--- General Terms and Conditions ---
General Terms of Sale, Delivery and Installation, Schuster Sondermaschinenbau GmbH, Böbing
These following conditions shall apply to all business transactions with persons who, when entering into the contract, act in exercise of their commercial or independent professional activity (entrepreneurs) and to business transactions with legal persons under public law or special funds under public law.
1. Applicable Conditions
All our deliveries and services are subject to these conditions as well as to any other contractual agreements which may have been entered into. Purchasing conditions of the buyer shall not become part of the agreement even if the order is accepted by us.
Our offers are subject to change without notice, unless explicitly stated otherwise in writing.
3. Subject Matter of Agreement
3.1 Our written order confirmation shall be decisive for determining the extent of our delivery obligations. In case of a binding offer by us and its acceptance within the time limit, the offer shall be relevant even if there is no timely acknowledgment of the order. Collateral agreements and changes require our written confirmation.
3.2 Our product information and descriptive material such as illustrations, drawings, sketches and measurement descriptions shall not become subject matter of the agreement and are only approximately decisive, unless we have explicitly designated them as binding. If changes are made to products after submission of an offer as a result of continual technical development, then we shall have the right to deliver the technically modified versions of such products.
3.3 Any authorization/approval which may be necessary for the export and the use of the products to be delivered shall be obtained by the buyer at his own expense. If we assist the buyer in any such endeavours, the buyer shall reimburse us for all costs incurred to us.
3.4 In the event that software is included in our delivery, we shall grant the buyer a non-exclusive right to use such software, including the corresponding documentation. The software is furnished for the purpose of being used on the delivery item for which it was intended. Use of the software on more than one system is not permitted.
The buyer is only authorized to copy, revise, translate or convert the software from object code to source code to the extent permitted by law (see §§ 96a et seq. German Copyright Act). The buyer agrees not to remove or alter the manufacturer's printed instructions - especially copyright information - without our prior and express permission. The buyer is permitted to make two backup copies. All other rights relating to the software and its documentation including copies thereof shall remain with us or the software supplier. The granting of licenses is not permitted.
4. Conditions regarding Export
In the case of deliveries to other countries, the offers and order confirmations are subject to the condition precedent that any export authorization which may be required is granted by the respective competent authorities.
5. Copyright, Confidentiality
We shall reserve property rights and copyrights to samples, cost estimates, drawings, models, templates and similar information of physical and nonphysical nature - also in electronic form. They may not be disclosed to third parties. Copies or other forms of reproduction shall only be made for the agreed purpose. Neither originals nor copies may be issued or distributed in any way to third parties.
Any information and documentation specified as confidential by the buyer shall only be passed on to third parties with the buyer's agreement.
Unless otherwise stated, prices shall be understood to be ex-works including loading, but exclusive of packaging and other costs. Value-added tax shall be added to the prices at the applicable rate.
For any services that are provided more than four months after signing of the agreement, we may charge a reasonable overhead surcharge on our invoices for any wage or material increases which may have occurred after the submission of the offer.
7. Payment, Late Payment, Withholding of Payment, Withdrawal
7.1 Unless otherwise agreed, net payment without any deductions must be made to our payment office immediately upon receipt of the invoice.
7.2 We are not obliged to accept bills of exchange. Any exchange rate or bill expenses shall be borne by the buyer. If a bill of exchange is not honoured, all of our claims against the buyer shall immediately become due.
7.3 In the event of late payment, we shall be entitled to charge default interest amounting to 5 percentage points above the basic rate of interest, but at least 8 %. This shall not affect the right to provide evidence of a higher amount of damages.
7.4 For each payment reminder, a cost of EUR 10.00 will be added to the invoice.
7.5 The buyer shall not be entitled to withhold payment or to offset payment with counterclaims disputed by us. If, after conclusion of the agreement, it should become evident that our entitlement to payment may be at risk due to buyer’s lack of performance, we may refuse to provide services and an appropriate limitation period may be set during which the partner must either make payment concurrently with delivery of the goods or must provide a security. In the event that the buyer refuses to perform as demanded or the period expires with no result, we shall be entitled to withdraw from the agreement.
