General Terms and Conditions
1. General Provisions
1.1 The following Terms and Conditions of Sale apply exclusively to all our deliveries and services to persons within the meaning of Section 310(1) of the German Civil Code (BGB), as well as to all contracts concluded with us in this regard. Any terms and conditions of the buyer that conflict with or deviate from our Terms and Conditions of Sale, which we do not expressly acknowledge in writing, shall have no validity for us, even if we do not expressly object to them. In ongoing business relationships, our Terms and Conditions of Sale also apply to all contracts concluded in the future.
1.2 When using the delivered goods, the intellectual property rights of third parties must be observed.
2. Offer, Conclusion of Contract
2.1 Our offers are subject to change and non-binding. Orders are binding on us only to the extent that we confirm them in writing or fulfill them by shipping the goods.
There are no verbal side agreements.
2.2 We reserve ownership rights and copyrights to illustrations, drawings, cost estimates, and other documents. This also applies to written documents designated as “confidential.” The customer requires our express written consent before disclosing them to third parties.
3. Delivery, Default, Limitation of Liability for Default
3.1 Unless otherwise agreed, specified delivery dates are generally binding.
3.2 We are entitled to make partial deliveries, provided this is reasonable for the buyer under the circumstances of the individual case. Invoices issued for such partial deliveries are payable independently of the total delivery.
3.3 We are liable for damages resulting from a delay in performance by us or our representatives or vicarious agents in accordance with the statutory
provisions. However, in cases of gross negligence, our liability for delay is limited to the foreseeable damage typical for this type of contract. The foregoing provisions do not entail a shift in the burden of proof to the detriment of the buyer.
3.4 We reserve the right to correct and timely delivery. We undertake to notify the buyer immediately of any unavailability of the delivery item.
4. Exceeding the Usual Unloading Times
If the usual unloading times for trucks are exceeded, we reserve the right to bill the buyer for the costs incurred by us.
5. Prices
5.1 Unless otherwise agreed, our prices are ex works, excluding packaging, and plus delivery and shipping costs as well as applicable sales tax.
5.2 The prices valid on the day of delivery shall always apply for billing purposes. We reserve the right to adjust our prices accordingly if, after the conclusion of the contract, cost reductions or
cost increases occur during the manufacturing process for which we are not responsible and which could not have been foreseen in our calculations, in particular due to collective bargaining agreements or changes in material prices.
6. Payment
6.1 Payment must be made in the specified currency to the bank account indicated on the invoice or other shipping documents. The deduction of a cash discount requires a separate written agreement.
6.2 Payment is due in full upon delivery or acceptance. The due date specified in the invoice or other delivery documents is the contractual performance date, determined by the calendar, within the meaning of Section 286(2)(1) of the German Civil Code (BGB). If payment is not made by the due date, default shall occur in accordance with § 286(2)(1) of the German Civil Code (BGB). In the event of
defects, the buyer is not entitled to a right of retention unless the claims underlying the right of retention are undisputed or have been legally established; in such a
case, the buyer is only entitled to withhold payment to the extent that the withheld
amount is reasonably proportionate to the defects and the anticipated costs of subsequent performance (in particular, rectification of the defects). The buyer is not entitled to assert claims and
rights arising from defects to the extent that the buyer has not made due payments and the amount due (including any payments already made) exceeds three times the cost of remedying the defects. In the event of late payment and justified doubts regarding the buyer’s solvency or creditworthiness, we are authorized—without prejudice to our other rights—to demand collateral or advance payments for outstanding deliveries and to declare all claims arising from the business relationship immediately due and payable.
6.3 Bills of exchange and checks are accepted only by special agreement and solely on account of payment. All expenses incurred in this regard shall be borne by the buyer.
6.4 Only undisputed or legally established claims entitle the buyer to set-off.
7. Force Majeure
Unavoidable, unforeseeable, extraordinary events for which we are not responsible, such as armed conflicts, government measures, strikes, lockouts, operational or transportation disruptions, or other cases of force majeure—including those affecting our suppliers—that occur only after the conclusion of the contract or become known to us only after the conclusion of the contract, shall suspend our contractual obligations for the duration of the disruption and to the extent of its effect.
8. Defects
8.1 The respective qualities and specifications of the products sold are set forth in the order confirmation. The characteristics specified therein comprehensively and conclusively define the properties of the delivery item. In particular, public statements made by us, our agents, or third parties (e.g., public presentations of
product characteristics in public) do not constitute descriptions of the delivered goods that supplement or modify this performance description. All information, particularly regarding the suitability, processing, and application of our products, as well as our technical advice, is provided to the best of our knowledge; however, it does not relieve the buyer of the obligation to conduct its own inspections and tests.
