General Terms and Conditions of Sale and Delivery
1. Scope of Application
1.1. The following General Terms and Conditions of Sale and Delivery shall primarily apply to all orders and contracts for delivery accepted by us.
2.2. The customer's adverse general terms and conditions shall not apply.
2. Offers and Orders
2.1. Our offers are subject to change without notice. Tender documents such as illustrations and drawings are only approximately true to scale, weights and measurements which were indicated are approximate values unless we expressly declare the firm and binding effect of statements in writing.
2.2. Orders shall only be accepted upon receipt of written acknowledgement. Diverging acknowledgements shall be considered to be new offers.
2.3. The contractor shall continue to have title to property rights and copyrights for cost estimates, drawings and other documents even after these documents were sent to the customer. Confidential documents shall only be disclosed to third parties upon prior written approval of the contractor.
3. Prices and Payment
3.1. Our prices are excluding packaging but including shipment ex works plus statutory value-added tax. Prices shall be payable within 30 days without cash discount or other discounts. 2 % cash discount can be deducted from the invoice if payments are credited to our account within 10 days from the invoice date. This shall not apply to assembly, delivery of spare parts and repair work payable without deduction within 10 days from the invoice date.
3.2. If the order encompasses delivery and assembly, our prices are for complete in situ assembly including transportation and normal attachment, without packaging. Any assembly services exceeding this scope such as brickwork, mortising, plaster work, carpenting, excavation work, electrical installations, painting, preliminary work and clearing operations, additional attachment, removal of unnecessary fixing devices of emergency scaffolding and emergency railing, drilling in case of the absence of or insufficient chases etc. shall be invoiced separately. Additional costs induced by variations implemented after the submission of the order shall be borne by the customer.
3.3. Within the framework of continuous obligations (maintenance agreements etc.) as well as concerning orders containing a term of delivery and performance exceeding a period of 4 months from the conclusion of the contract, we shall be entitled to increase our prices by 0.06 % for each 1/10 % wage increase in case of statutory wage increases or standard wage increases with view to the 60 % share of wage costs in our prices.
3.4. Payments shall be effected in cash, bills of exchange shall not be expected.
3.5. Any outstanding accounts shall fall due upon an event of delay in payment or cheque protest without further notice on our part. We shall be entitled to assert any security rights and retention rights to which we are entitled, to stop on-going deliveries and work. After a period of grace of 12 working days set by us in writing in a notice in which we threatened to terminate the contract in case of non-compliance has lapsed without effect, we shall be entitled to terminate any existing contract by notice in writing and to invoice services which were rendered at contractual prices and to demand damages. Claims cannot be offset against contested counterclaims which were not the subject of a final and absolute declaratory judgement.
4. Term of Delivery
4.1. The terms of delivery and, possibly, assembly, shall commence upon dispatch of the acknowledgement of order. If we are in a delay, a reasonable period of grace has to be set once.
4.2. Should the delay in delivery or commencement, continuance or completion of the work to be performed by us be based on reasons for which the ordering party has to answer which were not promptly eliminated by it upon written request, we shall be entitled to request damages caused if the contract is maintained, in case of intent or gross negligence, we shall also be entitled to request compensation of lost profits or to set a reasonable period of grace to undertake corrective action vis-à-vis the ordering party on the understanding that we shall be entitled to terminate the contract after the period of grace which we set has lapsed.
4.3. If the terms of delivery stated by us are exceeded, our liability shall be limited to intent and gross negligence. This shall not apply to binding terms of delivery.
5. Passage of Risks
5.1. The risk of degradation or loss of goods (even where partial deliveries are concerned), whether accidental or induced by third parties, is transferred to the ordering party after the goods have left the delivering works, even if we assume shipment costs or transportation and installation. Security measures, such as taking out insurance against theft, breakage, transportation damage, fire and water damage and other insurable risks shall only be concluded at the ordering party's written request and expense. The same applies to protective equipment which is not included in the offer.
5.2. If the delay in delivery is induced by reasons within the ordering party's sphere of influence, risks shall pass to the ordering party on the day of readiness for dispatch.
5.1 shall apply concerning insurance policies and other protective action.
5.3. We shall be entitled to effect partial deliveries.
5.4. If an order for assembly and assembly work was placed, the risk shall pass to the ordering party/customer upon termination of the assembly work to be performed by us, irrespective of the overall official acceptance of the building.
6. Reservation of Title
6.1. The delivered items (conditional sale items) shall remain our property until all claims to which we are entitled vis-à-vis the ordering party have been fulfilled completely.
6.2. If the ordering party resells the conditional sale items within the framework of proper management, it shall assign the claims resulting therefrom vis-à-vis its customer to us. In case of resale of the conditional sale items on credit terms, the ordering party undertakes to reserve ownership vis-à-vis its customer. It shall also assign the rights and claims arising from this reservation of title to us.
6.3. If the conditional sale items are inserted into real estate owned by a third party as significant components by the ordering party or by its order, the ordering party shall assign any rights, claims and accounts receivable vis-à-vis third parties resulting therefrom, to remuneration as well as any accessory rights including granting a debt-securing mortgage in particular, to us.
