Terms and Conditions of Sale of Schuberth GmbH, Magdeburg, Germany
§ 1
General Conditions – Scope
1) Our conditions of sale shall apply exclusively; we will not recognize contradictory conditions of sale or any conditions of sale of our customers’ if such conditions of sale deviate from ours, unless we have approved their applicability in writing. Our conditions of sale shall also apply if we make unconditional deliveries to a customer even though we are aware of contradictory conditions of sale of the customer’s or of customer conditions of sale deviating from ours.
2) Any agreements made between us and the customer for the purpose of executing this contract shall be made in writing.
3) Our conditions of sale shall only apply for companies, public-law bodies, or public-law special assets according to section 310, clause 1 of the German Civil Code (BGB).
4) Our conditions of sale shall also govern all future business with the customer.
§ 2
Quotation – Conclusion of Contract
1) Our quotations are subject to change without notice and non-committal. To attain legal validity, declarations of acceptance or any orders require our confirmation in writing or by fax.
2) Our representatives or other agents are not authorized to make side agreements orally or to make oral commitments that go beyond the contents of the written contract.
§ 3
Period of Delivery
1) Delivery dates or deadlines, which may be agreed with or without binding effect, must be agreed in writing.
2) Any delays in delivery or performance due to force majeure or to events that seriously interfere with our delivery or render it impossible – including strike, lockout, official instructions, etc., even if these only affect our suppliers or subcontractors – shall not be our responsibility, even if we have committed ourselves to binding deadlines or delivery dates. Such force majeure or serious events shall entitle us to delay deliver or performance by the duration of the impediment plus an appropriate start-up period, or to rescind the contract in whole or in part because of the unperformed part of the contract.
3) If the impediment lasts longer than two months, the customer shall be entitled to rescind the unperformed part of the contract. If the delivery time is extended or if we are exonerated from our obligation, this shall not entitle the customer to make claims for damages. We shall only be entitled to refer to the above-mentioned circumstances if we inform the customer of these immediately.
4) Where we are responsible for the failure to meet deadlines or dates to which we have committed ourselves or where we are in delay of performance, the customer shall be entitled to damages for delay to the tune of 0.5% of the invoice value of the deliveries and performance affected by the delay; however, the maximum damage claimable for such delays shall be 5% of said invoice value. Any further claims shall be excluded unless the delay is due to gross negligence or willfulness on our part.
5) Within reasonable limits we shall have the right to partial deliveries or partial performance.
6) Meeting our delivery and performance obligations requires that the customer meet his obligations in a timely and proper way.
7) If the customer is in default in acceptance we shall be entitled to demand indemnity for the damage we incurred. Upon default in acceptance, the risk of accidental deterioration or loss shall pass to the customer.
§ 4Price, Packaging, Shipment, InsuranceOur prices apply ex factory, excluding packaging and insurance. Unless otherwise agreed, shipment shall be at the customer’s expense and in a way customary in trade or commerce; we shall not be responsible for sourcing the cheapest way of shipment. According to section 447 BGB the risk shall devolve upon the customer.
§ 5
Liability for Defects
1) The properties of the merchandize sold by us shall be according to the product description attached to the contract only.
2) Customer claims based on defects require that the customer has dispensed his obligations to examine the merchandize and to lodge his complaints in a proper way according to section 377 German Commercial Code (HGB). In case of obvious defects, the customer shall only be entitled to claim damages if we are notified of the defects in writing within ten days of delivery.
3) Where the defect is a defect in a purchased item we shall be free to choose between subsequent performance by means of correction of defects or delivery of a new, faultless item. In the event of correction of defects we shall only be liable for the expenses incurred in the correction – such as costs of wages, material, transport, and travel – insofar as such costs are not increased by subsequent removal of the object delivered to a place different from the customer’s seat, unless such removal is in accordance with the object’s appointed use.
4) The customer shall establish a deadline for subsequent performance, which may not be less than 20 business days from the day we were notified of the defect. Any merchandize concerning which the customer has complaints may only be returned with our approval.
5) If subsequent performance is unsuccessful, the customer shall be free to choose between rescission or abatement of purchase price.
6) We shall be liable according to statutory provisions if the customer claims damages based on willfulness or gross negligence on our part, including willfulness or gross negligence on the part of our representatives or vicarious agents. Unless we are charged with willful breach of contract our liability shall be limited to the damage that can be expected to occur under typical circumstances.
7) We shall be liable according to statutory provisions if we are in culpable breach of a material contractual obligation, i.e. an obligation that defines the contract and whose discharge the customer can reasonably rely on. However, in this case our liability shall be limited to the damage that can be expected to occur under typical circumstances.
8) Our liability for mere economic loss shall be limited to €7,500,000 unless the damage was caused willfully.
9) This shall not affect our liability for culpable violation of life, limb, or health; the same shall apply to our compulsory liability under the Product Liability Act.
10) Unless otherwise stipulated above, all and any liability shall be excluded.
11) The period of limitation for claims based on defects shall be 12 months from the day of passage of risk.
12) The period of limitation for delivery recourse under sections 478 and 479 BGB shall not be affected; this period is five years from the day of delivery of the defective item.
§ 6
Aggregate Liability
1) Any liability for damages more extensive than envisaged by these Terms and Conditions of Sale shall be excluded, irrespective of the legal nature of the claim made. This shall apply in particular for claims for damages based on culpa in contrahendo, on other violations of obligations, or on tortious acts resulting in damage to property according to section 823 BGB.