8. Delivery Date, Delivery Period, Delay in Delivery
8.1 Delivery date and delivery period shall only be binding if they are designated as such in our order confirmation.
8.2 The delivery period begins at the earliest with the dispatch of the order confirmation, but not before receipt of the drawings approved by the buyer, the release of documents to be procured and the information necessary for the execution of the order, the clarification of all commercial and technical questions between the contracting parties, as well as the fulfilment of all obligations of the buyer such as an agreed advance payment or due payments from previous deliveries.
8.3 If non-observance of the delivery date is due to force majeure, labour disputes or any other incidents which are beyond our control, the delivery time shall be reasonably extended. This shall also apply in cases where these circumstances occur at our sub-suppliers. We will inform the buyer of the start and end of such circumstances as soon as possible. The aforementioned circumstances shall not be the responsibility of the supplier either if they occur during an already existing delay.
8.4 The delivery date or delivery period shall be considered to have been met, if on the expiration of the delivery period, the goods have left our premises or we have advised the buyer that the goods are ready for shipping. Where an acceptance is required - except for justified refusal of acceptance - the date of acceptance, alternatively the notification of readiness for acceptance is definitive.
8.5 Compliance with the delivery period shall be subject to correct and timely delivery on the part of our own suppliers.
8.6. The buyer shall be entitled to withdraw from the agreement without notice if we finally become unable to fulfil all our obligations under the agreement before the transfer of risk. The buyer may also withdraw from the agreement if performance relating to a given order becomes partially impossible and the buyer has a legitimate interest in rejecting partial delivery. If this is not the case, the buyer shall be obliged to pay the percentage of the agreement price which corresponds to the partial delivery. The same shall apply in case of our inability. Moreover, Section 13.2 applies.
8.7 If we are in default with our delivery and this causes damage to the buyer, the buyer shall be entitled to demand payment of a lump-sum compensation for the delay. The lump-sum compensation shall amount to 0.5 % for each full week of delay but at the most to a total of max. 5 % of the value of that part of the total delivery which cannot be used punctually or in accordance with the contract as a result of the delay. If we are delayed with our delivery - under consideration of the legal exceptions - and the buyer grants us a reasonable extension of our delivery deadline, and we fail to comply with this deadline, the buyer is entitled to terminate the agreement in accordance with statutory provisions. Further claims from default in delivery are exclusively determined in accordance with Section 13.2 of these conditions. The buyer shall not be entitled to claim any damages over and beyond this regulation.
8.8 If shipping or acceptance of the delivery goods is delayed for reasons for which the buyer is responsible, then we shall be authorized, beginning one month after notification that the goods are ready for shipment or after notification of willingness to accept the delivery goods, to charge the buyer for expenses we have incurred, however, for a minimum of 0.5% of the invoice amount per month. At the same time, all deliveries and performances made by us up to that point shall become due for payment. After expiration of an appropriate extension granted by us, we shall, however, be entitled to use the delivery items for other purposes and supply the buyer at an appropriate later date.
8.9 Partial deliveries shall be permissible to the extent that they are reasonable for the buyer.
9. Receipt, Acceptance, Passage of Risk, Default in Acceptance
9.1 At the very latest, risk passes to the buyer when the delivery goods leave our plant, including cases where partial deliveries are made or where we have agreed to other performances such as assuming responsibility for shipping costs or delivery and installation. To the extent that a formal acceptance must take place, the acceptance date shall be decisive in determining the passage of risk. Acceptance must be carried out promptly on the acceptance date or alternatively promptly after our notification of readiness for acceptance. The buyer shall not be entitled to refuse acceptance of the delivery items if only minor quality defects are found. We are entitled to insure all deliveries against transport damage at the buyer's expense. In the event that transport damage to a delivery is discovered upon arrival at the buyer’s premises, or if such damage becomes evident later, the buyer is obliged to immediately demand a written explanatory report from the carrier.
