TERMS AND CONDITIONS OF SALE OF THE SCHUBERTH GROUP
(Last Revised March 2011)
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.
4. Price, Packaging, Shipment, Insurance
Our 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.
1) The resale of merchandise which we have supplied is permissible solely to end consumers and to retailers who also procure merchandise from us or our national importers in the pertinent countries. We will notify the customers upon request whether we supply merchandise to a retailer.
2) The sale of our products via platforms such as eBay, Amazon and comparable sites as well as via Internet sites which do not provide a presentation of the merchandise emphasizing the high quality and corresponding to the brand image of our products is prohibited.
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.
10. 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.
11. 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.
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.
13. 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.
14. Final Provisions
This contract shall be construed under the laws of the Federal Republic of Germany. UN purchasing law shall not apply.
General Terms and Conditions of Purchasing for Schuberth Group
(Last Revised October 2015)
Any orders of goods or services placed by the Customer shall be subject to the Terms and Conditions of Purchasing below unless otherwise regulated in individual agreements. The Terms and Conditions of Purchasing below apply with respect to companies, public-law legal entities, and public-law special assets. Objection is hereby raised to the Contractor’s general terms and conditions of business, which shall not be deemed accepted even if deliveries / services are accepted or payment is effected.
1. Definition of Supply and Performance
1.1. The definitions of supply and performance as shown in the order issued by the Customer (including any and all attachments) shall apply.
1.2. The Customer may request technical modifications of the goods even after conclusion of the contract, provided that such requests are reasonable for the Contractor. In the event of such a modification of the contract, the effects of the change, in particular with respect to additional or reduced costs and the specification of deadlines, shall be given reasonable consideration.
1.3. Retroactive oral / telephone amendments shall become effective only if and when they have been confirmed in writing by the Customer’s Purchasing Department. The above provision shall also apply to this provision for written form.
2. Processing of Orders
2.1. The Contractor shall give written confirmation (especially via e-mail to auftragsbestaetigung(at)schuberth.de) of the order to the Customer within 7 calendar days after the day of the incoming order. The order shall be deemed as accepted even it has not been confirmed during the mentioned period by the Contractor and no objection has been raised to it.
2.2. Delivery and Shipping
2.2.1. Unless otherwise agreed, delivery shall be made free receiving center at the Contractor’s expense and free of any and all charges. The Customer shall be notified immediately of each and every dispatch. The outside of the packaging, the notification of dispatch, and the delivery note must display the Customer’s order data, in particular the order number, shipping address, article name, quantity/weight information, and the production date/batch number, and, if necessary, storage instructions and material shelf life. The delivery note shall be enclosed in duplicate with the consignment. The Contractor shall be entitled to return, at the Contractor’s expense, consignments which have not been properly carried out/announced.
2.2.2. Deliveries may be made only in the time from 6:00 a.m. to 3:00 p.m., Monday to Friday (but not on legal public holidays and days on which the Customer’s company is closed).
2.2.3. The Contractor undertakes to determine, before accepting an order, whether the goods or their components designated in the order must be classified as hazardous goods (e.g., as paints, adhesives, chemicals, or goods which are flammable, oxidizing, explosive, combustible, poisonous, radioactive, corrosive, or tend to self-heating). If this is the case, the Contractor shall notify the Customer, comply with any and all relevant, current, domestically and internationally applicable regulations (e.g., GefStoffV, GGVS, GGVSee, BioStoffV, UN/ICAD, IATA, EVO/RID, KVO/ADR) and any and all regulations of the destination country which deviate or apply additionally, and prepare in duplicate any and all required declarations (e.g., the pertinent EU safety data sheets), filling them out correctly and attaching a legally binding signature, and send them to the Customer as quickly as possible.
2.3. Transfer of Title and Risk
2.3.1. The risk of accidental loss and of accidental deterioration of the goods shall be borne by the Contractor until the goods have been surrendered to the Customer. If the goods are returned in the event of a warranty claim, the Contractor shall bear the risk as of the conclusion of the loading for return by the Customer.
2.3.2. The title of ownership shall transfer to the Customer upon the conclusion of the unloading procedure at the receiving center. Any and every retention of title is hereby excluded.