2) The limitation according to paragraph 1) shall also apply if the customer claims indemnity for futile expenses in lieu of performance rather than indemnity for damages.
3) Insofar as liability for damages on our part is excluded or limited, such exclusion or limitation shall also apply to the personal liability of our officers, employees, staff members, representatives, and vicarious agents.
§ 7
Retention of Title to Ownership
1) We shall retain ownership in the purchased item until all payments from our business relationship with the customer has been received. In the event of violation of the contract by the customer, in particular delay in payment, we shall be entitled to reclaim the purchased item. Our reclaim of the purchased item shall constitute rescission of the contract. After reclaiming the purchased item we shall be entitled to use it; the proceeds from such use shall be credited against the customer’s liabilities – minus reasonable costs of use.
2) The customer shall be obliged to treat the purchased item with care; in particular, he shall be obliged to insure it at replacement value against fire, water, and theft at his own expense. Any necessary maintenance and inspection shall be performed in a timely way by the customer at his own expense.
3) In the event of seizure or other interference by third parties the customer shall immediately inform us in writing so that we can take legal action according to article 771 of the German Code of Civil Procedure (ZPO). If such third party is unable to reimburse us for the court fees and other costs involved in action according to article 771 ZPO, the customer shall be liable for the expenses we incur.
4) The customer shall be entitled to resell the purchased item in the course of ordinary conduct of business; however, he hereby assigns all claims arising to him from such resale against his customers or against third parties to the tune of the final invoice total (including value-added tax) and irrespective of whether or not the purchased item has been resold with or without reprocessing. The customer shall retain the right to collect his claim even after this assignment. Our right to collect the claim ourselves shall not be affected by this. However, we commit ourselves not to collect the claim as long as the customer meets his payment obligations from the proceeds generated, is not in delay in payment, and in particular as long as there is no petition for institution of composition or insolvency proceedings and no suspension of payments. Where this is the case, however, we shall be entitled to require the customer to inform us about the claims assigned and the corresponding debtors, to give us all and any information required to collect the debt from them, to hand over all and any corresponding documents, and to inform the debtors (third parties) of the assignment.
5) Reprocessing or remodeling of the purchased item by the customer shall always be on our behalf. If the purchased item is reprocessed jointly with other items that do not belong to us we acquire joint ownership in the new item in proportion to the value to the purchased item (final invoice total including value-added tax) relative to the other items processed at the time of reprocessing. In all other respects, the same stipulations shall apply to the newly created item as for the purchased item delivered subject to conditions.
6) If the purchased item is joined with other items that do not belong to us we acquire joint ownership in the new item in proportion to the value of the purchased item (final invoice total including value-added tax) relative to the other items joined at the time of joining. If joining occurs such that the customer’s item must be considered the main item it shall be deemed to be agreed that the customer grants us joint pro-rata ownership. The customer shall hold the item, thus created, in our sole or joint ownership in safe custody.
7) As surety for our claims against him, the customer shall also assign to us the claims arising to him against a third party from the joining of the purchased item with real estate.
8) Insofar as the realizable value of our sureties exceeds the claims for which surety must be provided by more than 20%, we commit to releasing the sureties to which we are entitled upon the customer’s request. We shall be free to choose which sureties to release.
§ 8
Payment
1) Unless otherwise agreed, payment shall be due without discounts upon receipt of the invoice.
2) Deduction of a cash discount shall only be allowed after separate agreement in writing. We shall only grant a cash discount to the customer if he has always met his previous liabilities towards us.
3) Bills of exchange and checks shall only be deemed payment after they have been honored. Bills of exchange will only be accepted after prior written agreement to this effect; any extra charges shall be at the customer’s expense.
4) The customer shall only enjoy counterbalancing rights if his counterclaims have been found to be justified with legal effect, are undisputed, or have been recognized by us. He shall also enjoy a right of retention insofar as his counterclaim is based on the same contractual relationship.
5) We shall always be entitled to assign our claims, in particular within the context of factoring. Any terms and conditions of purchase of the customer’s that are contrary to this stipulation shall not apply.
6) We have currently assigned our claims to BFS finance GmbH in Verl, Germany. Consequently, payments in full satisfaction of debt can only be made to BFS finance GmbH. The bank details can be found on the invoice.
§ 9
Delay in Payment
If the buyer falls behind with his payments he shall be liable to penal interest to the tune of the ECB’s base interest rate plus 10% for the duration of the delay in payment.
§ 10
Assignment of the Buyer’s Claims
1) Without our express consent neither the contract concluded with us nor individual claims arising from it may be assigned to third parties in full or in part.
2) Upon request we shall give our consent according to paragraph 1) unless the persons who are to acquire the customer’s claim or claims or to whom the contract is to be assigned have counterclaims against us.
§ 11
Copyrights
1) The purchase of our merchandize only entitles the buyer to use our copyrights insofar as this is necessary for the use of the individual item. Technical analysis, use of process information given, or any further use of copyrights is not permissible.
2) Likewise, advertising with our products over and above the level customary in trade or commerce, or advertising use of our business partnership shall also not be permissible.
§ 12
Place of Jurisdiction – Place of Performance
1) If the customer is a businessman, a public-law body, or a public-law special asset, the place of jurisdiction shall be Magdeburg (the location of our headquarters). In payment issues, the creditor shall also be free to sue the customer in Gütersloh or at his seat.
2) Unless our order confirmation states otherwise, the place of performance for delivery and payment shall be our registered office.
§ 13
Final Provisions
This contract shall be construed under the laws of the Federal Republic of Germany. UN purchasing law shall not apply.
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