9.2 If shipping and/or acceptance of the delivery items is delayed or does not take place, due to circumstances which we cannot be responsible for, the risk passes to the buyer as of the day of the notification of readiness to ship or as of the day of the willingness of the buyer to accept the delivery items. We are obliged to take out the insurance which the buyer requests at the buyer’s expense.
9.3 In the event that we damage material delivered to us by the buyer or render such material unworkable, in particular in the course of carrying out processing or repair work, we shall only be liable if the damage was caused by gross negligence, however, such liability shall be limited to an amount of 10 % of the value of the processing value, provided that no legally prescribed regulations dictate unlimited liability.
9.4 We insure customers’ material which is stored at our premises against fire, at our own expense. Buyer shall apply in writing for any additional insurance at his own expense.
10. Export to the USA and Canada
We prohibit the direct and indirect export of our products to the USA and Canada.
The buyer shall indemnify us against any claims that may be asserted against us in the USA and Canada as a result of exports to these countries, even if we agree with such exports.
11. Retention of Title
11.1 We reserve the right of ownership and the right to dispose of the deliveries until receipt of all payments from the contract for delivery and any other contracts previously made. Cheques and bills of exchange, as well as receivables from ongoing or current invoices, are included in these claims. If we are made liable for bills of exchange in connection with the payment, the present retention of title shall not expire unless any claims against us arising out of the bill of exchange are excluded. The buyer may use the delivered products within the scope of his ordinary and proper course of business prior to full payment of the aforementioned accounts receivable, unless a prohibition of assignment was or is agreed with third parties with respect to the claims assigned to us in advance under Section 11.4. Prior to full and complete settlement, pledging and assignment as security shall be prohibited and resale shall only be permitted for resellers in the course of their usual business, under the condition that the reseller receives payment from his customers and forwards it to us immediately. Any intervention costs which may arise shall be borne by the buyer.
11.2 In the event of attachment, confiscation or other dispositions or interventions by third parties, the buyer is obliged to notify us immediately.
11.3. For behaviour of the buyer that is contrary to the agreement, in particular in case of delayed payment, we are entitled to take back the delivered goods after having sent a reminder and the buyer shall be obliged to return the goods.
11.4 The assertion of the title and the seizure of the goods by us shall not constitute withdrawal from the contract, provided that the German Instalment Purchase Act (Abzahlungsgesetz) does not apply.
11.5 The buyer assigns all accounts receivable up to the proportionate amount of our invoice to us at this point, including sales tax/VAT with all ancillary rights, which accumulate through resale to customers or third parties. This shall also apply in cases where the buyer has placed the purchase money claim to which he is entitled through resale into a current account arranged with a customer or third party. We will accept this assignment.
11.6 The buyer is hereby authorized to independently collect the preceding accounts receivable which have been assigned, within the framework of his usual order of business, provided that the collected proceeds are promptly forwarded to us. Such authorization to collect the assigned accounts receivable shall be revoked in the event of delayed payment, the application of judicial or extrajudicial insolvency proceedings or in the case of protest of a cheque or bill of exchange on the part of the buyer.
11.7 If the realisable value of the securities in our favour exceeds, either solely for the purpose of this retention of title clause or together with any other securities, our secured claims by more than 10 %, we shall be obliged to release securities of our choice to the same extent, if so requested by the buyer.
11.8 We are entitled to insure the delivery items against theft, fire, water and other damage at the expenses of the buyer unless the buyer furnishes evidence of having taken out the insurance himself. We are obliged to do so if the buyer so demands in writing.
11.9 The application for insolvency proceedings against the buyer shall entitle us to terminate the agreement and to demand the immediate return of the delivery goods.
12. Liability for defects in delivery (Warranty)
For material and legal deficiencies of the delivery, we offer a warranty excluding further claims (subject to the provisions of Article. 13) - as follows:
12.1 All those parts that prove to be defective due to circumstances or causes which occurred prior to passage of risk must either be reworked free of charge or replaced at our choice. The detection of such defects must immediately be reported to us in writing. Replaced parts shall become our property.
