Schäfer GmbH Werkzeug- und Sondermaschinenbau | Gerstungen
Version: June 2012
§ 1: General – Area of Application
(1) Our Terms and Conditions of Sale and Delivery shall apply exclusively. Terms and conditions of the customer which conflict with or deviate from these Terms and Conditions are not accepted by us, unless we have expressly agreed to them in writing. Our Terms and Conditions of Sale and Delivery shall apply also if, while being aware of the customer’s conflicting or deviating terms and conditions, we supply the goods and/or services to the customer without reservation.
(2) Our Terms and Conditions of Sale and Delivery shall apply only in respect of companies as defined in Section 310 para 1 BGB (German Civil Code).
(3) Our offers are without engagement. A contract shall come into effect upon receipt of our written order acknowledgement.
(4) Information relating to the supplies and services to be provided, e.g. information published by us in catalogs or brochures, such as descriptions, pictures, drawings, dimensional, weight and performance data serve the purpose of describing our goods. Such information does not constitute any warranty of properties or guarantee, unless that information is explicitly denoted as such in writing.
(5) The customer shall be obliged to provide correct and complete specifications and to check our order acknowledgement for correctness of the data stated therein.
(6) Project engineering support will be given to the customer only within the scope of the overall system defined by the customer, for which system we do not accept any responsibility.
(7) We reserve all ownership rights and copyrights to samples, images, drawings, calculations and similar information of physical or non-physical type including information in electronic form. This shall apply also to written documents that are designated as “confidential”. Before disclosing such documents to any third party, the customer shall obtain our express written consent.
8) These Terms and Conditions shall apply also to all future supplies and services until such time as new Terms and Conditions of Sale and Delivery are issued.
§ 2: Prices – Terms of Payment
(1) Unless otherwise stated in the order acknowledgement, our prices are to be understood „ex works“, excluding packing, which will be invoiced separately.
(2) The legally applicable VAT is not included in our prices. It will be applied at the rate valid at the date of invoicing and shown separately in the invoice.
(3) Cash discounts shall not be deducted, unless such discounts have been specifically agreed in writing.
(4) Unless otherwise stated in the order acknowledgement, the purchase price (without any deduction) shall be payable net within 30 days of the invoice date. Provided that no invoices are outstanding, we will allow a 2% cash discount on payments received within two weeks of the invoice date. Payment for services provided, including spare parts deliveries, shall be made net cash (without any deduction) within 8 days of the invoice date. Payment by check or bill of exchange is not accepted, unless it is specifically agreed. The legal regulations shall apply to the consequences resulting from any delay in payment.
(5) If, after mailing our order acknowledgement, we should become aware of a substantial deterioration of the customer’s financial situation, our payment claims shall fall due immediately. Moreover, we shall be entitled to supply any outstanding goods and services only against advance payment, even if different terms were stated in the order acknowledgement, and to rescind the contract after granting a reasonable extension, unless the customer provides some form of security. The same shall apply in the event of non-compliance with terms of payment, even where such non-compliance relates to other orders placed under the mutual business relationship.
(6) The customer shall be entitled to offset payment claims only, if its counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, the customer may exercise the right to retain payment only if its counterclaim is related to the same contract.
§ 3: Delivery Period
(1) The delivery and/or performance period shall begin at the time all technical details are finally settled.
(2) Compliance with our delivery and/or performance obligations shall be dependent on the timely and correct fulfillment, by the customer, of its obligations, e.g. making the advance payment as agreed. We reserve the right of defense of non-performance of contract.
(3) The delivery and/or performance period shall be appropriately extended in the event of the occurrence of any unforeseen impediments beyond our control, no matter if such impediments occur at our company or at our suppliers’ companies, e.g. Force Majeure, industrial disputes, import and export restrictions, official approval procedures and other delays caused through no fault of ours in the production of the goods to be delivered, disruptions in operations, production rejects, delays in the receipt of essential parts and raw materials, provided that such impediments can be proved to have a vital impact on the completion and delivery of the purchased goods. Such impediments shall be deemed to be beyond our control also if they occur during an already existing delay. We shall immediately inform the customer of the start and end of any such circumstances.
(4) Under legal regulations, the customer may rescind the contract for delays in delivery and/or performance only if such delays are attributable to us.
(5) If the customer is in default in accepting goods or services or culpably violates other duties of cooperation, we shall be entitled to claim compensation for the damage, including any extra costs incurred, which we may suffer due to such default or violation. Further claims or rights shall remain unprejudiced.