2.3.3. The title to production means (e.g., tools), which are used at the Contractor’s business for the manufacture of supplies and services and paid for by the Customer shall, upon payment by the Customer, be transferred to the Customer pursuant to Sections 929, 930 BGB (German Civil Code); such means shall be marked as the Customer’s property, maintained, and adequately insured by the Contractor. The production means shall be surrendered to the Customer immediately upon his request. If and when the Contractor has a title of co-ownership, the means shall be surrendered versus payment of compensation for the share of co-ownership. If the Parties are in disagreement regarding the share of co-ownership, the Customer may avert the Contractor’s right of retention by providing a surety ship in the amount of the disputed share. The Contractor may not use these production means for third parties without the Customer’s consent.
2.4. Incoming and Outgoing Goods Inspection, Right to Access
2.4.1. The Contractor may dispatch only parts which have been inspected and approved; it is therefore unnecessary for the Customer to conduct a detailed incoming goods inspection.
2.4.2. The Customer shall, after prior announcement, be allowed unrestricted access to the relevant manufacturing facilities during the Contractor’s usual hours of business for the purpose of inspecting the manufacturing status and/or the Contractor’s quality processes.
3. Schedule Agreements
3.1 The delivery and performance dates shown in the order shall be deemed binding dates of receipt at the specified shipping address. If and when the Contractor recognizes that compliance with the agreed dates will not be possible, he shall notify the Customer immediately in writing, stating the reasons for and duration of the delay. If and when a contractual penalty has been agreed for overdue delivery, said penalty shall be without prejudice for more extensive legal claims by the Customer. The Customer may request payment of the contractual penalty until the final payment has been made or offset the penalty against any due payments, even if and when performance has been accepted without reservation.
3.2 Natural disasters, strikes, lock-outs, government actions, transport and operational disruptions in the Customer’s plant or in the environment of his suppliers resulting in restriction or shut-down of his production or which hinder him from the removal of the ordered goods shall release the Customer from his acceptance obligations, if and when said hindrance continues for less than two months. Contactor’s claims for consideration and damage compensation shall be excluded in the above cases and for this period of time.
The agreed prices are binding and fixed for the duration of the order, free works or specified delivery address, including environmentally friendly package usual in the trade, and transport insurance.
5. Terms and Conditions of Payment
5.1. Invoices must include the Customer’s order data, especially the order number. Upon submission of the invoice at the latest, the Contractor shall provide the certificates of origin requested by the Customer, e.g., contractor declarations, movement certificates, and test certificates, filled out completely and signed. The above provision shall also apply with respect to certificates for turnover tax for deliveries / services provided abroad and within the EU.
5.2. Payment shall be made subject to a cash discount of 3% within 21 days as of the dates of the submission of the invoice/certificate of origin and performance of the service; however, payment shall not be deemed acknowledgement of the delivery/service in accordance with the contract.
6. Liability Regulations
6.1. Complaint of Defects/Warranty
6.1.1. The Contractor warrants that the delivery / service is free of defects, suitable for the agreed purpose, and has the characteristics agreed in the order. The Contractor warrants that wear parts will, as a minimum, perform the usual number of operating hours without any defects. The Contractor warrants that his delivery/performance is in compliance with, in particular, the rules of technology and the state of science, the regulations and guidelines issued by the legislature, the supervisory authorities, and professional organizations, and the pertinent EU directives regarding design, accident prevention, and environmental protection, and that he has successfully conducted any and all environmental compatibility tests required for the product type.
6.1.2. The warranty period shall be 36 months as of delivery to the Customer. The above period shall also apply to spare parts as of their installation/conclusion of the subsequent improvement. The warranty period shall be extended by any idle times of the Customer’s product if and when they have been caused by defects and work for the remedy of defects.
6.1.3. The Customer shall submit complaint of obvious transport damage or defects without delay, at the latest 5 days after their discovery (see also 2.4.1) In this respect, the Contractor waives the plea of a delayed complaint of defects. Upon request, the Contractor shall immediately remedy any defects by, at the Customer’s discretion, eliminating the defects or delivering a defect-free object. The Contractor shall bear any and all expenses incurred by the subsequent performance, in particular removal and installation costs, transport costs, and disposal costs. Moreover, the Customer shall be entitled to the statutory claims to rescission, reduction of the purchase price, and damage compensation, provided that the legal conditions have been fulfilled.