12.2 After notifying us, the buyer must grant us the necessary time for all rectifications and replacement deliveries we deem necessary, otherwise we shall be exempt from liability for the resulting consequences. Only in urgent cases where operational safety is at risk or where there is a need to avert disproportionate loss or damage - in the event of which we must be notified immediately - shall the buyer have the right to rectify the defect or to have the defect rectified by a third party and to claim reimbursement from us for the necessary expenses.
12.3 Of the direct costs which arise as a result of the reworking or substitute delivery, we shall bear – provided that the complaint proves to be justified – the cost of the substitute parts, including shipping free border plus reasonable costs for removal and installation, and, within the Federal Republic of Germany, if this can reasonably be demanded according to the circumstances of the individual case, the costs for any provision of required technicians and support personnel. In all other cases the buyer shall bear such costs. Replaced parts become our property.
12.4 The buyer shall have the right to terminate the agreement within the framework of legal regulations, if we, subject to legal exceptions, fail to repair the material defect or to make a substitute delivery within a suitable extended period of time agreed between the parties. If the defect is only of a minor nature, the buyer shall only be entitled to reduce the purchase price. In all other cases, the right to price reductions shall be excluded.
12.5 In particular, no warranty will be assumed in the following cases:
Improper or incorrect use, incorrect installation or commissioning by the buyer or third parties, normal wear, incorrect or negligent treatment, improper maintenance, use of unsuitable operating materials or electromagnetic influences, provided that we are not responsible for such conditions.
12.6 If the buyer or a third party carries out repair or overhaul work in improper manner, we shall not be liable for any resulting consequences. The same shall apply for modifications made to the delivery item without the supplier’s prior consent.
12.7 If parts or materials are delivered by the buyer for the purpose of processing or in case of provision of materials which are necessary for the completion of a job order, then, unless otherwise agreed upon, there shall be no incoming goods inspection for non-obvious defects for such parts or material.
12.8 If computer software is included in our scope of delivery, the following shall apply in addition:
a) We warrant that the software provided does not contain reproducible faults. This only applies provided that the software is used in a manner consistent with the contract.
b) The buyer has to notify us immediately if program errors are discovered.
c) Reported errors are to be remedied by us. If the correction of an error proves to be impossible, then we will be responsible for the development of an alternative solution to the problem.
d) We do not guarantee that the software provided meets the customer's specific requirements.
Deficiencies in Title
12.9 If the buyer wishes to make an order for a certain product to be manufactured by us, it is the sole responsibility of the buyer to ensure that any production or use of the product does not constitute a breach of industrial property rights or copyrights of third parties. Should the use of the delivery item cause an infringement of industrial property rights or copyrights of third parties, we shall – at the request and expense of the buyer - modify the delivery item in such a way that the infringement of the industrial property rights no longer exists. If this is not feasible on commercially reasonable terms or within a reasonable period of time, the buyer shall be entitled to withdraw from the agreement. In this case, the buyer is committed to compensate our costs incurred to this point in time according to contractual requirements. Furthermore, the buyer shall indemnify us against any undisputed or legally enforceable claims of the respective owners of industrial property rights.
13.1 If, due to our fault, the delivery items cannot be used by the buyer as specified in the agreement, because of negligent or incorrect performance, or our violation of any other subordinate contractual obligations, then the provisions stipulated in Articles 12 and 13.2 shall apply accordingly, with the exclusion of further claims on part of the buyer.
13.2 We shall only liable for damages not caused to the delivery item itself, for whatever legal grounds, in case of:
b) gross negligence of the owner, committees or executive bodies;
c) culpable injury to life, body and health;
d) defects that we fraudulently concealed or the absence of which we have guaranteed;
e) defects or deficiencies in the delivered item to the extent liability exists under the German Product Liability Act for personal injury or property damage in connection with privately utilized items.
In case of culpable violation of essential contractual obligations, we shall also be liable for gross negligence on part of non-executive employees or for minor negligence, whereby the latter instance shall be limited to the reasonably foreseeable damage that is typical of the contract.
