General terms and conditions
§ 1 General
(1) Schneeberger GmbH delivers only under its general payment and delivery terms. All agreements shall only become legally valid by written confirmation by Schneeberger GmbH. Purchasing conditions of the orderer or any other deviating agreements shall only be deemed accepted when they are confirmed in writing by Schneeberger GmbH as an addition to these sales conditions.
(2) References or counter-confirmations of the orderer under reference to his purchasing conditions are hereby expressly objected to by Schneeberger GmbH.
§ 2 Offer and Conclusion of the Contract
(1) The offers of Schneeberger GmbH shall be subject to confirmation until accepted by the orderer and may be revoked at any time until receipt of the written acceptance statement or until delivery of the object of the delivery by Schneeberger GmbH.
(2) Offers and orders of the orderer shall only become legally binding by written order confirmation or by delivery of the objects of the delivery by Schneeberger GmbH.
(3) Schneeberger GmbH reserves changes to the object of the contract during the term of delivery if the object of the contract does not experience any changes that are not reasonable for the customer by this. Schneeberger GmbH shall have the right to make use of third parties for performing the contract.
(4) The information contained in catalogues, brochures, circulars, advertisements, figures and price lists regarding weights, dimensions, prices, performance and the like shall be non-committal unless it expressly becomes part of the contract. The precise compliance with DIN standards, drawings, weights and dimensions as well as plans shall only be binding upon Schneeberger GmbH if this has been expressly agreed on in writing. Otherwise, the contractually owed properties of the products of Schneeberger GmbH shall be according to its product description exclusively, any ideas unilaterally mentioned by the orderer shall not be considered.
§ 3 Scope of the Deliveries
(1) The information sent by Schneeberger GmbH in the order confirmation shall be essential for the scope of delivery; if there is no order confirmation, the information in the offer shall be essential.
(2) The orderer assumes full responsibility for the accuracy of the documents to be delivered by him, such as drawings,specifications, gauges, templates, moulds and tools. Any information on dimensions and the like shall require written confirmation.
§ 4 Prices
(1) If no deviating written confirmation has been sent, all prices shall be ex works Höfen/Enz, excluding packaging, insurance, transport, customs, etc. plus the respective statutory VAT (net value of the goods). (2) Outbound, waiting and travel times shall be compensated for as working time. If a flat rate for installation or free installation is agreed on, surcharges for any overtime, night, Sunday and holiday work as well as any waiting times not due to the fault of Schneeberger GmbH shall be compensated for separately. Expenses for travel, meals, accommodation and phone shall be added.§ 5 Delivery Period
(1) The delivery period shall be the date indicated expressly in the order confirmation by Schneeberger GmbH. If the orderer does not provide the documents to be procured by him or raw material to be delivered by him in time, the delivery period shall extend by this delay period accordingly. This shall also apply if raw material must be inspected for its suitability for use in the scope of goods receipt inspection at Schneeberger GmbH.
(2) The delivery period must be complied with if Schneeberger GmbH has provided the objects of the delivery for delivery and informed the orderer of readiness for delivery or, in case of a corresponding agreement, if the object of the delivery has left the works of Schneeberger GmbH by the time of its expiration.
(3) The delivery period shall extend appropriately in case of measures in the scope of labour dispute, in particular in case of strike and lockout and if there are any unforeseen obstacles that are outside of the area of influence of Schneeberger GmbH if such obstacles influence the completion or delivery of the object of the delivery. This shall also apply if the circumstances occur for subsuppliers. The above circumstances shall also not be due to the fault of Schneeberger GmbH if they occur during already-present default. Schneeberger GmbH shall inform the orderer as quickly as possible of the commencement and end of such obstacles in important cases.
(4) If Schneeberger GmbH enters default, the orderer must set an appropriate grace period for Schneeberger GmbH if intended by law. After the expiration of this grace period, he may declare rescission of the contract if the goods have not been reported to him as ready for shipping by this time. (5) Partial deliveries shall be permissible.
§ 6 Payment
(1) Invoicing shall take place at dispatch if nothing different has been agreed on. If goods ready for shipment cannot be dispatched for reasons due to the risk of the customer, the invoice shall be issued and fall due anyway.
(2) If not agreed on differently, invoices shall be payable without any deduction within 30 days from the date of the invoice.
(3) Deductions of discounts shall only be permissible if agreed expressly and if the orderer has balanced or concurrently balances all unpaid amounts invoiced by Schneeberger GmbH.
(4) Bills of exchange are only accepted by Schneeberger GmbH based on special agreements. The acceptance of bills of exchange or cheques shall only be in lieu of performance. Discount expenses and other expenses for bills of exchange shall be assumed by the orderer.
(5) The orderer shall not have the right to set off against any claims he has towards Schneeberger GmbH unless these claims are undisputed or have been finally determined.