8.2 Claims for defects by the buyer, who is a merchant within the meaning of the German Commercial Code (HGB), are contingent upon the buyer having duly fulfilled its obligations to inspect and give notice of defects pursuant to § 377 HGB. Tort claims by the buyer are excluded from this provision.
8.3 The buyer, who is a merchant within the meaning of the German Commercial Code (HGB), must immediately inspect the delivered goods—including, to the extent reasonable, by means of a trial run—for defects regarding quality and intended use, and must give notice of any detectable defects. Otherwise, the goods shall be deemed accepted. Complaints will only be considered if they are submitted in writing within eight days of receipt of the goods—in the case of latent defects, immediately upon their discovery, but no later than one year after receipt of the goods. Timely dispatch is sufficient to meet the deadline.
8.4 We reserve the right to choose between remedying the defect and making a new delivery in all cases. If the subsequent performance fails, the buyer is entitled to a price reduction or, at their option, to withdraw from the contract. The application of § 478(1) of the German Civil Code (BGB) (the entrepreneur’s right of recourse) remains unaffected. The buyer’s right to claim damages in lieu of performance in accordance with statutory provisions and these terms and conditions remains unaffected.
8.5 If the buyer wishes to claim damages in lieu of performance or to remedy the defect themselves, the
remedy shall be deemed to have failed only after the second unsuccessful attempt. The statutory cases in which setting a deadline is not required remain unaffected.
8.6 In the case of justified complaints, the goods may be returned at our expense only if, after notification of the defect, we do not offer to pick up or dispose of them ourselves.
8.7 If increased expenses are incurred because the buyer has moved the goods to a location other than its place of business after delivery, we will invoice the buyer for the increased expenses associated with the repair, unless the relocation constitutes the intended use of the goods.
8.8 Claims for damages and reimbursement of expenses remain unaffected, unless excluded under Section 9.
9. Liability; Limitation of Liability
9.1 Our liability for damages is governed by the statutory provisions. Liability for breaches of duty due to slight negligence on our part or on the part of one of our representatives or vicarious agents is excluded. This does not apply in the event of injury to life, limb, or health, or in the event of a culpable breach of material contractual obligations. Material contractual obligations are those whose fulfillment is essential for the proper performance of the contract and on whose compliance the contracting party may regularly rely. However, the claim for damages arising from a breach of essential contractual obligations is limited to the foreseeable damage typical for this type of contract, unless there is also an intentional breach or a breach of the legal interests referred to in the second sentence. Our liability is also limited to the foreseeable damages typical for this type of contract in cases of gross negligence, unless there is also an intentional breach or a breach of the legal interests specified in the second sentence. Otherwise, we are liable only under the Product Liability Act.
9.2 The provisions of paragraph 1 above apply to
claims for damages due to defects, due to a breach of
obligations arising from the contractual relationship, due to fault in
the conclusion of the contract, due to impossibility, and for claims for damages arising from tort. Also covered are
claims for damages to compensate for futile expenditures. Liability for delay, however, is governed by Section 3.3.
10. Retention of Title
10.1 The sold goods remain our sole property until our claim arising from the business relationship with the buyer has been paid in full. Until such time as this right is revoked, the buyer is authorized to dispose of or process the purchased goods in the ordinary course of business.
10.2 The retention of title and right of disposal pursuant to Section 10.1 also extend to the products created through processing, mixing, or combining the goods, to their full value, whereby we are deemed the manufacturer and this is done on behalf of the seller without imposing any obligations on the seller. If, in the event of processing, mixing, or combining with goods belonging to third parties, their right of ownership remains in effect, we shall acquire co-ownership in proportion to the invoice values of these processed goods. To the extent that the security interests of third parties remain, in fact or in law, below this proportion, the difference shall accrue to us.
10.3 The buyer hereby assigns to us, as security, all claims against third parties arising from the resale—in the case of a current account agreed upon with the buyer, the respective balance claims—either in full or in the amount of our potential co-ownership share (see Section 10.2). The buyer is authorized to collect these claims until such authorization is revoked or until the buyer ceases payments to us. The buyer is authorized to assign these claims—including solely for the purpose of collecting them through factoring—only with our express written consent.
10.4 The buyer must notify us immediately of any third-party claims against the goods and receivables.
10.5 To the extent that the realizable value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 10%, we shall, at the buyer’s request, release a corresponding portion of the security interests. We shall have the right to choose between different security interests when releasing them.