Any further claims are excluded.
14. Our claim for damage compensation in the event of non-performance on part of the buyer
If we are entitled to demand compensation of damages based on non-performance, the lump-sum minimum damage to be reimbursed shall amount to 20 % of the agreed price exclusive of value-added tax. The amount of compensation is to be increased if we can provide evidence of larger damages and correspondingly to be decreased if the buyer can provide evidence that the damage was lower.
15. Assembly, Commissioning
Insofar as the scope of delivery includes assembly and/or commissioning, the following supplementary conditions shall apply:
Unless otherwise agreed upon, services are invoiced according to the amount of time needed, using our current rates for assembly. Additional payment shall be made for material costs, as well as for travel expenses of our personnel, transport expenses, customs, custom duties, transport insurance for luggage and tools, expenses for the procurement of identification documents as well as for other out-of-pocket expenses such as telephone charges etc.
The buyer is obliged to confirm the working, travelling and waiting time required by the assembly personnel, as well as their work output, on the assembly registration forms. If the buyer refuses certification, or if for some other reason it is not possible for our personnel to obtain the certification, invoicing shall be carried out on the basis of assembly registration forms filled out by our personnel. Proof for deviations from our assembly registrations forms are the responsibility of the buyer.
Work services which we carry out and which are not included in the original job order, have to be compensated at our respective cost rates. The same shall apply for any additional costs incurred to us, if, for reasons we are not responsible for, our work services are interrupted.
15.3 Assistance by the Buyer
The buyer shall provide technical assistance when carrying out services at his own expense. In particular, the buyer is obliged to
a) provide the necessary, suitable personnel for the time required for assembly work,
b) provide the necessary information pertaining to covered electricity cables and gas and water pipes or other similar installations, as well as needed information about the structural statics, prior to the beginning of assembly work and without being asked,
c) provide the required dry, lockable and theft-proof rooms for the storage of tools as well as social rooms for the service personnel,
d) protect the assembly site and the materials from damaging influences of any and all kinds,
e) - in the event that the assembly site is located outside the Federal Republic of Germany - acquire any required visas and work permits for the assembly personnel, promptly procure any prerequisite authorization from public authorities or any other permission which may be required for the carrying out of the work or setting up of equipment or installations, inform our assembly personnel as to all obligations (reports etc.) to local authorities as well as regarding the existing safety regulations; and to assist them in acquiring any needed permits which would guarantee them mobility in the country or to return home at any time in the possession of their property.
The buyer is obliged to accept assembly once he has been notified of its completion. The equipment and assembly work shall be considered as accepted after a successful test run, even if the buyer has not assisted the test run despite being invited. If the equipment has been entirely or partially put into use or if the inspection and acceptance has been delayed and we are not responsible for that, then the acceptance shall be regarded as granted after a period of two weeks subsequent to notification of completed assembly. The use of the equipment prior to acceptance may only take place with our express consent; the parts already installed in the equipment are deemed accepted if so used.
16. Time Limitations on Claims
All claims of the buyer - for whatever legal reason – shall expire after 12 months. The statutory time limits apply for intentional or malicious behaviour, as well as for claims under the German Product Liability Act.
17. Legal Validity of the Agreement
Should any provision of this agreement be or become legally invalid, the validity of the remaining provisions shall remain unaffected. In such an event, the parties shall be obliged to replace the invalid provision with a legally permissible provision which is compatible with the other provisions hereof and which comes as close as possible to the economic intentions of the parties.
18. Jurisdiction, Applicable Law
The laws of the Federal Republic of Germany shall apply with the exception of all international contracts relating to the sale of goods.
Place of performance for all deliveries and services shall be the delivery address stated by us. If such address is lacking and cannot be inferred from the circumstances, place of performance shall be our goods receiving department.
Performance for all payments shall be our place of business and any location where we hold an account at a financial institution.
The place of jurisdiction shall be Schongau, Germany. However, we shall also have the right to take legal action at the buyer’s registered office.