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.