(6) In case of default, Schneeberger GmbH shall have the right to charge interest amounting to 8 % above the respective base interest rate – and at documentation of a higher rate of the interest to be paid by Schneeberger GmbH to its bank, this higher interest rate. In case of irregular and unpunctual payment by the orderer, if there is any doubt in his ability to pay or willingness to pay, Schneeberger GmbH may demand immediate payment or collateral for deliveries made or pending and cease further deliveries until receipt of such collateral. Furthermore, Schneeberger GmbH shall have the right to rescission of the contract and/or to claim damages in case of fault. Schneeberger GmbH may also forbid further sale of any goods delivered subject to retention of title, demand return or transfer of indicated possessions at the expense of purchaser and revoke any authorisation to collect.
§ 7 Retention of Title
(1) The goods delivered shall remain the property of Schneeberger GmbH until complete payment of the purchasing price.
(2) The orderer shall have the right to sell on the goods subject to retention of title in his normal course of business; pledge or provision as collateral shall, however, only be permitted with the consent of Schneeberger GmbH.
(3) Orderer already assigns any claims he has from further sale of the goods subject to retention of title to Schneeberger GmbH; Schneeberger GmbH accepts the assignment. Notwithstanding the assignment and right to collect of Schneeberger GmbH, orderer shall have the right to collect for as long as he meets his obligations towards Schneeberger GmbH and does not experience financial collapse.
(4) Upon demand by Schneeberger GmbH, orderer shall provide the information on the assigned claim required to collect, in particular by providing Schneeberger GmbH with a list of debtors with the names and addresses, amounts of the claims and the dates of invoicing, and inform the debtors of the assignment.
(5) Orderer shall perform any processing and finishing of the goods subject to retention of title for Schneeberger GmbH without any obligations arising from this for Schneeberger GmbH. In case of processing, connection or mixture of the goods subject to retention of title with other goods that do not belong to Schneeberger GmbH, Schneeberger GmbH shall be due a resulting co-property share in the new object at the ratio of the invoiced value to the value of the remaining processed goods at the time of processing, connection or mixing. If the orderer procures sole property in a new object, the contracting partners agree that the orderer shall grant Schneeberger GmbH co-title in the new object at the ratio of the amount invoiced for the processed or connected or mixed goods subject to retention of title and keep them free of charge for Schneeberger GmbH.
(6) If the goods subject to retention of title are sold on together with other goods, no matter if without or after processing, connection or mixing, the advance assignment agreed on above shall only apply at the amount invoiced for the goods subject to retention of title that are sold on together with the other goods.
(7) The seller shall inform Schneeberger GmbH without delay of any forced execution measures of third parties in connection with the goods subject to retention of title or the claim assigned in advance, under submission of the documents required for intervention.
(8) Authorisation of the orderer for disposal of the goods subject to retention of title and collection of the assigned claim shall lapse in case of payment default of the orderer, in case of rejected bills of exchange and cheques and in case of financial collapse – specifically if an application for insolvency proceedings is filed for – of the orderer. In such cases, Schneeberger GmbH shall have the right to take possession of the goods subject to retention of title and the orderer shall be obliged to release the goods subject to retention of title to Schneeberger GmbH without Schneeberger GmbH first needing to declare rescission of the contract. Orderer shall also be obliged to release the goods subject to retention of title if he has connected them with other movable objects and disassembly is required for release. This obligation shall not apply only if the object delivered by Schneeberger GmbH has become an essential part of a consistent object in the sense of § 947 BGB. If the purchaser was a full merchant, return of the goods subject to retention of title shall only constitute rescission of the contract if this is expressly declared by Schneeberger GmbH. (9) Schneeberger GmbH commits to releasing collateral due to it according to the above provisions at its choice on demand of the orderer where its value exceeds the claim by 10 % or more.
§ 8 Acceptance and Inspection
(1) Schneeberger GmbH shall only be obliged to enter into a transport insurance upon the express demand of orderer. The costs shall be assumed by orderer.
(2) The goods shall be deemed accepted if complaints of immediately recognisable defects are not issued without delay after receipt of the shipment. Later complaints no longer need to be considered by Schneeberger GmbH. In case of hidden defects, Schneeberger GmbH shall only be liable within the statutory period upon their becoming obvious, but no longer than within the statutory warranty periods.
§ 9 Expiration of Claims for Defects
(1) The orderer shall be obliged to inspect the objects of the delivery by Schneeberger GmbH for defects at once upon receipt of the delivery. In the scope of this inspection, the corresponding random sample tests shall be performed as well.
(2) Complaints due to incomplete or incorrect deliveries or due to recognisable defects shall be indicated to Schneeberger GmbH in writing without delay and the corresponding defective parts shall be returned to Schneeberger GmbH upon its request. Hidden defects that cannot be found even in random sample tests shall be reported to Schneeberger GmbH without delay upon their discovery. If complaints or defects are not reported in time, the delivery shall be deemed approved under exclusion of any claims due to incomplete, incorrect and defective delivery.
(3) The examination and complaint obligations shall also include the assembly instructions and over- or under-deliveries.
(4) The properties of the goods shall expressly be according to the agreed technical delivery terms. If Schneeberger GmbH has to perform the delivery according to drawings, specifications, templates, etc. of the orderer, the orderer shall assume the risk for suitability for the intended purpose.
