Sales and Delivery Conditions of Schlaadt GmbH
as of: March 7, 2006
1. Scope
The following General Terms and Conditions apply to all – including future – offers, contracts, deliveries and other services, unless they are modified or excluded with the express consent of the seller. The Buyer’s General Terms and Conditions shall not be binding even if the Seller does not expressly object to them again.
2. Offer and conclusion, subject of delivery
Offers are always subject to change; contracts only become binding upon written confirmation from the seller.
Insofar as sales employees or commercial agents or traveling salesmen make verbal subsidiary agreements or give assurances that go beyond the written purchase agreement, they are only authorized to do so by the seller if the seller has authorized them to do so in writing to the buyer or subsequently confirms (approves) the agreements or assurances in writing.
The average default samples that we submit to the customer for inspection and written approval are decisive for the quality and design of our goods. The customer bears sole responsibility for the structurally correct design of our goods and for their suitability.
Special properties such as oil-resistant, flame-retardant, antistatic, colored, must be additionally requested in the order documents.
3. Dimensions, weights, properties and goods
The services are specified in such a way as can be expected according to experience under proper operation. Deviations according to dimension are permitted within the scope of rough DIN 7168. We would also like to point out that weights can have a tolerance of * 10%. With regard to all other technical properties, we refer to DIN 55471.
4. Tools (molds)
The tools (molds) specially manufactured for the buyer by us or on our behalf remain the property of the seller until full payment has been made by the buyer. The seller is obliged to store and maintain the molds for the customer. The storage obligation expires if no further order is placed within 2 years after the last delivery.
If the buyer’s needs exceed the capacity or the total output number of the tool, it is necessary to create a new tool or to eliminate damage caused by wear. The resulting costs shall be borne by the buyer.
If costs for the production of molds were partially assumed by the seller, a claim for surrender only exists after reimbursement of the pro rata mold costs paid by the seller.
5. Obligations to cooperate on the part of the customer
If reinforcement parts, e.g. parts to be foamed or injected, are supplied by the buyer, then the buyer is obliged to deliver them free of the seller’s factory with a surcharge of 5% for any rejects, and in good time in perfect condition and in such quantities that uninterrupted processing is possible. Otherwise, the buyer is obliged to compensate for the additional costs incurred through his fault. In such cases, the seller reserves the right to interrupt production and resume it at a later date.
6. Third-party property rights
If the seller has to deliver items according to drawings, models or samples that are handed over by the buyer, the buyer assumes the guarantee that the manufacture and delivery of the items does not violate the property rights of third parties.
If a third party nevertheless asserts claims for protection or damages relating to such items, the buyer shall indemnify the seller against all claims for damages by third parties, including external and internal legal prosecution costs. The seller is obliged to notify the buyer immediately of the assertion of third-party property rights. After hearing the buyer, the seller is entitled to discontinue the production of the items for which third parties assert property rights until the matter has been clarified in court. In this case, the buyer must reimburse the costs incurred up to that point.
7. Prices and payments
The prices are ex works, loaded wagon or ship departure station, for dispatch by truck from the delivery plant, unless otherwise agreed, and plus value added tax at the respective statutory rate.
Invoices are payable immediately after receipt of the goods without deduction.
Terms of payment and discounts require a special written agreement. Any discounts and rebates granted shall cease to apply in the event of default in payment (§ 284 BGB); this also applies in the event of partial default in payment.
In the event of default in payment by the buyer, the seller is entitled to charge interest at a rate of 5% above the respective base rate of the European Central Bank as damages for default. However, proof of higher or lower damages caused by default remains open.
Payment by check or bill of exchange is accepted as conditional payment and requires the seller’s consent; discount and bill charges are borne by the buyer.
Unless otherwise agreed, payment for tools (molds) is made in cash without deduction; in the amount of 50% of the price when ordering, the remainder after receipt and acceptance of the default samples by the buyer.
The seller calculates the prices and fees agreed upon at the time of conclusion of the contract, which are based on the cost factors valid at that time. Should one of the factors, raw materials, wages, energy, freight, exchange rates, taxes, duties and customs change by more than 10% in the period between the conclusion of the contract and the individual call-offs, the parties shall renegotiate the price.
If no agreement is reached, either party is free to terminate the contract with immediate effect.
The seller’s field staff are not authorized to collect payments.
8. Terms of delivery, default, impossibility of delivery
If no delivery period has been agreed, the seller has the right to demand acceptance of the goods 3 months after the date of the order confirmation – even without a threat of rejection. If the buyer does not comply with this deadline, the seller is entitled to withdraw from the contract or claim damages.
The expiry of certain delivery periods and dates does not release the buyer, who wishes to withdraw from the contract or claim damages for non-performance, from granting a reasonable grace period for performance and declaring that he will refuse performance after the expiry of the period.
