Terms and Conditions of Sale, Delivery and Payment of STAIB
1.1. All deliveries, services and offers of Hermann Staib GmbH or its affiliated companies within the meaning of §§ 15ff of the German Stock Corporation Act (AktG) (STAIB) shall be made exclusively on the basis of these General Terms and Conditions of Sale, Delivery and Payment (GTCS). They shall form an integral part of all contracts concluded by STAIB with its contracting parties (CONTRACTORS) for the supply of goods or services offered by STAIB. They shall also apply to all future deliveries, services or offers to the CONTRACTOR, even if they are not separately agreed upon again.
1.2. The terms and conditions of the CONTRACTOR or third parties shall not apply, even if STAIB does not separately object to their application in a particular case. Even if STAIB refers to a letter containing or referring to the terms and conditions of the CONTRACTOR or a third party, this shall not constitute an agreement to the application of such terms and conditions.
2.1. All information about STAIB, its products and customers shall be kept strictly confidential by the CONTRACTOR.
3. TENDER PREPARATION AND CONTRACT CONCLUSION
3.1. Based on the complete specifications (e.g., technical data, drawings, illustrations, documents) drawn up and provided by the CONTRACTOR, STAIB shall draw up plans and prototypes until their final approval by the CONTRACTOR.
3.2. Information provided by STAIB on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings, illustrations and technical documents) shall only be approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
3.3. All offers made by STAIB are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or assignments may be accepted by STAIB within (14) days after receipt.
3.4. The legal relationship between STAIB and the CONTRACTOR shall be governed solely by the written purchase agreement, including these GCSD. It shall fully reflect all agreements between the Contracting Parties relating to the subject matter of the Contract. Oral promises made by STAIB prior to the conclusion of this Agreement shall not be legally binding and oral agreements between the Parties shall be replaced by the written Agreement, unless otherwise expressly agreed between the Parties. In the event that STAIB cancels an Order, only the costs actually incurred by the CONTRACTOR shall be taken into account in the calculation of STAIB’s costs.
3.5. Any amendments and modifications to the agreements made, including these GTCP, shall be made in writing in order to be effective. With the exception of managing directors or authorised signatories, STAIB’s employees shall not be entitled to make any oral agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement.
3.6. STAIB shall retain ownership or copyright of all offers and cost estimates made by it as well as drawings, plans, illustrations, calculations, prototypes, brochures, catalogues, models, tools and other documents and aids provided to the CONTRACTOR. Without STAIB’s express consent, the CONTRACTOR shall not make these items available to third parties, either as such or in terms of their content, disclose them, use them itself or have them used by third parties, or reproduce them. Upon STAIB’s request, the CONTRACTOR shall return such items in their entirety to STAIB and destroy any copies made if they are no longer required by STAIB in the ordinary course of business or if negotiations do not lead to the conclusion of a Contract. This shall not apply to the storage of electronically provided data for the purpose of normal data backup.
3.7. If a product developed by STAIB at the CUSTOMER’s request is not released for production by the CUSTOMER, the CUSTOMER shall be invoiced for the development costs actually incurred, including the pro rata tool costs.
4. DELIVERY AND DELIVERY TIME
4.1. Delivery is made ex warehouse.
4.2. Deadlines and dates for deliveries and services announced by STAIB shall always be approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport, unless expressly stated otherwise by STAIB.
4.3. STAIB may – without prejudice to its rights resulting from the CONTRACTOR ’s default – request from the CONTRACTOR an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the CONTRACTOR does not fulfil its contractual obligations towards STAIB.
4.4. STAIB shall not be liable for impossibility of delivery or for delays in delivery if such impossibility or delays are caused by force majeure or other events not foreseeable at the time of the conclusion of the Agreement (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the necessary official permits, pandemics or epidemics, official measures or the non-delivery, incorrect delivery or late delivery by suppliers despite a congruent hedging transaction concluded by the Seller) for which STAIB is not responsible. If such events make it considerably more difficult or impossible for STAIB to deliver or perform and if the hindrance is not only of a temporary nature, STAIB shall be entitled to withdraw from the Agreement. In the event of hindrances of a temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. To the extent that the CONTRACTOR cannot reasonably be expected to accept the delivery or service as a result of the delay, the CONTRACTOR may withdraw from the Agreement by immediately notifying STAIB in writing.