(6) Under the circumstances defined in para (5), the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time the customer defaults on acceptance of goods or payment.
(7) We shall be liable according to the legal regulations to the extent that the underlying contract of purchase is a fixed-date-transaction as defined by Section 286 para 2, Nr. 4 BGB (German Civil Code) or Section 376 HGB (German Commercial Code). We shall also be liable according to the legal regulations to the extent that the customer shall be entitled to claim, based on a delivery delay for which we are responsible, that its interest in the further fulfillment of the Contract has ceased to exist.
(8) We shall further be liable according to the legal regulations to the extent that the delay in delivery and/or performance has been caused by a willful or grossly negligent violation of the contract by us; any fault of our agents or assistants shall be attributable to us. To the extent that the delay in delivery and/or performance is due to a grossly negligent violation of the contract by us, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(9) We shall also be liable according to the legal regulations to the extent that the delay in delivery and/or performance for which we are to blame results from a culpable violation of an essential contractual obligation; in this case our liability for damages shall also be limited to the foreseeable, typically occurring damage.
(10) In the event of a delay in delivery and/or performance, we shall generally be liable to pay lumpsum compensation in the amount of 0.5% of the value of the supplies for each complete week of delay, the overall maximum compensation payments being limited to 5% of the value of the supplies.
(11) Further claims and rights of the customer shall remain unprejudiced.
§ 4: Passage of Risk
(1) The risk shall pass to the customer at the time the goods are taken over by the forwarding agent or carrier, but not later than the time when the goods leave the plant or warehouse. This shall apply also, if such terms as “carriage paid” or “delivery ex works”, or similar terms have been agreed.
(2) If the goods are subject to an acceptance inspection, such inspection shall be deemed relevant for the passage of title. The inspection shall be carried out at the scheduled inspection date or, alternatively, immediately after we report the goods ready for inspection. The customer may not refuse acceptance due to a minor defect.
(3) If the shipment or acceptance inspection is delayed, or not made at all, for circumstances that are beyond our control, the risk shall pass to the customer at the date when shipment is made or the goods are reported ready for acceptance.
§ 5: Retention of Title
(1) We reserve title to the goods delivered until we receive all payments to be made under the business relationship with the customer.
(2) If the customer is defaults on payment, we shall – after sending a reminder – be entitled to take inventory of the goods. The customer herewith agrees that, where such conditions arise, we may immediately enter its premises during regular business hours in order to repossess the goods. The same shall apply if the customer takes an oath of disclosure, if an arrest warrant is issued requiring the customer to take an oath of disclosure, or if the customer files for insolvency proceedings.
(3) If the customer acts in violation of the contract, especially if it defaults on payment, we shall have the right to rescind the contract.
(4) The customer shall be obliged to handle the goods with care; in particular, it shall – for its own account – take out replacement value insurance against fire, water damage and theft. To the extent that maintenance and inspection work is to be performed, the customer shall perform such maintenance and inspection work in good time and for its own account.
(5) The customer shall inform us immediately of any attachment, seizure or any other disposition or other similar proceedings initiated by a third party.
(6) The customer shall be entitled to sell the goods to others in the course of its regular business operations. The customer shall not be allowed to pledge or transfer the goods as collateral or dispose of them in any other manner. If the customer sells the goods delivered by us, in whatever condition they may be, the customer herewith assigns to us – until the time all claims under the mutual business relationship have been settled – any payment claims it may have against the purchasers under such sale up to the value of the goods (final invoice amount including VAT) including all ancillary rights. The customer shall be authorized to collect such receivables.
(7) The authorization to sell the goods to others and to collect the receivables may be revoked, if the customer defaults on payment or if its financial situation or credit standing deteriorates in a significant way. If so demanded by us, the customer shall then inform the purchasers of such assignment, unless we opt to inform the purchasers ourselves, and to provide to us any information, and hand over to us any documents, that we may require in order to assert our rights against the purchasers.
(8) Where the goods delivered are converted by the customer, such conversion shall always be made for our benefit. If other items not owned by us are used in the conversion of the goods supplied, we shall be granted co-ownership of the new product in the ratio of the value, at the time of the conversion, of the goods delivered (final invoice amount including VAT) to the other items used in the conversion. In general, all provisions relating to goods supplied under reservation, shall apply also to the new product resulting from the conversion.