6.1.4. After setting a subsequent period of 2 weeks, the Customer shall be entitled to eliminate the defects himself at the Contractor’s expense if and when there is an urgent need for action or in cases of the Contractor’s delay in eliminating the defect, unreasonableness of subsequent performance by the Contractor, or the Contractor’s refusal to eliminate the defects. The above provision shall be without prejudice for the Customer’s legal claims.
6.2. Product Liability
6.2.1. The Contractor shall indemnify and hold harmless the Customer from and against any damage compensation claims which may be asserted against the Customer owing to a product defect for which the Contractor is accountable.
6.2.2. The Contractor shall, upon request, provide to the Customer proof of the existence of a product liability insurance policy with a sufficient sum insured. If and when such proof is not submitted or the Contractor refuses to increase the sum insured by a reasonable amount as proposed by the Customer, the Customer shall be entitled to cancel the contract and request damage compensation.
7. Third-party Rights
7.1. The Contractor warrants that any and all goods are free of third-party industrial property rights and that patents, licenses, and other third-party industrial property rights have not been infringed upon, in particular by the delivery and use of the goods.
7.2. The Contractor shall indemnify and hold harmless the Customer and the latter’s customers from and against any and all third-party claims based on any infringements of industrial property rights and shall also bear any and all costs incurred by the Customer in this context. The Customer shall, in particular, be entitled to obtain the approval to use the relevant industrial property rights from their rightful holder at the Contractor’s expense.
8. Extraordinary Right of Termination
The Customer may at any time cancel the contract, in whole or in part, if and when out-of-court or court composition or bankruptcy proceedings are initiated against the Contractor’s assets.
9. Secrets/Industrial Property Rights
9.1. The Contractor shall be obligated to treat any and all business information which is not manifest and which becomes accessible to him through the contractual relationship to the Customer as a business secret and not to disclose said information to third parties during, or after termination of, the contractual relationship.
9.2. The Customer reserves any and all titles, copyrights, and other intellectual property rights to any and all drawings, models, tools, production means, design plans, formulas, and any and all other information and objects made available to the Contractor for the performance of the order as well as the know-how embodied therein. The information and objects thus provided may be made accessible to third parties only for the purpose of performing the order and only with the Customer’s prior written consent. The Contractor may use the information and items solely for the performance of the relevant order and shall return them immediately at the Customer’s request or, in general, after performance of the order. The Contractor shall care for them meticulously, keep them safely, maintain them, identify them as the Customer’s property, and provide reasonable insurance cover for them.
10.1 The Contractor promises to maintain the availability of any and all spare parts required for the function of the ordered goods / service for a period of 10 years from the time of delivery. If the Contractor is no longer able to fulfill this obligation, he shall notify the Customer in writing immediately. If and when the Contractor is in breach of the obligation to maintain the availability of the spare parts, the Customer shall be entitled to replicate, at the Contractor’s expense, the parts which are no longer available. The Contractor shall aid and support the Contractor in every respect in this endeavor, e.g., by providing production drawings and obtaining any licenses for property rights which may be necessary.
10.2 The assignment of claims to payment from this contract and the engagement of subcontractors or suppliers shall be subject to the Customer’s prior consent. Any and every consent shall be without prejudice for the legal responsibilities. 10.3 The INCOTERMS as most recently revised at the time of the conclusion of the contract shall be authoritative for the interpretation of commercial clauses.
10.4 Place of performance for deliveries and services shall be the destination specified in the order.
10.5 The Customer has implemented an environmental and energy policy and does expect that the contractor respects this during supply and or during manufacturing.
10.6 German law shall apply; the application of the UN CISG shall be excluded. Official language of the contract is German.
10.7 Should a provision of these General Terms and Conditions of Business be or become invalid, in whole or in part, the validity of the remaining provisions shall not be affected.
10.8 The Parties agree to submit to the jurisdiction of the courts of Magdeburg.
10.9 However, the Customer reserves the right to bring legal action against the Contractor at any other court which has jurisdiction.