GENERAL TERMS AND CONDITIONS OF SALE (NATIONAL)
of Schnaidt GmbH
I. SCOPE, GENERAL
1. These General Terms and Conditions of Sale (GTC (national)) of the company Schnaidt GmbH are applicable to all transactions concerning the delivery of goods to the Customer by Schnaidt GmbH, Hagenring 27, D-72119 Ammerbuch-Altingen, and its branch office in Cologne, August-Horch-Straße 9, D-51149 Cologne/Porz-Gremberghoven (hereinafter in short: “Schnaidt” or “we”), irrespective of whether Schnaidt manufactures the goods itself or has sourced these from a third party, insofar as the Customer has his permanent establishment in Germany.
2. The scope of application of these GTC (national) is limited to contracts with entrepreneurs, legal entities under public law or special assets under public law. These GTC (national) are not applicable to transactions with consumers within the meaning of § 13 of the German Civil Code (“BGB”).
3. These GTC (national) are exclusively applicable. The application of Customer conditions that contradict, supplement or deviate from our GTC (national) is herewith rejected. These shall not be applicable even if we execute the Customer delivery in the knowledge of or without expressly rejecting deviating Customer conditions.
4. Individual agreements reached with the Customer on a case-by-case basis (including collateral agreements, supplements and amendments) shall in every case have precedence over these GTC (national). The content of such agreements shall be in accordance with a written contract or our written confirmation.
5. These GTC (national) shall also be applicable to future transactions between Schnaidt and the Customer, without the need to make renewed reference to these.
6. Legally significant declarations and notices that the Customer makes to us after the signing of the contract or that may need to be submitted (e.g. imposition of deadlines, defect notices, etc.), must be made in writing in order to be valid.
7. Rights that Schnaidt has under statutory regulations or other agreements that extend beyond these GTC (national) remain unaffected.
II. RIGHTS TO OUR DOCUMENTS, APPROVAL OF THE CUSTOMER
1. Offers, cost estimates and other documents presented within the context of the process of establishing the contract shall remain our property and may be made available to any third party only with our prior written consent.
2. We shall be exclusively entitled to all (copyrights) and other rights to samples, equipment, tools, drawings, images, cost estimates, designs and plans manufactured and/or made available by us, in particular patents, copyrights and inventor rights. They may be made available to third parties only insofar as we have expressly agreed to this in writing.
3. If we make aforementioned items or documents available, this shall not entail any transfer of rights or granting of rights (utilisation licence) to the Customer.
4. The Customer issues his assurance that documents made available to us do not breach third-party rights. The Customer shall be responsible for ensuring that the documents made available to us by him, in particular drawings, plans, etc., are drawn to scale, are directly suitable for the purpose of determining the contractually owed performance, and correspond to the actual conditions.
III. CONTRACTUAL CONCLUSION
1. Our offers, unless these do not expressly state otherwise, are without obligation and non-binding. This also applies if we have made catalogues, technical documentation or other product descriptions available to the Customer – including in electronic form.
2. The contract shall be established by our written order confirmation. We are entitled to accept an offer submitted by the Customer by means of a written order confirmation within ten working days of the receipt of the offer.
IV. CONTRACT CONTENT, MODIFICATION OF THE CONTRACTUALLY OWED PERFORMANCE, LEGAL DEFECTS
1. The contractually owed performance shall be determined by the agreement reached, in particular the order confirmation.
2. The agreement of a guarantee or the assumption of a procurement risk must be made in writing in order to be valid (§ 126 BGB).
3. The contractually owed performance is free of legal defects, insofar as a third party cannot in this respect assert any claims against the Customer on the territory of the Federal Republic of Germany. Schnaidt shall be responsible for ensuring that the performance is unencumbered by third party rights in respect of other states only if we have confirmed this in writing.
4. Retrospective amendments or modifications of the performance owed by Schnaidt shall be permitted, insofar as these are customary or technically necessary and do not unreasonably inconvenience the Customer.
V. PERFORMANCE PERIOD, SELF-SUPPLY RESERVATION, FORCE MAJEURE, PARTIAL DELIVERY
1. Unless otherwise agreed on a case-by-case basis, any possible reported performance periods represent merely approximate deadlines.
2. The start of an agreed performance rendering period shall be subject to clarification of all technical questions. The performance rendering period shall not begin before the Customer has completed his associated duties of cooperation.