Partial deliveries are permitted.
The delivery period shall be extended appropriately – even within a delay – in the event of force majeure and all unforeseen obstacles that occur after conclusion of the contract and for which the seller is not responsible, insofar as such obstacles demonstrably have a significant influence on the delivery of the sold item. This also applies if these circumstances occur at the seller’s suppliers and their sub-suppliers.
The seller shall notify the buyer of the beginning and end of such obstacles as soon as possible. The buyer may request the seller to declare whether he will withdraw from the contract or deliver within a reasonable period. If the seller does not declare this immediately, the buyer may withdraw from the contract. Delivery periods shall be extended by the period in which the buyer is in default with his contractual obligations – within an ongoing business relationship also from other contracts.
The seller is not responsible for delays and non-delivery (impossibility) of delivery as long as he, his vicarious agents and upstream suppliers are not at fault. In all other respects, he shall be liable in accordance with the statutory provisions. If he is then liable for damages, a claim for damages to which the buyer is entitled – provided that the contract is related to a commercial activity of the buyer – is limited to the damage foreseeable at the time of conclusion of the contract, but not more than 10% of the value of that part of the total delivery that cannot be used in time or in accordance with the contract as a result of the delay or non-delivery. This restriction does not apply if the seller is compulsorily liable in cases of intent or gross negligence.
The seller is in no way responsible for delayed or omitted (impossible) deliveries caused by the fault of his upstream supplier.
The buyer’s right to withdraw from the contract after fruitless expiry of a reasonable grace period set for the seller remains unaffected.
Due to production specifics, the seller reserves the right to deliver 10% more or less.
9. Dispatch and transfer of risk
Unless otherwise agreed, the mode of dispatch and means of transport are at the seller’s discretion. The goods are insured at the buyer’s request and expense.
Furthermore, the risk passes to the buyer upon delivery of the goods to a forwarding agent or carrier, but at the latest when the goods leave the seller’s factory or warehouse. This also applies if the goods are delivered by us freight prepaid. In the event of damage, the seller is obliged to assign his claims against the forwarding agent or carrier to the buyer.
If sale is agreed free to the place of destination, delivery shall be made from the loading station and the buyer shall bear the freight costs. The buyer shall pay freight and other transport costs, customs duties and insurance costs incurred on the goods without any discount and shall present them if the seller deems this necessary and requests it at its own discretion (§ 315 BGB).
Delivery free to warehouse means delivery without unloading, provided that there is an access road that can be used by a heavy truck. Unloading must be carried out by the buyer immediately and properly. Waiting times of more than one hour will be charged to the buyer.
If no person ready to accept delivery can be found at the place of delivery during normal business hours, any resulting risks and additional costs shall be borne by the buyer.
Reusable pallets, mesh boxes and tarpaulins are returned to us free of charge or, if possible, taken back by our vehicles.
10. Distribution
The buyer may only distribute and resell the delivered goods in the customary manner.
11. Retention of title and current account, advance assignment and balance clause as well as extended retention of title
The goods remain the property of the seller until full payment of all claims, including ancillary claims, claims for damages and credit of checks and bills of exchange.
The retention of title also remains in effect if individual claims of the seller are included in a current account and the balance is drawn and acknowledged.
The buyer is only entitled to resell the goods subject to retention of title, taking into account the following provisions and only on the condition that the claims pursuant to clause 5 actually pass to the seller.
The buyer’s authority to sell goods subject to retention of title in the ordinary course of business ends with the revocation by the seller due to a sustained deterioration of the buyer’s financial situation, but at the latest with the suspension of payments or with the application for or opening of insolvency proceedings over his assets.
The buyer hereby assigns to the seller the claim with all ancillary rights arising from the resale of the goods subject to retention of title.
If the buyer has sold the claim within the framework of genuine factoring, he assigns the claim against the factor taking its place to the seller. The seller accepts this assignment.
If goods subject to retention of title are installed as an essential component in a device or on the property of a third party, the buyer hereby assigns to the seller the claims against the third party or the party concerned arising for remuneration in the amount of the value of the goods subject to retention of title with all ancillary rights, including one for the granting of a security mortgage, with priority over the remainder; the seller accepts the assignment.
If goods subject to retention of title are installed as an essential component in a device or property of the buyer, the buyer hereby assigns the claims arising from the sale of the device or property or from property rights in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the rest; the seller accepts the assignment.
The buyer is authorized to collect the assigned claims as long as he meets his payment obligations. The authorization to collect expires upon revocation, but at the latest in the event of default in payment by the buyer or in the event of a significant deterioration in the buyer’s financial circumstances. In this case, the seller is authorized by the buyer to inform the customers of the assignment and to collect the claims himself. The buyer is obliged to hand over to the seller, upon request, an exact list of the claims to which the seller is entitled, stating the name and address of the customers, the amount of the individual claims, the invoice date, etc., and to provide the seller with all information necessary for the assertion of the assigned claims and to allow the verification of this information.