4.5. STAIB shall be entitled to make partial deliveries if
• the partial delivery is usable for the CUSTOMER within the scope of the contractual purpose,
• the delivery of the remaining ordered goods is secured and
• the CUSTOMER does not incur significant additional expenses or costs as a result (unless STAIB agrees to bear such costs).
4.6. If STAIB is in default with a delivery or service or if a delivery or service becomes impossible for STAIB for any reason whatsoever, STAIB’s liability shall be limited to damages in accordance with section 9 of these GCSD.
5. PLACE OF PERFORMANCE, SHIPPING, PACKAGING, TRANSFER OF RISK, ACCEPTANCE
5.1. The place of performance for all obligations arising from the contractual relationship shall be STAIB’s warehouse, unless otherwise stipulated.
5.2. At the request and expense of the CONTRACTOR, the goods shall be shipped to another destination (sale by delivery to a place other than the place of destination). Unless otherwise agreed, STAIB shall have the right to determine the mode of shipment (in particular the carrier, the shipping route, the packaging) itself.
5.3. If shipment of the goods has been agreed and STAIB has not assumed the transport, the risk shall pass to the CONTRACTOR at the latest when the delivery item is handed over to the forwarder, carrier or any other third party designated to carry out the shipment (whereby the start of the loading process shall be decisive). If the shipment or handover is delayed due to a circumstance caused by the CONTRACTOR, the risk shall pass to the CONTRACTOR from the day on which the delivery item is ready for shipment and STAIB has notified the CONTRACTOR thereof.
5.4. Storage costs after the passing of risk shall be borne by the CONTRACTOR. In the event of storage by STAIB, the storage costs shall amount to (0.25) % of the invoice amount of the Delivery Items to be stored per expired week. STAIB reserves the right to claim and prove further or lower storage costs.
5.5. The Shipment shall be insured by STAIB against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the CONTRACTOR and at the CONTRACTOR’s expense.
5.6. Insofar as acceptance is to take place, the goods shall be deemed to have been accepted when
• the delivery has been completed,
• STAIB has notified the CONTRACTOR thereof with reference to the deemed acceptance in accordance with this provision and has requested the CONTRACTOR to accept the goods,
• seven (7) working days have elapsed since delivery or the CONTRACTOR has started to use the goods and in this case seven (7) working days have elapsed since delivery and
• the CONTRACTOR has failed to take delivery within this period for a reason other than a defect notified to STAIB which makes the use of the goods impossible or substantially impairs it.
6. PRICES AND PAYMENT
6.1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are quoted in EUR ex works plus packaging, the statutory value added tax, customs duty for export deliveries as well as fees and other public charges
6.2. If the agreed prices are based on STAIB’s list prices and the delivery is to take place more than four months after the conclusion of the Agreement, STAIB’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
6.3. Invoice amounts shall be paid within 14 days of the date of the invoice and delivery or acceptance of the goods without any deduction, unless otherwise agreed in writing. The date of payment shall be the date of receipt by STAIB. Payment by cheque shall be excluded unless otherwise agreed in individual cases. If the CONTRACTOR fails to make payment when due, the outstanding amounts shall bear interest at the rate of 5% per annum from the due date, without prejudice to STAIB’s right to claim higher interest and further damages in the event of default. STAIB shall be entitled at any time, also in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. STAIB shall declare such advance payment at the latest with the order confirmation.
6.4. Offsetting against counterclaims of the CONTRACTOR or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have been established by a court of law or arise from the same order under which the delivery in question was made.
6.5. STAIB shall be entitled to perform or render any outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the Agreement, STAIB becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the CONTRACTOR and which jeopardise the payment of STAIB’s outstanding claims by the CONTRACTOR under the respective contractual relationship (including under other individual orders to which the same framework agreement applies).