6.4. If conditional sale items become a significant component of the ordering party's real estate, he shall herewith assign any claims including accessory rights arising from the sale of the real estate or title to real estate to us.
6.5. If the value of security assigned to us exceeds the value of outstanding accounts by a total of more than 10 % for a longer period of time, we shall be obliged to correspondingly release security of the ordering party's choice at the ordering party's request.
7. Warranty
7.1. We shall assume liability for our products and services within the framework of legal regulations (BGB [German Civil Code]). The following shall furthermore apply:
7.2. If there is a delay in dispatch, erection, execution of assembly work, commissioning for which we do not have to answer, we cannot be held liable for consequential damages caused by the delay. Unless this delay is based on gross negligence, our liability shall become statute-barred pursuant the agreed passage of risks pursuant to No. 5 within 12 months but after the statutory period of limitation has lapsed at the earliest.
7.3. We shall not be held liable for damage caused by misuse and improper storage, erroneous commissioning and assembly, natural wear and tear, improper maintenance and care, unsuitable operating resources, non-conforming building and assembly operations if they were not carried out by us, unsuitable sub-grade basement soil, chemical, electro-chemical or electric influences outside our sphere of responsibility and if they were created after use of substitute material or parts.
7.4. The ordering party, after reaching understanding with the supplier, must grant the required time and opportunity (time period) for the realisation of improvements and replacement part deliveries which the supplier considers necessary, as a failure to do so will free the supplier of all liability for any resulting consequences. The ordering party is only entitled, whether personally or through the actions of a third party, to remedy deficiencies and demand compensation from the supplier for expenses incurred as a result in urgent situations where occupational safety is endangered, or to prevent damage of a relatively greater order occurring. The supplier must be informed immediately should the latter cases mentioned arise. The ordering party is, within the bounds of the governing legal requirements and regulations, entitled to withdraw from the contract if the supplier fails to realise improvements or replacement part deliveries resulting from deficiencies by a reasonable agreed deadline (legally-acceptable cases of exception must, however be taken into consideration). The ordering party is merely entitled to demand a reduction in the contractual price where a minor deficiency is involved. Demands for a reduction in the contractual price will not be entertained under any other circumstances.
7.5. The assertion of apparent defects after official acceptance shall be precluded. Notification of non-apparent defects shall be made immediately upon discovery.
7.6. Insignificant acceptable deviations in the dimensions and workmanship of the goods supplied or work performed by us which do not affect contractual use shall not justify complaints, in particular as far as follow-up orders are concerned, unless the compliance with dimensions, shades of colours and technical properties were explicitly agreed and the deviations constitute a degradation of value.
7.7. Other claims, in particular claims for damages, lost profits and contractual penalties, shall be precluded unless they are based on wilful or grossly negligent non-compliance with contractual provisions on our part. This shall not affect claims for damages pursuant to the law on liability for non-conforming products.
7.8. We shall not be obliged to remedy defects if and for as long as the ordering party retains more than four times the costs which are likely to be incurred for remedying the defects from our outstanding accounts. Furthermore, we shall not be held liable for non-conformities if the ordering party itself or a third party has carried out alterations or repair work at products supplied by us or work performed by us without our prior written approval.
8. Place of Performance
Tübingen shall be the place of performance for all rights and obligations arising from the contractual relationship, delivery and payment in particular. If an order for delivery and assembly was placed with us, the place of performance of the services to be rendered by us shall be the building site.
9. Legal Venue
Tübingen shall be agreed as the legal venue if the ordering party is a merchant possessing full commercial capacity or a legal entity under public law or if it does not have a general legal venue in the Federal Republic of Germany.
10. Additional Terms and Conditions for Contracts with Merchants, Legal Entities Under Public Law and Special Assets Under Public Law
10.1. Price, Payments
The ordering party shall not be entitled to retain payments and offset them against counterclaims contested by the supplier.
10.2. Warranty
In situations where we are obliged to remedy defects, we shall carry out subsequent improvement or substitute delivery in accordance with the supplier’s specifications for parts which prove deficient within 24 months of delivery (or 12 months where multiple shifts are involved) and where such deficiencies are a result of a circumstance occurring prior to the transfer of risk. We should be notified immediately in writing of any deficiencies detected. Replaced parts remain our property. Our liability for products from other manufacturers supplied by us is limited to the transfer of liability claims which can be made by us against the supplier of such products. In cases where we are obliged to remedy defects, we shall bear the direct costs for substitute deliveries or subsequent improvement, along with shipment and any reasonable installation costs and including the required remuneration for labour involved. Costs are borne by the ordering party in all other cases. Further claims on the part of the ordering party, in particular those relating to indirect damages, shall not be entertained, unless they can be traced back to wilful intent or gross negligence on our part.
Tübingen, January 2002
Schmalenberger GmbH + Co. KG
(File-Srv/2002AGB.e.doc)