(5) Schneeberger GmbH shall not be liable for any defects of title caused by unsuitable or improper use, defective assembly or start-up by the orderer or defective or negligent treatment, and neither shall it be liable for the consequences of improper modifications or repairs performed by the orderer or third parties without the consent of Schneeberger GmbH. This shall also apply for defects that only reduce the value or suitability of the goods inessentially.
(6) Claims from defects of title shall expire within 12 months of delivery. If dispatch is delayed without fault of Schneeberger GmbH, liability shall expire no later than 18 months from readiness for dispatch. This shall not apply if the law prescribes longer periods as binding. (7) Goods subject to complaints shall be returned to Schneeberger GmbH without delay upon demand. Schneeberger GmbH shall assume transport costs if the complaint of defects is justified. If the orderer does not meet these obligations or modifies the goods already subject to complaint without the consent of Schneeberger GmbH, he shall lose any claims from defects of title. In case of justified complaint of defects issued in time, Schneeberger GmbH shall, at its discretion, improve the goods subject to complaint or deliver a proper replacement. The place for subsequent performance shall be the seat of Schneeberger GmbH. (8) The orderer shall have a right to rescission in the scope of the statuary provisions if Schneeberger GmbH – under consideration of the statutory exceptions - lets an appropriate grace period set for it for improvement or replacement delivery due to a defect pass without success. (9) The orderer shall not be due any claims for defects in the following cases: • In case of damage that has resulted from improper treatment or over-strain by the orderer or his purchasers;
- If installation and treatment provisions under the law or as issued by Schneeberger GmbH are not observed by the orderer or his purchasers, except if the defect is not due to this non-observance;
- If the object of the delivery has been created based on the specifications of the orderer, in particular according to raw materials delivered by him or drawings provided by him and the defect of the object of the delivery is due to this raw material or the specifications/drawings.
§ 10 Other Liability
(1) If nothing different results from the following, other and further claims of the orderer against Schneeberger GmbH shall be excluded, this shall specifically apply for damages claims due to violation of obligations from the legal relationship and from tort. Schneeberger GmbH shall therefore not be liable for damage not resulting at the delivered goods as such. In particular, Schneeberger GmbH shall not be liable for lost profit or other financial damage of the orderer.
(2) The above limitations of liability shall not apply in case of wilful intent, gross negligence of the statutory representatives or managing employees, as well as in case of culpable violation of essential contractual obligations or if Schneeberger GmbH has assumed a warranty for the properties of the object.
(3) In case of culpable violation of essential contractual obligations, Schneeberger GmbH, shall be liable only for the reasonably foreseeable damage typical for the contract, except in cases of wilful intent or gross negligence of the statutory representatives or managing employees.
(4) Limitation of liability also shall not apply in cases where liability under the Product Liability Act applies for injury or property damage to privately used objects due to defects of the delivered goods. It also shall not apply in case of violation of life, body or health and if any represented properties are missing, if and as far as the representation had the purpose of securing the orderer against damage that was not incurred at the delivered goods as such.
§ 11 Copyright and Commercial Property Rights of Third Parties
(1) Schneeberger GmbH reserves property and copyrights in templates, cost estimates, drawings and similar information in physical and immaterial form; they must not be made accessible to any third parties.
(2) Schneeberger GmbH commits to only making information and documents designated as confidential by the orderer available to third parties with his consent. (1) Verification of the documents provided by the orderer not violating any third-party rights, specifically copyrights, commercial property rights (design patents, patents, utility patents, warning signs) shall be the obligation of the orderer. If any claim is raised against Schneeberger GmbH by a third party due to use, utilisation or reproduction of the documents and templates provided by orderer because of violation of copyrights and/or commercial property rights or due to violation of the law against unfair competition, the orderer shall support Schneeberger GmbH in defence against these claims due to violations of rights and reimburse Schneeberger GmbH for any damage (including lawyers' and process costs) that may be incurred from this by Schneeberger GmbH.
§ 12 Passing of Risk
(1) If the goods are sent to the orderer at his request, the risk of accidental destruction and accidental deterioration of the object of the delivery shall pass to the purchaser upon handover of the object of the delivery to the forwarder, carrier or shipping agent. This shall also apply if not shipped from the site of performance and/or if Schneeberger GmbH assumes the freight costs.
(2) If the goods are ready for shipment and dispatch is delayed for reasons due to the fault of the orderer, the risk shall pass to the orderer at receipt of the notice on readiness for dispatch.
§ 13 Final Provision
(1) These payment and delivery conditions, as well as any legal relationships resulting from this contract between Schneeberger GmbH and the orderer shall be subject to the law of the Federal Republic of Germany.
(2) Place of performance for the payment and delivery shall be Höfen/Enz.
(3) Place of jurisdiction shall be the seat of Schneeberger GmbH, except where mandatory statutory provisions oppose this. Schneeberger GmbH may also raise a claim before the court relevant for the seat of the orderer.
(4) Side agreements, reservations, modifications and amendments shall require written confirmation by Schneeberger GmbH to be vaid.