7. DELIVERY, PURCHASE AND MANAGEMENT OF PRECIOUS METALS
7.1. The following options are available for the delivery, purchase and management of Precious Metals within the framework of a contractual relationship between STAIB and the CONTRACTOR:
7.1.1. The CONTRACTOR shall transfer an amount equal to the value of the required Precious Metal to STAIB’s metal account at a refinery designated by STAIB. The refinery will deliver to STAIB the value of the precious metals required for the order, corresponding to the amount transferred.
7.1.2. The CONTRACTOR shall arrange for an advance payment to be made to STAIB, whereupon STAIB shall purchase the precious metal required on the market based on the CUSTOMER’s actual requirements, which shall be delivered directly to STAIB.
7.1.3. STAIB acquires precious metals on the market based on the actual demand of the CONTRACTOR. Upon delivery of the goods, STAIB shall invoice the CONTRACTOR for the price determined by STAIB at the time of purchase of the precious metal.
7.1.4. The CONTRACTOR shall deliver precious metals to STAIB based on the actual demand and at its own risk. STAIB shall return to the CONTRACTOR any residues remaining after processing of such Precious Metals. To the extent that CONTRACTOR provides the means of transport required for this purpose, CONTRACTOR shall be responsible for their punctual provision. Any delays shall be notified to STAIB in due time. Any resulting costs shall be borne by the CONTRACTOR.
7.1.5. STAIB shall purchase the Precious Metals, based on the CONTRACTOR’s actual requirements, from a supplier of the CONTRACTOR.
7.2. Precious Metals provided shall remain the exclusive property of STAIB.
8. QUALITY, WARRANTY, MATERIAL DEFECTS
8.1. The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to the CONTRACTOR ’s claims for damages arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by STAIB or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
8.2. The delivered items shall be inspected carefully immediately after delivery to the CONTRACTOR or to the third party designated by the CONTRACTOR. With respect to obvious defects or other defects that would have been apparent upon immediate and careful inspection, they shall be deemed to have been approved by the CONTRACTOR if STAIB does not receive a written notice of defect within (seven) working days after delivery. With regard to other defects, the Deliverables shall be deemed to have been approved by the CONTRACTOR if STAIB does not receive a written notice of defect within (seven) working days after the defect became apparent; however, if the defect was already apparent at an earlier point in time during normal use, such earlier point in time shall be decisive for the commencement of the period for giving notice of defect. Upon STAIB’s request, any delivery item complained about shall be returned to STAIB carriage paid. In the event of a justified complaint, STAIB shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs are increased because the delivery item is located at a place other than the place of intended use.
8.3. In the event of material defects in the delivered goods, STAIB shall be obliged and entitled to repair or replace the goods at its discretion within a reasonable period of time. In the event of failure, i.e., impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the CONTRACTOR may withdraw from the Agreement or reasonably reduce the purchase price.
8.4. If a defect is due to STAIB’s fault, the CONTRACTOR shall be entitled to claim damages under the conditions set out in Clause 9.
8.5. In the event of defects in components of other manufacturers which STAIB cannot remedy for licensing or factual reasons, STAIB shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the CONTRACTOR or assign them to the CONTRACTOR. In the event of such defects, warranty claims against STAIB shall only exist under the other conditions and in accordance with the provisions of these AVLZB if the legal enforcement of the aforementioned claims against the Manufacturer and Supplier has been unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the CONTRACTOR against STAIB shall be suspended.
8.6. The warranty shall not apply if the CONTRACTOR modifies the delivery item or has it modified by a third party without STAIB’s consent and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, the CONTRACTOR shall bear the additional costs of remedying the defect resulting from the modification.
8.7. Any delivery of used items agreed with the CONTRACTOR in an individual case shall be made to the exclusion of any warranty for material defects.
9. LIABILITY FOR DAMAGES DUE TO NEGLIGENCE
9.1. STAIB’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations and tort, shall be limited in accordance with the provisions of this Clause 9, insofar as fault is involved.