3. If an advance payment obligation of the Customer is agreed, such as for example the presentation of documents or the performance of a down-payment, an agreed performance rendering period shall not commence before the Customer has fulfilled his respective advance obligation.
4. Schnaidt shall be entitled to assert the plea of an unfulfilled contract.
5. An agreed performance rendering period shall be subject to the condition of complete and punctual delivery by our contracting partner (self-supply reservation). This shall not apply if the contractual agreement indicates that we have assumed the procurement risk or in a case of unlimited indeterminate obligation. Our performance obligation shall also not be waived by the self-supply reservation if we have not concluded a congruent hedging transaction with our suppliers or culpably caused the non-fulfilment of this congruent hedging transaction in respect of the performance to be rendered for the Customer. Schnaidt shall inform the Customer without delay, insofar as the performance of the congruent hedging transaction is not available.
6. The performance rendering period shall be reasonably extended in the event of force majeure, whereby a reasonable start-up time must be taken into account when estimating the duration of the obstacle. Excluded from this are those cases in which an instance of force majeure as well as the duration thereof does not have any impact on the performance rendering period. Instances of force majeure also constitute events that were unforeseeable at the time of the signing of the contract, in particular energy or raw material shortages, strikes, lockouts, official measures, terrorist attacks and war. For force majeure to be established, it is necessary that the unforeseeable event or its effects do not last only for a short period of time. Effects that extend over a period of more than five working days are not deemed to constitute short-term effects. Schnaidt shall inform the Customer without delay about the existence of force majeure as well as the anticipated end of this circumstance. If the force majeure continues without interruption for more than three months, or if the deadline for the rendering of the performance is extended by more than four months due to several instances of force majeure, then both the Customer as well as Schnaidt shall be entitled to withdraw from the contract. In the event of force majeure, the assertion of compensation claims and further claims shall be excluded. The counter-performance obligation shall be waived, and already-performed down-payments shall be reimbursed. The provisions of this Fig. shall be correspondingly applicable insofar as the circumstances occur at a sub-supplier and impact the delivery to Schnaidt.
7. We are entitled to make partial deliveries, insofar this is not unreasonable for the Customer. A partial delivery is in particular not unreasonable if the partial delivery can be used by the Customer in accordance with the intended purpose, the delivery of the remaining ordered goods is safeguarded, and the partial delivery does not cause the Customer to incur any substantially higher overheads or additional costs.
8. Compensation claims brought on the grounds of failure to adhere to the performance rendering period shall be based on XI.
VI. TRANSFER OF RISK
1. Unless otherwise agreed on a case-by-case basis, the risk of accidental destruction – including in the case of freight-free delivery – shall be transferred to the Customer if the goods are made available for delivery to the Customer at our head office (Incoterms 2010 EXW Schnaidt, Ammerbuch-Altingen, or in the case of transactions with the branch office in Cologne Incoterms 2010 EXW Schnaidt, Cologne/Porz-Gremberghoven).
2. If the Customer does not collect the goods that have been declared ready for consignment on the delivery date, then the risk of accidental destruction shall be transferred to the Customer on the delivery date; we shall however arrange the insurance policies demanded by the Customer, at his request and expense.
VII. ACCEPTANCE DEFAULT, DELAY DAMAGES
1. If the Customer does not accept the goods in good time (VI), or if he otherwise defaults on the acceptance, then for each commenced working week he shall owe Schnaidt a sum amounting to 0.5 % of the respective order value, although not exceeding 5.0 % of the order value.
2. The onus shall be on the Customer to demonstrate that lower damage was caused, while Schnaidt reserves the right to demonstrate that the damage was higher.
3. The above provisions are correspondingly applicable in the event of an admissible partial delivery.
VIII. PRICES, TERMS AND CONDITIONS OF PAYMENT, PRICE ADJUSTMENT
1. All prices are net prices and are payable together with the respective applicable statutory value added tax.
2. Unless otherwise agreed on a case-by-case basis, all prices are ex works (Incoterms 2010 EXW Schnaidt, Ammerbuch-Altingen or in the case of transactions with the branch office in Cologne Incoterms 2010 EXW Schnaidt, Cologne/Porz-Gremberghoven). All possible other incurred costs, in particular for the settlement of payments, transport, import and export customs duties, fees, shall be borne by the Customer.
3. Unless otherwise agreed, payments are due for payment net within 30 calendar days from the transfer of risk/rendering of the performance. The granting of a cash discount shall be subject to a special agreement. Payments must be made to the head office of Schnaidt in Ammerbuch-Altingen or, in the case of transactions with the branch office, to the head office of the branch office in Cologne. Payment costs and risks shall be borne by the Customer.