10.6 We may take back goods on the basis of the retention of title even if we have not previously withdrawn from the contract. The repossession of goods in exercise of the retention of title shall not be deemed a withdrawal from the contract. The buyer shall grant us or our agents access to the location where the goods are located.
10.7 If the law governing the goods sold does not permit retention of title but allows the seller to reserve other similar rights in the subject matter of the delivery, the buyer is obligated to provide us with other adequate security. The buyer agrees to cooperate in fulfilling any formal requirements that may be necessary for this purpose.
11. Withdrawal
The buyer may withdraw from the contract in accordance with statutory provisions only if we are responsible for the breach of duty due to willful misconduct or
negligence; in the case of defects, however, the statutory requirements shall apply. In the event of a breach of duty, the buyer must, within a reasonable period of time following our request, declare whether it is withdrawing from the contract due to the breach or insisting on delivery.
12. Statute of Limitations
The statute of limitations for claims and rights arising from defects in the delivery—regardless of the legal basis—is one year.
The statute of limitations under paragraph 1 also applies to all claims for damages against us that are related to the defect—regardless of the legal basis for the claim. To the extent that claims for damages of any kind exist against us that are not related to a defect, the limitation period set forth in paragraph 1 shall also apply to them.
The limitation periods under paragraphs 1 and 2 apply subject to the following proviso:
- The limitation periods generally do not apply in cases of willful misconduct or fraudulent concealment of a defect, or to the extent that the seller has provided a guarantee regarding the quality of the delivered item.
- Furthermore, the limitation periods do not apply to claims for damages in cases of injury to life, body, health, or freedom; in claims under the Product Liability Act; or in cases of a breach of duty due to gross negligence.
The statute of limitations for all claims begins upon delivery.
Unless expressly provided otherwise, the statutory
provisions regarding the commencement of the statute of limitations, the suspension of the statute of limitations, the interruption of the statute of limitations, and the restart of time limits remain unaffected.
The above provisions do not entail a shift in the burden of proof to the detriment of the customer.
13. Storage Fees/Interest on Late Payment
13.1 If, at the buyer’s request, shipment of the delivery is delayed by more than two weeks after the agreed delivery date or, if no specific
delivery date was agreed upon, delayed after we have notified the buyer that the goods are ready for shipment, we may charge a flat-rate storage fee for each month (pro-rata, if applicable) in the amount of 1.5% of the price of the delivered goods, up to a maximum of 30%. The buyer is entitled to prove that we have incurred no damage or significantly less damage. We are entitled to prove that we have incurred greater damage.
13.2 In the event of late payment, we are entitled to charge default interest at a rate of eight percentage points above the base interest rate (§ 247 BGB). The buyer is entitled to prove that we have incurred no damage or significantly less damage. We are entitled to prove that we have incurred greater damages.
14. Contractor’s Right of Recourse
The buyer’s claims for recourse against us pursuant to § 478 BGB (recourse by the business) exist only to the extent that the buyer has not entered into any agreements with its customer that go beyond the statutory claims for defects.
15. Taxes/Customs
The buyer is responsible for complying with the
legal provisions, in particular tax and customs regulations. The buyer shall indemnify us against all disadvantages arising from the violation of such legal provisions.
16. Confidentiality
The contracting parties undertake to treat as confidential all information and documents received from or becoming known to them from the other contracting party during the performance of the contract. The contracting parties shall safeguard and secure the items provided in connection with the performance of the contract against misuse by third parties. This does not apply to
information that was already known to the respective
contracting party at the time it was obtained, without this being caused by a breach of contract by the buyer, or in cases where the information had already become publicly known or was generally accessible.
17. Place of Performance, Governing Law, Jurisdiction; Amendments and Miscellaneous
17.1 The place of performance for delivery is the respective point of departure of the goods; for payment, it is Werl.
17.2 The law of the
Federal Republic of Germany
shall apply exclusively between the contracting parties.
17.3 If the buyer is a merchant, a legal entity under public law, or a special fund under public law, or if the buyer has no general place of jurisdiction in Germany, the place of jurisdiction shall be Essen. However, we are also entitled to sue the buyer at the buyer’s general place of jurisdiction.
17.4 We reserve the right to amend these Terms and Conditions at any time. The amended Terms and Conditions shall be deemed agreed upon by the parties if the buyer does not object to them within six weeks of receiving the amended Terms and Conditions. However, this shall apply only if we have pointed out the consequences of failing to object.
17.5 Should any provision in these Terms and Conditions or any provision under other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
General Terms and Conditions of Delivery of STAPU GmbH & Co. KG
1. Scope of Application/Governing Law/Jurisdiction
(1) The following terms and conditions apply to all contractual relationships between STAPU GmbH & Co. KG (hereinafter “STAPU”) and its respective customers (hereinafter collectively referred to as the “Customer”) as well as for all resulting deliveries and services provided by STAPU in its business dealings with the Customer, provided that such transactions do not involve consumers. These terms and conditions also apply even if they are not specifically mentioned in subsequent contracts.