(9) Should the goods delivered be inseparably mixed or blended with other items not owned by us, we shall have co-ownership of the new product in the ratio of the value, at the time of the mixing or blending, of the goods delivered (final invoice amount including VAT) to the other items used in the mixing or blending. If the mixing or blending is made in such a manner that the customer’s item can be considered to be the main component, it shall be deemed agreed that the customer shall transfer proportionate co-ownership to us. The customer shall keep the solely or jointly owned product so created in safe custody for us.
(10) We undertake to release, at the customer’s request, the collateral items granted to us, provided that the realizable value of such collateral items exceeds the collateralized claims by more than 10%; we shall be free to choose the which collateral items to release.
§ 6: Liability for Defects
(1) Claims for defects asserted by the customer shall not be valid unless the customer has complied with its obligation to inspect the goods and give notice of defects according to Section 377 HGB (German Commercial Code).
(2) In the event of defects, the customer shall be entitled to demand cure of breach of contract, in which case we may cure the breach, at our option, by rectifying the defects or supplying new goods that are free of defects. The customer shall allow us reasonable time and opportunity for curing the breach. Only in urgent cases where operational safety is at risk or heavy damage needs to be averted – in which cases we shall be informed without delay – shall the customer have the right to rectify the defect itself, or have it rectified by others, and demand that we reimburse the costs incurred.
(3) If the event of any rectification of defects or any replacement delivery undertaken by us, we shall be obliged to bear all costs and expenses related to the curing of the breach, in particular transportation and handling costs, cost of labor and cost of material, provided that such costs and expenses are not increased due to circumstances that require the goods be shipped to a different place of performance, unless such shipment conforms to the intended use.
(4) Should the efforts to cure remain unsuccessful, the customer may demand, at its option, the rescission of the contract or a reduction of the purchase price.
(5) Any damage which is caused by one of the following reasons and for which we are not to blame as there has been no violation of obligations on our part shall not create any claims under liability for defects: Improper or incorrect use after passage of risk, especially subjection to excessive strain, faulty assembly or faulty startup by the customer or others despite the fact that proper assembly instructions were made available, normal wear and tear, faulty or negligent use or operation, use of unsuitable utilities or unsuitable replacement materials, faulty construction work, non-observance of operating instructions, unsuitable conditions of use or operation, especially unfavorable chemical, physical, electromagnetic, electrochemical or electrical conditions, weather and nature phenomena or unusually high or low ambient temperatures.
(6) In all other respects, our obligation to provide compensation for damage and futile expenditure related to defects shall be governed exclusively by Article 7 of these Terms and Conditions.
(7) The statute of limitations for claims under liability for defects shall be 12 months from the date of passage of risk. This shall not apply to the extent that the goods are usually used for a structure and have caused the defect.
§ 7: Liability
(1) We shall be liable according to the legal regulations to the extent that the customer asserts claims for damages based on deliberate intention or gross negligence, including deliberate intention or gross negligence on the part of our agents or assistants. To the extent that we cannot be blamed for deliberate breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(2) We shall be liable according to the legal regulations to the extent that we culpably violate an essential contractual obligation; in this case the liability for damages shall also be limited to the foreseeable, typically occurring damage.
(3) To the extent that the customer, due to a negligent violation of an obligation, has a claim for compensation in lieu of performance, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(4) The foregoing shall be without prejudice to culpable loss of life, bodily injury or damage to health. This shall apply also to cases of mandatory liability under the product liability law.
(5) Unless otherwise stipulated hereinbefore, liability shall be excluded.
(6) To the extent that our liability for damages is excluded or restricted, this shall apply also in respect of the personal liability for damages of our workers, employees, co-workers, agents and assistants.
§ 8: Export Restrictions
Due to their nature or their use or their final destination, the supplies and/or services detailed in our order acknowledgement may be subject to export control under German, European or US regulations. Thus our obligation to supply goods/services is subject to the condition that the goods/services are not covered by any prohibition imposed by these regulations or that we are not denied the official approvals, clearances or permits that we require for implementing the contract.
§ 9: Place of Performance and Jurisdiction
(1) If the customer is a merchant/company, the location of our registered office shall be the place of jurisdiction; we may opt, however, to sue the customer at its place of domicile.
(2) The law of the Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(3) Unless anything to the contrary is stated in our order acknowledgement, our registered office shall be the place of performance.