Terms of service

ASV Stübbe GmbH & Co. Kommanditgesellschaft

Hollwieser Straße 5 · D-32602 Vlotho

Tel +49 (5733) 7 99-0 · Fax +49 (5733) 7 99-5000

E-Mail: contact@stuebbe.com URL: www.stuebbe.com

Commercial register: District Court of Bad Oeynhausen, HRA 1205

General partner: ASV Stübbe Verwaltungs-GmbH

Commercial register: District Court of Bad Oeynhausen, HRB 13308

Managing Director: Klaus Warnecke

VAT identification number:DE 125 354 336

 

General Terms of Conditions

   A. Applicability of the General Terms and Conditions of STÜBBE

   B. Purchasing and Contract Terms

   C. General Terms and Conditions of Service

 

A. Applicability of the General Terms and Conditions of STÜBBE

A.1

These Terms and Conditions shall apply to all business relationships between STÜBBE and its contracting parties, even if specific reference to the Terms and Conditions is no longer made in individual transactions, provided that the contracting party is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law, or a special fund under public law.

In these Terms and Conditions, the term "contracting parties" in refers to parties who conduct business with STÜBBE as providers and/or customers.

A.2

These Terms and Conditions shall apply exclusively and in all cases. Deviating, conflicting or supplementary general terms and conditions of the contracting party shall become part of the contract only if and insofar as STÜBBE has expressly accepted their applicability in writing.

Individual agreements concluded with the contracting party in individual cases (including collateral agreements, supplements and amendments) shall always have priority over these Terms and Conditions. In the absence of evidence to the contrary, a written contract or the written confirmation of STÜBBE shall be authoritative as far as the content of such agreements is concerned.

A.3

References to the applicability of statutory regulations are for clarification purposes only. Statutory regulations thus apply even without such clarification, provided they are not directly modified or expressly excluded in these Terms and Conditions.  

A.4

The same words may have different meanings in different legal systems. In foreign language versions of these Terms and Conditions, i.e. versions which are not in German, the German legal meaning of the corresponding words applies.

B. Purchasing and Contract Terms

B.1. Contract/Prohibition of assignment

B.1.01

The engagement and purchase orders placed by STÜBBE are governed exclusively by the Purchasing and Contract Terms of STÜBBE.

B.1.02

All orders issued and purchases made by STÜBBE are – insofar as these conditions do not settle the matter – settled solely on the basis of the statutory provisions.

B.1.03

Offers of the supplier or other contracting party of STÜBBE are subject to express written acceptance by STÜBBE.

B.1.04

Conclusions of contracts with suppliers, as well as their revocation, amendment or termination, and call-offs must be at least in text form. Corresponding verbal declarations of intent must be confirmed in this form in order to be effective.

B.1.05

The supplier is not permitted to transfer the rights and obligations from this purchase order to third parties without the written approval of STÜBBE. This does not apply to the advance assignment of the purchase price claim within the scope of an extended retention of title.

B.2. Estimates / Scope of Services / Samples / Contractual Penalty

B.2.01

Estimates and preliminary planning prior to the conclusion of a contract are binding on the supplier unless the documents are expressly designated as non-binding.

B.2.02

Estimates and preliminary planning prior to the conclusion of a contract are supplied free of charge unless the parties expressly agree otherwise.

B.2.03

With regard to the specifications of goods, the order of STÜBBE is decisive.

B.2.04

The supplier must supply all accessory parts, instructions and data sheets that are required to use the goods as intended with the goods.

B.2.05

The supplier must supply manuals, warning notices and documentation for the goods in all EU languages.

B.2.06

Operating plans and construction drawings must likewise be supplied with the goods.

B.2.07

The supplier must provide a certificate of origin for all goods components, which must be compliant with the rules of preferential origin of the EU applicable at the time of supply.

B.2.08

The supplier guarantees that the goods comply with the regulations applicable in the EU, including in particular REACH, and that all certificates required in the EU, such as CE, and all certificates common in the EU, such as TÜV/GS, EMC, VDE, LFGB are in place.

B.2.09

If the country of destination of the goods according to the contract lies outside the EU, the goods must comply with the regulations of the country of destination.

B.2.10

Where the goods at issue are products which are intended by STÜBBE for resale (with or without further processing) in a new product series, the supplier shall supply an adequate number of samples of the goods for test purposes prior to the first delivery due under the contract to STÜBBE or – upon request by STÜBBE – a third party nominated by STÜBBE. The supplier bears the costs, including transport etc. Ownership of the samples shall pass to STÜBBE upon delivery.

The obligations of the supplier pursuant to Sections B.2.04 to B.2.09 shall also apply to samples.

B.2.11

The following applies to samples approved by STÜBBE: The supplier guarantees that the corresponding goods are equivalent to the approved sample. 

B.2.12

The following applies to samples which are not approved by STÜBBE: The supplier shall supply new samples in accordance with B.2.10.

B.2.13

The packaging used by the supplier must be environmentally friendly and meet the requirements of safe transport, taking into consideration the specific circumstances.

B.2.14

In the event of a culpable breach of the regulations pursuant to Sections B.2.07 to B.2.13, the supplier is liable in each individual case to pay STÜBBE liquidated damages of € 5,000.00. Furthermore, the supplier is liable to reimburse any inspection costs, fines and similar costs incurred due to the breach and compensate any other further damage. The supplier has the right to prove that lesser damage was in fact incurred due to the default at STÜBBE.

