separately from the goods to be delivered. This also applies to means of production which have to be replaced due to wear and tear. They are to be paid without deduction with the sending of the outturn sample, or, if such a sample has not been requested, with a period of 14 days.
5.2 The costs for maintenance and proper storage as well as the risk of damage to or destruction of the production equipment shall be borne by us for the period of the calculated service life. The costs for requested tool changes as well as for renewal shall be borne by the purchaser.
5.3 If the Purchaser suspends or terminates the cooperation during the production period of the samples or means of production, all production costs incurred until then shall be borne by the Purchaser.
5.4 The means of production shall remain in our possession, even if the customer has paid for them, at least until the delivery contract has been settled. Thereafter, the Purchaser shall be entitled to demand the surrender of the Means of Production if a mutual agreement has been reached on the time of surrender and the Purchaser has fully complied with its contractual obligations. Furthermore, the technical knowledge of the manufacturer embodied in this tool shall be adequately remunerated in addition to the full tool costs.
5.5 We shall store the means of production free of charge for three years after the last delivery to our purchaser. Thereafter, we shall request our customer in writing to comment on the further use within 6 weeks. Our obligation to store the production equipment shall end if no comments are made within these 6 weeks or no new order is placed.
5.6 Customer-related means of production may only be used by us for subcontracting to third parties with the prior written consent of our customer.
6.1 Unless otherwise agreed, the prices shall apply “ex works”, excluding packaging, freight, postage and insurance. These shall be invoiced separately.
6.2 Value added tax at the respective statutory rate shall be added to the prices.
7. Terms of payment
7.1 All invoices are due for payment within 30 days of the invoice date without deduction.
7.2 If we have indisputably delivered partially defective goods, our customer shall nevertheless be obliged to make payment for the defect-free part, unless the partial delivery is of no interest to him. In all other respects, the purchaser may only set off counterclaims which have been legally established or are undisputed.
7.3 In the event that we exceed our target, we shall be entitled to charge interest on arrears at the rate charged to us by the bank for current account overdrafts, but no less than 9 percentage points above the respective prime rate of the European Central Bank.
7.4 In the event of default in payment, we shall be entitled to suspend the performance of our obligations until receipt of the payments after having notified the Purchaser in writing.
7.5 Checks shall only be accepted by agreement and only on account of performance. Bills of exchange shall not be accepted.
7.6 If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by the Purchaser’s inability to pay, we may refuse performance and set the Purchaser a reasonable deadline within which it must make payment or provide security concurrently with delivery. In the event of refusal by the customer or unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract and demand compensation for damages.
8.1 Delivery periods are generally non-binding and approximate. In case of doubt, the delivery period shall commence upon dispatch of the order confirmation by us. Compliance with the delivery period shall be subject to the timely receipt of all documents to be provided by the Purchaser, the timely receipt of all official approvals and releases which may be required, the fulfillment of all contractual obligations of the Purchaser, in particular agreed terms of payment. If these preconditions are not fulfilled in time, the delivery time shall be reasonably extended. This shall not apply if we are responsible for the delay.
8.2 Unless otherwise agreed, we deliver “ex works”. Our notification of readiness for dispatch or collection shall be decisive for compliance with the delivery date or delivery period.
8.3 Partial deliveries shall be permitted to a reasonable extent. They shall be invoiced separately.
8.4 Production-related excess or short deliveries of 15% are permissible. The total price shall change in accordance with their scope.
8.5 In cases of force majeure and all events beyond our control and influence, such as natural disasters, mobilization, war, riots, strikes and lockouts, official import and export restrictions, unforeseen obstacles in production or deliveries – at our premises or those of our subcontractors – the delivery period shall be deemed to be reasonably extended. We shall notify the customer of the beginning and end of such circumstances as soon as possible.
8.6 If we are in default and the customer incurs damage as a result, the customer shall be entitled to demand lump-sum compensation for the delay. This shall amount to 0.5% for each full week of delay, but in total to a maximum of 5% of the value of that part of the overall performance which cannot be used on time or in accordance with the contract as a result of the delay.