(2) These terms and conditions apply exclusively. Any terms and conditions of the Customer to the contrary shall under no circumstances form part of the contract.
(3) The court with jurisdiction over 59457 Werl shall have exclusive jurisdiction over all disputes arising from or in connection with the respective contract—including the validity of the contract itself. Notwithstanding the foregoing, STAPU is alternatively entitled, at its discretion, to assert claims against the customer by filing a lawsuit at the customer’s place of business.
(4) German law shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, as well as the conflict-of-laws provisions of German private international law.
2. Remuneration/Payments
(1) The agreed-upon prices shall apply exclusively. Unless expressly agreed otherwise in writing, the prices are quoted in EUR ex STAPU’s factory (EXW Incoterms 2010), excluding loading. Packaging and freight costs, customs duties, fees, and public charges for export deliveries are not included in the agreed-upon prices.
(2) All prices are net prices, unless expressly stated otherwise in writing. Payments must be made by the customer without any deductions no later than 30 days after delivery of the goods or performance of the service.
(3) The customer is entitled to set off claims only if such claims are undisputed or have been legally established. The customer is entitled to rights of retention only if they arise from the same contractual relationship.
(4) The customer may assign its claims against STAPU to third parties only with STAPU’s prior written consent. Section 354a of the German Commercial Code (HGB) remains unaffected.
3. Delivery / Delivery Dates / Reservation of Right to Supply
(1) Unless otherwise expressly agreed in writing, STAPU delivers exclusively ex works in 58239 Schwerte (EXW Incoterms 2010) without loading; this also applies to the transfer of risk and the place of performance.
(2) Delivery deadlines are considered binding only if expressly agreed upon in writing on a case-by-case basis. The agreed delivery deadlines are deemed met upon the goods being ready for shipment and notification thereof or—if STAPU has additionally undertaken to arrange shipment—upon the goods leaving the factory on time.
Delivery deadlines are binding only if the customer has provided STAPU with timely responses to all questions it must answer regarding the delivery of the goods. This includes, in particular, the timely receipt of all documents to be provided by the customer, any agreed-upon approvals and authorizations, as well as compliance with the agreed-upon terms of payment and other obligations of the customer.
(3) STAPU is entitled to make partial deliveries, provided that such deliveries are reasonable for the customer in the specific case. Partial deliveries must always be paid for in proportion to the corresponding portion of the delivery.
(4) In cases of force majeure, STAPU is released from its obligation to perform for the duration and to the extent of the impact. Force majeure refers to any event beyond STAPU’s control that prevents STAPU, in whole or in part, from fulfilling its obligations, including fire damage, floods, strikes, and lawful lockouts, as well as operational disruptions not attributable to STAPU or official orders. Supply difficulties and other disruptions in performance on the part of STAPU’s suppliers shall only be considered force majeure if the supplier is itself prevented from performing its obligations by an event mentioned in the preceding sentence. If the hindrance lasts longer than 60 days, either party is entitled to withdraw from the contract with respect to the unfulfilled portion.
(5) If STAPU itself does not receive delivery, even though STAPU has placed identical orders with reliable suppliers, STAPU shall be released from its obligation to perform and may withdraw from the contract. STAPU is obligated to notify the customer immediately of the unavailability of the service and shall promptly refund any consideration already paid by the customer.
(6) Unless otherwise expressly agreed in writing, any shipment shall be made at the customer’s risk. Risk shall pass to the customer ex works in 58239 Schwerte in accordance with EXW Incoterms 2010. If the customer is in default of acceptance, STAPU is entitled to demand reimbursement of the expenses incurred by STAPU as a result. Furthermore, upon the occurrence of default of acceptance, the risk of accidental loss and accidental deterioration of the goods passes to the customer.
(7) Penalty clauses for delayed deliveries shall under no circumstances form part of the contract.
(8) If STAPU is culpably in default of delivery, the customer is entitled to compensation for the damage demonstrably incurred. However, STAPU’s liability is limited in amount to damages that were foreseeable at the time the contract was concluded and are typical for this type of contract, unless there is a breach of duty caused by willful misconduct or gross negligence, or damage resulting from injury to life, bodily injury, or health, and for which STAPU or STAPU’s vicarious agents are responsible. STAPU is liable for the customer’s lost profits only in the event of a breach of duty caused by willful misconduct or gross negligence.