B.2.15

By labelling the goods and other suitable measures, the supplier shall ensure that batches may be backtracked and shall, upon request, inform STÜBBE about the type and use of labelling.

B.2.16

The supplier must obtain any export and import permits and other permits and pay customs duties at its own expense and responsibility.

B.3. Prices

B.3.01

The price specified in the order placed by STÜBBE is the solely authoritative and binding price, which always includes packaging and excludes VAT.

B.3.02

The price is always quoted DDP destination ICC Incoterms® 2010.

B.3.03

Where payment of packaging by STÜBBE has been agreed, this is only due if the price of packaging is itemised separately on the invoice. Furthermore, where payment for packaging has been agreed this is only ever charged at the supplier’s cost price.

B.3.04

Where STÜBBE is due to pay for packaging pursuant to Section B.3.03, STÜBBE has the right to return the packaging to the supplier in exchange for two thirds of the packaging costs specified in the invoice. EXW named place of delivery ICC Incoterms® 2010 applies in this respect.

B.4. Delivery Times and Default of Delivery

B.4.01

The delivery dates and periods specified in the order are binding. Delivery periods start on the day the order is placed.

B.4.02

Partial deliveries must be approved by STÜBBE at least in text form.

B.4.03

Complete performance of the service at the destination is decisive for compliance with the delivery period.

B.4.04

The supplier must inform STÜBBE immediately in text form of any circumstances which jeopardise compliance with the delivery period, giving an estimate of the extent of the impending delay and the likelihood of occurrence. The supplier must inform STÜBBE immediately in appropriate form of any changes in the aforementioned circumstances.

B.4.05

The acceptance without reservation of late services by STÜBBE does not constitute a waiver of claims due to default of performance.

B.4.06

In the event of delayed delivery, the supplier shall owe STÜBBE liquidated damages for default of 0.5% of the order value per working day, but no more than 5% of the order value. STÜBBE reserves the right to assert any further legal claims. The supplier has the right to prove that lesser or no damage was in fact incurred due to the default.

B.5. Transfer of Risk/Outgoing Goods Inspection/Duties of Inspection and Notification

B.5.01

The transfer of risk (= risk of accidental loss/accidental deterioration of goods) prior to takeover of the goods by STÜBBE is excluded unless STÜBBE is in default with regard to the acceptance of the goods.

B.5.02

The supplier undertakes to carry out outgoing goods inspections.

B.5.03

The duties to inspect and notify any defects of STÜBBE in the event of defects in the delivered goods are governed by Sections 377, 381 of the German Commercial Code (HGB), with a notification of obvious defects by STÜBBE within 12 days of delivery of the goods being deemed sufficient. In case of hidden defects, a notification period of 12 days from detection of the defect in question applies.

B.6. Supplier's Warranty and Other Liability

B.6.01

The supplier of STÜBBE must provide a warranty and compensation for damages in the statutory scope and for the statutory period unless Section B.6 below stipulates otherwise.

B.6.02

In the event of default on the part of the supplier in connection with the elimination of defects or replacement delivery, STÜBBE may replace or repair defective parts at the expense of the supplier and eliminate any damage incurred or have this work carried out by third parties at the expense of the supplier.

B.6.03

In urgent cases, STÜBBE may perform the rectification directly or through a third party, even if the conditions for default are not given, provided prior notification of and supplementary performance by the supplier would not have been possible. The supplier shall bear the costs incurred. The right to rescission, reduction or damages remains unaffected.

B.6.04

In the event of good cause – including but not limited to errors in the deliveries or services of the supplier – STÜBBE is entitled to rescind all contractual relationships with the supplier for the regular supply of goods or the regular performance of work or services.

Good cause shall be deemed to exist in particular if there are justified fears that errors or defects of delivered goods or services could also affect other deliveries or services or could occur in the same way in other deliveries or services.

B.6.05

Where the number of individual items found to be defective exceeds 5% of the batch in question (so-called widespread defects) the entire batch of supplied goods is deemed defective.

B.6.06

STÜBBE is entitled without restriction to offset and withhold payments on the basis of its own claims against the supplier.

B.6.07

The supplier shall indemnify STÜBBE against claims for damages by third parties which are asserted against STÜBBE on the basis of product liability, breach of industrial property rights or any other legal grounds due to defective goods delivered by the supplier, provided the supplier is responsible for the defect.

B.6.08

The supplier shall owe STÜBBE compensation for all costs which STÜBBE incurs due to claims pursuant to B.6.07 and due to the defence against corresponding claims. This applies regardless of whether the supplier knew or must have known about the rights of third parties or whether he knew or must have known the regulations applicable in the country of destination.

B.6.09

The supplier is also liable for the costs of any warning or recall operations due to defects in the goods supplied by the supplier.

B.6.10

The supplier only has a right of retention if it has claims against STÜBBE which have been acknowledged by STÜBBE or finally established by a court of law.

B.7 Supplier recourse

B.7.01

In addition to claims for defects, STÜBBE is entitled without limitation to the right of recourse within a supply chain as provided by law (supplier recourse pursuant to Sections 445a, 445b, 478 German Civil Code (BGB)). In particular, STÜBBE is entitled to demand exactly the same type of subsequent performance (repair or replacement) from the supplier that STÜBBE owes its customers in individual cases. STÜBBE's statutory right of choice (Section 439 (1) German Civil Code (BGB)) is not restricted thereby.