8.7 The Purchaser’s claims for damages due to delayed performance as well as claims for damages in lieu of performance exceeding the limits set out in Clause 8.6 shall be excluded in all cases of delayed delivery after expiry of any time limit set for us to effect delivery. Also, in the event of delays in delivery on our part, no assumption of transport costs shall be made, provided that the delivery conditions ex Works and FCA Beuren have been agreed with the Purchaser. This shall not apply in cases of intent, gross negligence or in cases of mandatory liability for injury to life, body or health. The purchaser may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the delay in delivery.
8.8 At our request, the Purchaser is obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or whether it will insist on delivery.
9. Shipping and transfer of risk
9.1 Goods notified as ready for shipment shall be taken over by the customer without delay. Otherwise, we shall be entitled, at our discretion, to dispatch them or to store them at the expense and risk of the Purchaser.
9.2 In the absence of a special agreement, we shall choose the means of transport and the transport route.
9.3 The risk shall pass to the Purchaser when the goods are handed over to the railroad, the forwarder or the carrier or when storage begins, but at the latest when the goods leave the works or the warehouse, even if we have undertaken delivery.
10. Retention of title
10.1 We retain title to the delivered goods until all claims arising from the business relationship with the customer have been satisfied.
10.2. Der Besteller ist berechtigt, diese Waren im ordentlichen Geschäftsgang zu veräußern, solange er seinen Verpflichtungen aus der Geschäftsverbindung mit uns rechtzeitig nachkommt. Er darf jedoch die Vorbehaltsware weder verpfänden noch zur Sicherheit übereignen. Er ist verpflichtet, unsere Rechte beim kreditierten Weiterverkauf der Vorbehaltsware zu sichern.
10.3 In the event of breaches of duty by the partner, in particular in the event of default in payment, we shall be entitled to rescind the contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the customer to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The orderer shall be obliged to surrender the goods.
10.4 All claims and rights arising from the sale or any leasing of goods to which we have title and which may have been granted to the Purchaser shall be assigned to us by the Purchaser here and now by way of security. We hereby accept the assignment.
10.5. Eine etwaige Be- oder Verarbeitung der Vorbehaltsware nimmt der Besteller stets für uns vor. Wird die Vorbehaltsware mit anderen, nicht uns gehörenden Gegenständen verarbeitet oder untrennbar vermischt, so erwerben wir das Miteigentum an der neuen Sache im Verhältnis des Rechnungswertes der Vorbehaltsware zu den anderen verarbeiteten oder vermischten Gegenständen zum Zeitpunkt der Verarbeitung oder Vermischung. Werden unsere Waren mit anderen beweglichen Gegenständen zu einer einheitlichen Sache verbunden oder untrennbar vermischt und ist die andere Sache als Hauptsache anzusehen, so überträgt der Besteller uns anteilmäßig Miteigentum, soweit die Hauptsache ihm gehört. Der Besteller verwahrt das Eigentum oder Miteigentum für uns. Für die durch Verarbeitung oder Verbindung bzw. Vermischung entstehende Sache gilt im Übrigen das gleiche wie für die Vorbehaltsware.
10.6 The customer shall inform us without delay of any enforcement measures by third parties against the goods subject to retention of title, against the claims assigned to us or against other securities, handing over the documents necessary for an intervention. This shall also apply to impairments of any other kind.
10.7 If the value of the existing securities exceeds the total value of the secured claims by more than 20 percent, we shall be obliged to release securities of our choice at the request of the customer.
11. Warranty and liability
11.1 Die Beschaffenheit der Ware richtet sich ausschließlich nach den vereinbarten technischen Liefervorschriften. Falls wir nach Zeichnungen, Spezifikationen, Mustern usw. unseres Partners zu liefern haben, übernimmt dieser das Risiko der Eignung für den vorgesehenen Verwendungszweck. Entscheidend für den vertragsgemäßen Zustand der Ware ist der Zeitpunkt des Gefahrübergangs. Die von uns gefertigte Ware wird nur stichprobenartig geprüft ist. Eine 100%-ige Kontrolle der Ware bedarf der ausdrücklichen schriftlichen Vereinbarung.