4. The acceptance of cheques and bills of exchange shall be subject to an express written agreement.
IX. NOTICE OF DEFECTS
1. The Customer shall be responsible for examining whether the received goods are free of defects within ten working days from the transfer of risk, and for reporting any defects hereby discovered.
2. If a defect subsequently comes to light that was not identifiable within the context of the examination pursuant to Fig. 1, then this must be reported within three days of the date of the actual discovery.
3. Any possible discovered defects must be reported to us at least in text form. The complaint must include a detailed description, enabling the presumed cause as well as the consequences to be identified. Upon request, suitable documentary material, in particular in the form of photographs, must be made available to us.
4. If the Customer fails to fulfil his obligations to examine the goods and to issue a complaint, the performance shall be deemed to have been accepted and he shall not be entitled to warranty rights. This shall not be applicable, insofar as we maliciously concealed the defect or if the exclusion would be incompatible with the provisions of a guarantee.
5. The Customer is obliged to cover the costs incurred by Schnaidt in conjunction with the culpably issued unjustified complaint.
6. The deadlines pursuant to Fig. 1 and 2 shall commence, insofar as Schnaidt is required to provide documentation, only once the Customer has received the documentation.
X. WARRANTY; LIMITATION PERIOD
1. Warranty claims brought on the grounds of defects caused by improper handling by the Customer or the failure to comply with instructions for use are excluded.
2. Warranty claims are excluded if they are due to information provided by the customer, in particular dimensions, drawings, plans. Excluded are claims brought on the grounds of infringed third party industrial property rights, insofar as the infringement is attributable to the instructions of the customer.
3. Schnaidt shall perform subsequent performance by means of rectification (repair) or subsequent delivery (delivery of a defect-free item). Schnaidt may choose the type of subsequent performance.
4. Schnaidt is entitled to render the subsequent performance within a reasonable timeframe.
5. Schnaidt shall cover the cost of retrospective fulfilment in accordance with the statutory provisions.
6. Schnaidt shall not cover the additional cost of retrospective fulfilment incurred because the goods had been brought to a destination other than the original place of utilisation.
7. Schnaidt’s right to refuse subsequent performance in whole or in part if the legal requirements are met remains unaffected.
8. Parts replaced within the scope of subsequent performance become the property of Schnaidt and must be returned to us.
9. In derogation of § 438 Para. 1 No. 3 BGB, warranty claims brought on the grounds of defects shall be statute-barred within twelve months from the date of the transfer of risk. This shall not be applicable in the case of maliciously concealed defects or in the case of an item that was used for a structure in accordance with its normal purpose, and that caused the defect (§ 438 Para. 1 No. 2 b) BGB).
10. The limitation period of the warranty rights of the Customer pursuant to § 438 BGB shall not commence anew when Schnaidt renders a subsequent performance if the same defect or the consequences of a defective subsequent improvement occur after the subsequent improvement has taken place.
11. XI. is additionally applicable to the assertion of compensation.
12. The statutory rules concerning the regress of the seller pursuant to §§ 445a, 445b BGB and in the case of the purchase of used goods pursuant § 478 BGB remain unaffected.
1. Schnaidt shall be liable in accordance with the statutory provisions in the event of a culpable breach of duty for all damages arising out of mortal injuries, physical injuries or health impairment.
2. Schnaidt shall be liable in accordance with the statutory provisions in the event of a culpable breach of material contractual obligations. Liability shall, however, be limited to the foreseeable, contractually typical damage if Schnaidt did not breach material contractual obligations wilfully or with gross negligence. Material contractual obligations mean those that are absolutely essential to achieve the purpose associated with the contract, and that the Customer is entitled to expect are being adhered to.
3. Schnaidt shall be liable for the grossly negligent and wilful breach of non-material contractual obligations.
4. Schnaidt shall be liable in accordance with the provisions of the Product Liability Act.
5. If a contractual guarantee has been agreed, Schnaidt shall be liable in accordance with the guarantee agreement.
6. In other respects, liability shall be excluded.
7. To the extent that our liability is limited or excluded on the basis of the above Figs., this shall also apply to the liability of our statutory representatives and vicarious agents, including our workers and employees.