B.7.02

Before STÜBBE recognises or fulfils a claim for damages asserted by its customers (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and 3 German Civil Code (BGB)), STÜBBE will notify the supplier, providing a brief statement of the facts, and ask for a written statement. If no substantiated statement is provided within a reasonable period of time and an amicable solution cannot be found, the warranty actually provided by STÜBBE shall be deemed to be owed to its customer. In this case, the supplier bears the burden of proving otherwise.

B.7.03

The claims of STÜBBE arising from supplier recourse shall apply even if the defective goods have been further processed by STÜBBE or another contractor, e.g. by incorporation into another product.

B.8 Payment

B.8.01

The supplier must issue its invoice following arrival of the delivery at the destination, stating the STÜBBE order number. Invoices must comply with the order and these Purchasing Terms.

B.8.02

The following must be included with each invoice: Proof of delivery or bill of lading, certificate of completeness and an inspection report confirming the correct and proper condition of the goods in accordance with the requirements of STÜBBE as stipulated by the STÜBBE quality assurance policies.

B.8.03

Invoice payments are not due until the conditions pursuant to B.8.01 and B.8.02 have been met.  

B.8.04

In the event that goods supplied by the contracting party arrive early, the invoice shall state the value date according to the delivery date contractually agreed with STÜBBE. The value date is in this case deemed the date of invoice receipt.

B.8.05

In the case of defective goods and/or services or partial deliveries by the contracting party which were not agreed by contract, the invoice shall state an invoice date in accordance with the date on which faultless or complete delivery is provided. The value date is in this case deemed the date of invoice receipt.

B.8.06

Payments by STÜBBE of invoices shall be rendered, subject to a later auditing of accounts and claims for return,

  • within 14 days of the receipt of the invoice less 3 per cent cash discount
  • or within 30 days without any deductions.

B.9. Confidentiality and Products

B.9.01

The supplier undertakes to keep secret all information which it has received from STÜBBE in the course of the business relationship and which is designated confidential and in the absence of express authorisation by STÜBBE to refrain from making it accessible to third parties.

The supplier shall oblige his suppliers, employees and vicarious agents accordingly.

B.9.02

Products manufactured according to documentation drafted by STÜBBE, such as drawings, models and such like, or according to information provided by STÜBBE, or using tools of STÜBBE or replicas of such tools, may not be made use of by the supplier itself, nor offered to third parties or otherwise be distributed.


B.10. Right to terminate for master agreements

STÜBBE may terminate any master agreement with the supplier if the supplier’s financial situation deteriorates in terms of Section 321 of the German Civil Code (BGB) or the supplier fails to fulfil its obligations despite repeated warning.

B.11 Place of Performance/Jurisdiction/Choice of Law

B.11.01

The place of performance for all deliveries and services is the destination specified by STÜBBE.

B.11.02

The courts of Vlotho, Germany, shall have jurisdiction over all disputes arising from or in connection with the contractual relationship between the contracting party and STÜBBE.

In the aforesaid case, STÜBBE may also bring action against the contracting party at its respective domicile.

B.11.03

The laws of the Federal Republic of Germany shall apply, to the exclusion of international uniform law, including but not limited to the UN Convention on Contracts for the International Sale of Goods (CISG).

C. General Terms and Conditions of Service

C.1. Order Confirmation / Contract Contents / Additional charge for small quantities

C.1.01

The following regulations shall apply where STÜBBE delivers goods or performs services.

C.1.02

The content of the respective contract is determined by the order confirmation by STÜBBE, if applicable in conjunction with the specification created by STÜBBE. Oral agreements made in connection with a conclusion of contract with employees of STÜBBE who are not authorised to represent the company also require written confirmation by STÜBBE in order to be valid.

C.1.03

The customer must provide STÜBBE with all information and documents required or useful for the provision of the contractually agreed services. If specifications are prepared and presented to the customer for examination and approval, these specifications shall bindingly establish the scope of services for both sides.

C.1.04

Information on characteristics of the products and services of STÜBBE shall only be attributable to STÜBBE if this information

  • originates from STÜBBE or is provided at the express order of STÜBBE or
  • is expressly authorised by STÜBBE or
  • are public statements and STÜBBE was aware or must have been aware of said statements and did not distanced itself from them within a reasonable period.

STÜBBE’s assistants in terms of Section 434 (1) of the German Civil Code (BGB) shall not include authorised dealers and customers of STÜBBE who act as resellers. Adequate correction of information on characteristics in terms

of Section 434 (1) of the German Civil Code (BGB) may in any case be made on the website of STÜBBE at www.stuebbe.com.

C.1.05

Information on characteristics attributable to STÜBBE which contain measurable values are subject to the allowance customary in the sector. Any exceeding of this allowance does not automatically lead to assumption of a defect.

C.1.06

Due to the significant handling costs associated with each individual order, STÜBBE charges an additional charge for small quantities of € 15.00 (net) for all orders under € 100.00 (net).

C.2. Permanent Rights / Trademarks / Tool Construction

C.2.01

The designs, models, layout plans, general arrangement and other drawings, text templates etc. created by STÜBBE shall remain the intellectual property of STÜBBE, including where the customer has paid for the work.