9.2. STAIB shall not be liable in case of ordinary negligence of its organs, legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Material contractual obligations shall be the obligation to deliver and install the Delivery Subject on time, to ensure that it is free from defects of title and defects of quality that impair its functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations that are intended to enable the CONTRACTOR to use the Delivery Subject in accordance with the contract or to protect the life and limb of the CONTRACTOR’s personnel or to protect the CONTRACTOR’s property from significant damage.
9.3. Insofar as STAIB is liable for damages on the merits pursuant to clause 9 (2), such liability shall be limited to damages which STAIB foresaw as a possible consequence of a breach of contract at the time of the conclusion of the Agreement or which STAIB should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the Product shall only be compensable to the extent that such damage is typically to be expected when the Product is used for its intended purpose. The foregoing provisions of this paragraph 3 shall not apply in the event of intentional or grossly negligent conduct by members of STAIB’s corporate bodies, legal representatives, employees or other vicarious agents.
9.4. Insofar as STAIB provides technical information or advice and such information or advice is not part of the contractually agreed scope of services owed by STAIB, it shall be provided free of charge and to the exclusion of any liability.
9.5. The limitations of this Clause 9 shall not apply to STAIB’s liability for wilful misconduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
10. RESERVATION OF OWNERSHIP
10.1. STAIB shall retain title to the delivered goods until full payment of all present and future claims of STAIB under the Purchase Agreement and any ongoing business relationship (secured claims).
10.2. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The CONTRACTOR shall immediately notify STAIB in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) seize the goods belonging to STAIB.
10.3. In the event of a breach of contract by the CONTRACTOR, in particular in the event of non-payment of the purchase price due, STAIB shall be entitled to withdraw from the Agreement in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods shall not constitute a declaration of withdrawal from the Agreement; STAIB shall be entitled only to demand the return of the goods and to reserve the right to withdraw from the Agreement. If the CONTRACTOR fails to pay the purchase price due, STAIB shall only be entitled to exercise such rights if STAIB has previously set the CONTRACTOR a reasonable deadline for payment to no avail or if such a deadline is not required by law.
10.4. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of the goods, in which case STAIB shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, the latter’s right of ownership remains, STAIB shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
10.5. The CONTRACTOR hereby assigns to STAIB by way of security any claims against third parties arising from the resale of the goods or the Product in their entirety or in the amount of STAIB’s co-ownership share, if any, pursuant to the preceding paragraph. STAIB accepts the assignment. The obligations of the CONTRACTOR set out in paragraph 2 shall also apply in respect of the assigned claims.
10.6. In addition to STAIB, the CONTRACTOR shall remain authorized to collect the claim. STAIB undertakes not to collect the claim as long as the CONTRACTOR meets its payment obligations towards STAIB, there is no deficiency in its ability to pay and STAIB does not assert the retention of title by exercising a right pursuant to paragraph 3 above. However, if this is the case, STAIB may demand that the CONTRACTOR informs STAIB of the assigned claims and their debtors, provides all information necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in such case STAIB shall be entitled to revoke the CONTRACTOR ’s right to further sell and process the goods subject to retention of title.
10.7. If the realisable value of the securities exceeds STAIB’s claims by more than 10%, STAIB shall release securities at STAIB’s discretion upon the CONTRACTOR’s request.
11. FINAL PROVISIONS
11.1. If the CONTRACTOR is a merchant, a legal entity under public law or a special fund under public law or if the CONTRACTOR does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between STAIB and the CONTRACTOR shall be, at STAIB’s option, Pforzheim or the registered office of the CONTRACTOR. However, in such cases, the exclusive place of jurisdiction for any action against the CONTRACTOR shall be Karlsruhe. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
11.2. The relations between STAIB and the CONTRACTOR shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.
11.3. Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, the legally effective provisions which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole shall be deemed to have been agreed in order to fill these loopholes.
11.4. The German version shall apply.