XII. SUPPORT IN PRODUCT LIABILITY CASES
1. The Customer shall not alter safety-relevant aspects of the products. The Customer shall in particular not amend or remove existing warnings about the danger of improper use. If this obligation is breached, the Customer shall indemnify Schnaidt internally in respect of third-party product liability claims, unless the Customer was not responsible for the fault that triggered the liability.
2. If Schnaidt is obliged to introduce measures, in particular product warnings or product recalls, then the Customer shall support Schnaidt in such endeavours to the best of his ability.
3. The Customer shall inform Schnaidt in writing without delay about any risks that become known to him.
XIII. OFFSETTING, RIGHT OF RETENTION
1. The Customer may only offset claims that are uncontested or have become res judicata.
2. Fig. 1 applies correspondingly to the exercise of a right of retention.
XIV. PROHIBITION OF ASSIGNMENT
1. The Customer may assign rights and obligations arising out of this agreement to third parties wholly or in part only with our prior written consent.
2. Fig. 1 does not apply to the assignment of a payment claim within the meaning of § 354a of the German Commercial Code (“HGB”).
XV. RESERVATION OF TITLE
1. Goods delivered by us remain our property until all claims arising out of the business relationship have been paid in full (goods subject to reservation of title). The Customer is entitled to dispose of the goods that are subject to reservation of title within the context of his ordinary business transactions. In the case of open invoices, the reservation of title shall serve to secure the resulting balance of the claim to which Schnaidt is entitled.
2. The Customer is obliged to insure goods that are subject to reservation of title sufficiently against fire, water and theft at his own expense.
3. The processing or modification of the goods that are subject to reservation of title shall in all cases be performed for Schnaidt. If goods that are subject to reservation of title are processed into a new item with items that do not belong to Schnaidt, then Schnaidt shall acquire co-ownership of the new item. The co-ownership share shall be determined in accordance with the value of the goods that are subject to reservation of title relative to the value of the other processed or modified items at the time of processing or modification.
4. If the Customer causes the goods that are subject to a reservation of title to be combined or mixed to form a uniform item, and if one of the other items may be considered the principal item, then Schnaidt shall be entitled to the proportionate ownership of the resulting item. The co-ownership share shall be determined in accordance with the value of the goods that are subject to reservation of title relative to the value of the other combined or mixed items at the time of combination or mixing. The Customer hereby transfers this co-ownership to Schnaidt, whereby Schnaidt hereby accepts the transfer.
5. The Customer hereby assigns the claims against third parties arising out of the resale of the goods that are subject to reservation of title together with all ancillary rights to Schnaidt as security. Schnaidt accepts this assignment. The Customer undertakes to retain the title to the goods relative to its own customers until the purchase price has been paid in full. Schnaidt is entitled to collect the resulting purchase price claims until revocation or suspension of payment to Schnaidt on the account of Schnaidt. The Customer is not entitled to assign this claim. Schnaidt shall revoke the collection authorisation only if the customer is in default of payment or if an application has been made for the initiation of insolvency proceedings against the assets of the Customer. In the event of the revocation of the collection authorisation, the Customer must provide Schnaidt with the information necessary to collect the claim, presenting the corresponding supply contracts with its own customers, the invoices and an overview of the payments made by the customers.
6. The Customer must inform Schnaidt immediately in writing if a third party accesses goods to which Schnaidt holds the title, in particular including about enforcement measures pertaining to the reserved goods and the claims of Schnaidt, and must provide the information and documents required to conduct a defence.
7. Insofar as the realisable value of the security rights to which Schnaidt is entitled exceeds all outstanding claims against the Customer by more than ten percent, Schnaidt shall be obliged to release the security rights at the request of the Customer. Schnaidt is entitled to choose which security interests are to be released.
XVI. PLACE OF JURISDICTION, APPLICABLE LAW
1. If the Customer is a merchant, then the exclusive place of jurisdiction is the court with jurisdiction for the registered domicile of Schnaidt in Ammerbuch-Altingen, or in the case of transactions with the branch office in Cologne, the court with jurisdiction for the registered domicile of the branch office in Cologne.
2. Schnaidt shall furthermore be entitled to take legal action against the Customer at his general place of jurisdiction.
3. The law of the Federal Republic of Germany shall be applicable.
XVII. SEVERABILITY CLAUSE
1. If one or more of the provisions of these GTC (national) or parts of a provision are invalid, this invalidity shall not affect the validity of the remaining provisions or of the contract as a whole.
2. Fig. 1 shall be correspondingly applicable in the event of an omission in the contractual provisions.
(Status: May 2018)