The right to exploit these items and the intellectual achievements embodied in them is exclusively reserved for STÜBBE.

C.2.02

STÜBBE is entitled to affix its own logos and trademarks. The customer is prohibited from removing such designations affixed by STÜBBE.

C.2.03

The customer is liable for ensuring that the templates, designs, plans, texts, trademarks, etc. provided by it may be legally utilised and shall indemnify STÜBBE against any and all third-party claims due to a violation of such intangible property rights.

C.2.04

Where the customer is liable to pay the costs of moulds, these costs include the first sampling but not the costs of inspection and processing devices.

C.2.05

STÜBBE remains the owner of any moulds produced for the customer or a third party. While the customer fulfils its payment and acceptance obligations with regard to STÜBBE, STÜBBE shall use these moulds exclusively for orders by the customer.

C.2.06

STÜBBE is not required to retain the moulds after 24 months have passed since the last part delivery using the respective mould and STÜBBE has informed the customer of the expiry of the retention period.

C.2.07

If it has been contractually agreed that the customer will become the owner of the moulds, the ownership of these moulds passes to the customer after the customer has paid the price for the moulds and all due claims of STÜBBE from the business relationship. Handover of the moulds to the customer is replaced by storage of the moulds by STÜBBE on behalf of the customer.

C.2.08

STÜBBE is entitled to the exclusive, direct possession of the moulds until the business relationship with the customer is terminated. STÜBBE shall only insure the moulds upon written request by the customer and only at the customer’s expense.

C.2.09

STÜBBE’s liability for the moulds kept by STÜBBE in accordance with the law of obligations, regardless of whether they are owned by the customer, STÜBBE or a third party, is limited to the observance of the duty of care applied in its own matters.

C.2.10

STÜBBE only owes servicing of the moulds upon request by the customer and in exchange for a fee.

C.2.11

STÜBBE has a right of retention regarding the customer’s claim for surrender of the moulds if the customer has not settled all due claims of STÜBBE which arise from the business relationship.

C.2.12

Any obligations of STÜBBE with regard to the moulds lapse upon expiry of the retention period and notification pursuant to Section C.2.06 or if the customer fails to collect the moulds upon request by STÜBBE within a reasonable period to be set, or is prevented from collecting the moulds due to STÜBBE’s right of retention.

C.3. Delivery / Bearing of Risk / Insurance

C.3.01

Delivery is ex warehouse At the customer’s request and expense, the goods shall be sent to a different destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, STÜBBE is entitled to determine the means of shipping (in particular, the forwarder, the route and the packaging).

C.3.02

The place of performance for deliveries and any supplementary performance is the plant of STÜBBE.

C.3.03

The risk of accidental loss and accidental deterioration of goods passes to the customer at the latest upon delivery of the goods to the customer, or (in cases of sale by delivery to a place other than the place of performance) upon handover to the forwarder or other person commissioned to deliver the shipment. Where acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects likewise the statutory provisions of the law applicable to contracts for works and services apply to any agreed acceptance procedure. Default of acceptance on the part of the customer is equivalent to handover and/or acceptance.

C.3.04

Insurance will only be taken out at the request and at the expense of the customer.

C.4. Delivery time and Delay / Permits / Time Limits for Repairs and Such Like

C.4.01

Delivery dates refer to a point in time, e.g. a specific day or a calendar week on which the delivery or service must occur.

Delivery periods refer to the period within which a delivery or service must occur.

Delivery time is the generic term for delivery dates and delivery periods.

C.4.02

All delivery times are subject to the proviso that service is available on the part of STÜBBE. If the service is not available (non-availability), STÜBBE will immediately inform the customer of this, notifying him of the anticipated new delivery time. If the service is not available within the new delivery time either, STÜBBE is entitled to withdraw from the contract in whole or in part; any consideration already paid by the customer shall be refunded without undue delay. Cases of non-availability of performance in terms of this provision include in particular any late supply of STÜBBE by its suppliers where STÜBBE has concluded a congruent covering transaction agreement, neither STÜBBE nor its supplier is at fault or STÜBBE is, in the individual case, not under obligation to procure.

C.4.03

Any agreed delivery periods apply ex works unless an express agreement to the contrary is in place. Such delivery periods shall commence at the time specified in the order, however at the earliest once the documents, permits, call-offs and shipping addresses to be provided by the customer have been received, all details of the order have been clarified and the customer has made any agreed down-payments or furnished any agreed collateral.

C.4.04

As such, fixed-date purchases [“Fixgeschäfte”] must be expressly agreed in writing.

C.4.05

If a delivery period is agreed, this shall be extended appropriately if the customer is delayed in providing the documents, permits, shipping address notifications, down payments or collaterals due.

C.4.06

If a delivery date is agreed, this shall be postponed appropriately if the customer is delayed in providing the documents, permits, shipping address notifications, down payments or collaterals due.

C.4.07

A corresponding postponement of delivery dates or extension of delivery periods also takes place if the preconditions for the services to be provided by STÜBBE, which are to be ensured by the customer or a third party, are not in place in due time.

C.4.08

If the customer requests changes to the order after its confirmation, the delivery period only begins upon confirmation of the change by STÜBBE. Any agreed delivery date is delayed accordingly.

C.4.09

The delivery time shall be duly extended in the event of unforeseen hindrances that STÜBBE cannot avert despite exercising the diligence that can reasonably be expected under the circumstances, e.g. natural disasters, blockades, war, terrorist attacks, strike, lockout and other industrial unrest, confiscation, embargo, total or partial failure of subcontractors or other circumstances for which STÜBBE is not responsible, unless STÜBBE has exceptionally assumed the procurement risk or a delivery guarantee. In the aforementioned case, STÜBBE also has the right to withdraw from the contract, provided that the impediment to performance is not just temporary.

C.4.10

The time of occurrence of default of delivery by STÜBBE is governed by the statutory provisions. However, a warning notice by the customer is required in any case.

C.4.11

In the event of default of delivery on the part of STÜBBE, the customer may demand lump-sum compensation for damage caused by default. The lump-sum compensation amounts to 0.5% of the net price (value of goods to be delivered) for each completed calendar week of default, but at most to 5% of the value of goods delivered late. STÜBBE reserves the right to furnish proof that the customer did not incur any damage, or significantly less damage than the aforementioned lump sum.

C.4.12

The customer’s rights pursuant to Section C.10.02 of these General Terms of Service and the statutory rights of STÜBBE, in particular in the case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

C.4.13

Where permits to be procured by STÜBBE, which are a precondition for lawful delivery, are delayed or fail to be granted at all for reasons for which STÜBBE does not bear responsibility, STÜBBE shall not be liable in this respect.

C.4.14

In cases where standard components cannot be used for repairs, warranty works, subsequent delivery or similar because the equipment in question is, as per agreement, a custom-made product or special components have been installed, the corresponding performance period to be granted to STÜBBE shall be extended by the period required for the procurement of the appropriate components if the same are ordered in good time.

C.5. Partial Deliveries/Excess and Shortfall Quantities

C.5.01

STÜBBE is entitled to deliver up to 10% additional or reduced quantity of uncountable goods without this automatically constituting a breach of duty. Partial deliveries and partial performance are permissible to an extent that the customer can reasonably be expected to accept.

C.5.02

Where STÜBBE makes use of the right to supply partial deliveries or additional or reduced quantities, payments by the customer may not be withheld for this reason.

C.6. Prices

C.6.01

Unless agreed otherwise, prices are quoted ex works/warehouse, exclusive of packaging. Any customs duties, fees, taxes and other official charges are payable by the customer.

For orders above a net goods value of EUR 600,- (Germany) it is offer free delivery to destinations within Germany.

Orders with a net goods value below EUR 600,-are dispatched freight collect or with a flat freight fee of EUR 10,-. Marking is invoiced on a time and material basis. Express delivery surcharges will always be borne by the customer.

C.6.02

In the case of sale by delivery to a place other than the place of performance the customer pays the transport costs ex works/warehouse and the costs of any transport insurance requested.

C.6.03

If packaging is required, STÜBBE shall package the goods according to the existing regulations and proceed according to Section 4 of the German Packaging Ordinance (VerpackV).

C.6.04

Prices, expenses and interest rates are quoted exclusive of the applicable VAT.

C.6.05

No discounts are granted on separately charged transport costs and packaging costs; said costs are disregarded in the calculation of any agreed bonuses.

C.6.06

If an installation, commissioning, maintenance, repair or other service is delayed for reasons beyond the control of STÜBBE, the customer shall bear all resulting costs, including but not limited to waiting times and further travel costs and expenses of the staff deployed by STÜBBE and of sub-contractors engaged by STÜBBE, which are incurred due to the delay.

C.6.07

The legal consequence specified in Section C.6.06 applies only if the customer is responsible for the reasons for the delay.

C.7. Terms of payment

C.7.01

Down-payments are subject to the provisions of the German Value-Added Tax Act (UStG).

C.7.02

Unless otherwise agreed, payments are due immediately.

C.7.03

At the latest, payments to be made to STÜBBE are due 10 days from invoice date and delivery or acceptance of the goods. After this time, the debtor shall be in default of payment.

C.7.04

In the event of default of payment on the part of the customer the purchase price shall be subject to interest at the respective applicable default interest rate. STÜBBE reserves the right to assert claims for higher damages.

C.7.05

The place of performance for payments is the registered office of STÜBBE.

C.7.06

The customer may only offset undisputed or legally established claims.

C.7.07

Excepting cases pursuant to C.7.06, the customer has no right of retention.

Moreover, the rights pursuant to Section 320 of the German Civil Code (BGB) are retained for as long as and to the extent that STÜBBE has not fulfilled its warranty duties.

C.7.08

Where, after conclusion of contract, it becomes apparent that STÜBBE’s claim to the purchase price is jeopardised by a lack of payment ability on the part of the customer (e.g. due to an application to open insolvency proceedings), STÜBBE is entitled in accordance with the statutory provisions to refuse performance and – where applicable after setting a period of grace – to withdraw from the contract (Section 321 BGB). In the case of contracts regarding the manufacture of unique items (manufacture to customer’s specification), STÜBBE may immediately declare withdrawal; the statutory provisions regarding the expendability of setting a period of grace are unaffected.

STÜBBE may in this case demand a lump-sum compensation payment, specifically, without special proof, 25% of the unperformed order amount; the customer retains the right to furnish proof that STÜBBE has incurred no or lesser damage than the aforementioned lump sum. STÜBBE is entitled to demand compensation for damage which exceeds the lump sum.

C.8. Inspection and reporting obligation

C.8.01

The customer’s claims in the case of defects are subject to the customer having fulfilled its statutory duties to inspect and notify (Sections 377, 381 of the German Commercial Code (HGB)) and having complied with the provisions of this Section C.8.

C.8.02

Deliveries by STÜBBE, including drawings, implementation plans, planning proposals etc. must be checked by the customer for usability and compliance immediately upon handover.

C.8.03

Obvious defects must immediately, but at the latest within 14 days following arrival at the destination, be notified to STÜBBE in writing, including a detailed description of the specific complaints.

C.8.04

The customer must also report hidden defects in writing immediately upon discovery, but at the latest within 14 days following discovery of the defect, in the aforementioned form.

C.9. Customer’s Claims for Defects (Warranty)

Warranty in these Terms and Conditions means: Claims for improper performance due to delivery of defective goods or manufacture of a defective product.

C.9.01

Unless stated otherwise below, the statutory provisions shall apply to the rights of the customer with respect to material defects and defects in title (including incorrect and short deliveries, faulty assembly or incorrect assembly instructions). The special statutory provisions governing deliveries of unprocessed goods to end-customers remain unaffected in all cases (supplier recourse pursuant to Section 478 German Civil Code (BGB)), even if they have further processed them. Supplier recourse claims are excluded if the defective goods were further processed by the customer or another company, e.g. by incorporation into another product.

C.9.02

If the customer does not comply with the inspection and reporting obligations according to Section C.8., STÜBBE is not liable for any defects not reported.

C.9.03

The general limitation period for claims due to defects in quality and title is 12 months from delivery or, if an acceptance has been agreed, from acceptance.

The statutory special provisions regarding limitation periods are unaffected (particularly Sections 438 (1) No. 1 and No. 2, (3), 444, 445b BGB and/or Section 634a (1) No. 2 and No. 3, (3) BGB).

C.9.04

The limitation period of 12 months also applies to contractual and extracontractual claims for damages based on a defect of the goods.

However, this shortened period of limitation does not apply

  • if the damage was caused by intent or gross negligence of STÜBBE or its representatives or agents;
  • in the case of damage from injury to life, body and health;
  • in the event of a delay, if a fixed delivery date has been agreed;
  • if a defect is maliciously concealed;
  • if a guarantee has been provided and/or the risk of procurement or manufacturing in terms of Section 276 BGB has been assumed by STÜBBE;
  • in cases of mandatory statutory liability, especially according to the German Product Liability Act (Produkthaftungsgesetz).

The aforesaid regulations do not involve any change of the burden of proof to the disadvantage of the customer.

C.9.05

If works or replacement deliveries provided by STÜBBE limit or interrupt a warranty period, such a limitation or interruption shall only apply to the functional unit affected by the replacement delivery or rectification.

C.9.06

In case the customer has a right to supplementary performance, STÜBBE shall initially decide whether the supplementary performance is to take place through elimination of the defect (rectification) or through delivery of flawless goods (replacement delivery). The right to refuse supplementary performance under the statutory conditions remains unaffected.

For returns by the customer, see C.14.02.

C.9.07

No warranty is given for damages which are not STÜBBE’s responsibility. This includes, for example, damage incurred for the following reasons: unsuitable or inappropriate use, incorrect installation or commissioning by the customer or a third party, natural wear-and-tear, incorrect or negligent treatment, unsuitable operating materials or substitute materials, defective building works, unsuitable foundation, chemical, electromagnetic, electrochemical or electrical impacts, unless attributable to a fault on the part of STÜBBE.

C.9.08

STÜBBE provides no warranty for components provided by the customer. Unless expressly agreed otherwise, the customer alone shall be responsible for the suitability and properties of such components.

C.9.09

In the event of the customer's non-compliance with the operating and maintenance instructions, it shall be assumed that any damage incurred is the result of this. In this case, the burden of establishing the facts and the burden of proof to the contrary shall be on the client.

C.9.10

STÜBBE may make supplementary performance conditional upon the payment of the due purchase price by the customer. However, the customer may withhold a portion of the purchase price that is reasonable in proportion to the defect.

C.9.11

Work on items delivered by STÜBBE or services otherwise provided by STÜBBE shall only be considered defect elimination or rectification work,

  • insofar as the deficiency has been explicitly acknowledged by STÜBBE
  • or if defect reports have provably been submitted
  • and insofar as these demonstrated claims for defects are justified.In the absence of these requirements, such works are to be considered special services.

C.9.12

Any other rectification of defects or replacement deliveries by STÜBBE shall be considered a special service if they do not take place explicitly in recognition of a legal obligation.

C.9.13

Expenses required for inspection or supplementary performance, in particular for transport, travel, labour and material costs (as well as if necessary removal and installation costs) shall be borne or reimbursed by STÜBBE according to legal provisions if a defect in fact exists. Otherwise, STÜBBE may demand reimbursement of the costs incurred from the unjustified defect elimination request (including but not limited to inspection and transport costs), unless the non-existence of the defect was not obviously detectable by the customer.