11.2 We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, faulty or negligent handling or for the consequences of improper modifications or repair work carried out by the customer or third parties without our consent. The same applies to defects which only insignificantly reduce the value or suitability of the goods.
11.3 Warranty claims of the purchaser require that he has fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). In doing so, he shall inspect the delivery for any defects without delay, but no later than one week after receipt, and shall then notify us if such defects are found. If there is a defect for which we are responsible, we shall be entitled at our discretion to rectify the defect or to make a replacement delivery. Within the scope of subsequent performance, we shall be obliged to reimburse the Purchaser for the necessary expenses incurred for the removal of the defective item and the installation or fitting of the repaired or delivered defect-free item. Reimbursement of expenses shall be excluded if the expenses increase because the goods have been moved to another location after our delivery, unless this is in accordance with the intended use of the goods. This shall apply mutatis mutandis to claims for reimbursement of expenses of the Purchaser pursuant to § 445 a BGB (recourse of the Seller), provided that the last contract in the supply chain is not a purchase of consumer goods. Should one or both of these types of subsequent performance be impossible or disproportionate, we shall be entitled to refuse them. We may refuse subsequent performance as long as the Purchaser fails to meet its payment obligations towards us to an extent corresponding to the defect-free part of the performance.
11.4 If the rectification or replacement delivery is not made within a reasonable period of time – taking into account our delivery possibilities – or if the rectification and/or replacement delivery fails, the Purchaser may demand a reduction of the remuneration (abatement) or withdraw from the contract.
11.5 Unless otherwise stated below (para. 7), any further claims of the Purchaser, irrespective of their legal basis (in particular claims arising from a breach of primary and secondary contractual obligations, reimbursement of expenses with the exception of those pursuant to § 439 II BGB, tort and other tortious liability), shall be excluded; this shall apply in particular to damage that has not occurred to the delivery item itself and to claims for compensation for lost profit; this shall also include claims that do not result from the defectiveness of the purchased item.
11.6 The above provisions shall also apply in the event of delivery of another item or a smaller quantity.
11.7 The exclusion of liability regulated in Paragraph 5 shall not apply if an exclusion or limitation of liability for damages resulting from injury to life, limb or health is agreed which is based on an intentional or grossly negligent breach of duty by the user; it shall also not apply if an exclusion or limitation of liability for other damages is agreed which is based on an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the user. If we culpably violate an essential contractual obligation or a “cardinal obligation”, liability shall not be excluded, but shall be limited to the foreseeable damage typical for the contract; otherwise, liability shall be excluded in accordance with Section 5. Furthermore, the exclusion of liability shall not apply in those cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivery item. It shall also not apply in the event of the assumption of a guarantee and in the event of the assurance of a characteristic, if it is precisely a defect covered by this that triggers our liability. In the event of reimbursement of expenses, the above shall apply accordingly.
11.8 Claims for supplementary performance, damages and compensation for use shall become statute-barred one year after delivery of the purchased item. This shall not apply to an item which has been used in accordance with its customary use for a building and has caused its defectiveness; in this case, the limitation period shall not begin to run until after 5 years. Claims for reduction of the purchase price and the exercise of the right of rescission shall be excluded to the extent that the claim for subsequent performance is time-barred. In the case of p. 3, however, the purchaser may refuse payment of the purchase price to the extent that he would be entitled to do so on the basis of the withdrawal or reduction; in the case of the exclusion of withdrawal and a subsequent refusal to pay, we shall be entitled to withdraw from the contract.
11.9 The Purchaser’s right of recourse against us pursuant to § 445 a BGB (recourse of the Seller) shall exist only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory claims for defects.
12. Place of performance, place of jurisdiction and applicable law
12.1 The place of performance shall be our registered office.
12.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office. We shall also be entitled to take legal action at the headquarters of the customer.
12.3 The law of the Federal Republic of Germany shall apply, excluding the conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods.