Sales and Delivery Conditions
The company Kai Uwe Schneider, Transport- und Lagerbehälter e.K.
§ 1 General Information
Our deliveries, which also include services, advice, and ancillary services, will only be rendered based on the following conditions. Differing conditions from the respective business partners shall be hereby expressly forbidden. This shall also be overruled in case we do not object to them after we receive them.
The Sales and Delivery Conditions shall apply in all cases in which differing agreements were not made and were especially not confirmed in writing by us. Our Sales and Delivery Conditions particularly apply to all subsequent deals as well, even if they have not been explicitly stipulated once more. These conditions shall be deemed accepted at the latest when the goods or services are received.
All agreements that are made between us and the respective customer for the purpose of executing this agreement must be put in writing.
§ 2 Offering and Contract Conclusion
Our offerings and non-binding and non-committal. Declarations of acceptance and all orders require our written confirmation in order to be legally valid; the same applies for amendments, modifications, or supplementary agreements.
We reserve ownership of and copyright for illustrations, drawings, calculations, and other documents; they may not be made accessible to third parties. This especially applies to written documents that are denoted as “confidential”; the customer requires our explicit, written agreement before passing them on to third parties.
The contract is concluded subject to the reservation that the goods are properly and punctually delivered by our supplier. This only applies in case non-delivery is not our fault, particularly in case a congruent covering transaction is concluded with our supplier. The customer shall be immediately informed about the non-availability of the service. Return service shall be immediately provided.
§ 3 Prices, Payment Terms
Unless otherwise stated in the order confirmation, our prices are “ex works” including legal VAT, and exclusive packaging - this is invoiced separately.
Discounts require a special written agreement.
Unless otherwise stated in the order confirmation, the purchasing price is due for payment within 14 days from the invoice without delay. Should the customer fall into arrears, we reserve the right to charge interest on arrears amounting to 8% above the respective base interest rate of the Deutschen Bundesbank per year. In case we are able to prove greater damages due to arrears, we have the right to assert these claims. The customer, however, has the right to prove that no or significantly-lower damage has occurred as a result of the arrears.
Partial deliveries are immediately charged and are each due for payment within the aforementioned payment period, irrespective of whether the entire delivery has completed.
The customer will only have rights of set-off if his counter-claims are legally determined, undisputed, or recognised by us. Moreover, the customer will only be entitled to exercise a right of retention as far as its counter-claim is based on the same contractual relationship.
We have the right, despite the customer’s differing terms, to first offset payments against the customer’s earlier debts. The customer must be immediately informed about payments offset to earlier debts. If costs and interests have accrued, we have the right to first offset the payment to the costs, then to the interests, and lastly to the main service.
A payment shall only be deemed completed when we have the amount. In case of checks, a payment shall be deemed completed when the check is cashed.
If we are made aware of circumstances that place the creditworthiness of the customer in question, particularly if a check cannot be cashed or a customer stops his payments, or when we are made aware of other circumstances that place the creditworthiness of the customer in question, we have the right to declare the remaining debt to be due. In this case, we furthermore have the right to request pre-payments or security deposits.
§ 4 Delivery, Delivery Time
Delivery and service delays due to force majeure and due to events which make delivery significantly difficult or impossible for us - these particularly include strikes, lock-outs, orders by the authorities, etc., even when they have affected our suppliers or their suppliers - are not our fault, even for bindingly-agreed periods and deadlines. You will give us the right to postpone the delivery for the duration of the hindrance plus a reasonable start-up period or to partially or fully withdraw from the contract due to the part that has yet to be completed.
If the hindrance lasts longer than three months, the customer, after a reasonable time extension, will have the right to withdraw from the contract in respect of the non-completed part. Should the delivery time period be extended or if we are relieved of our obligations, the customer cannot derive any claims from damages from such an extension or release. We may only cite the aforementioned circumstances if we inform the customer immediately.
We will be entitled to make partial deliveries and render partial services at any time.
Complying with our delivery and service obligations assumes timely and orderly fulfilment of the client’s obligations.
Should the customer delay acceptance or infringes other duties of cooperation, we will have the right to claim the resulting damages including any possible extra expenses. In such a case, the risk of accidental loss or deterioration of the goods will pass to the customer at the moment in which his delay in acceptance commences.
§ 5 Transfer of Risk
Risk will pass onto the purchaser once the shipment will have been handed over to the person providing transportation or upon the consignment of goods leaving our warehouse for the purpose of shipment. If dispatch is delayed at the request of the customer or if acceptance is delayed, the risk passes to the customer with the notification of the readiness for shipment.
§ 6 Warranty
The customer’s warranty rights are subject to the fact that the customer has properly fulfilled its obligations of notification under § 377 HGB [Commercial Code].
Products are supplied free of manufacturing and material defects; the time period for asserting claims for defects amounts to 1 year from product delivery.
If our operating or maintenance instructions are not followed, changes are made to the product, parts are changed our or consumable materials are used that do not comply with original specifications, then claims for product defects shall be null and void if the customer does not refute a reasonably-substantiated claim that the defect was caused by one of these circumstances.
The customer must immediately notify us about the defect in writing no later than a week after the delivery item has been received. Even defects which cannot be discovered via careful examination within this time period must be immediately reported to us in writing after discovery.
Initial warranty for defective merchandise is initially provided in the form of remedial repair or replacement according to our choice
In case where we earnestly and finally refuse fulfilment, where we refuse to eliminate defects or perform the work again because of disproportionate costs, where the re-performance of the work has failed or is unreasonable for us, the customer can, at his discretion, only demand that the compensation be reduced (reduction) or the contract annulled (withdrawal) and compensation for damages paid within the scope of limitation of liability (§ 7) instead of performance. The customer will have no right of withdrawal in the event of insignificant contractual violation, particularly for insignificant defects.
If the defect is arising from a neglect of duty for which we are not responsible, the customer is not authorised to withdraw the contract.
The rights of the customer regarding defects which do not apply to a building or installation included in the engineering or supervision performance become barred by the statute of limitations in one year starting from the release and acceptance of the installation. The short statute of limitations deadline does not apply if we can be proven attributable negligence in such cases where injuries, health risks, or loss of life are incurred by the customer. Our liability pursuant to the Product Liability Act shall remain unaffected.
In cases of fraudulent concealment of a defect or the assumption of a guarantee for the condition, further claims remain unaffected.
We do not offer any guarantees within the meaning of the law to our customer.
No liability shall be accepted for normal wear and tear.
Warranty claims against us may only be asserted by the customer itself and are not assignable.
If a submitted production drawing is not explicitly refuted, then it is deemed approved. All important functional dimensions must be defined and submitted as test measurements. Measurements that are not marked as test measurements will not be guaranteed by us. The Schneider Company reserves the right to make changes. If no special measurement methods or measurement points are explicitly stated for test measurements, we may freely define these ourselves.
§ 7 Limitations of Liability
Regardless of the nature of the violation of duty or whether it involved a tortious act, claims for damages are excluded, unless they arise from damage caused intentionally or through gross negligence.
In case of infringement, we are only liable for basic contractual obligations. In this case, we are liable for each case of negligence, but only up to the amount of the foreseeable, contractually-typical, immediate average damage. Claims from loss of profit, saved expenses, claims for compensation by third parties, and for otherwise indirect and subsequent damages may not be asserted unless a characteristic attribute guaranteed by us is already protects the customer against such damages.
The limitations of liability and exclusions in paragraphs 1 and 2 do not apply for claims which arise from malicious conduct or in case of liability for the guarantee of constituent elements, for claims pursuant to the Product Liability Act as well as damages arising from damage to life, limb, or health.
To the extent that our liability is excluded or limited, this applies equally to the personal liability of our employees, workers, personnel, representatives, and vicarious agents.
§ 8 Reservation of Title
Until all payment claims (including all current account balance amounts) to which we are entitled from the customer for any legal reason now or in the future have been met, the Schneider Company shall be granted the following collateral, which we will release at our own discretion on demand as soon as the value of the collateral is permanently more than 20% above the value of the amounts payable.
Goods will remain property of the Schneider Company. Processing or transformation is always done for the Schneider Company as a manufacturer, but without any obligation for this. If the (co-) ownership of the Schneider Company should lapse due to combination, processing, or conversion of the delivery item, then it is agreed now that the customer’s (co-) ownership of the uniform good will be transferred to the Schneider Company in terms of value (invoice value incl. VAT). The customer keeps the (co-) ownership of the Schneider Company free of charge. Goods for which the Schneider Company is entitled to (co-)ownership will be called privileged property in the following.
In the event of actions in breach of contract by the contract - particularly payment in arrears - the Schneider Company will have the right to withdraw from the contract and demand the retained goods.
The customer will have the right to process the retained goods within the course of orderly business practices and to sell provided that he is not in arrears. Pledging or collateral assignments are inadmissible. The claims resulting from further sale or a further legal justification (insurance, unlawful act) with regard to reserved goods (including any balance claims from account current) will now be assigned as a security to the fullest extent to the Schneider Company by the customer. The Schneider Company revocably authorises the customer to collect the assigned claims under his name on his own account. This right to forfeit may only be revoked if the customer fails to meet his payment obligations. The customer in this case is no longer authorised to install, inseparably mix, or process the reserved goods.
In the event of access of third parties to the reserved goods, in particular pledges, the customer shall notify them that this is the property of the Schneider Company and notify the Schneider Company without delay so that the same may assert its property rights. If the third party is unable to reimburse us the judicial or out-of-court costs within this context, the buyer shall be liable for these.
The customer will also assign claims to the Schneider Company that accrue vis-à-vis a third party by connecting the goods with real property. This includes the right to grant a mortgage with priority above others. We will accept this transfer.
If the reserved goods are installed by the customer as an essential component of a property, the customer shall now assign the claims resulting from the sale of the property or property rights to the amount of the value of the reserved goods with all subsidiary rights and with priority above the remainder. The Schneider Company accepts the transfer.
§ 9 Place of Jurisdiction, Place of Fulfilment, Applicable Right
Unless otherwise stated in the order confirmation, the place of fulfilment will be Breidenbach.
Our head office in Biedenkopf shall be the exclusive place of jurisdiction for all disputes arising from this contract. This also applies if the customer has no general place of jurisdiction in Germany or the usual residence of the customer is not known at the time of lawsuit commencement.
German law shall exclusively apply. The application of the UN Convention on the International Sale of Goods is explicitly excluded.
Apart from that, legal provisions, or customary conditions if not available, apply for quality determination, sorting, identification and price. Unless purchase conditions contradict the existing Sales and Delivery Conditions, our Sales and Delivery Conditions shall exclusively be deemed stipulated.
Should the customer not be the purchaser himself, but rather an intermediary only, he will fully recognise the existing conditions insofar as they affect this legal relationship.
It hereby explicitly explains the assumption of guarantee towards the manufacturer and/or seller in the amount of the merchandise’s value and possible damage caused by delay (including court, attorney, and other costs) in case the seller is unable to collect each outstanding balance from the customer (recipient of merchandise), even with the help of legal measures.
The Schneider Company hereby accepts the intermediary’s declaration of surety so that a valid contract regarding the assumption of guarantee becomes effective. The Schneider Company undertakes to inform the intermediary when efforts to collect the claim were fruitless and furthermore give the intermediary the opportunity to attempt to collect the claim from the customer himself. Should this not be possible for the intermediary within a reasonable time period (3 weeks), then the Schneider Company can use the intermediary under the surety agreement with the effect that the intermediary must pay the outstanding balance from the viewpoint of the surety agreement. In this case, the Schneider Company transfers all of its claims towards the customer to the intermediary in order to give him the opportunity to further collect the claim from the customer.
§ 10 Safeguard Clause
If individual provisions of this contract with the customer including these standard conditions and terms of business should be or become partly or wholly legally invalid, the validity of the remaining provisions will not be affected by this.
The regulation which is totally or partially ineffective will be replaced by a regulation which will approximate the economic success of the ineffective regulation the closest.
Abandonment of the aforementioned General Terms and Conditions must be done in writing. This also applies to the writing clause.