In case systems delivered by STÜBBE are set up or operated outside the customer's headquarters despite the fact that the respective contract was concluded with a branch or head office of the customer in Germany, the customer shall bear the additional costs that may arise because any warranty measures to be performed by STÜBBE result in transport costs, travel costs and other overheads which go beyond the borders of Germany.

C.9.14

The customer must grant STÜBBE the required time and opportunity to carry out the rectification of defects and replacement deliveries owed under the warranty. The customer only has the right to remedy the defect itself or through third parties, and subsequently demand reimbursement of the corresponding costs from STÜBBE, in urgent cases endangering operational safety and to avoid disproportionately large damage – in which case STÜBBE must be informed immediately and if possible beforehand – or if STÜBBE is delayed in the rectification of a defect.

C.9.15

If STÜBBE arranges third-party services on behalf of and at the expense of the customer, said third party is solely responsible. STÜBBE provides no advice regarding the selection of third-party services by the customer unless something different is agreed. If the customer requests advice in this regard, this is only provided on the basis of a separately concluded agreement and in exchange for compensation.

C.9.16

Where supplementary performance has failed, or a period of grace for supplementary performance to be set by the customer has expired unsuccessfully (Section 323 (1) and/or Section 281 (1) BGB), or is unnecessary according to statute (Section 323 (2) and/or Section 281 (2) BGB), or may be refused by STÜBBE pursuant to Section 439 (3) BGB and/or Section 635 (3) BGB, or the customer may not reasonably be expected to accept subsequent performance, the customer may withdraw from the contract or reduce the price. However, no right of rescission applies in the case of a minor defect.

C.9.17

Claims of the customer for damages or compensation for wasted expenditure are also excluded in the case of defects pursuant to Section C.10.01 and only exist in the cases which fall under Section C.10.02.

C.10. Other Liability

C.10.01

Unless provided otherwise in these General Terms and Conditions and subject to Section C.10.02 below, any claims of the customer for damages and compensation of expenses against STÜBBE are excluded, regardless of legal grounds.In particular, this also applies to tort claims (e.g. Section 823 BGB).

Insofar as liability is excluded or limited, this also applies to the personal liability of the employees, staff members, representatives and vicarious agents of STÜBBE.

C.10.02

The limitations of liability in these General Terms and Conditions do not apply

  • if the damage was caused by intent or gross negligence of STÜBBE or its representatives or agents;
  • in the case of culpable breach of material contractual obligations, in which case damage payments are limited to damage which is typical for the type of contract and foreseeable at the conclusion of the contract. Material contractual obligations are obligations that protect legal positions of the contracting party that are material to the contract, which the contract must grant it under consideration of its content and purpose, as well as contractual obligations the fulfilment of which is essential to the due performance of the contract, and compliance with which the customer has regularly relied on and may rely on;
  • in the case of damage from injury to life, body and health;
  • in the event of a delay, if a fixed delivery date has been agreed;
  • if a defect is maliciously concealed;
  • if a guarantee has been provided and/or the risk of procurement or manufacturing in terms of Section 276 BGB has been assumed by STÜBBE;
  • in cases of mandatory statutory liability, especially according to the German Product Liability Act (Produkthaftungsgesetz).

The aforesaid regulations do not involve any change of the burden of proof to the disadvantage of the customer.

C.10.03

In the case of a breach of an obligation that does not consist of a defect, the customer may only rescind or terminate the contract if STÜBBE is responsible for the breach of the obligation. Any unlimited right of termination of the customer (especially pursuant to Sections 650, 648 BGB) is excluded. Apart from this, the statutory conditions and legal consequences apply.

C.11. Call-off orders

C.11.01

Where call-off orders are not called off within four weeks of expiry of the agreed call-off period, STÜBBE may demand payment.

C.11.02

The same applies to call-off orders without any specifically agreed call-off period if four months pass without any call-off after the notice of readiness for dispatch by STÜBBE.

C.12. Storage / Default of Acceptance

C.12.01

If temporary storage of finished goods by STÜBBE becomes necessary due to a default in acceptance [“Annahmeverzug”], this does not give rise to a contract to provide storage.

STÜBBE is not obliged to insure stored goods.

C.12.02

In the case of a default in acceptance, STÜBBE is entitled to store the goods in a commercial warehouse at the customer's risk and expense.

C.12.03

Where goods are stored by STÜBBE,STÜBBE may charge a fee of 0.5% of the invoice amount per month, but at least € 30 and a further € 25 as of every other full cubic metre of goods per month, but at most to 5% of the invoice amount.

The proof of higher damages and the statutory claims of STÜBBE (in particular the reimbursement of additional expenses, reasonable compensation, termination) remain unaffected thereby; the lump sum is, however, to be offset against any further monetary claims. The customer is free to furnish proof that the claim did not accrue or is significantly lower.

C.12.04

The two preceding Sections also apply if shipping, at the request of the customer, is delayed for more than two weeks beyond the notice of readiness for dispatch.

C.12.05

If the customer does not accept the ordered goods despite the setting of an acceptance period, STÜBBE may – without furnishing evidence of the actual damage – demand 25% of the agreed price as lump-sum compensation, unless the customer furnishes proof that no or significantly less damage than the lump sum was incurred.

C.13. Retention of title

C.13.01

All deliveries by STÜBBE are subject to a retention of title.