If the value of the security existing for the seller exceeds its claims as a whole by more than 20%, the seller is obliged to release securities of its choice to this extent at the request of the buyer or a third party impaired by the seller’s over-collateralization.
Pledging or transferring ownership of the reserved goods or the assigned claims for security purposes is not permitted. The seller must be notified immediately of any seizures, providing the name of the lien creditor.
If the seller takes back the delivery item on the basis of the retention of title, this only constitutes a withdrawal from the contract if the seller expressly declares this. The seller may satisfy himself from the returned goods subject to retention of title by means of a sale by private treaty.
The buyer stores the reserved goods for the seller free of charge. He must insure them against the usual risks, such as fire, theft, and water damage, to the customary extent. The buyer hereby assigns his claims for compensation against insurance companies or other liable parties for damages of the aforementioned types to the seller in the amount of the invoice value of the goods; the seller accepts the assignment.
All claims as well as the rights arising from the retention of title to all special forms stipulated in these conditions shall remain in force until complete release from contingent liabilities which the seller has entered into in the interest of the buyer.
12. Intellectual property and know-how
All documentation, illustrations, drawings, models, molds, etc. that are made available to the buyer by the seller or that are used for the buyer remain the property of the seller.
The buyer is not entitled to use these for purposes other than for the use of the item to which they relate.
The buyer is not entitled to disclose the documents referred to in paragraph 1 or the data contained therein or otherwise made accessible to him to third parties, unless the seller grants written permission to do so.
The buyer shall indemnify the seller against all claims by third parties arising from intellectual property rights in the event that the seller manufactures products on the basis of drawings, models or samples of the buyer.
13. Notification of defects
The buyer is obliged to inspect every incoming delivery immediately for its proper content. In the event of any deviation from the content specified in the consignment note or delivery note or in the event of any other incorrect or incorrect delivery, the seller (not the representative) must be notified.
The latter must be done within 3 days, insofar as a merchant is supplied for his commercial business.
The obligation to give notice of defects for merchants and non-merchants also relates to recognizable defects in the goods themselves or in the packaging.
14. Liability
In the event of justified complaints, the seller shall, at its discretion, provide subsequent performance of defective goods or replacement delivery. To remedy the defect, the buyer must grant the seller the time and opportunity required at its reasonable discretion; in particular, he must make the rejected goods available; otherwise the warranty shall be void.
If the seller allows a reasonable grace period set for him to expire without remedying the defect or providing a replacement, or if subsequent performance or replacement delivery is impossible or is refused by the seller, the buyer is entitled, at his discretion, to demand rescission of the contract (conversion) or reduction of the purchase price (reduction).
If the buyer demands compensation for damages, this shall be limited in principle to the foreseeable damage typically occurring and in amount to the compensation paid by an adequate business liability insurance, unless the seller or his vicarious agents are guilty of intent or it concerns personal injury or damage to health.
If the seller has assumed a guarantee for the goods, the buyer is only entitled to the statutory rights insofar as the guarantee pursued the purpose of protecting him against corresponding damage. The latter also applies if the buyer is not a merchant who is supplied for his commercial business
Any improper changes and repair work carried out by the buyer or third parties will void the liability for the resulting consequences.
15. Suspension of payments
If the seller becomes aware of changes in the person of the buyer or in the legal form of his company that affect his creditworthiness, or if the buyer suspends payments or if bankruptcy or composition proceedings are opened against his assets or the assets of his company, then all existing claims of the seller become due immediately without further notice.
In the event of suspension of payments or the opening of insolvency proceedings, the buyer is obliged to immediately separate and identify the goods still in their possession for the seller. The seller must be informed of this immediately.
16. Place of performance and jurisdiction
The place of performance and exclusive jurisdiction for deliveries and payments (including check and bill of exchange claims) as well as all disputes arising between the parties shall be, insofar as the buyer is a registered merchant, a legal entity under public law or a special fund under public law, the main office of the seller, namely St. Goarshausen.
Regardless of the amount in dispute, the Regional Court of Koblenz shall have exclusive jurisdiction in the event of a dispute.
17. Prohibition of set-off and assignment as well as retention
The buyer is not entitled to set off counterclaims against claims of the seller, unless these are legally established or are undisputed or acknowledged by the seller.
The assignment of payment claims, including claims for damages of the buyer against the seller, is only effective with the prior consent of the seller. If the seller has no legitimate interest worthy of protection in the prohibition of assignment, he is obliged to declare his consent to the assignment.
The buyer may only assert a right of retention against claims of the seller if this claim arises from the same contractual relationship.
18. Final provisions
Should individual provisions of the above conditions be invalid or not applicable for any other reason, the remaining provisions shall remain valid.