4. Retention of Title
(1) STAPU retains title to the goods delivered by STAPU until all claims arising from the legal relationship underlying the delivery have been satisfied in full (goods subject to retention of title). Until then, the customer is not authorized to pledge the goods or to assign them as security.
(2) The customer is only entitled to process the delivered goods in the ordinary course of business, or to combine or mix them with other items, or to sell them. A sale by the customer or any other disposition in favor of third parties does not constitute “ordinary course of business” within the meaning of these terms and conditions if the assignability of the customer’s claim to third parties is excluded.
(3) In the event of a sale, processing, combination, or mixing, the customer hereby assigns to STAPU the claims against third parties arising therefrom, in the amount of the purchase price of the goods subject to retention of title, without the need for a separate agreement in each individual case. STAPU hereby accepts this assignment.
(4) If the realizable value of the collateral provided by the customer to STAPU exceeds the secured claims by more than 10 percent in total—and not merely temporarily—or if the estimated value of the collateral provided by the customer to STAPU exceeds 150% of the value of the secured claims, STAPU is obligated, to the extent of such excess, to release the collateral at STAPU’s discretion, provided the customer so requests. In selecting the collateral to be released, STAPU will take the customer’s legitimate interests into account.
5. Limitation of Liability
(1) STAPU shall be liable in accordance with statutory provisions for any defects in the goods delivered by STAPU within the agreed warranty periods, unless otherwise provided below. Unless otherwise expressly agreed in writing, the following applies: (i) STAPU’s specifications constitute merely performance descriptions within the meaning of §434(1), sentence 1 of the German Civil Code (BGB) (agreed quality), and do not constitute guarantees by the seller (neither independent guarantees within the meaning of § 311 of the German Civil Code (BGB) nor guarantees of quality within the meaning of § 443 of the German Civil Code (BGB)); (ii) no specific suitability or intended use is guaranteed; the customer bears the risk of suitability and intended use. If the buyer has installed or attached a defective item delivered by STAPU to another item in accordance with its nature and intended use, the customer may claim reimbursement for any expenses incurred in removing the defective item and installing or attaching the repaired or delivered defect-free item only if STAPU is responsible for the defectiveness of the delivered item.
(2) The customer’s claims for defects are always contingent upon the customer inspecting the goods delivered by STAPU immediately upon delivery in the manner and to the extent that is reasonable in the ordinary course of business, and, if a defect is discovered, notifies STAPU immediately in writing. If the customer fails to provide such notice, STAPU’s goods shall be deemed accepted, unless the defect was not detectable during the inspection. If such a defect becomes apparent at a later date, notification must be given immediately upon discovery; otherwise, the goods shall be deemed accepted even with regard to this defect.
(3) Unless otherwise provided for above or below, STAPU shall be liable in accordance with statutory provisions for all damages for which STAPU is responsible and which arise during the performance of the contractual obligation by STAPU or STAPU’s vicarious agents. However, the extent of STAPU’s liability is always limited to damages that were foreseeable at the time the contract was concluded and are typical for this type of contract, unless there is fraud or a breach of duty caused by willful misconduct or gross negligence, or damage resulting from injury to life, bodily injury, or health, and for which STAPU or STAPU’s agents are responsible. Claims under the Product Liability Act also remain unaffected. The customer’s right to subsequent performance, reduction in price, and rescission also remains unaffected by the foregoing provision.
(4) The statute of limitations for claims for defects is twelve months from delivery or the provision of services, unless there is a breach of duty caused by willful misconduct or gross negligence, or an injury to life, limb, or health resulting from a defect for which STAPU or STAPU’s vicarious agents are responsible, or STAPU has fraudulently concealed the defect. Sections 438(1)(2) and 445b of the German Civil Code (BGB) remain unaffected.
(5) Parts replaced as part of subsequent performance become the property of STAPU. The customer is obligated to transfer ownership back to STAPU in this regard.
6. Defects Attributable to the Customer’s Specifications
If a defect is attributable to the customer’s specifications or to materials supplied by third-party suppliers at the customer’s request or prescribed by the customer, products, or parts supplied by third-party suppliers at the customer’s request or specified by the customer, STAPU shall not be liable, even on a pro rata basis, for such a defect if STAPU informed the customer of the issue identified by STAPU prior to production or if the issue was not recognizable to STAPU as a specialist company.
7. Trade Secrets
The customer is obligated to treat all information received from STAPU as strictly confidential and secret. Samples, models, trademarks, or similar items manufactured by STAPU and provided to the customer by STAPU remain the exclusive property of STAPU and may only be disclosed to third parties with STAPU’s prior express written consent.