C.13.02

This retention of title and its extension below applies until all claims from the business relationship with the customer are settled and until complete release from all contingent liabilities which STÜBBE has entered into in the interest of the customer and which are associated with the delivery has taken place.

C.13.03

Pledging of the delivered goods is not permitted.

C.13.04

STÜBBE is entitled to demand surrender of the goods which are subject to the retention of title for good cause, particularly in the event of payment default, in exchange for an offsetting of the proceeds from realisation. This request to surrender goods does not constitute a revocation of contract.

C.13.05

If and to the extent that the recovered goods may be sold as new by STÜBBE to another purchaser in the course of normal operations, the customer owes, without the need for detailed evidence, 10% of the invoice value of the goods as a return fee. If the goods cannot be sold as new in the course of normal operations, the customer owes, without the need for detailed evidence, another 30% of the goods invoice value for the value loss. The customer retains the right in each case to prove that STÜBBE did not incur any or only significantly lower damage than the percentages stated above.

C.13.06

STÜBBE reserves the right to claim for other, more extensive damages.

C.13.07

The handling and processing of goods delivered by STÜBBE in any case takes place on behalf of STÜBBE, meaning that goods remain the property of STÜBBE in any state of handling and processing and as a finished good, to the exclusion of the consequences of Section 950 BGB. If the goods subject to retention of title are processed in combination with other items which are also supplied to the exclusion of the legal consequences of Section 950 BGB, STÜBBE acquires at least co-ownership of the new item on the basis of the ratio of the invoice value of STÜBBE’s goods to the invoice value of the other processed items.

C.13.08

The customer hereby assigns in advance all claims from the resale (including claims to be assigned/acquired through factoring), processing, installation and any other use of our goods to STÜBBE. If the products sold, processed or installed by the customer include items which are not the property of the customer and for which other suppliers have also agreed a retention of title with sales clause and advance assignment, the assignment takes place in the amount of the co-ownership percentage of STÜBBE corresponding to the appropriate fraction of the claim, otherwise in the total amount.

C.13.09

The authorisation of recovery which the customer retains despite the assignment expires in any case by cancellation, permissible at any time.

C.13.10

Where the value of the securities to which STÜBBE is entitled exceeds the claims of STÜBBE against the customer, in the case of goods deliveries by 50 %, in the case of other services by 20 %, STÜBBE shall, upon the customer’s request, release the corresponding securities at the choice of STÜBBE.

C.14 Returns

C.14.01

Credits for returns that do not constitute a warranty claim are generally excluded and are only permissible in exceptional cases subject to prior written confirmation from STÜBBE. No refunds will be granted for returns with a value below EUR 150.– (list price). Similarly, no refund will be granted for products that are no longer included in the product range of STÜBBE, as well as goods from customised production. A refund of no more than 75% of the net value of the goods will be issued for like-new, stockable items that are returned freight paid.

This lump-sum reduction in value takes the necessary pressure and function tests as well as the credit note processing and any necessary repackaging and cleaning of the articles into consideration. The customer is free to prove lower costs than the lump sum set by STÜBBE.

A return number must first be requested by the customer from STÜBBE for all returns. In this regard, please specify:

  • order or invoice number;
  • article number and designation;
  • quantity.

C.14.02

To protect the health of STÜBBE's staff and to avoid any possible environmental contamination, please observe the following points when returning products that have already been in use:

  • Specify the medium used.
  • The article must be cleaned in advance. Media residues are to be removed as far as possible.
  • If the medium used poses risks to health or the environment, attach a clear warning to the products. Enclose a corresponding safety data sheet.

C.15. Place of Performance and Fulfilment

C.15.01

The place of performance and fulfilment of the services to be provided by STÜBBE is always the plant of STÜBBE.

C.15.02

The place of performance of deliveries is the plant or the warehouse of STÜBBE, including, in particular, where STÜBBE undertakes transport itself.

C.16. Headings / Definitions

C.16.01

All headings in STÜBBE’s General Terms and Conditions are solely intended for improved legibility and have no bearing on the meaning and interpretation of the individual provisions.

C.16.02

Written declarations of intent and knowledge in terms of STÜBBE’s General Terms and Conditions also include declarations transmitted in text form (i.e. for example via fax or e-mail).

C.17. Jurisdiction and Substantive Law

C.17.01

Where the customer is a merchant in terms of the German Commercial Code (HGB), a corporate body under public law or a special fund under public law, the exclusive – and international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered domicile of STÜBBE in Vlotho.

However, STÜBBE is in any case also entitled to bring legal action at the place of performance of the supply obligation pursuant to these General Terms of Service or an overriding individual agreement, or at the customer’s general place of jurisdiction. This shall not affect overriding statutory provisions, in particular pertaining to exclusive competence.

C.17.02

The laws of the Federal Republic of Germany shall apply, to the exclusion of international uniform law, including but not limited to the UN Convention on Contracts for the International Sale of Goods (CISG).

If the choice of German law is not permissible or invalid according to the law at the respective location of the goods the conditions and effects of the retention of title pursuant to Section C.13. shall be governed by same law.

C.18. Miscellaneous

Should any provision of these Terms and Conditions or a provision included in them later on be or become fully or partially invalid, void or unenforceable or should these Terms and Conditions turn out to have a gap, this shall not affect the validity of the other provisions. Sections 306 (2) and (3) BGB remain unaffected.

 

8-2018

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